Issue 7: July 2020

Secretary, Department of Communities and Justice v Miller and anor (No 5) [2020] NSWWCCPD 38

Application of the principles of estoppel - issue estoppel, the doctrine of res judicata, and Anshun estoppel; joinder of parties in death claims

Phillips P

17 June 2020

Facts

On 15 April 2011, the deceased worker was employed by the appellant as a community transport driver based in Brewarrina. Around 4:30pm, the deceased was driving from Dubbo to Brewarrina when she suffered a severe asthma attack. Tragically, the asthma attack was of such severity that death by anoxia followed shortly thereafter. As a result of this event, the deceased’s husband Mr Miller brought a series of claims before the Commission for death benefits under the 1987 Act. These applications were dealt with in four preceding decisions, numbered Miller Nos 1–3 and Miller & Anor No 4 for ease of reference. In these proceedings, the appellant employer was appealing against the decision of the Arbitrator in Miller & Anor No 4.

The issues on appeal were whether the Arbitrator erred in:

(a) Ground One – determining Mr Miller and Mr Tuhi (the deceased’s son) were not estopped either through operation of the principles of res judicata or issue estoppel from pursuing a further claim for compensation for death of a worker;

(b) Ground Two – determining compensation for death of a worker was payable by the appellant employer contrary to the evidence and in the absence of adequate or any adequate reasons, and

(c) Ground Three – failing to properly apply the principles in Anshun.

Held: The Certificate of Determination dated 11 October 2019 was revoked and the matter was remitted to another Arbitrator to be dealt with in accordance with these reasons.

Background

1. Before turning to the grounds of appeal, the President reviewed the extensive history of the litigation in each of the previous four decisions. The President then set out the principles of appeal in detail, quoting the relevant cases, ss 4 and 9A of the 1987 Act and ss 350, 352(5) and 354 of the 1998 Act. ([1]–[118])

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

   Ground One – determining Mr Miller and Mr Tuhi were not estopped either through operation of the principles of res judicata or issue estoppel from pursuing a further claim for compensation for death of a worker

2. The appellant employer submitted that the respondents’ claim ought to have been estopped either by virtue of the application of the principle of res judicata or issue estoppel and the Arbitrator erred in failing to do so. This was pleaded on the basis that the essential elements of the respondents’ claims were the same in Miller No 1 and Miller & Anor No 4, as both claims related to lump sum compensation with respect to the death of a worker. ([119]–[121])
3. After setting out the legal principles with respect to res judicata and issue estoppel matters, the President identified the precise nature of the case that was conducted in Miller No 1 as a claim relying on s 4(b)(ii) of the 1987 Act in relation to the fact that the deceased had a disease which was the asthma and that there was an aggravation, acceleration or deterioration of that disease. The President then noted that in Miller & Anor No 4, the case was pleaded differently. Here it was alleged that the anoxia and/or cardiac arrest suffered by the deceased was a personal injury pursuant to s 4(a) of the 1987 Act. ([145]–[152])
4. In relation to res judicata, the President did not accept the appellant employer’s submission that the separate applications in Miller No 1 and Miller & Anor No 4 were so close as to effectively be the same proceedings. As in the decision of Booth, the President held that the fundamental elements of res judicata were absent as the very right or cause of action claimed in the proceedings before the second Arbitrator was not passed into judgment in the proceedings before the first Arbitrator. As a consequence, the President did not find that the proceedings constituted in Miller & Anor No 4 were estopped by the principle of res judicata. ([153]–[155])
5. In relation to issue estoppel, the appellant employer argued that there was a clear issue estoppel on the question regarding the remoteness of the deceased’s location before the Arbitrator. The President concluded that because the Arbitrator held that different causes of action were involved, the requirements for issue estoppel as set out in Carl Zeiss did not exist. For this reason, the Arbitrator did not consider the basis upon which the issue estoppel was asserted by the appellant employer and the matter needed to be remitted to another arbitrator to be redetermined with properly developed submissions. ([156]–[160])

(Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib); Thompson v George Weston Foods Ltd [1990] NSWCC 18; 6 NSWCCR 370; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (Carl Zeiss); Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25(Booth) applied)

Ground Two – determining compensation for death of a worker was payable by the appellant employer contrary to the evidence and in the absence of adequate or any adequate reasons

6. The appellant submitted the Arbitrator’s decision determining compensation for the death of a worker was contrary to the evidence and in the absence of adequate or any adequate reasons. The appellant employer’s chief complaint was that the Arbitrator accepted the evidence of Dr Jennings and Professor Fulde, whose reports the appellant employer submitted were based on assumptions not borne out of facts. ([130]–[131])
7. The President began by stating the legal principles which apply to an allegation that there is an absence of adequate or any adequate reasons being given by the decision maker. The President then considered the three assumptions that Dr Jennings and Professor Fulde were asked to accept in terms of the basis of their reports. On review, the President found nothing controversial or incorrect about any of the propositions and found that there was a basis for each of the three assumptions. In the absence of any relevant error being identified, this ground failed. ([162]–[177])

(Soulemezis v Dudley (Holdings) Pty Ltd (1987)10 NSWLR 247applied)

Ground Three – failing to properly apply the principles in Anshun

8. The main complaint advanced by the appellant employer was that the case advanced in Miller No 1 (and subsequently appealed in Miller Nos 2 and 3) and now pursued in Miller & Anor No 4 were so close that they should have been pursued in the earlier proceeding. The appellant employer pointed to the fact that the same death benefit was sought in both proceedings arising from the same factual circumstances. ([141])
9. The President first set out the framework within which Anshun estoppel operates. The President then considered the way in which the Arbitrator did not consider the Anshun estoppel was made out. While the Arbitrator stated the mere fact that the proceedings were closely related was insufficient, the Arbitrator did not consider whether or not it was unreasonable of the respondent not to have proceeded with the current allegations in Miller No 1 on the basis of the additional medical evidence. The President held that the Arbitrator, by not undertaking the enquiry of whether it was unreasonable not to have advanced the current claim in the earlier proceedings, acted upon a wrong principle in a House v The King sense and was thus in error. ([178]–[203])

(Habib; Port of Melbourne Authority v Anshun Pty Ltd147 CLR 589 (Anshun); Bruce v Grocon Ltd [1995] NSWCC 10; 11 NSWCCR 247; House v The King [1936] HCA 40 applied)

Mr Tuhi

In opposition to ground one, the respondent took issue with the fact that Mr Tuhi was not a party to the earlier proceedings. The President found that a consideration of Mr Tuhi’s position as a privy or not formed no part of the argument or decision in Miller& Anor No 4. By definition there could be no error of fact, law or discretion as is required under s 352(5) of the 1998 Act such as to give rise to any power to intervene on appeal. Without drawing any particular conclusion, the President held that the issue as to whether or not particular estoppels might apply to Mr Miller (if they apply at all) and not to Mr Tuhi might require consideration regarding whether or not their separate rights require separate representation. ([204]–[212])

Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36

Application to rely on fresh evidence pursuant to s 352(6) of the 1998 Act; CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501, alleged factual error: Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, ‘current work capacity’: Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, challenges to credit findings: Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; 112 ALR 641, Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989

Snell DP

12 June 2020

Facts

The appellant employer operated a business carrying out waterproof testing and associated repairs when leaks were detected. The worker visited premises of customers and tested for leaks, gave quotes and arranged for contractors to perform remedial works.

