Issue 5: May 2020

PRESIDENTIAL DECISIONS

State of New South Wales v Roberts Concrete Specialists Pty Ltd (formerly Jack Harrison Home Builders Pty Ltd) [2020] NSWWCCPD 20
Apportionment of liability; s 22 of the 1987 Act; just and equitable in the special circumstances of the case; s 22A of the 1987 Act; Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716 applied

Herborn v Spotless Services Australia Limited [2020] NSWWCCPD 24
Section 59A(6)(a) of the 1987 Act – whether a bone graft, pedicle screws and interbody cage to be implanted in surgery involving a lumbar decompression and spinal fusion constitutes an “artificial aid” – Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216, Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281 considered and applied

Nader v A O Design Pty Ltd [2020] NSWWCCPD 19
Alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, credibility and contemporaneous documents: Onassis v Vergottis (1968) 2 Lloyds Reports 403, proof of injury simpliciter, section 289A of the 1998 Act

Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21
Aggregation of impairment – application of common law principles, whether the impairment “results from” the injury – Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52, Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Nicol v Macquarie University [2018] NSWSC 530, Johnson v NSW Workers Compensation Commission [2019] NSWSC 347, Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396, considered; State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003, Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 considered and applied; application of s 322 of the 1998 Act – Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 applied

Trustees of the Christian Brothers v Seif [2020] NSWWCCPD 22
Credit finding – application of Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, alleged factual error, medical evidence – application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844, drawing of inferences

Matthew Thomas Kennedy t/as Matts Bakery Cafe v Workers Compensation Nominal Insurer and Giddens [2020] NSWWCCPD 23
Whether discretion to admit or reject evidentiary statements miscarried; whether material evidence not given any or any proper consideration; whether matter determined on a basis not raised by the parties; whether appeal competent or out of time

Goh v Westpac Banking Corporation [2020] NSWWCCPD 25
Section 11A of the 1987 Act - whether the employer’s performance appraisal and/or discipline of the worker were “reasonable actions”

State of New South Wales v Roberts Concrete Specialists Pty Ltd (formerly Jack Harrison Home Builders Pty Ltd) [2020] NSWWCCPD 20

Apportionment of liability; s 22 of the 1987 Act; just and equitable in the special circumstances of the case; s 22A of the 1987 Act; Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716 applied

Phillips P

20 April 2020

Facts

In about 1970, the worker injured his left knee while working as a labourer/carpenter for the respondent. He fell from scaffolding and landed on his left leg twisting his left knee. He subsequently underwent a meniscectomy.

In 1976, he commenced work for Fire & Rescue (the appellant) as a firefighter. In the course of that employment, the worker sustained injuries to his left knee and lumbar spine. He later underwent an arthroscopy on his left knee and a left total knee replacement.

In 2011, the worker brought proceedings in the Commission seeking lump sum compensation for:

(a) the left knee injury as a result of the nature and conditions of employment with the appellant aggravating a diseased left knee injury deemed to have occurred on 11 January 2007;

(b) the lumbar spine injury in 2003 when he lifted a hose, and

(c) the lumbar spine injury deemed to have occurred on 28 April 2010.

Arbitrator Peacock referred the matter for assessment of permanent impairment by an AMS. The AMS’s MAC was appealed to a Medical Appeal Panel (MAP). The MAP revoked the MAC and issued a new one in its place. Following this, an Arbitrator issued a Certificate of Determination on 7 March 2013, ordering:

(a) the respondent pay the worker lump sum compensation of $6,600 for 30% loss of leg or the greater part thereof resulting from injury in about 1970, and

(b) the appellant pay the worker:

It was further determined the worker suffered 0% permanent impairment resulting from the injury in 2010.

In 2018, the appellant lodged an application in the Commission against the respondent, seeking an order under s 22 and s 22A of the 1987 Act. The apportionment related to weekly payments in the sum of $289,135.54 and medical expenses in the sum of $51,154.65 which had been paid by the appellant.

Arbitrator Beilby (the Arbitrator) declined the application for apportionment. The appellant appealed this decision, seeking apportionment pursuant to s 22 of the 1987 Act. This is claimed at an 80% contribution for both past and future compensation paid to the worker arising out of injury suffered to the left knee in keeping with the assessment of the MAP.

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

(a) in determining that no apportionment as between the appellant and the respondent ought to be made (Ground One), and

(b) by denying the appellant procedural fairness in determining an issue not notified prior to the arbitration or identified as an issue for determination but nonetheless determining that issue against the appellant denying it relief (Ground Two).

Held: The Certificate of Determination dated 16 May 2019 was revoked and the matter was remitted for re-determination by another Arbitrator.

Ground One – apportionment

1. The Commission has a broad power, under ss 22 and 22A of the 1987 Act, to apportion liability to pay compensation between employers where permanent impairment or incapacity results from more than one injury to the worker. ([122])
2. The apportionment provisions apply to any liability arising before or after the commencement of the 1987 Act. Relevantly, if a period of incapacity for work resulted both from injury received before the commencement of s 22 of the 1987 Act and injury received after that commencement, the incapacity for the purposes of determining the amount of compensation payable will be treated as having resulted from the injury received after that commencement. ([123])
3. The test of apportionment involves a series of questions of fact going to what role the given injuries played in the subsequent incapacity and need for treatment and medical expenses. Apportionment under s 22 and s 22A of the 1987 Act involves a two stage process. ([124])

(Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCR 716 (Baltica) applied)

4. The first stage involves a determination of liability to pay compensation. The second stage involves an apportionment of liability, having regard to the evidence relating to the injured worker’s capacity. This requires consideration of issues going to causation of incapacity. If incapacity or permanent impairment suffered by the worker results from more than one injury then liability to pay compensation is to be apportioned in such manner as the Commission determines. The second stage involves a different inquiry to that of determining causation in a dispute about liability. It involves an inquiry as to whether incapacity resulted partially from one injury and partly from another or other injuries. It also involves an inquiry as to “whether the injury caused or materially contributed to the incapacity”. In other words, whether the incapacity was so connected with a number of injuries that as a matter of ordinary commonsense and experience it should be regarded as having resulted from all or any of them. ([125]–[126])

   (Baltica and Rail Services Australia v Dimovski [2004] NSWCA 267 applied)

5. If it is found that incapacity resulted from more than one injury then this would enliven the Commission’s jurisdiction to proceed to the exercise of power to apportion the payment of compensation between two different employers or insurers. That is, once it is found that incapacity results from more than one injury liability to pay compensation “is to be apportioned in such manner as the Commission determines.” ([127])
6. The appellant carried the onus to establish that any incapacity results from the 1970 injury. The appellant must discharge the relevant onus before any apportionment can be made between the employers. ([128])
7. As liability was not a live issue in dispute, the Arbitrator did not determine liability. That is, she did not specifically find whether the weekly compensation paid and medical expenses incurred resulted from the injuries with the appellant or the injury with the respondent or both. The Arbitrator instead proceeded to deal with the question of capacity. She found that in circumstances where there is a lump sum apportionment of 80% to the respondent and there is considerable evidence of a total if not near total incapacity, then it would defy common sense to find that liability could fall to both respondents for that incapacity. She considered the crucial question to be what was just and equitable. ([129])
8. Before determining whether the worker’s incapacity for the periods of weekly benefits as distinct from medical expenses claimed was a result of more than one injury, namely the 1970 injury and subsequent injury in 2006 to the left knee, the Arbitrator proceeded to consider the application of s 22A(1)(a) and whether apportionment was “just and equitable.” In the present matter, the question of apportionment proceeded on the basis of the second limb under s 22A(1)(a), namely whether it was “just and equitable in the special circumstances of the case.” It did not proceed on the basis of apportionment based on the relative lengths of the periods of employment nor was it argued on appeal that the Arbitrator should have undertaken that step. ([131])
9. In her reasons, the Arbitrator identified “the flaw” in the appellant’s case to be that it was “unable to quantify, without [the worker’s] evidence, the level of incapacity that would flow from the earlier injury.” She said that despite the substantial evidence in support of incapacity, there was no path where the respondent could cross-examine the worker or test his evidence. She added that there was no evidence from the worker, including evidence as to “his thoughts, feelings and observations of his pain level” when he ceased employment with the appellant and respondent, to make a finding in respect of incapacity. She then concluded that it was “not ‘just and equitable’ to apportion the payments made” by the appellant. Accordingly, she declined to exercise the power to apportion because she considered that it was not just and equitable in the circumstances. That is, the Arbitrator proceeded to consider what was just and equitable in the special circumstances of the case, under s 22A(1)(a) of the 1987 Act, before she finally determined whether incapacity resulted from more than one injury under s 22 of the 1987 Act. That was an error. ([132])
10. The Arbitrator’s approach to the question of apportionment was in error. She did not specifically find that because of the state of the evidence she was unable to find that incapacity results from more than one injury or that incapacity results from both employers, and as a result declined to exercise the power to apportion. She found that because of the state of the evidence, namely there being no evidence from the worker, it was not “just and equitable” to apportion the voluntary payments made by the appellant. The President held that it was an error to consider the test of “just and equitable” as a reason for declining to exercise the power of apportionment, when she had not finally determined the relevant question of whether incapacity results from more than one injury. The state of the evidence on incapacity is a relevant factor to the determination of whether injury with the appellant and respondent materially contributed to the incapacity and, if so, second, the ultimate level of apportionment that should be awarded. However, by declining to apportion between the employers on the basis that it was not “just and equitable”, instead of on the basis that the relevant incapacity could not be established, the Arbitrator erred. ([133])
11. The President considered the more appropriate enquiry would have been to the available evidence about the worker’s incapacity for work from time to time and that evidence should have been led by the worker himself, if possible. ([134])
12. His Honour held in the alternative, that the Arbitrator erred in the exercise of her discretion to apportion between the employers on the basis that she overlooked relevant evidence. ([135])

