Issue 6: June 2020

Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision.

WORKERS’ COMPENSATION – Assessment and amount of compensation – Discontinuation of payments – Construction of the 1987 Act, s 39 – Whether appellants were entitled to payments during the period between discontinuation and resumption of payments following assessment by an approved medical specialist

White, Brereton JJA and Simpson AJA

17 June 2020

Facts

The appellants were both workers who were injured in the course of their employment. Each claimed weekly compensation and was in receipt of weekly payments prior to the 2012 amendments. The 2012 Amendment Act replaced s 39(1) of the 1987 Act, which now provides that a worker has no entitlement to weekly payments of compensation “after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.”

In accordance with the new s 39, the insurers ceased paying the workers’ weekly payments at the expiration of 260 weeks. After their payments had ceased, both workers’ whole person impairment was assessed at greater than 20%. This saw their weekly payments resume under s 39(2), which provides that s 39 “does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.”

Both workers sought back payment of weekly expenses from the time their weekly payments ceased until their assessment and resumption of weekly payments.

The Senior Arbitrator determined that the workers were entitled to the weekly payments in the period between the cessation of payments and assessment of their permanent impairment to be more than 20%. The employers both appealed to the President.

The President, in upholding the appeal in favour of the employers, held that the effect of s 39(2) was to displace s 39(1) only from the date when the worker was assessed to have a degree of permanent impairment of greater than 20%. The workers appealed to the Court of Appeal. As both proceedings raised a similar issue, the two appeals were heard together by the Court.

The Court found there were two main limbs underlying the President’s decision (which formed the two primary issues considered on appeal);

1. that assessment is a precondition to liability given the words of s 39(3), and
2. that s 39(2) has a temporal aspect as it operates on the state of affairs that obtains at the relevant date.

Held: The President’s decision in both matters was set aside and the Senior Arbitrator’s determinations were reinstated.

per Brereton JA (White JA agreeing)

1. On the proper construction of s 39, the 260 week limit never applies to a worker whose degree of permanent impairment resulting from the relevant injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed. ([1], [45])

   As to the first issue, per Brereton JA (White JA agreeing)

2. By incorporating Pt 7 of Ch 7 of the 1998 Act, through s 65 of the 1987 Act, the words “to be assessed” in s 39(3) provide the methodology and process by which impairment is to be measured and any dispute about its existence or extent resolved; the words do not mandate that there must have been an assessment before s 39(2) is engaged. ([2], [3], [45], [46], [50], [82])

   As to the second issue, per Brereton JA

3. The date on which an impairment threshold is crossed is not a relevant consideration in any question arising under s 39 of the 1987 Act, and the only relevant question is, what degree of permanent impairment has resulted from the worker’s injury. For the purposes of s 39, while impairment may improve or deteriorate over time, or not be established until long after the injury, it is the final degree of permanent impairment that results from an injury that is determinative of whether the worker is in the exempt class. There can ultimately be only a single degree of permanent impairment that results from an injury; the contrary view is incongruous with the concept of permanency. ([53]–[56])

   As to the second issue, per White JA

4. The degree of permanent impairment ultimately ascertained does not necessarily arise from the date of the worker’s injury. In some cases the worker’s degree of permanent impairment will date from the injury; but in others the ultimately assessed degree of permanent impairment would have been occasioned by later events, such as adverse results of surgery or psychological sequelae, that did not exist earlier. ([8], [9], [11], [12])

   per Simpson AJA

5. It is necessary to go no further than the text of s 39 to resolve the present dispute. Nothing in any of the three subsections of s 39 states, explicitly or implicitly, that removal of the subs (1) bar is dependent upon the date of the assessment of the degree of permanent impairment as distinct from the existence of the degree of permanent impairment. The language of subs (2) points in the opposite direction: the foundation for the removal of the subs (1) bar lies in the existence of a degree of permanent impairment exceeding 20%. Subsection (3) does no more than specify the mechanism by which the degree of permanent impairment is to be assessed; nothing in subs (3) suggests that an assessment may only be prospective. If it were necessary to go beyond the text of s 39, resort to principles of statutory construction would support the same approach. ([90]–[91])

University of New South Wales v Lee [2020] NSWWCCPD 33

Section 352(3A) of the 1998 Act – leave to appeal interlocutory decisions – certification by legal practitioner of reasonable prospects of success

Wood DP

28 May 2020

Facts

Ms Lee claimed weekly payments and treatment expenses in respect of an alleged psychological injury in the course of her employment with the University of New South Wales (UNSW). Liability was accepted on a provisional basis pursuant to s 267 of the 1998 Act.

On 10 February 2020, UNSW notified Ms Lee that an Independent Medical Examination (IME) had been arranged for her to be examined by Dr Miller, psychiatrist, on 18 March 2020. The reason put forward by UNSW for the medical examination was that clinical notes had been requested from Ms Lee’s general practitioner, Dr John Cosgriff of the Broadway General Practice, but had not been received.

By email dated 10 February 2020, Ms Lee’s legal representative, Mr Richard Brennan, objected to the examination on the basis that Dr Cosgriff had only received the request the week before and had forwarded a tax invoice to the appellant for payment for the provision of the notes.

On 17 February 2020, UNSW responded to Mr Brennan, asserting that the examination was in accordance with the Guidelines, and if Ms Lee did not attend, her payments would be suspended. Thereafter a “stand-off” ensued, in which Ms Lee refused to attend the medical examination and UNSW insisted that the respondent’s payments would cease.

Ms Lee sought an order in the Commission that the proposed IME with Dr Miller on 18 March 2020 did not comply with s 119 of the 1998 Act or the Workers Compensation Guidelines and pursuant to s 119(4) of the 1998 Act, she was not required to the attend the IME. A telephone conference was held by the Arbitrator on 7 April 2020, in which Mr Brennan appeared for Ms Lee and Mr Michael Taylor from Leigh Virtue & Associates appeared for the appellant. The Arbitrator heard oral submissions from Ms Lee. On 8 April 2020, the Arbitrator issued a Direction directing UNSW lodge and serve written submissions by 9 April 2020, following which the dispute would be determined on the papers. Following the telephone conference, Mr Paul Macken from Leigh Virtue & Associates applied for a transcript and was advised the telephone conference had not been recorded.

On 9 April 2020, UNSW lodged an appeal application that was rejected as it did not comply with Practice Direction No 6.

On 14 April 2020, the Arbitrator issued a further Direction directing both parties lodge and serve written submissions. Both parties subsequently lodged those written submissions.

In the meantime, on 14 April 2020 UNSW filed a fresh appeal application.

The issues on appeal were whether the Arbitrator erred in respect of:

(a) Ground A: error of law in denying UNSW procedural fairness;

(b) Ground B: error of law by failing to give any reasons;

(c) Ground C: error of discretion in failing to deal with the application for leave to issue directions, and

(d) Ground D: error of law in that the Arbitrator failed to use her best endeavours to bring the parties to the dispute to a resolution in accordance with her obligations under s 355 of the 1998 Act.

Held: Leave to appeal was refused. The matter was remitted to the same Arbitrator for determination of the dispute.