On 7 February 2018, the worker had carried out an inspection and quote at a customer’s residence. It was a windy day and he was parked on a steep incline. As the worker got into his vehicle, the door swung violently towards him, striking his right elbow and crushing it against the door frame. The worker continued working and an x-ray on 12 February 2018 did not show a fracture. On 24 April 2018, the worker saw another general practitioner, Dr Kordi, as the right elbow remained swollen and painful.

It was not controversial that the employer did not, at the relevant time, hold a policy of workers compensation insurance for its liability under the New South Wales legislation. The worker made a claim against the Workers Compensation Nominal Insurer (the insurer), which accepted liability and made payments of weekly compensation and medical expenses. The insurer issued a Notice pursuant to s 145(1) of the 1987 Act dated 8 February 2019, requiring reimbursement from the employer of moneys the insurer had paid, in the sum of $57,562.86. The employer, in these proceedings, sought determination of its liability in respect of this payment pursuant to s 145(3) of the 1987 Act. On 3 April 2019, the Commission made orders giving the employer leave to join the worker as a party to the proceedings.

The Arbitrator made findings in the worker’s favour on ‘injury’, substantial contributing factor, incapacity and the need for medical treatment as a result of the injury. The Arbitrator ordered that the employer reimburse the insurer the sum of $57,562.86 pursuant to s 145(4) of the 1987 Act. This appeal was brought against those findings and orders.

The issues on appeal were whether the Arbitrator erred in:

• (a) the determination and assessment of the question of the [worker’s] work capacity in the relevant period (Ground 1);
• (b) the assessment and consideration of the evidence in particular relating to capacity (but also relating to the credit of the witnesses) (Ground 2), and
• (c) determining the matter on a basis not put to or by the parties (Ground 3).

Held: The Arbitrator’s determination dated 1 October 2019 was confirmed.

Application to rely on fresh evidence

1. The appellant sought to rely on fresh evidence pursuant to s 352(6) of the 1998 Act. The fresh evidence involved appeared to be a print-out of a page from an internet search, from a site that described itself as “app.pricefinder.com.au”. On its face, the document (the ‘sale document’) gave an address of a property, the owner’s name, an estimated price range and two transactions in the property’s sales history (by price and date). It was attached to the employer’s Application to Appeal. The employer had made no attempt to comply with Practice Direction No 6. Snell DP inferred this document represented a copy of the fresh, additional or substituted evidence on which it sought leave to rely. Contrary to the Practice Direction there was no schedule describing what it was. There was no brief outline of the document. The employer’s submission appearing below described, to an extent, the submission the employer sought to make on the basis of the sale document. The submission stated the document could not reasonably have been obtained before the arbitration. It made no submission about why this was so. ([43])
2. There was nothing that supported the authenticity or probative value of the document. Documents downloaded from the internet can range from documents of a persuasive and serious nature to documents that are of little or no probative value. Frequently the source of a document will help to indicate its probative value, for example documents from a government authority with responsibility for record keeping, a respected dictionary or an academic source. ([44])

(Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 applied)

3. As a matter of practice, if parties seek to rely on material from the internet, the probative value of which is not readily apparent on its face, accompanying submissions should include sufficient information about its provenance to permit the Commission to assess whether the material is “satisfactory, in the probative sense”. ([45])
4. The employer had made no submissions going to why the fresh evidence, assuming it was otherwise admissible, could not with reasonable diligence have been obtained for use at the arbitration hearing. Without other explanation, there was no suggested reason why such an internet search could not have been carried out just as readily, at little or no cost, before the arbitration as subsequently. One was left to speculate. The employer carries the onus of establishing that the discretion should be exercised in its favour. It may have been the employer’s argument that it could not have known until after the arbitration that such evidence would be relevant. This was not a self-evident truth. Given the nature of the attack the employer sought to make on the evidence of the worker and Mr Mineo (a friend of the worker, who the employer alleged had provided the worker with work subsequent to the injury), it arguably would have represented nothing more than diligent preparation. That did not need to be further explored, as the employer had not sought to rely on that submission. The employer had not succeeded in bringing itself within the first of the two threshold questions in s 352(6) of the 1998 Act. ([57]–[59])

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

5. The second of the threshold questions “does not direct attention to possibilities or potential outcomes”. The test is not satisfied “if the evidence is compelling and might have influenced the outcome”. In this appeal it could not be concluded that exclusion of the fresh evidence ‘would cause’ (emphasis added) substantial injustice. The submission that the fresh evidence was “clearly relevant” as it went to credit was insufficient to satisfy the second threshold question in the test in s 352(6) of the 1998 Act, as explained in Strickland. The employer’s application to rely on fresh evidence was rejected. ([64]–[65])

   Grounds 1 and 2

6. The employer’s submissions in support of Grounds 1 and 2 essentially constituted an attempt to re-argue points that it argued unsuccessfully at the arbitration hearing. Such an approach is inconsistent with the principles that govern appeals pursuant to s 352(5) of the 1998 Act. The various factual errors that the employer sought to establish were not made out in any event. ([83])
7. The Presidential decision in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) is regularly applied in the Commission, dealing with issues regarding whether or not workers are “able to return to work in suitable employment” within the meaning of s 32A of the 1987 Act. Whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity. The Arbitrator did not specifically refer to Dewar, but her reasoning, and the basis of her rejection of Drs Bradshaw and Walls on this point was consistent with the application of these accepted principles. ([86]–[87])
8. The employer, on appeal, made an additional submission that the opinion of Dr Kordi amounted to a ‘bare ipse dixit’. Dr Kordi’s views on capacity were in the form of a bare ipse dixit to the extent that the pro forma WorkCover certificates provided essentially called for such an approach. There was some other information that the pro forma document called for and Dr Kordi filled out the certificates appropriately. This included how the injury related to work, diagnosis, and whether there was any current capacity for employment. The certificates were not the only material from Dr Kordi. It was appropriate that material from the doctor be read as a whole. The material from Dr Kordi, including his certificates, had probative value. A decision regarding whether a worker had ‘current work capacity’ was to be made on the whole of the evidence. On the evidence as a whole, it was open to the Arbitrator to accept the opinion of Dr Kordi that there was ‘no current work capacity’. ([88])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 and Dewar applied)