(House v The King [1936] HCA 40; 55 CLR 499 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied)

13. Before the Arbitrator, the appellant placed much reliance on the second MAC issued by the MAP. The President accepted that the MAC is relevant and conclusively presumed to be correct in respect of, among other things, the degree of permanent impairment of a worker as a result of an injury. However, a MAC is only binding in respect of the purpose for which it was obtained. It is not binding or determinative on issues regarding incapacity arising from impairment which results from an accepted injury. ([140])

    (JC Equipment Hire Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43 applied)

14. The nature of the proceedings in this matter gave rise to several difficulties. Amongst other things, the President noted a difficulty arose by reason of scarcity of evidence going to incapacity. In particular, the evidence did not properly articulate whether for the periods of weekly benefits and medical expenses paid the worker was incapacitated as a result of the left knee injury in 1970 or in 2006/7 or indeed whether incapacity related to the back or non-compensable work injuries. The medical evidence did not precisely identify for what the medical and treatment expenses were incurred nor whether those expenses were reasonably necessary as a result of injury, and, if so, what injury. In view of the available evidence, it was difficult to identify the relative contribution of each employment to the worker’s ultimate incapacity. Absent any direct evidence on incapacity, or evidence from the worker or an independent medical examination report dealing specifically with incapacity, it is difficult for any decision maker to reach a properly informed view on incapacity and determine what level of apportionment of liability is just and equitable in the special circumstances of the case. These were all matters which the President noted would need to be properly prepared, fully explored and ventilated on remitter. ([141])
15. The President held that it was appropriate that the matter be remitted for re-determination by another Arbitrator. ([143]–[144])

Ground Two – procedural fairness

16. As the President found that Ground One succeeded, it was not necessary that his Honour consider Ground Two. However, his Honour made the following observations on procedural fairness. ([145])
17. It is well accepted that decisions must be determined on the basis of the issues raised in the pleadings. The purpose of this is to enable a party to prepare its case on the issues as defined in the pleadings and ensure that parties may know the case which they have to meet and ensure that procedural fairness is met. That is, of course, unless “the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities”. ([149])

(Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 applied)

18. The President did not accept the appellant’s submissions that the Arbitrator determined the matter on a basis that was not argued. ([150])
19. Contrary to the appellant’s purported submission, the Arbitrator was not required to notify the parties of the significance of the absence of evidence from the worker and/or ability to test that evidence to her determination of the dispute. That was because it was an issue that was clearly ventilated during the telephone conference. It was also because it was raised by the respondent during the arbitration phase of proceedings, in the context of the absence of cogent evidence to support incapacity resulting from the 1970 injury, which included evidence from the worker. Even though the issue of prejudice was raised in the proceedings below, the appellant made no application for adjournment to obtain further evidence on incapacity or evidence from the worker. On this basis, the appellant could not seek to argue that it was caught by surprise by the Arbitrator’s findings on prejudice. ([152])
20. It followed that the appellant could not seek to argue that it was denied procedural fairness on the basis that the Arbitrator determined the matter on an issue that was not raised or properly notified to the parties. Therefore, to the extent the appellant sought to argue that the Arbitrator had erred by taking into account an irrelevant consideration, by determining the dispute on a basis that was not argued, the President did not accept that submission. Ground Two failed. ([153]–[154])

Herborn v Spotless Services Australia Limited [2020] NSWWCCPD 24

Section 59A(6)(a) of the 1987 Act – whether a bone graft, pedicle screws and interbody cage to be implanted in surgery involving a lumbar decompression and spinal fusion constitutes an “artificial aid” – Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216, Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281 considered and applied

Wood DP

24 April 2020

Facts

This appeal concerned a claim by the appellant worker for treatment expenses pursuant to s 60 of the 1987 Act. The proposed surgery was described by A/Prof Davies, treating neurosurgeon, as a “re-do” lumbar laminectomy, pedicle screw internal fixation and fusion.

At arbitration, the issue between the parties was limited to whether the proposed surgery was for the provision of “artificial aids” in accordance with s 59A(6)(a) of the 1987 Act. Section 59A precludes payment of treatment expenses incurred beyond two years after weekly payments have ceased but subs 59A(6)(a) provides, among other things, that if the treatment is for the provision of artificial aids, the preclusion in s 59A does not apply.

After discussing various authorities including Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 (Thomas) and Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281 (Baldacchino), the Arbitrator concluded that the aids in this case were designed to assist the surgeon to complete the surgery. The Arbitrator said that he did not accept that the legislation goes so far as to say that once the hardware is inserted and has served its purpose, then the surgery will have ameliorated the worker’s condition and not the hardware, which played only a part in that process. The Arbitrator formed the view that, despite the surgery being necessary, s 59A of the 1987 Act prevented him from making an order that the respondents pay for that surgery.

The Arbitrator made an award for the employers. The worker appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) law by misapplying the comments made by Macfarlan JA in Baldacchino, when the Arbitrator found that the insertion of the pedicle screws and cage was merely an incidental part of the major surgery (Ground One);

(b) law by failing to consider the appellant’s submission that a bone graft supported by hardware itself constituted an “artificial aid” (Ground Two);

(c) fact by finding that the hardware to be inserted in the spinal fusion could be removed, when there was no evidence to support that fact (Ground Three), and;

(d) law by considering (i) whether or not the hardware inserted in the spinal fusion would eventually be removed, and/or (ii) whether the hardware would eventually be removed was relevant to the determination (Ground Four).

Held: The Arbitrator’s Certificate of Determination dated 25 October 2019 was revoked. The Deputy President determined the provision of a bone graft with pedicle screws and interbody cages to be implanted in a spinal nerve root decompression and fusion was an “artificial aid” for the purposes of s 59A(6)(a). The respondents were ordered to pay the costs of and incidental to the lumbar decompression and spinal fusion as proposed by Associate Professor Mark Davies pursuant to s 60 of the 1987 Act.

Ground One

1. The appellant’s first ground of appeal asserted that the Arbitrator erred in determining that the insertion of the pedicle screws and cage was “incidental” to the surgery. The appellant asserted that such error arose as a result of misapplying the observations made by Macfarlan JA in Baldacchino. ([78])
2. The Arbitrator considered that the appellant’s arguments were “well made” but that they could not overcome Macfarlan JA’s caution that each case must be determined on its own facts and that there was no general rule that the cost of surgery would always constitute the provision of artificial aids. The Arbitrator considered that there was a distinction between a total knee replacement or spinal stimulator and the proposed laminectomy and spinal fusion. He explained that distinction as being one in which the knee replacement and spinal stimulator were designed to ameliorate the injured worker’s condition, but the proposed surgery was not. ([85])
3. Deputy President Wood held that an “artificial aid”:

(a)     is something that is constructed to enable the effects of the disability to be overcome (Thomas);

(b)     is specifically tailored to the needs of the person (Thomas);

(c)     may involve a process of connection of articles to the body (such as a knee replacement) (Baldacchino);

(d)     can comprise a number of material elements which, when affixed or installed, are designed to operate together to alleviate the disability (Baldacchino), and

(e)     must be more than only an incidental part of major surgery (Baldacchino). ([84])

(Thomas and Baldacchino applied)