Fresh evidence

1. Ms Lee sought to adduce fresh or new evidence on appeal in the form of an affidavit from Mr Brennan sworn 15 May 2020, in which Mr Brennan set out the procedural background of the matter and his recollection of what had transpired at the telephone conference. UNSW opposed the admission of Mr Brennan’s affidavit. ([20])
2. Section 352(6) of the 1998 Act allows the Commission to grant leave to adduce fresh or additional evidence if satisfied of one of the two alternative threshold conditions specified in the sub-section. That is, whether the evidence sought to be adduced was not available to the party and could not reasonably have been obtained by the party, before the proceedings concerned, or alternatively, whether the failure to admit the evidence would cause a substantial injustice in the case. ([23])

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

3. The document clearly could not have come into existence until after the telephone conference, so that it could not have been relied upon at that stage and accordingly constituted fresh evidence. In the absence of a transcript, the only avenues available to ascertain what decisions were made by the Arbitrator are the recollection of the parties who were present, and the Directions issued by the Arbitrator. The document was therefore relevant to the question of whether or not UNSW’s appeal grounds were made out. ([24], [26])
4. UNSW had the opportunity to seek leave to file a response to the evidence by way of affidavit from Mr Taylor at the time it filed its Reply to the Opposition, or at some later stage, which it chose not to do. Having had that opportunity to address the evidence, there was therefore no prejudice to UNSW if the document was admitted. The affidavit of Mr Brennan dated 15 May 2020 was admitted for the purpose of this appeal. ([27]–[28])

Interlocutory decision

5. UNSW sought leave to appeal from alleged decisions made by the Arbitrator which were procedural matters. The dispute before the Arbitrator was limited to the question of whether UNSW was entitled to suspend Ms Lee’s compensation payments which she was receiving in respect of her psychological condition. The issue was part heard before the Arbitrator. ([30]–[31])
6. Section 352(3A) of the 1998 Act provides that there is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. It was therefore necessary to consider the nature of the dispute and the orders sought on appeal. It is appropriate to take into account the merits (if any) of the grounds of appeal. ([32])

Ground A: denial of procedural fairness

7. UNSW contended that it had been denied procedural fairness because the Arbitrator proceeded to arbitration at the telephone conference without notice when UNSW was not in a position to proceed. The Arbitrator clearly took into account UNSW’s unreadiness by hearing submissions from Ms Lee and standing the matter over in order to provide UNSW with the opportunity to prepare submissions in reply. Wood DP could not see how UNSW had been denied procedural fairness in that process. Both parties had filed submissions and the Arbitrator was, but for this appeal, in a position to fairly determine the matter. ([35])
8. Given the decision by the Arbitrator recorded in the Directions dated 8 April and 14 April 2020, Wood DP was not satisfied that the Arbitrator proceeded to arbitration without adequate notice, and the absence of a transcript of her reasons was therefore immaterial. ([36])
9. UNSW also contended that the Arbitrator failed to consider or deal with its application for leave to issue directions for production, which was also procedurally unfair. Wood DP was not satisfied that there was evidence to establish that UNSW made an application to the Arbitrator to issue directions for production. The submissions on behalf of UNSW made on the appeal were prepared by Mr Macken who was not present in the telephone conference. Mr Macken’s assertion that such an application was made was not supported by any evidence, such as affidavit evidence from Mr Taylor that he did in fact make the application, a contemporaneous file note made by Mr Taylor of having made the application, or any evidence from Mr Macken as to how he was aware such an application was made. In that context, Mr Brennan gave evidence in the form of an affidavit that he had no recollection of such an application being made, and that if it had, he would have opposed it. The evidence of Mr Brennan, while not persuasive of itself, tended to indicate that no application was actually made. ([37]–[40])
10. In the absence of evidence to establish that the application was made, which could have been adduced by UNSW and was not, the Deputy President could not be satisfied that the Arbitrator made a “decision,” or failed to consider or make a “decision,” against which UNSW had a right to seek leave to appeal. Consequently, Wood DP was not satisfied that this appeal ground had merit and she refused leave to appeal in respect of Ground A. ([41]–[42])

Ground B: failure to give reasons

11. UNSW contended that the Arbitrator failed to give reasons for:

    (a) refusing its application for adjournment;

    (b) refusing or failing to consider its application for leave to issue directions, and

    (c) proceeding with an arbitration of the matter, contrary to the Notice issued by the Commission that it was to be a telephone conference.

    The basis of the alleged failure to give reasons was the absence of a transcript of proceedings and a statement of reasons by the Arbitrator. ([43]–[44])

12. The failure to record matters discussed at the telephone conference is not unusual. It is a matter of practice and consistent with the Commission’s policy that telephone conferences in the Commission are not recorded so that the parties may feel free to engage in a frank exchange of views. A party may request for the telephone conference to be recorded in part or in whole. It is the obligation of the legal representative to ensure that matters relevant to a dispute are argued “on the record.” ([45])

    (Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13 applied)

13. UNSW maintained that if there is an absence of transcript it amounts to a failure to give reasons and a denial of procedural fairness which can only be remedied by a re-determination. This is not automatically the case, particularly in respect of interlocutory decisions made at a telephone conference. Where it is possible to ascertain what transpired by agreement between the parties, cogent evidence from the parties, or contemporaneous documentary evidence, it was not necessary to remit the issue for re-determination. ([46])

    (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 applied)

14. UNSW was in a position to apply to have fresh evidence admitted to establish that Mr Taylor applied for an adjournment and/or sought leave to issue directions and counter the evidence of Mr Brennan. In the above circumstances, Wood DP held the absence of a transcript did not amount to a failure to provide reasons or a denial of procedural fairness. Wood DP did not accept the Arbitrator refused to adjourn the matter; that the Arbitrator proceeded to arbitration without giving UNSW adequate notice, and that UNSW made an application for leave to issue directions for production of documents. Leave to appeal in respect of the purported failure to give reasons as described was refused. ([47]–[51])

    Ground C: error of discretion in failing to deal with the application for leave to issue directions

15. For the reasons given under Grounds A and B, Wood DP did not accept that there was evidence to establish such an application was made. Leave to appeal the alleged error in Ground C was refused. ([52]–[53])

    Ground D: the Arbitrator failing to use her best endeavours to bring the parties to the dispute to a resolution in accordance with her obligations under s 355 of the 1998 Act

16. It was not contentious that following the arrangement for Ms Lee to attend an IME, Ms Lee refused to attend and UNSW suspended Ms Lee’s compensation payments. Thereafter a “stand-off’ ensued, in which Ms Lee refused to attend the medical examination and UNSW insisted that it was entitled to suspend Ms Lee’s payments. In fact, in submissions in this appeal the parties had continued to act in a confrontational manner, rigidly asserting their position. ([55]–[57])
17. The issue which the Arbitrator was required to determine was narrow in concept and considered by her to be urgent. Neither party had given any indication that they were prepared to move from their fixed positions. In the context of this case, whether the Arbitrator did or did not make a vigorous attempt to resolve the matter, the Arbitrator was entitled to rely on her own experience and move swiftly into the arbitration phase on the basis that “a settlement acceptable to all” was not even a remote possibility. The Arbitrator was not in breach of s 355 of the 1998 Act because she had not “ma[d]e an award or otherwise determine[d]” the dispute as required. Wood DP therefore refused leave to appeal the Arbitrator’s interlocutory decision to proceed to arbitration. ([59]–[63])

Conclusion

18. The Deputy President was not satisfied that it was necessary or desirable for the proper and effective determination of the dispute for leave to appeal the Arbitrator’s decision. Leave to appeal the alleged interlocutory decisions was refused. ([64]–[65])

    Other matters

19. In her opposition to the appeal, Ms Lee made lengthy submissions about the conduct of Mr Macken and UNSW and urged the Presidential member to take certain referral action that was outside of the ambit of determining the appeal. Those submissions were inappropriate, particularly when the issue was yet to be determined by the Arbitrator at first instance. ([66])
20. Wood DP also noted that in lodging this appeal, Mr Macken, a legal practitioner, certified that on the basis of provable facts and a reasonably arguable view of the law, this appeal had reasonable prospects of success. Mr Macken, and indeed the profession generally, were reminded that the pursuit of an action that is without reasonable prospects of success is capable of being unsatisfactory professional conduct or professional misconduct by the legal practitioner who is responsible for the provision of the service. Such a certification should not be made lightly. ([67]–[68])

WorkControl Pty Ltd v Rae [2020] NSWWCCPD 31

Section 4(a) of the 1987 Act – injury, causation; whether error on the part of the Arbitrator – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied

Wood DP

25 May 2020

Facts

The respondent worker alleged he suffered injury in the form of a fracture to the T11 vertebral body of his thoracic spine as a result of a hypoglycaemic event in the course of his employment on 26 November 2016. The respondent suffered from Type 1 diabetes.