9. The employer’s point, about the message from the worker regarding another job, was argued before the Arbitrator and rejected for short reasons, which were properly available. ([89])
10. The Arbitrator referred to the worker’s evidence as “consistent and plausible”. The employer challenged the credit finding regarding both the worker and Mr Mineo. The worker and Mr Mineo both gave evidence and were cross-examined. The Arbitrator accepted what they said. The way in which a Presidential member is required to deal with challenges to credit findings, pursuant to s 352(5), must be constrained to at least the same extent as the Court of Appeal, in which an appeal is dealt with on the basis of rehearing. The employer’s submission that the Deputy President should listen to the recording of the evidence of these witnesses, with a view to forming his own view on credibility as opposed to that of the Arbitrator who saw and heard the witnesses, was inconsistent with authority. The employer’s submissions did not constitute a viable attack on the Arbitrator’s conclusions regarding the credit of the worker and Mr Mineo. They were rejected. Grounds 1 and 2 failed. ([93]–[96])

(Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; 112 ALR 641; Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

Ground 3

11. It was inherent in the overall conduct of the case that the insurer and the worker did not concede the employer had succeeded in its attack on the worker’s credit. Following addresses at the arbitration hearing by counsel for the insurer and the worker, the employer’s solicitor addressed at length in reply, in a fashion that repeatedly raised issues of credit. This was consistent with the employer conducting the hearing, after submissions by the other parties, on the basis that the worker’s credit remained a live issue. Ground 3 failed. ([102]–[103])

Weate v Racing NSW [2020] NSWWCCPD 40

The requirements of s 352(3) of the 1998 Act; leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act

Snell DP

24 June 2020

Facts

The appellant was a jockey for about 37 years. In his long career, the appellant was involved in multiple incidents when he suffered injury to various parts of his body. He last worked as a jockey on 15 January 2008, when he suffered injury to his right shoulder together with a number of fractured ribs, in a fall from a horse in a barrier trial.

The appellant had earlier proceedings before the Commission in relation to a claim for whole person impairment, in which the AMS, Dr Bodel assessed 11 per cent whole person impairment, reduced to 7 per cent after a deduction pursuant to s 323 of the 1998 Act. The appellant was paid weekly compensation benefits until 26 December 2017, which then ceased as the appellant had received 260 weeks of weekly benefits since 1 October 2012.

In 2019, proceedings before the Commission were resolved by consent orders for payment of the cost of surgery involving stabilisation of the right shoulder. The respondent, without admitting liability, paid for the cost of the surgery, performed by Dr Sharp on 22 May 2019.

Dr Sharp subsequently opined that the appellant had not reached maximum medical improvement. In a letter dated 17 July 2019, the appellant’s solicitors sent Dr Sharp’s report to the respondent’s insurer, stating that the respondent “ought [to] treat this as a claim for resumption of weekly payments and reconsideration by the insurer in relation to resumption of such weekly payments based on the worker having not reached maximum medical improvement”. The respondent replied that there was no dispute that maximum medical improvement was not ascertainable as at 1 July 2019 and there was no requirement for any referral to the Commission.

The appellant commenced the current proceedings in the Commission, in which the relief sought was: “Assessment as to whether the degree of permanent impairment is fully ascertainable”. The Arbitrator held the appellant had not made a claim for compensation such as to give the Commission jurisdiction to refer the matter to an AMS for assessment as to whether the degree of permanent impairment was fully ascertainable. The Arbitrator dismissed the application for assessment by an AMS. The appellant appealed.

The preliminary issues on appeal were whether:

(a) the monetary threshold requirements of s 352(3) of the 1998 Act were met, and

(b) leave should be granted to appeal against an interlocutory decision.

The appellant raised a single ground of appeal, which appeared to be that the Arbitrator made a mixed error of fact and law in finding that the appellant failed to make a claim for compensation and that there was no medical dispute.

Held: The appeal could not be brought as it did not satisfy the requirements of s 352(3) of the 1998 Act. Additionally, it could not be brought as it was an appeal against an interlocutory decision and leave was not granted pursuant to s 352(3A) of the 1998 Act. The appeal was dismissed.

The amount of compensation at issue on the appeal

1. In the current matter, the only relief sought in the application was “[a]ssessment as to whether the degree of permanent impairment is fully ascertainable”. The application did not seek an award for the payment of any compensation. ([40])
2. The appellant argued that a claim for weekly payments was contained in his letter dated 17 July 2019. It requested “reconsideration and commencement of weeklies per force of section 32A of the [1987 Act] definition of injured worker with high and highest needs as in forms [sic] the operation of section 39 of the [1987 Act].” ([41])
3. The letter did not specify the rates or periods during which any weekly compensation was sought. The appellant was last paid weekly compensation as at 26 December 2017, about 18 months prior to the letter. Deputy President Snell noted that the note to subs (2) of s 39 draws attention to the fact that payments outside the first 260 weeks are “still subject to section 38”. Even if the matter was approached on the basis the letter constituted a claim, which the relief sought in the application had the capacity to affect, there was no specific claim made on the respondent. ([42])
4. If the appellant’s application succeeded, and the Arbitrator referred the matter to an AMS to assess “whether the degree of permanent impairment is fully ascertainable”, this would not have led to an award for compensation. Subsection (2) of s 39 applies in specific circumstances, where an injured worker’s “degree of permanent impairment resulting from the injury is more than 20%”. The application was not for assessment of the degree of permanent impairment, and the appellant had made no such claim, he did not (on the evidence before the Commission) have an assessment of permanent impairment since the earlier MAC dated 17 November 2009. ([43])
5. It followed that the threshold in s 352(3) of the 1998 Act was not satisfied. There was no amount of compensation at issued on the appeal. It followed that the appeal could not be made as it did not satisfy the requirements of s 352(3) of the 1998 Act. ([44])

(Grimson v Integral Energy [2003] NSWWCCPD 29; NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63; Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1; Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, and Anderson v Secretary, Department of Education [2018] NSWWCCPD 32 applied)

Interlocutory decision

6. Whilst the monetary threshold issue was sufficient to dispose of the appeal, Deputy President Snell dealt with another preliminary issue raised by the respondent regarding whether the appeal was brought against an interlocutory decision. ([45])
7. The only relief sought by the appellant was referral to an AMS, with a view to obtaining a MAC dealing with whether he had reached maximum medical improvement. Whatever entitlements he had to compensation remained open. The decision under appeal did not finally dispose of the rights of the parties. Deputy President Snell accepted the respondent’s submission that the decision was an interlocutory one. It followed that leave would be required for the appeal to be brought. The Deputy President concluded it was not necessary or desirable for the proper and effective determination of the dispute that leave be granted pursuant to s 352(3A) of the 1998 Act. It followed that, even if s 352(3) had been satisfied, the appeal could not be brought in any event, due to the application of s 352(3A). ([47]–[50], [53])

(Licul v Corney [1976] HCA 6; 180 CLR 213 and Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31; 10 DDCR 174 applied)

Sami v Victory Lodge Pty Limited [2020] NSWWCCPD 34

Injury; s 4(b)(ii) of the Workers Compensation Act 1987; findings of fact based on the evidence; s 9B of the Workers Compensation Act 1987; drawing of inferences; adequacy of reasons

Parker SC ADP

3 June 2020

Facts

On 11 March 2015, the appellant suffered a heart attack while working at the premises of the respondent employer. The appellant brought proceedings for lump sum compensation against the respondent and on 21 October 2019, an Arbitrator of the Commission entered an award for the respondent.