1. Applying these principles, it appeared the Arbitrator inferred from Macfarlan JA’s reasoning that what is required is that the aid is designed to improve function. There was no such limitation evident from the terminology used by Macfarlan JA and it was not open to the Arbitrator to arrive at such a conclusion. It followed that the Arbitrator erred in drawing such a distinction. ([85])
2. The appellant complained that the misapplication of the principles enunciated in Baldacchino led to the Arbitrator’s error in concluding that the insertion of the pedicle screws and cage was an “incidental” part of the surgery. The appellant submitted that the bone graft, and the insertion of the pedicle screws and cage were an integral part of the procedure to stabilise the spine. The respondents disputed that the appellant’s pain would be alleviated by the stabilisation of the spine and said that the only need for the stabilisation arises because of the de-stabilisation resulting from the decompression procedure. Deputy President Wood did not accept that the benefit from the procedure can be so segmented as to exclude the insertion of the pedicle screws and cage from being an integral part of the procedure. The aim of the surgery was to alleviate the appellant’s pain and disability and a necessary part of that was the consequent need to ensure stabilisation of the spine. ([86])
3. The Arbitrator concluded that the purpose of the insertion of the hardware was simply to assist the surgeon to complete the procedure and was thus incidental to the surgery. The Arbitrator’s conclusion, which was based on a misapplication of the principles in Baldacchino, could not be accepted, given the explained integration of the bone graft, the pedicle screws and cage with the appellant’s spine which were together designed to achieve the eventual outcome. It followed the Arbitrator erred and Ground One succeeded. ([87]–[88])

Ground Two

7. The second ground alleged error on the part of the Arbitrator by failing to consider the appellant’s submission that the bone graft supported by the pedicle screws and cage was itself an “artificial aid.” ([89])
8. A failure to consider a submission that is material to a point in issue is an error of law. ([90])

(Wang v State of New South Wales [2019] NSWCA 263 applied)

9. The appellant sought a determination from the Arbitrator as to whether the bone graft and/or pedicle screws constituted “artificial aids.” The Arbitrator gave no consideration as to whether or not the bone graft itself could be considered an artificial aid or whether the bone graft, in concert with the pedicle screws and cage, were designed together to alleviate the appellant’s disability. In the context of the issues in these proceedings, the submission made by the appellant at arbitration was material to the matters requiring determination. It followed therefore that the Arbitrator was in error by not addressing the submission made by the appellant that the bone graft supported by the pedicle screws and cage was itself an “artificial aid.” Ground Two was made out. ([90]–[91])

   Grounds Three and Four

10. Grounds Three and Four concerned the Arbitrator’s conclusion that the pedicle screws and cage would be removed was a relevant consideration. Ground Three asserted that there was no evidentiary basis upon which the Arbitrator could conclude that the hardware would be removed and that it was not open to the Arbitrator to draw on his experience as a member of a specialist tribunal to arrive at that conclusion. The appellant asserted in Ground Four that it was, in any event, an irrelevant consideration. ([93])
11. Dealing with Ground Four first, the Deputy President noted the respondents conceded that the relevant authorities do not require the artificial aid to be permanent, but the respondents asserted that there was a real difference between a crutch and the provision of pedicle screws and cages. Deputy President Wood held the respondents’ concession that there was no such requirement was sufficient to establish that the Arbitrator erred by considering the permanency or otherwise as being a matter for consideration. In any event, not only do the authorities not suggest such a criterion and the examples listed would suggest otherwise, but also s 59A(6)(a) of the 1987 Act itself does not qualify the term “artificial aid” by using the word “permanent.” It followed Ground Four established further error on the part of the Arbitrator. In view of the errors established under Grounds One, Two and Four, it was not necessary to consider Ground Three. The Certificate of Determination dated 25 October 2019 was revoked. ([94]–[96])

Re-determination

12. The first matter for consideration was whether the proposed aid was intended to enable the effects of the disability to be overcome. The purpose of the insertion of the pedicle screws and interbody cage was clearly intended to alleviate the appellant’s disability, where the outcome was to maintain stability of the spine and thus reduce the appellant’s disability. ([105], [107])

    (Thomas and Baldacchino applied)

13. The surgery must be considered in its entirety, without any artificial distinction between the decompression procedure and the spinal fusion. The surgery as a whole was intended to at least provide a degree of relief of the appellant’s symptoms. Any benefit from the surgery was expected to result in an amelioration of the appellant’s disability. ([108])

Deputy President Wood accepted the appellant’s submission that the bone graft, pedicle screws and interbody cages together form an aid that, when fixed to the appellant’s spine, operate together to achieve the purpose of alleviating the appellant’s disability. The unchallenged evidence from A/Prof Davies was that the insertion of this combined fixture was a necessary element of the surgery and was thus not merely incidental to this major surgery. The Deputy President was satisfied that the bone graft, pedicle screws and interbody cages together constituted an artificial aid for the purpose of s 59A(6)(a) of the 1987 Act and that the appellant was entitled to have the cost of and incidental to the surgery met by the respondents. ([109], [111])

Nader v A O Design Pty Ltd [2020] NSWWCCPD 19

Alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, credibility and contemporaneous documents: Onassis v Vergottis (1968) 2 Lloyds Reports 403, proof of injury simpliciter, section 289A of the 1998 Act

Snell DP

1 April 2020

Facts

The appellant worker was employed by the respondent employer as a fitter and joiner. He suffered injury on 13 June 2012. He was attempting to lift a cabinet weighing 20 kilograms when he slipped. The cabinet fell against his left hand which was lacerated. He attended hospital and the wound was sutured. He was off work until about August 2012, when he resumed normal duties. In April 2013, his employment was terminated. He had not worked since. It was common ground that the appellant had some back symptoms prior to this incident. The appellant alleged he injured the lumbar and thoracic regions of his back in the incident. He underwent surgery involving decompression at L4/5 in May 2017.

In February 2017, the appellant was assessed by Dr New to have 21% whole person impairment. He ultimately made a claim for 24% whole person impairment. The fundamental issue before the Arbitrator was whether the appellant injured his back in the incident.

The appellant made an application, at the arbitration hearing, to rely on an issue estoppel said to result from consent orders between the parties dated 23 October 2018, in earlier proceedings. The Arbitrator concluded that the appellant had not discharged his onus of establishing that he suffered injury to his lumbar or thoracic spine pursuant to s 4(a) of the 1987 Act. The whole person impairment resulting from the left hand injury only was insufficient to entitle the appellant to pursue a claim for permanent impairment compensation. The Arbitrator entered an award for the respondent employer. The worker appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) mixed fact and law by giving insufficient weight to the evidence of the appellant and regarding complaints 12 days after the injurious event as not being contemporaneous (Ground One);

(b) mixed fact and law by giving insufficient weight to the evidence of the appellant that he had injured his thoracic spine on 13 June 2012 (Ground Two);

(c) fact in finding that the appellant failed to ‘identify a sudden and severe escalation’ in his back symptoms ‘in the context of the work incident to his treating practitioners for around a year despite regular medical consultations’ (Ground Three);

(d) law in requiring the appellant to demonstrate medical evidence of a sudden identifiable pathological change in the lumbar spine in order to demonstrate ‘injury’ in circumstances where the ‘injury’ was in the nature of an aggravation of a pre-existing condition and there was evidence that there had been a dramatic increase in symptoms such that the appellant was no longer able to work (emphasis in original) (Ground Four);

(e) law in requiring the appellant to demonstrate a ‘dramatically different’ pathological change in the lumbar spine in order to demonstrate ‘injury’ in circumstances where the ‘injury’ was in the nature of an aggravation of a pre-existing condition and there was evidence that there had been a dramatic increase in symptoms such that the appellant was no longer able to work (emphasis in original) (Ground Five), and

(f) law in failing to accord the appellant procedural fairness by refusing the appellant’s application to make submissions and present argument in relation to the issue of estoppel (Ground Six).

Held: The Arbitrator’s decision dated 14 October 2019 was revoked and the matter was remitted to a different Arbitrator for re-determination.