The injury was pleaded as either a frank injury pursuant to s 4(a) of the 1987 Act or an aggravation of a disease of gradual process pursuant to s 4(b)(ii) of the 1987 Act. It was said to have occurred in circumstances where the respondent had performed heavy labouring work for the appellant on 26 November 2016, after which he suffered a diabetic seizure while sitting in the stationary work vehicle. The respondent was removed from the vehicle and placed in the shade by another worker. When the respondent regained consciousness, he was aware of significant pain in his lower thoracic spine. He was taken to hospital where he underwent x-rays and a CT scan, which disclosed a T11 vertebral fracture of the thoracic spine.

The respondent had previously suffered a hypoglycaemic event at home on 22 October 2016, which resulted in a fall. Following that event, the respondent underwent a CT scan of his thoracic spine which showed fractures of the T4, T5 and T6 vertebrae.

The respondent claimed weekly payments, treatment expenses pursuant to s 60 of the 1987 Act and a lump sum pursuant to s 66 of the 1987 Act in respect of 17% WPI as a consequence of the event on 26 November 2016. The Arbitrator found that the respondent’s employment was a substantial contributing factor to the fracture of the 11th vertebral body of his thoracic spine on 26 November 2016. The Arbitrator ordered the appellant pay the respondent’s s 60 expenses; remitted the matter to the Registrar for referral to an AMS to assess WPI as a result of the injury, and reserved the claim for weekly compensation for further determination. The employer appealed.

The issues on appeal were whether the Arbitrator erred:

(a) by failing to make a determination on the issue of injury as defined by s 4 of the 1987 Act and in accordance with authority (Ground 1);

(b) in finding that the work was a substantial contributing factor to the fracture of the T11 vertebral body (Ground 2);

(c) in finding the respondent suffered injury as defined by s 4 of the 1987 Act (Ground 3), and

(d) in finding that the respondent’s work was a substantial contributing factor to the injury (Ground 4).

Held: The Arbitrator’s Certificate of Determination dated 18 October 2019 was confirmed. The matter was remitted to the Arbitrator for determination of the remaining issues and for the correction of the obvious omission from the Certificate of Determination of the finding that the respondent suffered injury pursuant to s 4 of the 1987 Act.

Ground 1

1. The appellant alleged that the Arbitrator failed to determine the issue of injury as defined by s 4 of the 1987 Act and “in accordance with authority.” There was no reference at all in its submissions under this ground to any authority which the appellant said the Arbitrator should have considered or which demonstrated that the Arbitrator erred in his approach to the issue. ([128])
2. Before the Arbitrator, the appellant argued that the history provided to A/Prof Fearnside, Dr Thornley, and Prof Carter was inconsistent with the notes from Lithgow District Hospital and the history recorded by Dr Treble and Dr Tay. However, the appellant did not submit at all about the absence of evidence from Mr Lewis (the respondent’s colleague who was driving the work truck), or that the absence of that evidence was important. It was not apparent from the appellant’s submissions as to how it was alleged the Arbitrator erred. If the appellant’s criticism was that the Arbitrator did not address the absence of relevant evidence from Mr Lewis, that was a matter that could not be raised in this appeal. It is not an error for an Arbitrator to fail to deal with an argument that was not raised in the proceedings below. ([131])

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

3. The appellant made no further submission as to how it was alleged that the Arbitrator erred in respect of this ground. The Arbitrator determined that the clinical notes were to be treated with caution, relying on Renew God’s Program Pty Ltd v Kim [2019] NSWWCCPD 45 and Winter v New South Wales Police Force [2010] NSWWCCPD 121. The Arbitrator determined, after weighing the evidence relied on by the appellant, that the evidence was not sufficient to counter the respondent’s evidence about the food he said he consumed on that day. On that basis he accepted that A/Prof Fearnside, Dr Thornley and Prof Carter had a correct history and accepted their evidence. The Arbitrator then concluded that the respondent suffered the T11 fracture either during the seizure which resulted from the hypoglycaemia or while being extracted from the work truck. ([132]–[133])
4. The appellant made no submission as to why that conclusion was not open to the Arbitrator, or how it was alleged the Arbitrator erred in respect of this ground of appeal. In order to succeed in the appeal, each ground of appeal must clearly identify the alleged error in the decision below. The appellant identified no error of fact in the Arbitrator’s reasoning process and on a plain reading of the Arbitrator’s reasons, no error was apparent. Ground 1 failed. ([134]–[135])

(Kowalski v Repatriation Commission [2011] FCAFC 43 applied)

Ground 2

5. Curiously, the appellant’s submissions in respect of this ground commenced with the statement that the appellant disputed that even if the physical work the respondent was performing caused the hypoglycaemic event, it did not constitute an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act. The appellant relied on Brooks v Department of Education and Training [2006] NSWWCCPD 263 (Brooks) to support that assertion. ([136])
6. The appellant asserted that the Arbitrator erred in the application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) by not determining the injury from which the T11 fracture resulted. It was not apparent how this submission sat with the appellant’s argument that the injury received by the respondent was not a disease within the meaning of s 4(b)(ii) of the 1987 Act. Nor was it apparent how it related to the alleged error on the part of the Arbitrator that he was wrong in finding that the respondent’s employment was a substantial contributing factor to the T11 fracture. ([138])
7. The submission could not be accepted in any event. The Arbitrator was not required to determine whether the onset of hypoglycaemia was an “injury,” or the seizure was an “injury” within the meaning of s 4 of the 1987 Act. All that the Arbitrator was required to do was to ascertain whether the injury (the fracture of the T11 vertebral body) resulted from the physical work the respondent undertook on the relevant day. In considering the common sense chain of causation described in Kooragang, the Arbitrator provided a properly reasoned pathway to arrive at the result that the fracture of the T11 vertebral body was a personal injury as defined by s 4(a) of the 1987 Act and that employment was a substantial contributing factor to that injury in accordance with s 9A of the 1987 Act. ([139])
8. The Arbitrator specifically, and appropriately, excluded from consideration the respondent’s alternate “hypothesis” that the injury constituted an aggravation of a disease process within the meaning of s 4(b)(ii) of the 1987 Act. In those circumstances, Brooks had no application to this matter and the appellant’s submission that the injury was not an injury within the definition of s 4(b)(ii) was otiose. There was no error in the approach taken by the Arbitrator, and this ground of appeal failed. ([140]–[141])

(Brooks distinguished)

Ground 3

9. The appellant asserted that the reasoning process adopted by the Arbitrator indicated that the Arbitrator found that the respondent suffered an aggravation injury as defined in s 4(b) of the 1987 Act. This submission was rejected. The Arbitrator made no such finding. The Arbitrator specifically excluded from consideration the issue of whether the injury suffered was an aggravation of a disease process. The Deputy President accepted the respondent’s submission that the injury found by the Arbitrator was a “frank” injury pursuant to s 4(a) of the 1987 Act. That is, it was a sudden identifiable pathological insult to the T11 vertebral body as described by the High Court in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310. It followed that Ground 3 failed. ([142]–[145])

   Ground 4

10. The appellant submitted that because the Arbitrator determined that the respondent suffered an injury within the meaning of s 4(b) of the 1987 Act, he was required to consider whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease and not whether the employment was a substantial contributing factor in accordance with s 9A of the 1987 Act. The appellant contended that the Arbitrator’s finding in relation to s 9A was inconsistent with his finding that the respondent suffered injury within the meaning of s 4(b)(ii). The Arbitrator made no such finding in relation to the injury. It followed that there was no inconsistency between the Arbitrator’s finding as to injury and his finding that employment was a substantial contributing factor to the injury. ([146]–[147])
11. The mere fact that the seizure was caused by the respondent’s underlying disease of Type 1 diabetes did not preclude the respondent’s employment being a contributing factor to the fracture of the T11 vertebral body. It is uncontroversial that an injury can have multiple causes. To assert that “on any view of the evidence” the employment could not be a substantial or the main contributing factor ignored the very relevant evidence, including that of the appellant’s own forensic medical expert, Prof Carter, that supported the contrary proposition. The Arbitrator accepted that evidence, which was open to him. The appellant provided no cogent submission that pointed to error on the part of the Arbitrator in his determination that the respondent’s employment was a substantial contributing factor to the injury. Consequently, Ground 4 failed. ([149]–[152])