The issue in dispute before the Arbitrator was which of the conflicting opinions of Dr Berger and Dr Herman should be preferred. The Arbitrator provided several reasons for preferring the opinion of Dr Berger and concluded that the employment was not the main contributing factor to the appellant’s heart attack. The issues on appeal were whether the Arbitrator erred in:

(a) Ground One: Identifying the wrong test for “injury”;

(b) Grounds Two, Three and Four: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons;

(c) Ground Five: Making findings of fact based on error of discretion;

(d) Ground Six: Drawing a false inference, and

(e) Grounds Seven and Eight: Failing to make a determination on s 9B and inadequacy of reasons.

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

Ground One: Identifying the wrong test for “injury”

1. The appellant submitted the Arbitrator correctly identified the allegation of injury but did not address whether it was the main contributing factor to the aggravation of the disease. Contrary to the appellant’s submissions, the respondent submitted the Arbitrator specifically found that it could not be said that the employment was the main contributing factor. ([56]–[59])
2. Acting Deputy President Parker rejected the logic of the appellant’s submissions. The role of the Arbitrator was to consider whether the appellant’s employment was the “main contributing” factor to the heart attack. It was not the role of the Arbitrator to find other relevant contributors. The Arbitrator’s determination that the employment activity was a “minor contributor” to the heart attack was not in error. This finding was critical to the determination of the appeal as it meant that the appellant had not satisfied the definition of injury within s 4(b)(ii) of the 1987 Act. Ground One of the appeal failed. ([60]–[74])

(State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 and Murray v Shillingsworth [2006] NSWCA 367 applied)

Grounds Two and Three: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons

3. The appellant’s submissions were that there was no evidence to support the factual proposition that the appellant was lifting buckets “all the time”. Acting Deputy President Parker found the appellant’s submissions had misquoted the Arbitrator’s reasons. The Arbitrator’s use of the phrase was a reference to the general work performed by the appellant as a stable hand. The Arbitrator was simply concluding that there was nothing unusual in the work performed by the appellant on the day of the heart attack. Acting Deputy President Parker was not persuaded that the Arbitrator’s finding was wrong and found that the reasons for his conclusion were adequate. Grounds Two and Three were not made out and were dismissed. ([75]–[92])

   Ground Four: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons

4. Acting Deputy President Parker noted that for the appellant to successfully argue that his myocardial infarction was caused by him repetitively lifting a large number of buckets of water it was necessary for two conditions to be satisfied: first, there needed to be acceptable evidence of that history; and second, the specialist needed to offer a supportive opinion based on that evidence. Acting Deputy President Parker found that the appellant had satisfied neither condition. The appellant relied on the clinical notes of the appellant’s general practitioner, but his proposition was not supported by the other evidence and was not relied on by the medical specialists to support their opinions. Both Dr Herman and Dr Berger relied on a single instance of carrying a bucket of water as being relevant to the heart attack. Acting Deputy President Parker held the Arbitrator was correct in finding that the appellant was dealing with a single bucket of water and there was no error as to the adequacy of the reasons given by the Arbitrator. Ground Four was dismissed. ([93]–[108])

   Ground Five: Making findings of fact based on error of discretion

5. The appellant complained that the Arbitrator rejected Dr Herman’s evidence as a matter of discretion. Acting Deputy President Parker found the Arbitrator did not reject Dr Herman’s evidence as a matter of discretion but as a matter of forensic determination. ([109]–[111])
6. In his reasons, the Arbitrator discussed the competing opinions of Drs Herman and Berger. He preferred Dr Berger’s opinion and was not satisfied that Dr Herman’s opinion was based on a correct view of the appellant’s activities at the time of the heart attack. Acting Deputy President Parker found that the Arbitrator’s preference for Dr Berger’s opinion was soundly based and reasoned and that he did not reject Dr Herman’s opinion on discretionary grounds. Ground Five was not established. ([112]–[118])

Ground Six: Drawing a false inference

7. The appellant did not identify the precise inference or where in the Arbitrator’s statement of reasons the implied inference was to be found. The Arbitrator did not say expressly or by implication “that moderate exercise frequently performed would probably not cause a heart attack”. The appellant did not demonstrate that the Arbitrator drew an incorrect inference about the efficacy of exercise in preventing heart attacks by accepting the opinion of Dr Berger. Ground Six was not established and was dismissed. ([119]–[122])

Grounds Seven and Eight: Failing to make a determination on s 9B and inadequacy of reasons

8. Acting Deputy President Parker found that it was difficult to work out precisely what the Arbitrator decided having regard to s 9B of the 1987 Act. He found that if the Arbitrator’s conclusions about s 9B were decisive in determining the appeal, then the appeal would need to be allowed on these grounds. However, the Arbitrator did not determine the matter on the basis of s 9B. The Arbitrator was correct to accept Dr Berger’s opinion in that he did not regard the appellant’s employment as giving rise to a “significantly greater risk” of suffering injury in the form of a heart attack than the appellant’s risk had he not engaged in the employment. Grounds Seven and Eight were made out but were not determinative of the outcome of the appeal. ([123]–[127])

Dywidag Systems International Pty Ltd v Melksham [2020] NSWWCCPD 41

Section 4 of the 1987 Act – whether the Arbitrator was required to determine the pathology arising from an injurious event – Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 considered and applied

Wood DP

30 June 2020

Facts

The respondent brought proceedings for lump sum compensation pursuant to s 66 of the 1987 Act in respect of an injury on 26 June 2007 when he fell in the course of his employment as a builder/carpenter. He alleged injury to the neck, right shoulder, left shoulder, left knee and an upper and lower gastrointestinal condition consequent upon the ingestion of the medication required to treat those injuries.

The respondent also claimed s 66 entitlements in respect of injury to the right and left knees alleged to have occurred as a result of the “nature and conditions” of his employment, which required him to perform heavy lifting, climb up and down ladders and stairs, kneeling and squatting. This was described as an aggravation, acceleration, exacerbation or deterioration of osteoarthritis in both of the respondent’s knees and nominated a deemed date of injury of 30 June 2013, as that date was the last day of the respondent’s employment.

The appellant accepted liability in respect of the injuries to the neck and both shoulders as a result of the fall, but disputed the whole person impairment claimed. The appellant also disputed liability for the left knee injury on 26 June 2007, the gastrointestinal symptoms and injury by way of aggravation of the degenerative disease in the left and right knees as a result of the nature and conditions of the respondent’s employment.

The Arbitrator found in favour of the respondent. The employer appealed.

The issues on appeal were expressed as the following appeal grounds:

1. “With respect to the left knee:

   (a) The Appellant alleges that the Arbitrator made an error of mixed fact and law by failing to determine the question of injury with respect to the left knee in accordance with the requirements of s 4 of the [1987 Act].

   (b) The Appellant alleges that the Arbitrator made an error of law by declining to determine the nature of the injury sustained by the worker to his left knee and failing to make findings with respect to a nature and conditions claim in relation to the left knee.