Grounds One, Two and Three

1. The appeal before Deputy President Snell was one restricted to the identification and correction of error. The respondent made an attack on the appellant’s credibility and the reliability of his evidence based on alleged discrepancies between his statement recorded histories, and contemporaneous medical material. The conclusion which the Arbitrator reached was available to her on the evidence. The appellant had not, in the submissions on these grounds, succeeded in demonstrating error. Grounds One, Two and Three failed. ([76]–[77])

   (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, and Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227 applied)

   Ground Four

2. There is a distinction to be drawn between the proof of ‘injury’ pursuant to s 4(b)(ii), consistent with the passage from Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) on which the appellant relied, and the proof of injury simpliciter pursuant to s 4(a). Semlitch did not assist the appellant’s position. ([88])
3. The Arbitrator did not suggest that the test to establish ‘injury’ for the purposes of s 4(a) involved identification of a dramatically different pathological change. ([90])
4. The Arbitrator, in her reasons at [125], discussed a submission dealing with the appellant’s declining work capacity after the incident. The Arbitrator said there were other possible explanations for the decline. She said the decline in capacity “does not of itself cause me to be satisfied that there was a sudden pathological change in the [appellant’s] spine on 13 June 2012”. The use of the word “sudden” was consistent with a consideration by the Arbitrator of whether there was an injury simpliciter, in circumstances where there were pre-existing degenerative changes in the lumbar spine, which may have constituted a disease. The Deputy President could not see that the Arbitrator had misstated the test in the way alleged. Ground Four failed. ([91]–[92])

(Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496, at [129] applied)

Ground Five

5. The argument made by the appellant in support of Ground Five was not dependent on whether the allegation of injury was based on the ‘disease’ provisions of the 1987 Act. The Arbitrator dealt with whether, as a matter of common sense, the thoracic spine injury “could only have been caused by the frank incident” (emphasis added). The appellant’s argument was that this was the wrong question. ([98])

   (Lagana v Australian Retirement Partners Realty Pty Ltd [2015] NSWWCCPD 55 referred to)

6. It is sufficient if the incident caused or materially contributed to the injury. This, of course, leaves issues of ‘substantial contributing factor’ pursuant to s 9A of the 1987 Act (in a case involving injury pursuant to s 4(a)), but that is a different issue. ([99])

   (Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1994] HCA 68; 121 ALR 417, at [3], and Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87, at 95B applied)

7. The Arbitrator gave reasons for not accepting the opinion of Dr New – his opinion was not expressed firmly and Dr New had not engaged with Dr Swid’s clinical notes. The Arbitrator rejected the explanation given by the appellant to Dr Sanki (and to Dr Machart) for why he did not make more contemporaneous complaints of his back symptoms following the incident – masking by medication taken for the hand injury. This did not involve rejection of Dr Sanki’s opinion. ([101])
8. The Arbitrator’s reference to there being no qualified medical opinion, on the issue of whether the thoracic pathology was caused by the incident, suggested that Dr Sanki’s opinion was discarded out of hand. The Arbitrator did not say whether she accepted or rejected Dr Sanki’s opinion relevant to ‘injury’. The appellant was entitled to an explanation for the Arbitrator’s non-acceptance of his medical case in this regard. If Dr Sanki’s opinion was to be rejected, this required coherent reasons. ([102])

(Hume v Walton [2005] NSWCA 148; Eckersley v Binnie (1988) 18 Con LR 1; Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293, and Charles Sturt University v Manning [2016] NSWWCCPD 10 applied)

9. The way in which the Arbitrator described the issue of injury to the thoracic spine, in the reasons at [130], was inconsistent with a recognition that the injury could be proved in the presence of other contributing causes. Deputy President Snell accepted that this involved a misdescription of the test. Additionally, it was necessary that the Arbitrator engage with the parties’ respective medical cases and explain her preference for one over the other. This was not done in so far as Dr Sanki was concerned. Error was established in Ground Five. ([103]–[104])

   Ground Six

10. The respondent submitted that the procedure of using s 289A(4) of the 1998 Act to deal with whether the appellant could run an argument based on estoppel arising from the earlier consent orders, was one to which “no objection was made”. The Deputy President could see nothing in the passages of the transcript to which the respondent referred in this regard that suggested active consent on the appellant’s part. ([116])
11. There was, of course, no transcript to indicate what was said in conciliation; that part of the process is not routinely recorded or transcribed. It is common for the parties during conciliation, in consultation with an arbitrator, to reach agreement about the basis on which a matter will be conducted, what points will be taken or conceded, the resolution of procedural issues, and other things of that nature. Where there are discussions or agreements arrived at during conciliation, it is important that these matters be placed on the record during the arbitration hearing. This is a necessary course, which protects the parties and the arbitrator involved, and facilitates any appeal that may subsequently occur. ([119])
12. On the basis of the material before him, Deputy President Snell could not be satisfied that the appellant consented to the procedural course adopted. ([120])
13. Section 289 contains provisions dealing with when a dispute can be referred to the Commission. In a general sense, a dispute cannot be referred unless the person on whom the claim was made has disputed it or has failed to determine it when required by the Act. Additionally, a lump sum claim can be referred where the person on whom the claim was made has made a settlement offer pursuant to the determination and one month has passed. Put briefly, disputes can be referred when the person on whom the claim is made has disputed liability, wholly or in part. ([122])
14. Section 289A prevents referral of a dispute to the Commission unless it concerns only matters “previously notified as disputed”. That term is defined in subs (2) of the section. It is matters “notified in a notice of dispute under this Act or the 1987 Act” after a claim was made or reviewed. Such a notice will be one issued pursuant to s 78 or s 287A of the 1998 Act. In either instance it will be a notice by an insurer. The term “previously notified as disputed” also includes matters raised in writing “concerning an offer of settlement of a claim for lump sum compensation”. This probably relates to the matters referred to in s 289(3)(b) of the 1998 Act. It was unnecessary to consider that further, as it did not arise on the facts of the current matter. The decision set out in the s 78 notice dated 10 July 2019 in no way involved an offer of settlement. ([123])
15. It followed that s 289A of the Act relevantly precluded the Commission from dealing with a dispute in the current matter where it was not notified by the insurer in a notice of dispute pursuant to ss 78 or 287A of the 1998 Act. The matters raised in the s 78 notice in the current matter were those matters that the insurer raised in disputing the claim. Section 289A was not relevant to the appellant’s attempt to rely on an argument based on estoppel and the earlier consent orders. ([124])

(Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174 applied)

16. The Arbitrator treated the question of whether the appellant could raise the issue of estoppel, on the basis of the earlier consent orders, as one involving the exercise of her discretion. In exercising her discretion on the basis of whether leave should be given pursuant to s 289A(4) she took account of irrelevant considerations. She failed to take account of relevant considerations. This involved error. Ground Six characterised this as a failure to afford the appellant procedural fairness. That was appropriate where the nature of the error was that the appellant’s entitlement to raise the estoppel argument and to make submissions in respect of it was dealt with on an erroneous basis. ([127])

    (House v The King [1936] HCA 40; 55 CLR 499 applied)

    Disposition of the appeal

17. Consent orders can create an estoppel as between the parties. Dr Sanki was a treating specialist whose views were potentially entitled to weight (which would be a matter for an arbitrator) notwithstanding the views the Arbitrator formed about contemporaneous complaint. A recognition of the fact that the alleged injury could potentially be established, notwithstanding the presence of multiple causes, could affect the finding on injury. It could not be concluded that a properly conducted trial could not possibly have produced a different result. The appropriate course was that the matter be remitted to a different Arbitrator for re‑determination. ([130])

(Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 and Manpower Pty Ltd v Harris [2011] NSWWCCPD 10)

Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21

Aggregation of impairment – application of common law principles, whether the impairment “results from” the injury – Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52, Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Nicol v Macquarie University [2018] NSWSC 530, Johnson v NSW Workers Compensation Commission [2019] NSWSC 347, Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396, considered; State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003, Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 considered and applied; application of s 322 of the 1998 Act – Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 applied

Wood DP

21 April 2020

Facts

The appellant worker suffered a number of injuries in the course of her employment. The injuries involved the lumbar spine, thoracic spine, cervical spine, right shoulder and consequential conditions including the upper digestive system. The appellant also suffered a further cervical spine injury on 28 January 2013, which occurred at home and consequently was not the subject of these proceedings.

The appellant sought lump sum compensation pursuant to s 66 of the 1987 Act as well as weekly payments and treatment expenses pursuant to s 60 of the 1987 Act. By consent, the claim was referred by Arbitrator Burge to an AMS. The AMS, Dr Berry, issued a MAC dated 17 June 2019, in which he assessed a total whole person impairment (WPI) of 15%, which consisted of impairments of the right upper extremity; thoracic spine, and lumbar spine. No WPI was found in respect of the cervical spine.

As requested, the AMS apportioned the WPI between each injury. In respect of the spinal injuries, he indicated that the total impairment was 12% WPI, of which 4% WPI was attributable to each injury. That finding resulted in the following assessments for each injury:

(a) 7% WPI (3% in respect of the right shoulder and 4% in respect of the thoracic and lumbar spine) as a result of the injury on 14 November 2011;

(b) 4% WPI (thoracic and lumbar spine) as a result of the second injury, and

(c) 4% WPI (thoracic and lumbar spine) as a result of the third injury.

The matter was then referred to Arbitrator Wynyard who issued oral consent orders in respect of the claim for weekly payments and noted that the parties agreed to a general order for the payments of s 60 expenses. At the arbitration, the issue was whether the appellant was entitled to the combined value of the total WPI assessed by the AMS as 15%.