(ACQ Pty Ltd v Cook [2009] HCA 28; 237 CLR 656; 258 ALR 58; 83 ALJR 986 applied)

Conclusion

12. The Arbitrator did not overlook material facts, or give undue or too little weight in deciding the inference to be drawn, and nor was the available inference in the opposite sense to that chosen by the Arbitrator so preponderant that it showed that the Arbitrator’s decision was wrong. The Arbitrator’s determination was confirmed. ([153]–[154])

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

13. Despite the Arbitrator reaching a clear and reasoned conclusion that the respondent suffered an injury as defined by s 4 of the 1987 Act, the Certificate of Determination did not record that finding. Deputy President Wood considered that such an omission was, in the circumstances, a mere “slip.” The matter was remitted to the Arbitrator for determination of the remaining issues and to correct the obvious error of omitting to record the finding in relation to injury pursuant to s 4 of the 1987 Act. ([155]–[156])

BB v Secretary, Department of Education [2020] NSWWCCPD 27

Factual error; the causation test in s 11A(1) of the 1987 Act

Snell DP

7 May 2020

Facts

The appellant worker worked with the NSW Department of Education, the respondent, as a high school teacher. At the time of the events giving rise to the claim, the appellant’s substantive position was a full-time head teacher at the school.

The appellant was the Head Teacher in the Secondary Studies faculty at the school. He was also relieving Deputy Principal from 2015 to April 2016. He was unsuccessful in obtaining the temporary position of Deputy Principal after his relieving role came to an end. From April 2016, the appellant unsuccessfully sought to obtain positions at other schools. There were difficulties in his relations with the Principal and the Deputy Principal. There was a problem with the school’s careers advisor, who the appellant shared an office with.

On 23 May 2017, the appellant had a meeting with the Deputy Principal, followed later in the day by a meeting with the Principal. At the second of these, the appellant was given a letter containing a number of allegations. At the end of that day the appellant saw his general practitioner and went off work. He did not resume thereafter.

The appellant claimed he received a psychological injury. The appellant made various claims for compensation, claiming separately in respect of stresses to which he was exposed in his teaching position (and associated interpersonal difficulties) at the school, stresses associated with inappropriate behaviour of students (the student incidents), and atrial fibrillation (which was claimed to result from the psychological condition).

The respondent accepted there was a psychological injury resulting from employment, to which employment was a substantial contributing factor (or the main contributing factor if viewed as a ‘disease’). There was an issue regarding whether the respondent had a defence on the basis of s 11A(1) of the 1987 Act.

The Arbitrator decided that a defence pursuant to s 11A(1) of the 1987 Act was established and entered an award in favour of the respondent. The appellant appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) fact and law when he considered the question was whether the appellant was suffering from a psychological injury prior to the actions of the respondent (Ground No 1);

(b) law when he failed to consider whether each of the actions complained of was in respect of performance appraisal or discipline (Ground No 2);

(c) law when he found that the interpersonal conflict with the careers adviser was no more than a by-product of the appellant’s condition (Ground No 3) and

(d) fact when he found that the opinion of Dr Martin established a section 11A defence (Ground No 4).

Held: The Certificate of Determination dated 28 October 2019 was revoked and the matter was remitted for re-determination by another Arbitrator.

Ground 1

The extent to which ‘injury’ was in issue

1. At the outset, it was necessary to deal with the matters in issue and whether ‘injury’ was conceded in respect of the ‘student incidents’. The respondent did not concede that injury resulted from the student incidents. ([58])

   The Arbitrator’s fact finding regarding the student incidents

2. It is necessary that the Arbitrator’s reasons be read as a whole. The issue of whether the student incidents contributed to the psychological injury remained in issue. The Arbitrator decided this issue against the appellant. That decision was not simply based on the Arbitrator’s assessment of the medical evidence. It was based on an analysis of the evidence as a whole and Deputy President Snell accepted it was a result that was open to the Arbitrator on the evidence. In those circumstances the student incidents became irrelevant to the causation issue (of ‘wholly or predominantly caused’) in s 11A(1). ([28]–[32], [59]–[65])

   (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 and Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 applied)

3. Whilst the student incidents occupied much of the parties’ submissions on this ground, they did not represent the whole basis of the appellant’s challenge going to the causation issue in s 11A(1). The respondent, in its submissions, had not taken issue with the list of allegations described by the appellant on appeal as being causative of the psychological injury. As the appellant’s submissions on Ground No 1 stated, some of the matters did not on their face fall within the definitions of performance appraisal or discipline. There was considerable overlap between the submissions under the various grounds. ([66])
4. To the extent to which Ground No 1 raised error in how the Arbitrator dealt with the student incidents, that ground failed. The submissions dealing with Ground No 1 were more expansive than that. They went in a more general sense to how the Arbitrator dealt with the causation finding pursuant to s 11A(1), in circumstances where the causal matters alleged by the appellant related to matters some of which did not appear to potentially be subject to the operation of s 11A(1). The issues raised, beyond the student incidents, were more appropriately dealt with as part of the other grounds, under which the submissions more directly addressed them. ([67])

Grounds Nos 2, 3 and 4

5. The Arbitrator’s finding on s 11A(1) was based on ‘discipline’ and ‘performance appraisal’. The appellant submitted there were matters, such as the conflict with the careers adviser, that could not fall within s 11A(1). The conflict with the careers adviser, both at a general interpersonal level and in relation to room sharing, did not fall within s 11A(1). It was not part of the careers adviser’s function to engage in actions relevant to discipline or appraisal of the appellant. The appellant was her immediate superior at the school. The fact that the appellant and the careers adviser shared an office, in circumstances where it pleased neither of them, was not part of the actions of the respondent in respect of discipline or performance appraisal. The Arbitrator’s finding at [236] of his reasons, to the effect that such conflict was not a contributing cause to the conceded psychological injury, was erroneous. ([109])
6. There were potentially other causes of the injury identified by the appellant. The Arbitrator’s formal findings were that the injury wholly or predominantly resulted from reasonable actions of the respondent with respect to performance appraisal and discipline. It was necessary that the Arbitrator identify whether the finding was one based on ‘wholly’ or ‘predominantly’. This he did not do. If the injury resulted from a combination of causes, some falling within s 11A(1) and some not, it was necessary, that the Arbitrator engage in an “analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act.” This was required to support a finding of ‘predominantly’, if that was the basis on which the Arbitrator upheld the defence. This was not done. ([110])

(Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 applied)

7. The failure to appropriately identify the causes of the conceded psychological injury, and to engage in the necessary causal analysis, resulted in the fact-finding process miscarrying. There were various other errors in fact finding identified. Grounds Nos 2, 3 and 4 were upheld. ([112])

French v Hayes [2020] NSWWCCPD 26

Whether error in determining the need for surgery resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination – Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 considered and applied

Wood DP

7 May 2020

Facts

The respondent worker sought weekly payments of compensation, treatment expenses and lump sum compensation. He also sought an assessment of his WPI for the purpose of establishing he was a worker with highest needs as defined by s 32A of the 1987 Act.

The respondent alleged that he suffered injury to his neck with symptoms in both arms as a result of being hit in the head by a falling aluminium plank during the course of his employment with Kevin J French (the appellant) as a painter. The injury occurred on 28 January 1998.

The respondent had had two earlier claims: the first of which the appellant agreed to pay compensation in respect of 25% permanent impairment of the respondent’s neck, together with an amount in respect of the associated pain and suffering pursuant to s 67 of the 1987 Act. A second lump sum claim was resolved in favour of the respondent on 29 February 2012, in which the respondent was assessed as having a further 5% impairment of the neck as well as 15% loss of efficient use of the left arm at or above the elbow and 5% loss of use of the right arm at or above the elbow.

On 29 May 2017, the respondent underwent surgery to his cervical spine in the form of a two-level anterior discectomy and fusion at the C5/6 and C6/7 levels, which was performed under the public health system, as liability for the surgery had been declined by the appellant.