   (c) The Appellant alleges that the Arbitrator made an error of fact by rejecting the opinion of [A/Prof] Myers on the basis that the opinion of [A/Prof] Myers was based on thinking that the worker had sustained a ‘minor fall’.

2. With respect to the right knee – The Appellant alleges that the Arbitrator made an error of law by failing to apply the requirements of s 4(b)(ii) and accepting the opinion of [A/Prof] Kleinman, as a basis for finding that the worker had suffered an injury to his right knee.”

Held: The Arbitrator’s finding that the respondent suffered injury to his right knee in the form of an aggravation or acceleration of a disease in accordance with s 4(b)(ii) of the 1987 Act was confirmed and the Arbitrator’s finding that the respondent suffered an injury to his left knee on 26 June 2007 was revoked and remitted to a different Arbitrator for determination.

Preliminary matter

1. There was no transcript of the proceedings before the Arbitrator. Both parties agreed that the appeal could proceed to be determined in the absence of a transcript. In those circumstances, Deputy President Wood was of the view that the appeal could proceed. ([13]–[16])

   Grounds 1(a) and 1(b)

2. In the context of a claim brought purely for potential entitlements to lump sum compensation pursuant to s 66 of the 1987 Act in respect of the appellant’s whole person impairment, the Arbitrator clearly did not have jurisdiction to determine whether the injury suffered by the respondent in 2007 had resolved. To the extent that this was an issue presented by the appellant at arbitration, the Arbitrator did not make such a finding. ([113])
3. The appellant asserted that in dealing with the question of “injury” within the meaning of s 4 of the 1987 Act, the Arbitrator was required to identify the pathological change that occurred in the event on 26 June 2007. Deputy President Wood found the pathological nature of the injury on 26 June 2007 was clearly in issue before the Arbitrator. The Arbitrator accepted the respondent’s submission that it was not necessary for him to determine the pathology arising from that injury. In the circumstances of this case, the nature of the injury was indeed a matter for the Commission to determine. The Arbitrator was in error by failing to determine that issue. ([114])

(Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 applied)

4. The appellant referred to the Arbitrator having made a finding that there was an aggravation of previous asymptomatic pathology in the left knee, which was not founded on the evidence. There was no such finding made by the Arbitrator. ([115])
5. The respondent submitted that the Arbitrator “dealt with” the issue of identification of the pathology. The Deputy President did not accept that the Arbitrator’s observation that such a finding was not precluded amounted to a finding that the pathology was in fact an aggravation of a previously asymptomatic condition. It followed that Grounds 1(a) and 1(b) of the appeal established error on the part of the Arbitrator. ([115]–[117])
6. Further, in respect of Ground 1(a) of the appeal, the appellant submitted that the Arbitrator failed to make any finding in respect of the allegation of injury to the left knee as a result of the nature and conditions of employment with a deemed date of 30 June 2013. That observation was indeed correct. Unusually, the respondent had not agitated this failure on the appeal. Nonetheless, the appellant had agitated the point and the failure of the Arbitrator to deal with an issue raised before him was an error and, as long as the issue remained a live issue, must be corrected. ([118])

Ground 1(c)

7. The appellant had identified error on the part of the Arbitrator in respect of his determination in relation to the injury to the left knee occurring on 26 June 2007. It remained that the issue as to the nature of the injury suffered required a re-determination. The challenge to the Arbitrator’s rejection of the opinion of A/Prof Myers pertained to whether the left knee was injured as alleged, including the nature of the pathology arising in that event. Consequently, the Arbitrator’s reasons and determination in respect of the left knee were set aside and required re-determination. The acceptance or otherwise of the medical evidence pertaining to this issue will therefore be a matter for the new decision maker and it was not appropriate for Wood DP to express a view about the cogency of that evidence. It was therefore not necessary or appropriate to determine this ground of appeal. ([119]–[120])

   Ground 2

8. The Arbitrator correctly identified that the respondent’s evidence about the nature of the work he performed was not contested by evidence from the respondent. It was therefore open for the Arbitrator to accept that evidence and to consider that it was a proper basis upon which A/Prof Kleinman reached his conclusion on that issue. ([121])
9. The appellant submitted that A/Prof Kleinman did not offer an opinion in respect of whether the respondent suffered an injury in accordance with s 4(b)(ii) of the 1987 Act. ([122])
10. In circumstances where evidence is not inherently illogical or implausible, if the Arbitrator makes an apparently rational choice between competing expert evidence, it is very difficult for a disappointed party to complain on appeal that there should have been a different outcome. ([125])

(Caruana v Darouti [2014] NSWCA 85 applied)

11. Deputy President Wood held that in reading A/Prof Kleinman’s opinion in the reports of 31 October 2014 and 27 June 2018 together, the evidence was not illogical and was probative of the issue for determination. It provided a sufficient and proper basis upon which the Arbitrator could found his conclusion that the respondent had made out his case that the degenerative change in the respondent’s right knee had been aggravated by the nature of the work, in accordance with s 4(b)(ii) of the 1987 Act. ([126])
12. The appellant further asserted that A/Prof Kleinman’s opinion did not support a finding that the respondent’s employment was the main contributing factor to the s 4(b)(ii) aggravation, as required by that section. Wood DP held there was no evidence of any other, non-employment, aggravation of the disease process in the respondent’s right knee. On that basis, the Arbitrator’s finding that the employment was the main contributing factor to the aggravation was a matter of common sense, and no error was disclosed. ([127])
13. It followed that the appeal against the Arbitrator’s decision that the respondent suffered an injury to his right knee in the form of an aggravation or acceleration of the disease in the right knee, to which the respondent’s employment was the main contributing factor, with a deemed date of injury of 30 June 2013, failed. ([128])

Greenhills Childcare Centre Incorporated v Meireles [2020] NSWWCCPD 37

Evidence in medical histories in the Commission: Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, alleged factual error: Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, application of Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11

Snell DP

15 June 2020

Facts

The respondent was a childcare worker employed by the appellant for over 10 years. On the morning of 26 October 2018, the respondent parked and opened the gates of the appellant’s Centre. She was then pulling a trolley, into which she had placed her uniform and other items, from her car towards the Centre’s gate. As she did so, she lost her balance on the uneven surface and fell.

It was uncontroversial that the respondent suffered from some knee symptoms prior to 26 October 2018. After initially accepting liability to make voluntary payments of compensation, the insurer declined liability for weekly payments and medical expenses. It accepted that there had been an aggravation of a pre-existing injury/condition. It stated that any aggravation had resolved and any ongoing injury/condition to her knees was not the result of her employment.

The current proceedings sought orders for payment of the cost of future treatment in respect of bilateral knee patellofemoral realignment. The Arbitrator made orders for the payment of the cost of the proposed surgery, against which this appeal was brought.