The Arbitrator concluded that as the assessments for the lumbar spine and the thoracic spine were unable to be aggregated, the appellant did not meet the threshold requirement in s 66(1) of the 1987 Act of having greater than 10% WPI so that there was no entitlement to lump sum compensation. The Arbitrator entered an award in favour of the employer regarding the lump sum compensation and ordered the employer pay the worker’s s 60 expenses. The worker appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) fact and law by failing to conclude that all of the impairments resulting from the three injuries are to be compensated as a single WPI (Ground One);

(b) law by only considering s 322(2) of the 1998 Act and not s 322(3) of the 1998 Act in the context of whether the appellant’s impairment results from the injuries suffered on 14 November 2011 (Ground Two), and

(c) fact and law when he failed to apply the terms of the MAC (Ground Three).

Held: Paragraph One of the Certificate of Determination dated 23 September 2019 was revoked, and in its place, the respondent was ordered to pay the applicant $17,050.00 in respect of 12% whole person impairment of the lumbar spine and the thoracic spine pursuant to s 66 of the 1987 Act. The Certificate of Determination was otherwise confirmed.

Discussion

1. Applying s 326 of the 1998 Act, the opinion of the AMS that the appellant suffered both 5% WPI of the thoracic spine and 7% of the lumbar spine as a result of the three injuries is conclusively presumed to be correct. In the referral, the AMS was clearly directed to provide an opinion in respect of apportionment between the three injuries of the total impairment of the lumbar spine, thoracic spine and upper digestive tract. The AMS found no impairment of the upper digestive tract and apportioned the total impairment of the lumbar spine and thoracic spine, which was 12% WPI, in equal proportions of one third for each injury. The assessments of a combined 4% WPI of the lumbar spine and thoracic spine together in respect of each injury was therefore also conclusively presumed to be correct. These observations accorded with the Arbitrator’s conclusions, and no challenge to those conclusions was made. ([99])

   Ground One

2. The first ground was that Arbitrator erred in failing to conclude that all of the appellant’s impairments should be combined and assessed as a single WPI because of the application of the common law principles relating to the phrases ‘results from’ and the ‘material contribution’ from the first injury to the subsequent impairments. ([100])
3. The Arbitrator observed that, while the principle applied to establish a causal connection between two injuries, it did not involve the calculation of the whole person impairment. The Arbitrator did not accept the appellant’s argument that Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed) could be distinguished. He distinguished Nicol v Macquarie University [2018] NSWSC 530 and Johnson v NSW Workers Compensation Commission [2019] NSWSC 347 (Johnson No 1) because in his view, neither of those cases involved a consideration of s 322 of the 1998 Act. ([101])
4. The appellant submitted that because of the terms of the referral, there was no longer a dispute that the appellant had injured her right shoulder, thoracic spine and lumbar spine in the incident on 14 November 2011 and that it was not disputed that the appellant suffered further injuries to her thoracic and lumbar spines in the two later injuries. This was undoubtedly correct. ([102])
5. Section 66(1) of the 1987 Act provides that a worker who receives “an injury that results in” an impairment is, if the permanent impairment exceeds 10%, entitled to compensation. Part 7 of Ch 7 of the 1998 Act, which includes ss 319, 322, 323 and 326, deals with medical assessments in relation to medical disputes concerning entitlement to compensation. Section 319 of the 1998 Act defines a medical dispute to include a dispute about the degree of permanent impairment “as a result of an injury.” Section 322 of the 1998 Act speaks about impairments that “result from” the same injury (subs (2)) or more than one injury (subs (3)). Section 323 of the 1998 Act requires a deduction for any pre-existing impairment to be made in an assessment of the degree of impairment “resulting from an injury”. Section 326 of the 1998 Act provides an assessment certified in a MAC is conclusively presumed to be correct in respect of the degree of impairment “as a result of an injury”. ([103])
6. All of these sections refer to the impairment as one which results from an injury. This necessarily raises the question of causation between the injury and the resulting impairment (in this case, the second question of causation identified by Emmett AJA in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson No 2)). In the circumstances of this case, by the time the matter was referred to the AMS, there was no issue that the appellant had suffered the injuries referred to in the consent orders. The issue was the degree of impairment attributable to any of the three injuries. ([104])
7. In Johnson No 2, Emmett AJA at [53]–[55] (with Macfarlan JA agreeing) concluded that there is no difference between the legal view of causation in tort and causation in the field of workers compensation, except that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens. ([111])
8. The appellant, as in Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52 (Luo), sought to have her impairments aggregated. Consideration must be given to the common law principles in respect of causation, but such consideration cannot be given without regard to the statutory context. In this case, the statutory context was s 322 of the 1998 Act. Deputy President Wood could see no reason why s 322 of the 1998 Act, which by the text itself invites a consideration of causation of the permanent impairment, should operate without a consideration of that necessary element. That is, if the appellant can establish the fact that the first injury materially contributed to the total impairment, then the total impairment is attributable to the injury on 14 November 2011. ([112]–[113])
9. The question of whether the common law principles of causation in tort are to be applied in determining the impairment that “results from” the injury was expressly considered by the Court of Appeal in Johnson No 2. The conclusion was that they did. ([115])
10. Following Edmed, the result was that s 322(2) allowed aggregation of impairments from different injurious events where they involved the same pathology and s 322(3) allowed aggregation where there were injuries to different body parts in the same event. The Deputy President did not see any conflict between the generally expressed common law principles and the application of s 322(2) of the 1998 Act in the manner expressed by Roche DP in Edmed. In fact, an application of the common law principles to Edmed would arrive at the same result as that determined by Roche DP. ([117])
11. The Arbitrator’s reasons for determination preceded both the decision in Luo and in Johnson No 2. Nonetheless, for the reasons given in both those authorities, it followed that the Arbitrator erred by considering that the principles were not relevant to an assessment of permanent impairment. The Arbitrator erred by failing to apply the common law principles in the context of s 322 of the 1998 Act, as set out in Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 in determining whether the appellant’s impairments could be aggregated. It followed that Ground One of the appeal succeeded, as the appellant had established error on the part of the Arbitrator. It was convenient for Wood DP to re-determine the issue raised by this ground (Issue No 1) before proceeding with the subsequent grounds of appeal as those subsequent grounds of appeal were to an extent dependent upon a resolution of this issue. ([118]–[119])

Re-determination – Issue No 1

12. All three injuries involved injury to the thoracic spine and lumbar spine so that the impairments attributed to each of the thoracic spine and the lumbar spine, while different pathologies, can be aggregated by operation of s 322(3) of the 1998 Act. It followed that the impairments flowing from the thoracic spine (5%) and lumbar spine (7%) “result from” (in the common law sense) the injury on 14 November 2011 and are to be assessed together, which in the statutory context is in accordance with s 322(2) of the 1998 Act. Applying the Combined Values Chart contained in the AMA Guides for Evaluation of Permanent Impairment, Fifth Edition, the total combined impairment of the lumbar and thoracic spines is 12% WPI. The compensation entitlement pursuant to s 66 of the 1987 Act in respect of 12% WPI was $17,050.00 plus any additional amount to be applied pursuant to s 66(2A) of the 1987 Act in respect of an injury to the back. ([132]–[134])

    Ground Two

13. The second ground of appeal complained that the Arbitrator erred by only considering s 322(2) of the 1998 Act and not s 322(3) of the 1998 Act. Contrary to the respondent’s submissions, the Arbitrator clearly accepted that there was an injury to the thoracic spine on 14 November 2011 (which he was bound to do). He proceeded to aggregate the impairment of the right upper extremity (3%) with the combined 4% impairment arising out of the injury on 14 November 2011 for the lumbar and thoracic spines. ([135]–[136])
14. The Arbitrator did not expressly consider the application of s 322(2), partly because he was of the view that the determination by the AMS of the total WPI was not binding because the AMS was not asked to make that assessment. In addition, the appellant had expressly advocated that he was not relying on s 322(2) of the 1998 Act. The appellant’s argument was that s 322(3) of the 1998 Act applied, so that the 12% WPI in respect of the thoracic and lumbar spines, which “resulted from” the injury on 14 November 2011 could be aggregated with the WPI for the right upper extremity because, although they were different pathologies, they arose out of the same incident. The Arbitrator considered that he could not aggregate the impairments of the thoracic and lumbar spines, despite noting the finding by the AMS that each date of injury contributed to the WPI regarding the thoracic and lumbar spine. The Arbitrator did not go so far as to address the application of s 322(3) in this context because he did not accept that the common law principles of causation applied. The Arbitrator’s failure to apply those principles was an error. ([138]–[141])

(Wang v State of New South Wales [2019] NSWCA 263 applied)

15. In the context of the issues in these proceedings, the submission made by the appellant at arbitration was material to the matters requiring determination. It followed therefore that the Arbitrator was in error by not addressing the submissions made by the appellant that s 322(3) of the 1998 Act applied in the manner submitted. ([143])
16. Ground Two of the appeal however raised a further issue (Issue No 2) that required re-determination in accordance with s 352(7) of the 1998 Act. ([144])