The Senior Arbitrator found that the surgery was reasonably necessary as a result of the injury. He referred the claim pursuant to s 66 of the 1987 Act to an AMS for assessment in accordance with the Table of Disabilities (the applicable table for assessing impairment in respect of injuries prior to 1 January 2001) and for assessment of the respondent’s WPI. The Senior Arbitrator deferred the question of the respondent’s weekly entitlements until after the AMS had issued a MAC in order to provide the parties with the opportunity to adduce further relevant evidence. The employer appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) fact in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan (Ground A);

(b) fact by determining that the anterior cervical discectomy and fusion performed by Dr Winder was causally related to the injury on 28 January 1998 (Ground B);

(c) fact and/or law by determining surgery was reasonably necessary treatment (Ground C), and

(d) fact in determining that the surgery did not cause a break in the chain of the causal connection (Ground D).

Held: The Senior Arbitrator’s Certificate of Determination dated 30 October 2019 was confirmed and the matter was remitted to the Senior Arbitrator for determination of the remaining issues.

Discussion

1. There was no issue that the Senior Arbitrator’s findings which were the subject of the appeal were factual findings and the authorities referred to by both parties were applicable. The decision that the Senior Arbitrator was required to make was a decision as to causation, that is, a factual decision requiring consideration of the evidence before him and the inferences that could be drawn from those facts. ([136])

   (Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Branir) referred to)

2. The appellant must show that the Senior Arbitrator overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Senior Arbitrator is so preponderant that it establishes that the Senior Arbitrator’s decision is wrong. The grounds of appeal and the appellant’s submissions disclosed that the appellant alleged error on the part of the Senior Arbitrator in his conclusions as to the weight to be afforded to and the acceptance of certain evidence, where the preponderance of the evidence compelled the Senior Arbitrator to arrive at a different conclusion. ([141])

   Ground A: error of fact in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan

3. The appellant alleged error on the part of the Senior Arbitrator in accepting those opinions as to the need for surgery because the issues that were to be addressed by the surgery did not exist. The appellant said that absence of those issues was shown by the objective radiological imaging, which was compelling evidence. Curiously, the appellant submitted that there was an absence of imaging prior to 2011 that disclosed evidence of any significant disc protrusions. The appellant did not explain how that was relevant to the question of the need for surgery, when the surgery was not proposed until 2014, and the CT scan dated 12 April 2012, as well as the subsequent radiological investigations, clearly indicated that the respondent’s cervical pathology included disc protrusions. ([142])
4. The Senior Arbitrator preferred the evidence of Dr Winder, Dr O’Keefe and A/Prof Dan over that of the AMS, noting the AMS’s views were inconsistent with Dr Winder, the treating surgeon, and were rejected by both Dr O’Keefe and A/Prof Dan. The reasons proffered by Dr O’Keefe for rejecting the opinion of the AMS were considered by the Senior Arbitrator. ([157]–[159])
5. The appellant contended that the Senior Arbitrator erred by discounting Dr Casikar’s opinion on the basis that Dr Casikar did not have all of the available imaging before him. The Senior Arbitrator’s rejection of Dr Casikar’s opinion was not so limited. Deputy President Wood held the Senior Arbitrator provided logical and proper reasons for discounting the opinion of Dr Casikar. ([160]–[161])
6. The appellant was critical of the Senior Arbitrator for affording the opinion of Dr Winder greater weight because Dr Winder was the respondent’s treating surgeon and had the opportunity to review the respondent on a number of occasions. It is a matter of common sense that a treating specialist who reviewed, investigated and treated the respondent’s condition over a number of years would be better placed to provide an opinion than a surgeon who did not have access to the whole of the history or investigations and did not have the opportunity to observe the respondent’s increasing symptoms. ([162])
7. The appellant put no other convincing basis upon which error of the kind required to disturb the Senior Arbitrator’s acceptance of the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan could be established. It could not be said that the Senior Arbitrator overlooked material facts or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Senior Arbitrator was so preponderant that it established that the Senior Arbitrator was wrong. Ground A of the appeal therefore failed. ([166]–[167])

(Branir applied)

Ground B: error of fact by determining that the anterior cervical discectomy and fusion performed by Dr Winder was causally related to the injury on 28 January 1998

8. The appellant conceded that the 1998 injury did not have to be the sole or the substantial cause of the need for surgery. The appellant asserted that Dr Winder, Dr O’Keefe and A/Prof Dan gave specific reasons supporting the need for surgery, but those specific reasons did not exist. The appellant said that once it is established that those reasons did not exist, there could be no material contribution from the 1998 injury to the need for surgery. The appellant contended that the connection between the injury and the surgery was reliant upon the presence of cord compression or myelopathy. ([168]–[169])
9. The Senior Arbitrator provided reasons as to why he was satisfied on the basis of the respondent’s evidence that there was a continuation of the respondent’s neck symptoms from the 1998 injury. The Senior Arbitrator considered and correctly applied the test set out in Murphy v Allity Management Services [2015] NSWWCCPD 49. ([170]–[171])
10. Deputy President Wood, referring to her reasons in respect of Ground A, formed the view that it was open to the Senior Arbitrator to accept the views of those specialists. The surgery was intended to address the respondent’s symptoms arising from the pathology identified in the radiological evidence. She did not accept that the reasons for the surgery did not exist. The appellant made no other submission to support this ground of appeal and consequently, the ground of appeal failed. ([173]–[174])

Ground C: error of fact and/or law by determining that the anterior cervical discectomy and fusion performed by Dr Winder was reasonably necessary

11. The only submission made by the appellant was that the Senior Arbitrator erred in finding that the surgery was reasonably necessary because the indicators for surgery did not exist. The Deputy President earlier determined that the reasons for surgery put forward by Dr Winder and A/Prof Dan were consistent with the clinical signs and symptoms recorded and the radiological evidence that was available to each of those specialists. The appellant made no submission which identified error on the part of the Senior Arbitrator. He correctly applied the authorities of Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) and provided cogent reasons, supported by the evidence of Dr Winder, Dr O’Keefe and in particular A/Prof Dan (who addressed each of the matters required by Diab), for finding that the surgery was reasonably necessary. This ground also failed. ([175]–[177])

    Ground D: error of fact in determining that the surgery did not cause a break in the chain of the causal connection

12. The appellant submitted that the Senior Arbitrator erred by failing to determine that the surgery was a novus actus interveniens. The appellant submitted that the reason the surgery constituted a novus actus interveniens was that the surgery was not reasonably necessary, which was the subject of Ground C of the appeal, and did not result from the 1998 injury (Ground B). ([178]–[179])
13. Wood DP held the appellant had not established error on the part of the Senior Arbitrator under either of those grounds. The Senior Arbitrator was not in error in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan over the opinions of the AMS and Dr Casikar. Consequently, there was no evidence to support the appellant’s claim that the respondent’s loss of earning capacity and impairments following the surgery resulted from the surgery which was independent of the 1998 injury and constituted a new intervening incident that severed the causal chain of connection. It followed that Ground D also failed. ([180]–[181])

Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32

Section 32A(1) of the 1987 Act; Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55; the obligation to give reasons

Snell DP

27 May 2020

Facts

The appellant worked in cosmetics at the respondent’s Parramatta store. She worked 24 hours per week part-time, whilst also studying at University.

On 7 July 2014, the appellant, in the course of her employment, witnessed an assault in which the victim was stabbed to death.

The appellant suffered a psychological injury and was diagnosed with Post-Traumatic Stress Disorder. She was off work and paid compensation until 10 January 2015. She has not subsequently been in paid employment. The respondent terminated her employment in 2015, apparently on the basis she abandoned her employment.

The appellant claimed weekly compensation on a continuing basis, medical and related expenses pursuant to s 60 of the 1987 Act, and lump sum compensation in respect of 24% WPI (primary psychological injury).

The Arbitrator ordered the respondent pay the appellant weekly compensation from 11 January 2015 to 20 January 2015 and thereafter made an award for the respondent on the claim for weekly compensation. She ordered the respondent pay the appellant’s s 60 expenses, and remitted the matter to the Registrar for referral to an AMS to assess the appellant’s WPI.

The appellant appealed against the limited orders for weekly payments.