The appellant raised the following grounds of appeal:

(a) “That in observing at [90]: I accept that it would have been helpful had the [respondent] provided direct evidence on this matter, the Arbitrator erred in failing to direct herself that it was essential, to discharge the onus, for the [respondent] to bring evidence to demonstrate that the injury relied on had made a material contribution to the need for surgery. Not only did the [respondent] fail to provide direct evidence, she failed to provide evidence at all.” (italicisation in original) (Ground 1), and

(b) “The Arbitrator further erred at [91] in her statement: the medical evidence and lay evidence clearly show an increase in knee symptoms and the need for treatment after the fall. This is incorrect, and the error made by the Arbitrator has clearly affected the decision (sec 352(5)).” (italicisation in original) (Ground 2).

Held: The Arbitrator’s decision dated 4 December 2019 was confirmed.

Ground 1

1. Ground 1 included an assertion that the respondent failed to provide evidence at all of her knee complaints prior to the injury. This was without merit. It was true that her statement dated 11 July 2019 did not address this topic, but there was much material that did. The Commission is not bound by the rules of evidence: s 354(2) of the 1998 Act. ([36]–[38]) Histories in medical reports constitute evidence of the facts referred to in them.

   (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 and JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 applied)

2. The respondent correctly submitted that there was an “abundance of evidence” in the medical histories dealing with the pre-injury state of the respondent’s knees. The weight to be given to such evidence was largely a matter for the Arbitrator. ([39])

   (Shellharbour City Council v Rigby [2006] NSWCA 308 applied)

3. The appellant argued that the surgery was to correct the malalignment in the respondent’s knees, and the malalignment was “quite clearly not caused by the injury”. This submission failed to take account of the fact that a purpose of the surgery was to deal with the respondent’s symptoms. On the Arbitrator’s fact finding, based on the evidence overall, the symptoms, at least in large part, resulted from the injury. ([40])
4. The evidence amply supported the Arbitrator’s finding that the injury materially contributed to the need for surgical treatment. The evidence overall, including the treating medical evidence from the respondent’s general practice and from her orthopaedic surgeon Dr Qurashi, was consistent with a significant increase in bilateral knee symptoms from the time of the injury. The evidence supported the proposition that the proposed surgery was to deal with the respondent’s complaints of pain since the injury. It was open to the Arbitrator to find that the injury was a material contributing factor to the requirement for surgery. The argument that causation was not made out, as the underlying problem of malalignment did not itself result from the injury, was rejected. ([42])
5. The appellant submitted there was clear evidence that the cause of the ongoing symptoms as at May 2019 was not the event at work. To the extent to which this was a reference to the causative role of the underlying malalignment, this was dealt with earlier by Deputy President Snell. The other evidence to that effect was from Dr Wallace, the orthopaedic surgeon qualified by the appellant. The Arbitrator gave clear reasons for her rejection of Dr Wallace’s opinion on this issue. She said it did “not sufficiently engage with the [respondent’s] actual circumstances and the evidence from her treating doctors with regard to her symptoms”. ([43]–[44])
6. The way in which the Arbitrator dealt with Dr Wallace’s opinion on causation was consistent with the principles in Purkess v Crittenden [1965] HCA 34; 114 CLR 164 (referring to Watts v Rake [1960] HCA 58; 108 CLR 158). The Arbitrator’s reasons for rejecting Dr Wallace’s opinion on the limited period of the aggravation were open to her and consistent with authority. Her conclusion was consistent with the evidence as a whole. ([46])
7. The appellant attacked Dr Bodel’s report (the orthopaedic surgeon qualified in the respondent’s case) on the basis that the history on which the doctor proceeded was inadequate. It referred to attendances on the respondent’s general practitioner in 2015 and 2018, which it said Dr Bodel did not mention. Deputy President Snell held the Arbitrator was clearly alert to the need for an appropriate correlation between Dr Bodel’s understanding of the history and the way in which the history was established by evidentiary material. In her reasons, the Arbitrator referred to the accuracy of Dr Bodel’s comprehension of the history and accepted there was “a sound basis for the acceptance of the opinions expressed”. It is clear that exact correspondence is not required. The extent of the correspondence goes to weight. ([47]–[53])

(Hancock v East Coast Timber Products Pty Limited[2011] NSWCA 11 applied)

8. Dr Bodel’s failure to refer to three attendances on her general practitioner in mid-2015 was of little moment. Dr Bodel’s failure to specifically refer to the attendance at the commencement of 2018 (30 January 2018), which was followed by about nine months with no such complaints and a history of the resolution of symptoms, similarly did not deprive the doctor’s opinion of probative weight. The appellant’s submission that there was a lack of correspondence, such that Dr Bodel’s report was “robbed of any weight”, was rejected. The Arbitrator concluded that there was a sound basis for the acceptance of Dr Bodel’s opinions. On the evidence this conclusion was well open to her. The appellant had not demonstrated error on the basis of the principles in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston). Ground 1 failed. ([54]–[55])

   Ground 2

9. Statements in medical histories comprise evidence of the facts. The submission that there was no lay evidence dealing with whether there was an increase in symptoms, because the respondent’s statement did not specifically address that issue, was incorrect. There was ample evidence, found largely in the medical histories, that supported the finding made by the Arbitrator in her reasons at [91]. There was no error on the Arbitrator’s part in accepting the evidence which she did, dealing with knee symptoms from time to time. Ground 2 failed. ([59])

(Raulston applied)

Schembri v Blacktown City Council [2020] NSWWCCPD 35

Consequential condition; whether the worker suffered a consequential condition of her right shoulder from favouring her injured left shoulder; consideration of competing medical evidence; adequacy of reasons

Parker ADP

9 June 2020

Facts

On 5 July 2005, the appellant worker was employed by the respondent as a cleaner when she sustained an injury to her left shoulder, neck and lumbar spine at the respondent’s premises. The respondent accepted liability for this claim and paid compensation. At issue in this appeal was whether the appellant suffered a consequential condition to her right shoulder. The Arbitrator was not satisfied that the cause of the condition in the appellant’s right shoulder was a consequence of the accepted left shoulder injury.

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

(a) Ground One – Excluding the contribution of over reliance as a cause by inferring the appellant’s right shoulder symptoms could have multiple causes;

(b) Ground Two – Overlooking the fact that the appellant’s evidence that she placed greater reliance on her right shoulder was not challenged and was not implausible;

(c) Ground Three – Criticising (without expressly rejecting) the appellant’s evidence as “general” in circumstances where the evidence provided a proper foundation for a finding that she placed a greater load on her right shoulder;

(d) Ground Four – Stating the appellant did not identify when she first suffered problems with her right shoulder and then criticising the appellant on this erroneous and in any event immaterial feature;

(e) Ground Five – Considering that the appellant would not have over relied on a dominant limb because she is right handed (reasoning that would mean that a consequential condition can only develop in a non-dominant limb);

(f) Ground Six – Failing to make a specific finding as to whether the appellant placed greater reliance on her right shoulder, leading to a flawed ultimate determination which lacked a proper substantive foundation;

(g) Ground Seven – Criticising Dr Mendelsohn’s record of the evidence of over reliance as limited, whereas the fact that the appellant placed greater reliance on her right shoulder was unchallenged, and would follow as a matter of common sense;

(h) Ground Eight – Criticising Dr Mendelsohn’s “response” as “general”;

(i) Ground Nine – Stating that Dr Mendelsohn did not disclose his reasoning process;

(j) Ground Ten – Accepting Dr Powell’s opinion, notwithstanding the fact that Dr Powell did not take a history of over reliance and the Arbitrator did not make a finding that the appellant had not placed greater reliance on her right shoulder;

(k) Ground Eleven – Failing to provide proper reasons for preferring the opinion of Dr Powell to the opinion of Dr Mendelsohn, and

(l) Ground Twelve – Failing to provide proper reasons for her determination in all the circumstances.