Re-determination – Issue No 2

17. The impairment to the right upper extremity could not be aggregated with the losses arising as a result of the second and third injuries. The right shoulder injury did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology). The only basis upon which the assessment of the right upper extremity could be aggregated with the other assessments is in accordance with s 322(3) of the 1998 Act. ([145])
18. It is well settled that s 322(3) requires that, for the impairments arising from different pathologies to be aggregated, they must have been sustained in the same injurious event. ([148]–[149])

(Edmed and New South Wales Fire Brigades v Turton [2008] NSWWCCPD 66 discussed and applied)

19. The impairments of the lumbar spine and thoracic spine assessed by the AMS can be aggregated by application of both the common law principles and s 322(2) and liability rests with the respondent for a total 12% WPI. However, that does not extend to a permission to aggregate the right upper extremity impairment with the impairments attributable to the injuries on 3 May 2012 and 26 September 2012. This was because the injurious event involving the right shoulder was a different injurious event to those events occurring on 3 May 2012 and 26 September 2012 and the right shoulder injury did not materially contribute to those subsequent thoracic and lumbar spine injuries. ([150])
20. In such circumstances, neither subss 322(2) or 322(3) of the 1998 Act apply to allow the right upper extremity impairment to be aggregated with the impairments that result from the two later injuries. However, s 322(3) permitted the 3% WPI of the right upper extremity to be aggregated with the 4% WPI of the spinal injuries assessed by the AMS as resulting from the first injury, as the Arbitrator determined. The impairment arising out of the first injurious event, that is the injury on 14 November 2011, did not reach the necessary threshold pursuant to s 66(1) of the 1987 Act so that no compensation is payable in respect of the right upper extremity. ([151])

Ground Three

21. Given the outcome of Ground One and Two, it was not necessary for Wood DP to address this ground of appeal, which substantially mirrored the appellant’s complaints made under the first two grounds. ([152])

    Conclusion

22. The appellant was not entitled to aggregate the whole person impairment of the right upper extremity with the losses of the thoracic spine and lumbar spine attributable to the injurious events on 3 May 2012 and 26 September 2012. The appellant was entitled to compensation pursuant to s 66 of the 1987 Act in respect of 12% WPI of the thoracic and lumbar spines. ([153]–[154])

Trustees of the Christian Brothers v Seif [2020] NSWWCCPD 22

Credit finding – application of Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, alleged factual error, medical evidence – application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844, drawing of inferences

Snell DP

22 April 2020

Facts

The respondent worker was a high school teacher. He had a series of alleged events involving his right knee that occurred in 2016. He ultimately had an arthroscopic meniscectomy of the right knee, performed by Dr Nagamori on 9 March 2017. About two weeks after surgery, he resumed his teaching duties.

The worker brought earlier proceedings in the Commission, which resolved on 6 September 2017, with consent payment of a number of short closed periods of weekly compensation, and medical expenses up to $6,500. The orders included consent findings that there was no incapacity for pre-injury employment beyond 25 March 2017, no requirement for medical treatment beyond 1 September 2017, and that from 1 September 2017, the respondent had recovered from the effects of the work injury.

The current proceedings related to a further alleged work injury to the right knee on 20 September 2017. It was claimed that the respondent was “required to spend a long period of time standing, walking and going up and down stairs when he suffered an aggravation of his old knee injury”. The allegations went to the respondent’s working duties over a single day, 20 September 2017. The respondent said that he performed his usual teaching duties over the day, and additionally performed activities associated with a year 12 graduation and mass that were held.

The respondent underwent a further arthroscopic meniscectomy of the right knee, performed by Dr Nagamori, on 27 November 2017. He resumed normal duties in the first term of 2018. The current proceedings related to the relatively short time off work and costs of medical treatment associated with this further injury.

The Senior Arbitrator ordered the appellant to pay the relevant expenses (including the surgical costs of the further meniscectomy) pursuant to s 60 of the 1987 Act. He made no orders in respect of weekly compensation, but gave liberty to apply within 28 days. The employer appealed.

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

(a) failing to properly deal with the appellant’s credit argument, and in accepting the respondent’s factual account as to the occurrence of the event/s alleged to have caused injury (Ground One);

(b) accepting the opinion of Dr Bodel on the question of injury (Ground Two);

(c) failing to give sufficient weight to the opinion of Dr Nagamori, contained in his report dated 3 July 2018 (Ground Three);

(d) finding that the respondent sustained a meniscal tear on 20 September 2017 (Ground Four), and

(e) finding that the respondent’s employment was a substantial contributing factor to his injury under s 9A of the 1987 Act (Ground Five).

Held: The Senior Arbitrator’s decision dated 15 October 2019 was confirmed.

Ground One

1. The appellant clearly raised credit in its submissions before the Senior Arbitrator. Deputy President Snell rejected the respondent’s submission that his credit was not seriously challenged. ([52]–[54])

   (JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 discussed and applied)

2. The Senior Arbitrator did not give weight to one aspect of the account in the appellant’s statement, of events on the date of injury. The Senior Arbitrator did not reject the respondent’s evidence in any more general sense, he did not reject the balance of the statement. He specifically avoided any finding that there was dishonesty or a conscious attempt to deceive. He gave reasons for this, referring to the poor drafting and confusing terminology and syntax of the worker’s statement. The Deputy President said the Senior Arbitrator’s reservations about the drafting of the statement were justified. The statement was in part argumentative, and much of it resembled submissions rather than a statement of a witness in the conventional sense. ([56])
3. It was open to the Senior Arbitrator to accept the evidence of the respondent on other matters, notwithstanding the Senior Arbitrator did not give weight to the respondent’s evidence on one specific topic. Contrary to the appellant’s submission, the Senior Arbitrator’s reasons for not giving weight to one aspect of the statement did not mean the Senior Arbitrator should not accept other aspects of the respondent’s evidence. ([57])

(Chanaa v Zarour [2011] NSWCA 199 applied)

4. The appellant submitted that, the “most recent account as to the cause of the injury” having been rejected, “all prior accounts [given] should have been scrutinised”. The appellant referred to no authority in support of this submission. ([58])

   (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Ferreira) referred to)

5. There was no finding that the respondent’s evidence was perjured or untruthful, the Senior Arbitrator specifically did not find there was any attempt to deceive. The appellant’s submission on this issue was made in a general way, without reference to authority. Having regard to the very limited nature of the Senior Arbitrator’s finding, that a single specified part of a statement would not be given weight, the situation was not analogous to that in Ferreira. The specific submission made by the appellant was that “his evidence should simply not be accepted”. The Deputy President rejected that submission. The appellant’s submissions on this issue sought to inflate the limited finding as to weight to something more than it was. Doubtlessly, the Senior Arbitrator was required to consider the acceptability of the respondent’s other evidence in the normal way, in deciding whether it should be accepted and its weight. The appellant’s submissions on this aspect of Ground One were without merit. ([60])

   (Ferreira distinguished)

6. The appellant submitted the Senior Arbitrator erred in appearing to conclude that the claim form, the “initial statement”, and the reports of Drs Bodel and Powell “were themselves consistent with each other and supported the claimed mechanism of injury”. Deputy President Snell held the approach taken by the Senior Arbitrator, in identifying the mechanism of injury at [137] of the reasons, was open on the evidence and did not involve error. Ground One failed. ([62]–[74])

   (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston); Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir); Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227 (Zuvela); Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

   Ground Two

7. The first point made by the appellant was that the passage of Dr Bodel’s history referred to was “inconsistent with earlier accounts” and should not have been accepted. An assumption in a medical history, on which a doctor’s opinion is based, may be material on which the Commission can act. Much will depend on the context and the issues tendered for consideration. In most cases this will be a factual question. ([61])

   (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 (Sutton) applied)

8. There was no basis for the argument that the relevant passage of the history should have been rejected simply on the basis that it contained material outside what was in the claim form and the earlier statement. Deputy President Snell accepted the respondent’s submission that the matters accepted by the Senior Arbitrator were “sufficiently like” that part of Dr Bodel’s history. There was a fair climate for the expression and acceptance of Dr Bodel’s opinion. Ground Two failed. ([85]–[88])

   (Sutton and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 applied)