The issues on appeal were whether the Arbitrator:

(a) erred in law by finding that the worker had an ability ‘to earn an amount equivalent to her pre-injury earnings in suitable employment’ without determining the nature of such employment, having regard to the factors listed in s 32A(1)(a)(i) and (ii) (Ground No 1);

(b) erred in fact by asserting that ‘counsel did not address on the amount which it would be appropriate to award, other than Mr Saul’s [counsel for the respondent] submission’ when counsel for the worker did in fact address that topic in submissions (Ground No 2);

(c) erred in fact by asserting that the worker’s ‘social media activity shows that she had a significant capacity for work’ without providing sufficient reasons to demonstrate the nature and significance of that capacity, in the circumstances of the case (Ground No 3), and

(d) took into account irrelevant considerations, with respect to the worker’s marital status, or failed to provide adequate reasons disclosing the relevance of such circumstances (Ground No 4).

Held: The Arbitrator’s decision dated 12 November 2019 was confirmed.

Ground 2

1. Ground 2 raised a short issue regarding what submissions were made to the Arbitrator regarding the weekly entitlement. This was potentially relevant to Grounds 1 and 3; it was convenient for Snell DP to deal initially with Ground 2. ([34])
2. The appellant’s counsel submitted the appellant was:

“either totally incapacitated or has a modest ability to earn on a theoretical basis according to the medical evidence, and … that’s what counts rather than any experience in the real world or any speculation about what the value of posting material on Facebook might be worth. The [appellant] said that those activities are not remunerative to her at this stage”.

He also referred to the appellant’s evidence of her makeup activities. ([38]–[39])

3. The respondent’s counsel submitted on the appellant’s skills and work experience. The respondent’s counsel referred to the need to have regard to the matters in s 32A of the 1987 Act. He referred to the appellant’s youth, to her certificates of incapacity and the nature of the incapacity. He referred to:

   “certificates which nonetheless allow the [appellant] to perform a wide range of duties not necessarily restricted to makeup duties, whilst makeup duties are clearly within her expertise and her professional trade”. ([40]–[41])

4. These submissions directed themselves to matters relevant to quantification having regard to matters set out in the definition in s 32A of the 1987 Act. The respondent’s counsel also specifically submitted that, if the appellant’s ability to earn exceeded the upper end of the weekly compensation equation in s 37 of the 1987 Act, she “then is not entitled to any form of weekly compensation”. ([42])
5. The Arbitrator was clearly aware of the submissions going to weekly entitlement, on both sides of the record. It is necessary that the Arbitrator’s reasons be read as a whole. What the Arbitrator said in the reasons at [107] was that counsel did not address “on the amount which it would be appropriate to award, other than Mr Saul’s submission that her capacity was substantial” (emphasis added). Both counsel made general submissions on ability to earn, the appellant that the figure would be “modest” and the respondent that the figure was substantial and would arguably yield a weekly entitlement of nil. To the extent to which what was said at [107] in any way misstated the submissions, there was no meaningful error. As the respondent correctly submitted, the relevance was unclear, as was any basis to conclude this could have affected the result. Ground 2 failed. ([43]–[44])

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

Grounds 1 and 3

6. The decisions of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) and Westpac Banking Corporation v Mani [2019] NSWWCCPD 41 dealt with the same point, whether a made up job, not potentially available in the labour market at large, can constitute ‘suitable employment’. That was different to the issue in the current appeal, and those decisions did not assist the appellant. ([50]–[55])

   (Cronje v Leighton Contractors Pty Ltd [2015] NSWWCCPD 16 referred to)

7. The appellant’s submissions put to the Arbitrator, going to the availability of an award of weekly compensation and its quantum, were discussed above under Ground 2. The appellant’s submissions to the Arbitrator did not identify any specific occupation that was allegedly suitable. The submissions of the parties, viewed as a whole, clearly raised the application of s 32A(1) of the 1987 Act. The Arbitrator referred to these submissions in her reasons. This included specific reference to the respondent’s submission that, if the ability to earn was found to exceed earnings in pre-injury employment, an award for weekly compensation would not be made. ([56]–[57])
8. The appellant worked on a part-time basis with the respondent. Her pre-injury average weekly earnings were agreed and were, as the Arbitrator observed, “not high”. The Arbitrator made a clear finding that the appellant was “fit for employment from January 2015 and that she would have been able to earn an amount equivalent to her pre-injury earnings in suitable employment”. This was consistent with acceptance by the Arbitrator of the respondent’s submissions to her. The finding on the appellant’s fitness for work was open to the Arbitrator on the evidence. When the Arbitrator’s reasons were read as a whole, and when regard was had to the submissions of the parties (which were incorporated in part in the reasons) the reasons for the finding were adequate. Grounds 1 and 3 failed. Additionally, the Arbitrator accepted the respondent’s medical case, which included evidence that there was not incapacity for employment resulting from the work injury. ([58]–[59], [68])

Ground 4

9. The appellant had not identified specific references by the Arbitrator to matters such as marriage or children, which were submitted to be inappropriate or to reflect error. The appellant had not identified specific factual findings that were submitted to be tainted by this alleged error. The appellant had not identified how any such alleged errors affected the result. There was no reasonable argument made by the appellant in support of this ground. It was a ground that should not have been raised and was rejected. Ground 4 failed. ([65]–[66])

   A further matter

10. In the circumstances of the current matter, having regard to the issues and how the arbitral hearing was conducted, Snell DP concluded that the Arbitrator’s finding on economic incapacity was sufficient to comply with her obligation to give reasons. That obligation depends on the circumstances of the individual case. As a general proposition it is desirable that arbitrators, in dealing with such issues, deal specifically (to the extent to which they are relevant) with the issues identified in Dewar at [62] of that decision. ([68])

State of New South Wales v Goonan [2020] NSWWCCPD 28

Acceptance of evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; whether incapacity and need for treatment arising after non-work related events result from the compensable injury – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, Cluff v Dorahy Bros (Wholesale) Pty Ltd [1979] 2 NSWLR 435, Conkey & Sons Ltd v Miller (1977) 16 ALR 479; 51 ALJR 583, Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91, Murphy v Allity Management Services [2015] NSWWCCPD 49 considered and applied

Wood DP

19 May 2020

Facts

The respondent was employed as a police officer, working in the Tactical Operations Unit and then in the Police Prosecutions Division. He suffered an injury to his back as a consequence of his work related duties in both roles, which was deemed to have occurred on 17 August 2015. Liability for the injury was accepted by the appellant.

As he was an attested police officer, the respondent’s entitlements to compensation in respect of his injury and to legal costs were exempt from the operation of the 2012 Amendment Act.

In January 2019, the respondent experienced an increase of his symptoms in his back after lifting a tyre at home. On 6 February 2019, while the respondent was on leave from work, he suffered an acute onset of severe symptoms in the back with referred right leg symptoms when he lifted a heavy box, again at this time. He underwent a laminectomy, microdiscectomy and rhizolysis under the hands of Dr Justin Pik, neurosurgeon.

The respondent returned to work on suitable duties on 30 April 2019. He lodged a claim for weekly payments of compensation for the period from 7 February 2019 to 30 April 2019, together with treatment expenses pursuant to s 60 of the 1987 Act. He claimed on the basis that the injury on 6 February 2019 was a recurrence of his original injury deemed to have occurred on 17 August 2015. The appellant declined liability for the injury on 6 February 2019, the subsequent incapacity and the need for treatment. The appellant took the view that the incident on 6 February 2019 was an intervening incident that had broken the chain of causation. The Arbitrator found in favour of the respondent (the applicant in the proceedings below). The employer appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) accepting the opinions of Dr He and Dr Bodel, when those opinions were not consistent with the weight of the evidence (Ground One);

(b) accepting the opinions of Dr He and Dr Bodel as to causation between the initial injury on 17 August 2015 and the incapacity and need for surgery (Ground Two), and

(c) law by failing to base his determination of the cause of the injury and need for surgery on the evidence available to him (Ground Three).

Held: The Arbitrator’s Certificate of Determination dated 21 October 2019 was confirmed.