Held: The Certificate of Determination dated 6 November 2019 was confirmed.

Ground One – Excluding the contribution of over reliance as a cause by inferring the appellant’s right shoulder symptoms could have multiple causes

1. The appellant submitted the Arbitrator’s finding that there were a number of possible causes for the appellant’s right shoulder symptoms displayed a fundamental misdirection and error. Parker ADP accepted that the identification of several possible causes did not preclude the possibility that over reliance made a material contribution to the appellant’s condition and it would be erroneous to treat these causes as mutually exclusive competitors. However, he was of the view that the Arbitrator did not proceed to determine the matter on this basis. ([47]–[49])
2. Parker ADP found the Arbitrator provided a careful analysis of the evidence of Drs Mendelsohn and Powell in her Statement of Reasons and explained why she preferred the opinion of Dr Powell. He agreed with the approach taken by the Arbitrator in concluding that Dr Mendelsohn’s reports were of no probative value to the causation issue because the doctor failed to explicate the reasoning process from the appellant’s overuse of her right arm to her right shoulder symptoms. Instead, the Arbitrator was satisfied that Dr Powell had disclosed the reasoning process for his opinion by reference to the radiological studies of the appellant’s cervical spine. ([50]–[65])
3. The appellant failed to demonstrate that the Arbitrator was in error in her conclusion that she was not persuaded by Dr Mendelsohn’s opinion as to causation and ground one was dismissed. ([66]–[67])

Ground Two – Overlooking the fact that the appellant’s evidence that she placed greater reliance on her right shoulder was not challenged and was not implausible

4. The appellant complained the Arbitrator did not take adequate account of the appellant’s evidence that she placed greater reliance on her right shoulder and did not reject this evidence as unreliable or implausible. On review of the Arbitrator’s reasons, Parker ADP did not find this to be the case. Instead, Parker ADP found that the Arbitrator recorded both the appellant’s evidence and Dr Mendelsohn’s findings in the Statement of Reasons in relation to the appellant’s over reliance on the use of her right shoulder. ([68]–[72])
5. Parker ADP held that acceptance of the appellant’s evidence and her belief that the pain was attributable to over reliance on the right shoulder as a consequence of injury to the left shoulder did not establish causation with respect to the right shoulder. He found the appellant failed on this ground because the Arbitrator was not satisfied with Dr Mendelsohn’s medical explanation behind her right shoulder pain and not because the Arbitrator did not accept the appellant’s evidence that she had right shoulder pain. Ground two was rejected. ([73]–[76])

(Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang) applied)

Ground Three – Criticising (without expressly rejecting) the appellant’s evidence as “general” in circumstances where the evidence provided a proper foundation for a finding that she placed a greater load on her right shoulder

6. Parker ADP first noted the extent to which this ground of appeal overlapped with grounds one and two. He found that the Arbitrator had accepted the appellant’s evidence and her conclusion that the evidence was “general” was not a criticism of the evidence. The appellant’s lay evidence of itself, however, was insufficient to establish that the pain in her right shoulder was caused by placing a greater load on that shoulder. To succeed in the appeal, the appellant had to show that the pain in her right shoulder resulted from the injury sustained in July 2005. To sustain this proposition, the appellant needed to establish from lay and expert evidence that the 2005 injury resulted in the right shoulder pain. ([77]–[78])
7. As explained above, Parker ADP held that the Arbitrator did not accept Dr Mendelsohn’s opinion. This meant that even if the Arbitrator made a finding that the appellant placed a greater load on her right shoulder, it would not have affected the outcome. Ground three of the appeal failed. ([79]–[84])

Ground Four – Stating the appellant did not identify when she first suffered problems with her right shoulder and then criticising the appellant on this erroneous and in any event immaterial feature

8. The appellant submitted the Arbitrator criticised the appellant’s case on the basis that the appellant did not identify when she first suffered problems with her right shoulder. While the appellant conceded this was of no material relevance, Parker ADP found the Arbitrator did not express a view as to the significance of this and did not criticise the appellant for not identifying when she first suffered right shoulder symptoms. Instead, what was significant to the Arbitrator was the absence of complaint of any effect on the appellant’s right shoulder and/or arms in the clinical notes taken by her doctors. This gave support to the opinion of Dr Powell that it was more likely the appellant’s symptoms represented referred pain rather than intrinsic pathology relating to a specific incident. Ground four was dismissed. ([85]–[94])

   Ground Five – Considering that the appellant would not have over relied on a dominant limb because she is right handed (reasoning that would mean that a consequential condition can only develop in a non-dominant limb)

9. The appellant’s complaint was that the Arbitrator was reluctant to accept the appellant could be adversely affected by over reliance in her right shoulder because she was right handed. Parker ADP found this to be an overstatement of the matter and agreed with the respondent that the appellant’s right handedness was only one factor the Arbitrator took into account when determining whether the appellant suffered a consequential right shoulder condition, based on all the evidence. He concluded that the Arbitrator’s observation that the appellant was right handed did not equate to the Arbitrator having a pre-determined view of anything and ground five was dismissed. ([95]–[100])

   Ground Six – Failing to make a specific finding as to whether the appellant placed greater reliance on her right shoulder, leading to a flawed ultimate determination which lacked a proper substantive foundation

10. The appellant submitted the Arbitrator failed to make a specific finding about whether the appellant placed greater reliance on her right shoulder in order to determine causation. Parker ADP held there was no requirement for the Arbitrator to make this specific finding as the real issue was whether the symptoms in the appellant’s right shoulder resulted from the injury sustained in July 2005. This was a medical question resolved adversely to the appellant when the Arbitrator rejected the opinion of Dr Mendelsohn and preferred the opinion of Dr Powell. It was not necessary for the Arbitrator to reject the appellant’s case of over reliance explicitly and the Arbitrator did not downplay any aspect of the evidence. Ground six of the appeal was not established. ([101]–[111])

    (Kooragang and Murphy Allity Management Services Pty Limited [2015] NSWWCCPD 49 applied)

    Ground Seven – Criticising Dr Mendelsohn’s record of the evidence of over reliance as limited, whereas the fact that the appellant placed greater reliance on her right shoulder was unchallenged, and would follow as a matter of common sense