   Ground Three

9. Dr Nagamori recorded histories of three incidents. These were of the respondent’s right knee becoming symptomatic when he stumbled whilst walking on 21 November 2016, the right knee buckling while stepping over a small step at work on 28 November 2016, and having “further aggravated his knee during the course of his work”, referred to in the short report dated 27 September 2017. The question asked of Dr Nagamori, set out in his report dated 3 July 2018, was “Your opinion as to any causal connection between the incident and the injuries sustained.” He responded “It is my opinion that the lateral meniscus tear was sustained as he stumbled at work on 21.11.16.” ([94])
10. The question asked of Dr Nagamori was inadequate in the circumstances. It did not draw the doctor’s attention to the competing causal roles (if any) of the three incidents of which the doctor had a history. It did not seek the doctor’s opinion on the causal roles of those incidents. The doctor’s report dated 3 July 2018 gave a specific opinion on the causal role of the incident of 21 November 2016. It was silent, and did not contain direct evidence, regarding the doctor’s opinion of the causal role (if any) of the other incidents, particularly that of 20 September 2017 on which the respondent relied in these proceedings. ([95])
11. The appellant’s submissions on Ground Three, although not articulated as such, constituted a challenge to the Senior Arbitrator’s failure to draw an inference in its favour, that the pleaded incident of 20 September 2017 played no relevant causal role. The appellant’s submission was that the Senior Arbitrator should have inferred, in the absence of direct opinion evidence from Dr Nagamori, that the doctor’s failure to refer to the incidents other than that of 21 November 2016 constituted an opinion that the other incidents did not play a relevant causal role. The unsatisfactory opinion evidence from Dr Nagamori did not form “a reasonable basis for a definite conclusion affirmatively drawn” that this represented the doctor’s opinion on the causal role of the incident of 20 September 2017. The Senior Arbitrator’s conclusion, that the doctor’s ambiguous opinion represented inadequacy in the reporting process in the circumstances, requiring clarification, was at least as likely as the inference for which the appellant argued. Additionally, it is not enough if the Presidential member, on appeal, would have drawn a different inference. It must be shown that the Arbitrator was wrong. The Senior Arbitrator’s failure to draw the inference, for which the appellant contended, was open in the circumstances and did not involve error. Ground Three failed. ([96]–[100])

(Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 19; 85 CLR 352; Jones v Dunkel [1959] HCA 8; 101 CLR 298; Raulston; Whiteley Muir, and Zuvela applied)

Ground Four

12. Ground Four was essentially repetitive of the earlier grounds. It was largely dealt with in the consideration of the earlier grounds. Ground Four alleged error in “finding that the [respondent] sustained a meniscal tear on 20 September 2017”. This slightly oversimplified the Senior Arbitrator’s finding regarding injury. He described what happened on 20 September 2017 as “an incident that caused not only symptoms, but further pathology, namely an extension of the tear in the lateral meniscus as shown in the MRI scan take[n] shortly afterwards”. This was essentially consistent with Dr Bodel’s opinion that the “diagnosis here is a tear of the lateral meniscus in the region of the right knee and a recurrence of that tear and both injuries occurred at work”. The Senior Arbitrator’s finding regarding injury was properly available in the circumstances and was not made in error. Ground Four failed. ([106], [108]–[109])

    Ground Five

13. Ground Five challenged the Senior Arbitrator’s finding that s 9A of the 1987 Act was satisfied. The appellant accepted that if the Grounds of Appeal numbered one to four were not established, Ground Five would fail. Consistent with the appellant’s concession, Grounds One to Four having failed, Ground Five failed. ([110]–[112])

Matthew Thomas Kennedy t/as Matts Bakery Cafe v Workers Compensation Nominal Insurer and Giddens [2020] NSWWCCPD 23

Whether discretion to admit or reject evidentiary statements miscarried; whether material evidence not given any or any proper consideration; whether matter determined on a basis not raised by the parties; whether appeal competent or out of time

King ADP

22 April 2020

Facts

The second respondent was employed by the appellant who operated a café. Following an injury to the second respondent’s left knee, she claimed compensation from the appellant. The appellant was uninsured and compensation benefits were paid by the first respondent. The first respondent then sought recovery of the payments from the appellant.

On 22 October 2018, the appellant filed a Miscellaneous Application to contest a claim for recovery under s 145 of the 1987 Act. The application asserted the second respondent had suffered no injury and so was not entitled to compensation, with the logical consequence that the payments made by the first respondent ought not to have been made and if recoverable at all, were not recoverable from the appellant.

On 2 April 2019, the application came before the Senior Arbitrator for hearing. In addition to the terms raised in the application, the appellant sought to challenge the second respondent’s incapacity for work. The Senior Arbitrator declined to entertain any consideration of incapacity on the day as this was the first time it was raised. However, she indicated that if the appellant’s challenge to the second respondent’s entitlement to compensation failed, she would allow the issue of incapacity to be raised, with all parties on notice and with an opportunity to prepare. As the hearing proceeded, three statements from lay witnesses were tendered for the appellant. They were produced at the hearing and had not been served prior to the arbitration as required.

The Senior Arbitrator rejected the first statement of Ms Laverty because of its late service and its lack of any real apparent probative value. The second statement of Ms Evans was rejected also on the basis of late service and the fact that the appellant could have procured and served it earlier. The third statement was admitted.

In the Certificate of Determination and Statement of Reasons dated 8 May 2019, the Senior Arbitrator found that the second respondent had suffered injury in the course of her employment with the appellant. Accordingly, the question as to whether the second respondent had been overpaid fell for determination, which was the subject of written submissions filed and served in accordance with the Senior Arbitrator’s directions of 31 May 2019. The Senior Arbitrator then decided this question by way of a Certificate of Determination and accompanying reasons dated 14 August 2019. An appeal was lodged within 28 days of that determination.

The issues on appeal were whether the appeal was competent, whether fresh evidence should be admitted upon the appeal and whether any of the grounds of appeal should be upheld.

The grounds of appeal were whether the Arbitrator erred in:

(a) Failing to admit the statements of Ms Laverty and Ms Evans;

(b) Assessing and considering the evidence including the clinical records from the general practitioner on 5 March 2018 and following, and

(c) Determining the matter on a basis not put to or by the parties.

Held: The Senior Arbitrator’s Certificate of Determination dated 8 May 2019 was confirmed. Consequently, the Senior Arbitrator’s Certificate of 14 August 2019, which was not challenged, was also confirmed.

The competency of the appeal

1. The Acting Deputy President addressed the issue of the competency of the appeal before turning to the evidence going to the second respondent’s injury and incapacity. The appeal purported to challenge the decision of 8 May 2019 but was not lodged within 28 days of that decision. Instead, it was brought within 28 days of the decision dated 14 August 2019. Whether the appeal could succeed depended on whether the Senior Arbitrator’s decisions of 8 May 2019 and 14 August 2019 were interlocutory or final. The Acting Deputy President then discussed the meaning of these terms in P & O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87; (2007) 6 DDCR 12 (Hawkins)and Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196 (Maricic). ([29]–[33])
2. In Hawkins, the decision at issue was found to be interlocutory because it “…has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.” Hawkins was applied by Snell ADP (as he then was) in Maricic.([35]–[39])
3. Following the approach taken in Hawkins and applied in Maricic, the Acting Deputy President found the decisions of 8 May 2019 and 14 August 2019 were both final as they determined injury and liability and thus a liability to repay and an entitlement to recover compensation. The Acting Deputy President then turned to the question of whether the appeal was properly brought within 28 days of the second decision or whether it needed to be brought within 28 days of the first decision. In Hawkins, Roche DP observed that when a final Certificate of Determination was issued, it would be open to any affected party to challenge all steps in the proceedings that resulted in the ultimate determination complained of. ([40]–[44])
4. The Acting Deputy President then considered three other decisions of the Commission. ([45])

(Transley Solutions Pty Limited v Kagiorgis [2010] NSWWCCPD 45 (Transley); Hrvat v Thiess Pty Limited [2010] NSWWCCPD 69 (Hrvat) and State of NSW v Abdul [2018] NSWWCCPD 41 (Abdul) discussed)

5. In Transley, there were two decisions and an appeal was brought within time from the second, even though it was exclusively concerned with the first. O’Grady DP held, consistently with Hawkins and Maricic, that the appeal was within time and competent and no extension of time was required. The Acting Deputy President then discussed the cases of Hrvat and Abdul and regarded themas inconsistent with the approach taken in Hawkins. In Hrvat, although the first decision was final, it was also considered “a preliminary step” towards the later determination. In Abdul, the earlier decision was not regarded as interlocutory but leave to appeal out of time was required and granted. ([46]–[54])

   (Transley, Abdul and Hrvat considered)