Consideration

1. The first two grounds of appeal disclosed that the appellant alleged error on the part of the Arbitrator in his conclusions as to the acceptance of the opinions of Drs He and Bodel and the weight to be afforded to that evidence, in circumstances where the evidence compelled the Arbitrator to arrive at a different conclusion. The decision that the Arbitrator was required to make was a decision as to causation, that is, a factual decision requiring consideration of the evidence before him and the inferences that could be drawn from those facts. ([110]–[112])

   (Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 applied)

2. For the purposes of Grounds one and two, the appellant must show that the Arbitrator overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Arbitrator was so preponderant that it established that the Arbitrator’s decision was wrong. ([113]–[115])

   (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 referred to)

   Ground 1

3. The appellant submitted that no weight should be afforded to the opinion of Dr Bodel because Dr Bodel did not have a correct history, in that he did not take a history of the incident on 16 January 2019 when the respondent lifted a tyre. Deputy President Wood observed the Arbitrator considered that submission. While Dr Bodel did not specifically refer to the incident on 16 January 2019, he did record that there was a deterioration in the respondent’s symptoms at that time and prior to the incident on 6 February 2019. The Arbitrator inferred that Dr Bodel was referring to both incidents in 2019. ([117]–[118])
4. The appellant contended that the respondent’s low back condition did not “deteriorate,” it was the subject of a further incident. The Deputy President did not accept that Dr Bodel’s reference to “deterioration” excluded the worsening of symptoms from a frank incident. In fact, the respondent’s statement evidence disclosed that his low back condition worsened, or deteriorated following the incident in January 2019 albeit ameliorated by analgesic medication within two weeks. The appellant did not identify an opposing inference that the Arbitrator should have drawn, particularly one that was so preponderant that the inference drawn by the Arbitrator must be wrong, as described in Raulston. In those circumstances, Deputy President Wood did not accept that the inference drawn by the Arbitrator was not available to him. ([119]–[120])
5. In the alternative, Wood DP held that even if she was wrong, and the prevailing inference could be drawn that Dr Bodel did not have a history of the incident on 16 January 2019, she was of the view that an absence of such history was not critical to the weight to be afforded to and indeed the acceptance of the opinion of Dr Bodel. ([121])
6. There was no basis for the appellant’s submission that the Arbitrator erred by placing undue weight upon the opinion of Dr Bodel and it was open to the Arbitrator to accept that evidence. ([133])
7. The appellant contended that Dr He’s opinion was internally inconsistent. The basis of the inconsistency was said to be that in the responses to the questionnaire, Dr He described the incident on 6 February 2019 as a new incident, but then referred to an exacerbation of the previous work injury. ([139])
8. The appellant also asserted that Dr He’s opinion should be rejected because it was not supported by reasons. The evidence must be assessed in the context in which it was given. Dr He was not asked in that document to explain her opinion. While an opinion which is not founded in reasons will be of little weight, it is open to the Arbitrator to accept it in circumstances where it is in concert with other reasoned opinions, in this case that of Dr Bodel, and not inconsistent with competing medical opinion. ([140], [144])
9. The Arbitrator did not afford the evidence of Dr Bodel and Dr He undue weight or fail to give other evidence sufficient weight. It followed that Ground one failed. ([145])

Ground 2

10. The appellant made the same submissions in respect of this ground as it made in respect of Ground one. Deputy President Wood rejected the submissions for the same reasons as identified under Ground one. ([146]–[147])
11. The fundamental principles of the common law concerning admissibility of evidence require that the evidence must be logical and probative. The history recorded by Dr Bodel was accurate and the process of reasoning was logical. It was open to the Arbitrator to accept the opinion of Dr Bodel. ([150])

(South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421 applied)

12. The Arbitrator accepted Dr He’s opinion that the work related injury in 2015 made the respondent more vulnerable to further injury and rejected the appellant’s submission that there were inconsistencies in Dr He’s opinion. The Arbitrator did not err in rejecting the appellant’s submission that Dr He’s evidence was internally inconsistent. ([151])
13. It was open to the Arbitrator to accept the evidence of both Dr Bodel and Dr He. It followed that Ground two of the appeal failed. ([152])

Ground 3

While the Arbitrator in this case did not express his findings in terms of the need for surgery having been “materially contributed to” by the 2015 injury, his finding that it resulted from the injury was sufficient. Such a finding was consistent with a long line of authorities, including Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Cluff v Dorahy Bros (Wholesale) Pty Ltd [1979] 2 NSWLR 435; Conkey & Sons Ltd v Miller (1977) 16 ALR 479; 51 ALJR 583; Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91, and Murphy v Allity Management Services [2015] NSWWCCPD 49. The finding was available to him on the basis of the reasoned opinion provided by Dr Bodel.  It followed that Ground three failed. ([155]–[164])

Anshaw v Woolstar Pty Ltd [2020] NSWWCCPD 30

The duty to give reasons; aggregation pursuant to s 322 of the 1998 Act; application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288

Snell DP

19 May 2020

Facts

The appellant worked as a picker at Woolworths Wyong Distribution Centre. He picked items for package and distribution to Woolworths stores in New South Wales. He initially carried out this function manually, which was heavy physical work. From 2008 to 2013, he worked on a high reach forklift. He stated that he commenced suffering from neck pain about 12 months after starting on the high reach forklift. He said this work involved looking upwards at racks that were at least five metres high and twisting his neck to look up and backwards, as he reversed withdrawing his load from racking.

The appellant said he reported injury to his right shoulder and neck on about 24 April 2013 and was taken off the high reach forklift. He had arthroscopic surgery to his right shoulder performed by Dr Hutabarat on 24 April 2013, involving a SLAP repair, bursectomy and decompression. When he resumed work after this surgery, the appellant was returned to manual picking, but of confectionary, which was less heavy than some of the other products. He stated it was repetitive and made his shoulder worse. Claim documents confirmed reports of injury on multiple occasions from 2011 to 2017 involving variously the right shoulder, the neck and the lower back.

Following the most recent of the incidents on 4 November 2017, a slip and fall at work, the appellant came under the care of Dr Damodaran, a neurosurgeon, who in December 2018 recommended cervical discectomy and fusion at C5/6.

The appellant made a claim for lump sum compensation based on an assessment of Dr Guirgis, an orthopaedic surgeon qualified by his solicitors. It was inherent in Dr Guirgis’s assessment, and in the resultant claim, that the doctor assessed permanent impairment on the basis that the various body systems the subject of assessment (cervical spine, lumbar spine and right upper extremity) could be aggregated into a single lump sum assessment. The appellant’s submissions at the arbitration hearing accepted that “the incident on 4 November 2017 stands apart because it was a very different mechanism of injury”.

The respondent’s s 78 Notice said that Dr Guirgis’s history was “broad” and incorrect. The history proceeded on the basis the various injuries “accumulated due to the nature and conditions of employment”. The notice listed claimed injuries on 16 March 2011, 5 January 2013, 4 September 2014, 2015, 19 November 2015 and 4 November 2017. The notice referred to s 322 of the 1998 Act. It disputed that the impairments to the cervical spine, lumbar spine and right upper extremity resulting from various injurious events could be combined. It disputed the quantum of the assessments.

The Arbitrator concluded that the injuries could not be aggregated and entered an award in favour of the respondent. This appeal was brought against that result.

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

(a) “exercise statutory duty to remit to AMS for assessment of degree WPI” (Ground No 1);

(b) “provide adequate reasons for rejecting claim pursuant to s 4(b)(ii)” of the 1987 Act (Ground No 2), and

(c) determine whether injuries arose of same incident pursuant to s 322 [sic]” (Ground No 3).

Held: The Certificate of Determination dated 25 October 2019 was revoked and the matter was remitted to another Arbitrator for re-determination.

Ground No 2

1. The Deputy President reviewed a number of authorities and said that a finding on the basis of the ‘disease’ provisions can be made on the whole of the evidence. It is not dependent on whether the medical evidence specifically employs the term ‘disease’. Such a finding is not prevented because the injury may also be regarded as resulting from the ‘nature and conditions’ of employment. ([48])

   (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Perry v Tanine Pty Ltd [1998] NSWCC 14; 16 NSWCCR 253, and Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 (Barrow) applied)

2. Deputy President Snell held the Arbitrator’s reasons did not engage in a “rational examination and analysis” of the case run by the appellant, on whether injury was established on the basis of the ‘disease’ provisions. The Arbitrator did not enter in an appropriate way into the issues canvassed on this topic, he did not explain why the respondent’s case was preferred over that of the appellant. The Arbitrator indicated that he found the evidence of Dr Guirgis confusing and unclear, and not of assistance. The appellant’s case consisted not only of the views of Dr Guirgis. The argument made on the appellant’s part was additionally based on the opinion of Dr Bentivoglio, the neurosurgeon qualified on the respondent’s behalf, and by reference to material from treating specialists. Although the appellant’s duties varied from time to time, there was no real issue regarding the fact that he had, for over a decade, carried out duties with the respondent which were physically arduous. ([54])
3. The appellant’s submission that it was unclear what consideration was given to the evidence of the appellant and Dr Bentivoglio was correct. The respondent’s submission that Dr Bentivoglio’s opinion could not have affected the result, as it did not specifically address the aggravation of a ‘disease’ and ‘main contributing factor’, was inconsistent with the reasoning in Barrow. It was necessary to consider whether the ‘disease’ allegation was made out on the whole of the evidence, including the evidence of Dr Bentivoglio. Whether the term ‘disease’ was used in Dr Bentivoglio’s report was not determinative. ([55])
4. The respondent’s submissions referred to passages in the reasons, where the Arbitrator described the appellant as suffering from different symptoms at different times. These were drawn from the appellant’s statement and set out, in short form, complaints from time to time over many years. They did not engage with the argument run, on the basis of the medical evidence and the appellant’s statement, that the ‘disease’ provisions applied. That various complaints of symptoms were made over the years, sometimes in association with identified events, is not necessarily inconsistent with a finding of injury within the meaning of s 4(b)(ii). ([55])
5. It followed that the Arbitrator’s reasons given for rejecting the appellant’s case based on the ‘disease’ provisions were inadequate. They failed to appropriately engage with the evidence overall, and the case run by the appellant on this issue. Ground No 2 was upheld. ([56])

Ground No 3

6. The Commission is required to afford parties procedural fairness. The respondent’s submissions on this ground largely sought to challenge the merits of the appellant’s reliance on s 322(3), rather than responding to the procedural fairness argument raised on appeal. The Arbitrator’s reasons summarised the appellant’s statement and parts of the medical evidence. The Arbitrator referred to Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 and to a submission based on that decision that injuries could be aggregated. ([65])

   (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 applied)

7. It was apparent that aggregation was being dealt with by the Arbitrator on the basis of s 322(2) of the 1998 Act. The reference to it being obvious that “injuries to the neck and right shoulder are not the same pathology as injuries to the lumbar spine” suggested the Arbitrator missed the distinction drawn in the appellant’s case, between s 322(2) and s 322(3). It was not the appellant’s argument that injuries to the neck, right shoulder and lumbar spine all involved the same pathology. The appellant’s submission that the reasons failed to deal with the articulated argument he made, on the basis of s 322(3), was correct. This constituted error. ([69])

   Resolution of the appeal

8. Grounds Nos 2 and 3 having been upheld, it was unnecessary to deal with Ground No 1. Even if the appellant was entitled at this point to a referral for assessment of permanent impairment in respect of the cervical spine, on the basis of the frank injury on 4 November 2017, it was desirable that assessment in that regard be dealt with when the outcomes of the other allegations of injury are known, as part of a single referral. The appropriate course was that the matter be remitted to another Arbitrator for re-determination. ([70]–[71])

Smith v Reln (Manufacturing) Pty Limited [2020] NSWWCCPD 29

Whether arbitrator correct to find that the appellant had not made out a case upon the evidence of having suffered cervical spinal cord injury or traumatic brain injury, and thus no injury to the central and peripheral nervous system of the cervical spine in the motor vehicle accident/journey injury which gave rise to her claim

King SC ADP

19 May 2020

Facts

On 17 April 2012, the appellant was employed by the respondent when she suffered injury in a serious motor vehicle accident while travelling to work. The compensable circumstances of the accident were not in dispute. The matter first came before the Commission for a claim by the appellant for weekly payments of compensation and lump sum compensation pursuant to s 66 of the 1987 Act in respect of alleged WPI as a result of injury.

The Arbitrator’s decision on 22 June 2018 determined the claim for weekly payments. For the purposes of this appeal, in relation to the s 66 claim, the Arbitrator held that the appellant had made out a case of injury to the cervical spine and central and peripheral nervous system. On appeal, Deputy President Wood allowed the appeal and remitted the matter for re-determination before a different arbitrator.

The further hearing took place before Arbitrator Wynyard and he delivered reserved reasons for judgment on 17 October 2019. In his reasons, the Arbitrator set out a detailed summary of the evidence made by Deputy President Wood. The Arbitrator then summarised the additional expert medical evidence adduced by each party. This consisted of a further report from Dr Teychenné for the appellant and Professor Kiernan for the respondent, both of whose earlier reports had been before the first Arbitrator.

Arbitrator Wynyard ultimately accepted the evidence of Professor Kiernan over the evidence of Dr Teychenné, explaining why he did so under three broad considerations. First, he did not accept one of the matters of fact upon which Dr Teychenné relied concerning the sequence of events at the scene of the accident. This led him to accept the opinion of Professor Kiernan on this point. Second, the Arbitrator considered the language used by Dr Teychenné that an incomplete cervical cord lesion “would not be unlikely” following the injury was not sufficient to support his conclusion according to the civil onus of proof. He regarded the evidence as inconsistent with Dr Teychenné’s opinion but consistent with that of Professor Kiernan. Thirdly, the Arbitrator took the view that Dr Teychenné’s opinion relied upon the accuracy of the history given by the appellant and a physical examination he carried out, which was not consistent with other records.

The Arbitrator concluded by saying that he accepted the opinion of Professor Kiernan and that the motor vehicle accident did not cause any cervical spinal cord injury nor any traumatic brain injury. Accordingly, there was no injury to the central and peripheral nervous system or the cervical spine. This decision is challenged on appeal. The issues on appeal were whether the Arbitrator erred in:

(a) Ground One – finding that there was no injury to the central and peripheral nerve system;

(b) Ground Two – finding no injury to the cervical spine, and

(c) Ground Three – in relation to the following:

1. at para [73] the learned Arbitrator notes that he adopts Mr Dodd’s submissions;
2. at para [56] the Arbitrator refers to Mr Morgan’s submissions that Wood DP had not expressed a view on the evidence;
3. at para [56] the Arbitrator says that Wood DP expressed views on the evidence;
4. with respect to the learned Arbitrator, this is not correct. Wood DP does not express views on the evidence and the Arbitrator ought not try and glean a hint from the Deputy President, and

• the learned Arbitrator should not have had regard to any evidence but that before him.

Held: The Arbitrator’s Certificate of Determination of 17 October 2019 was confirmed.

1. Before turning to the substance of the appeal, Acting Deputy President King noted the respondent’s preliminary submission that the appellant’s appeal and submissions did not comply with Practice Direction No 6 nor a Direction given by the Registrar. Due to the lack of merit in the appeal grounds themselves, the Acting Deputy President decided to put aside this submission and deal with the substance of the appeal in order to bring it to a conclusion in the Commission. ([57], [71])

   Consideration

2. Acting Deputy President King considered s 352(5) of the 1998 Act and the factual nature of the Arbitrator’s decision in finding that the foundation for Dr Teychenné’s opinion was unsound whereas the foundation for Professor Kiernan’s opinion was sound. The basis upon which the Arbitrator arrived at his determination was in the circumstances conventional and proper as an application of the principle stated by the High Court in Paric v John Holland (Constructions) Pty Limited [1958] HCA 58; 59 ALJR 844. ([67])
3. The appellant fell well short of demonstrating any error that would disturb the Arbitrator’s decision. Each of the grounds of appeal failed. ([70])