6. The Acting Deputy President found that in a case like the present, where the first instance proceedings were not brought to a close until the delivery of a necessary second decision, the better view was that so long as an appeal is lodged within time following that decision it can rely upon grounds referable only to an earlier decision. The Acting Deputy President found that Transley, Hrvat and Abdul all correctly follow Hawkins and Maricic to the extent of recognising the type of earlier decision that is to be regarded as final. However, he regarded Hrvat and Abdul as being inconsistent with Transley in holding that leave to appeal is required. He also regarded them as inconsistent with Hawkins at para [46]. For these reasons, in the present matter, the Acting Deputy President rejected the second respondent’s contention that the appeal was out of time. ([55]–[56])

   (Transley and Hawkins applied, Hrvat and Abdul distinguished)

   Ground One – The rejection of evidence by the Senior Arbitrator and the admissibility of fresh evidence upon appeal

7. The appellant submitted that the Senior Arbitrator ought to have admitted the statements of Ms Laverty and Ms Evans into evidence and that the report of Dr Ihsheish and the statement of Ms Lynam should be admitted upon the appeal. ([57]–[59])
8. The Acting Deputy President accepted the correctness of the Senior Arbitrator’s exercise of discretion in rejecting the statements. He agreed with the Senior Arbitrator that the probative value of Ms Laverty’s statement was difficult to discern if it existed at all and that the statement of Ms Evans could have been obtained in a timely fashion. The Senior Arbitrator was also correct to say that the statement of Ms Evans would have required consideration and investigation and that it would be prejudicial to the respondents for it to be admitted without time to do so. The appellant’s submission that an adjournment ought to have been considered and granted was rejected. For these reasons, this ground failed. ([61]­­–[66])
9. In relation to the application to admit the report of Dr Ihsheish and the statement of Ms Lynam, the Acting Deputy President considered s 352(6) of the 1998 Act. As to Ms Lynam’s statement, the Acting Deputy President found the comments made by the appellant before the Senior Arbitrator indicated that the appellant had access to a number of lay witnesses who were involved with the second respondent in the period leading up to the alleged date of injury. The appellant must have known that Ms Lynam was another person in this position. The Acting Deputy President then considered whether the failure to grant leave would cause substantial injustice. On this ground, he was unpersuaded the statement of Ms Lynam would have made a critical difference in the case such that the Senior Arbitrator would have arrived at a different decision. The tender of Ms Lynam’s statement as fresh or new evidence was rejected. ([67]–[79])
10. As to Dr Ihsheish’s report, the Acting Deputy President found it was immediately obvious that it was in existence well before the April 2019 hearing. It was also apparent from the Senior Arbitrator’s reasons that there was evidence from the doctor before the Senior Arbitrator and that the physiotherapist mentioned in the report must have also been ascertainable. On this basis, the Acting Deputy President was not persuaded either ground in s 352(6) of the 1998 Act had been made out. ([80]–[82])

Grounds Two and Three – The remaining grounds of appeal

11. The second ground of appeal essentially amounted to the appellant having a second attempt at an issue of fact upon a question which was the sole one for decision. The appellant submitted the correct finding the Senior Arbitrator should have arrived at was that there was no employment injury, by relying on lay evidence and medical records. After reviewing the transcript of the oral hearing and the Senior Arbitrator’s reasons, the Acting Deputy President found that the Senior Arbitrator’s review of the evidence was comprehensive and accurate and did not reveal any error. On this basis, the ground failed. ([84]–[91])
12. In relation to Ground Three, the appellant complained that the Senior Arbitrator determined the question of employment injury on a basis not put to her by analysing the WorkCover certificates which were part of the evidence. The Acting Deputy President found that it was necessary for the Senior Arbitrator to deal with the boxes which were left empty of markings or ticks in the WorkCover certificates, as they were a feature of the evidence and had been emphasised by the appellant. The Acting Deputy President found the conclusion reached by the Senior Arbitrator was not only open to her but eminently reasonable. This ground was rejected. ([92]–[96])

Goh v Westpac Banking Corporation [2020] NSWWCCPD 25

Section 11A of the 1987 Act - whether the employer’s performance appraisal and/or discipline of the worker were “reasonable actions”

King ADP

29 April 2020

Facts

The appellant worker was employed by the respondent when he suffered psychological injury that was wholly or predominantly caused by the actions of the respondent by way of performance appraisal and/or discipline. There was no dispute that the appellant had suffered injury. The issue was whether the respondent’s actions were reasonable. It was common ground that the respondent carried the onus of proof.

The Arbitrator found the respondent had demonstrated that its conduct was reasonable, thereby discharging its onus of proof for the purposes of the application of s 11A of the 1987 Act.

The overarching issue on appeal was whether the Arbitrator was correct in deciding the respondent’s actions were reasonable. The appellant advanced six grounds of appeal.

The issues on appeal were whether the Arbitrator erred in:

(a) Ground One – failing to assess the evidence of Mr Egan properly when he found that his evidence was only evidence relayed to him from the appellant;

(b) Ground Two – not giving weight to the contemporaneous emails of the appellant to the HR department;

(c) Ground Three – weighing up the evidence of reasonableness of the respondent’s actions towards the appellant;

(d) Ground Four – accepting that complaints by clients were made about the appellant when no direct evidence of such complaints existed;

(e) Ground Five – failing to apply the burden of proof properly in assessing the evidence that gave rise to the respondent’s s 11A defence, and

(f) Ground Six – finding for the respondent.

Held: The Arbitrator’s Certificate of Determination dated 1 November 2019 was confirmed

Discussion

1. The Acting Deputy President was of the view that Grounds Three, Five and Six were stating the same proposition in different ways. Accordingly, he dealt with them together. ([42])

   Ground One

2. The appellant complained that the Arbitrator erred when he accorded less weight to the evidence of Mr Egan because he was recounting what the appellant had told him. Mr Egan was a member of the team the appellant headed, whose statement both the appellant and respondent relied on. The respondent submitted some of the factual matters referred to in the appellant’s written submissions were not put to the Arbitrator and that the Arbitrator’s evaluation of Mr Egan’s evidence was not erroneous. ([43]–[44])
3. After considering the content of Mr Egan’s evidence, the Acting Deputy President found Mr Egan’s evidence was not entirely dependent on what the appellant had told him. Those parts of Mr Egan’s statement which were his own direct observations, however, were not concerned with the relevant action, that is, whether the respondent’s actions by way of performance appraisal and/or discipline were reasonable. Instead, they described the manner or style in which the appellant’s director dealt with subordinates, including the appellant, and seemed to concentrate on the period of time leading up to the implementation of the performance plan. ([45])
4. The Acting Deputy President agreed with the respondent that the Arbitrator had treated the evidence of Mr Egan fairly. On this basis, no error was made out and Ground One was dismissed. ([46])

Ground Two

5. The appellant submitted that only senior management, and not the members of the team headed by the appellant, were asked to comment on his detailed grievance report. The appellant thereby alleged the Arbitrator’s reliance on the evidence of senior management “…does not constitute a true weighing up of the evidence on reasonableness.” The respondent’s position was that this ground was not put before the Arbitrator as an argument and that even if it were, it would not have affected the Arbitrator’s decision. ([47]­–[49])
6. At [50] of his reasons, the Deputy Acting President agreed with the respondent in saying that this ground was not part of the appellant’s case before the Arbitrator. On the evidence, there was nothing to suggest that the way in which this grievance was dealt with relevantly affected the performance appraisal and/or disciplinary action which the performance plan constituted. The appellant failed to show error by the Arbitrator and Ground Two failed. ([50]–[51])

Ground Four

7. The appellant argued the only direct evidence of complaint about the appellant’s performance from “stakeholders” was an email from Ms Crowe, which was not sufficient to justify the implementation of an informal performance plan. The respondent submitted it was not a correct statement of the evidence to say that the email from Ms Crowe was the totality of the evidence. ([53])
8. The Acting Deputy President agreed with the respondent. The email of Ms Crowe was the only documentary evidence but statements from other people contained several references to their being told by others that there was dissatisfaction with the appellant’s performance. While the cogency or reliability of this evidence may not have been admissible under the rules of evidence, this did not affect the Arbitrator’s decision. Ground Four fails. ([54]–[55])

Grounds Three, Five and Six

9. The Acting Deputy President considered Grounds Three, Five and Six together. The appellant submitted the Arbitrator did not weigh up the reasonableness of the respondent’s actions and apply the burden of proof that lay on the respondent properly. ([56]–[59])
10. The Acting Deputy President found the reasons of the Arbitrator revealed that he understood the respondent bore the onus of proof and was satisfied it had been discharged. The Arbitrator had considered the evidence put before him and was satisfied the steps the respondent had taken were reasonable. On this basis, Grounds Three, Five and Six considered collectively must fail. ([60]–[64])

Decision

11. The appellant failed to demonstrate that the Arbitrator erred in fact, law or discretion in such a way as to impugn his decision. The Arbitrator’s decision was correct and the Certificate of Determination of 1 November 2019 is confirmed.

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