11. The appellant’s complaint that the Arbitrator had no basis to reject Dr Mendelsohn’s opinion was rejected by Parker ADP. For the reasons previously provided, Parker ADP held that it was open to the Arbitrator to reject Dr Mendelsohn’s opinion and no error of fact or law was established that she was in error in doing so. Ground seven was dismissed. ([112]–[114])

    Ground Eight – Criticising Dr Mendelsohn’s “response” as “general”

12. The appellant’s submissions were that the Arbitrator criticised Dr Mendelsohn’s opinion as “general” but did not reject the foundation on which his opinion was based. Parker ADP held the Arbitrator’s rejection of Dr Mendelsohn’s opinion was due to his failure to explicate and disclose adequately the reasoning for his opinion. The Arbitrator did not find Dr Mendelsohn’s explanation satisfactory and preferred Dr Powell’s explanation. It was open to the Arbitrator to do so and she did not err in doing so. Ground eight was rejected. ([115]–[121])

    Ground Nine – Stating that Dr Mendelsohn did not disclose his reasoning process

13. The essence of the appellant’s complaint was that the Arbitrator should have accepted Dr Mendelsohn’s opinion. For the reasons previously given, Parker ADP held that the Arbitrator did not err in rejecting Dr Mendelsohn’s opinion evidence on causation. Ground nine was rejected. ([122]–[125])

    Ground Ten – Accepting Dr Powell’s opinion, notwithstanding that Dr Powell took no history of over reliance and that the Arbitrator herself had not made a finding that the appellant had not placed greater reliance on her right shoulder

    Ground Eleven – Failing to provide proper reasons for preferring the opinion of Dr Powell to the opinion of Dr Mendelsohn

14. Parker ADP dealt with grounds ten and eleven together. Ground ten of the appeal was that the Arbitrator erred in accepting Dr Powell’s opinion, who did not take a history of the appellant’s over reliance on her right shoulder and that the Arbitrator did not find the appellant placed greater reliance on her right shoulder. Parker ADP held the appellant’s focus on the alleged “over reliance” on the right shoulder obscured the proper consideration of the statutory question. The issue with respect to the right shoulder was not whether over reliance contributed to the current symptoms but whether the right shoulder symptoms resulted from the July 2005 injury. The 1987 Act does not speak of “consequential conditions”. ([126]–[139])
15. Parker ADP found Dr Powell’s opinion and the Arbitrator’s acceptance of it was that the symptoms in the right shoulder resulted from age related capsulitis and not from the injury in 2005. The Arbitrator was entitled to accept Dr Powell’s opinion and she gave reasons for rejecting the countervailing opinion of Dr Mendelsohn. ([140]–[145])
16. In relation to ground eleven, the appellant asserted the Arbitrator failed to provide proper reasons for preferring Dr Powell’s opinion over that of Dr Mendelsohn. Under s 294(2) of the 1998 Act, the Statement of Reasons is required to include the material findings by reference to the evidence; state the applicable legal principles and explicate the reasoning process leading to the conclusion. Parker ADP found no error in the manner in which the Arbitrator provided her reasons for preferring Dr Powell’s evidence. Grounds ten and eleven were dismissed. ([146]–[149])

Ground Twelve – Failing to provide proper reasons for her determination in all the circumstances

17. The appellant also submitted the Arbitrator’s reasons were not sufficient to meet the standard required by r 15.6 of the 2011 Rules and that she overlooked material facts and ignored relevant material. Parker ADP restated the purpose of providing reasons in the Workers Compensation Commission: to “make the parties aware of the Commission’s view of the case made by each of them”. He concluded that the Arbitrator’s reasons disclosed the reasoning process for review on appeal and engaged with the evidence and the submissions so as to explain why the appellant had not succeeded. The Arbitrator’s reasons satisfied the requirements for a reasoned determination of the dispute before her. Ground twelve was dismissed. ([150]–[164])

BC v State of New South Wales [2020] NSWWCCPD 39

Section 11A of the 1987 Act – whether the disciplinary action taken by the employer was reasonable – Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 applied; s 352(5) of the 1998 Act – requirement to establish error – Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68 applied; whether failure to consider or give sufficient weight to material evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied; whether the Senior Arbitrator’s reasons were sufficient; whether inconsistency in those reasons

Wood DP

19 June 2020

Facts

The appellant was employed by the respondent as a registered nurse in a mental health unit in a Local Health District. The appellant brought proceedings in respect of a psychological injury deemed to have occurred over the course of his employment and culminating in an incident on 21 November 2017.

The incident on 21 November 2017 involved a patient stabbing a security guard with a pencil and subsequent action taken to restrain and sedate the patient. It was alleged the appellant did not complete the Restraint Register before the end of his shift and that he was asked on numerous subsequent occasions to complete the register. It was also alleged, and admitted to by the appellant, that he did not complete observations on patients, but completed records indicating that he had in fact carried out those observations on patients.

The respondent disputed the claim on the basis that the psychological injury was wholly or predominantly caused by reasonable action taken by the respondent in respect of discipline, transfer and performance appraisal undertaken in relation to the appellant in accordance with s 11A of the 1987 Act.

The Senior Arbitrator found that the injury was wholly or predominantly caused by reasonable action on the part of the respondent in respect of discipline of the appellant. The appellant appealed the Senior Arbitrator’s decision that the respondent’s disciplinary actions were reasonable.

The issue on appeal was whether the Arbitrator erred in finding that the employer’s actions were reasonable, and in doing so failed to provide sufficient reasons, and overlooked material facts and/or failed to give them appropriate weight.

Held: The Senior Arbitrator’s Certificate of Determination dated 8 November 2019 was confirmed.

Discussion

1. The appellant conceded that the determination that the respondent’s actions were reasonable was a factual determination and that the principles identified in Webb v State of New South Wales [2019] NSWWCCPD 50 applied. That is, the appellant must establish that material facts were overlooked or afforded too little weight by the Senior Arbitrator. The evidence identified by the appellant was:

   (a)     the email dated 13 December 2017 from the Clinical Nurse Consultant requesting a number of staff to complete the Restraint Register;

   (b)     the complaint made by the Clinical Operations Manager to the Australian Health Practitioner Regulation Agency (AHPRA), which indicated that the Clinical Operations Manager had discussed the complaint with the appellant, and

   (c)     the series of emails commencing from 6 December 2017. ([143])

2. A perusal of the transcript disclosed that at arbitration, the appellant made no submission about the email dated 13 December 2017, and certainly did not make the submission made on the appeal about the relevance of, or the weight to be afforded to, that evidence. ([144])
3. The appellant was reminded that an arbitration is not a trial run and that a Presidential member may only intervene where it can be shown that an arbitrator’s decision was affected by error of fact, law or discretion. It is not an error for an arbitrator to fail to deal with a submission that was not put. ([145])

(Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 and Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68 applied)

4. In any event, the submission that the Senior Arbitrator failed to afford it sufficient weight was untenable. The Deputy President held that all that evidence established was that, as asserted by the appellant in his statement, the form did not have to be completed exclusively by the nurse in-charge. The evidence tended to show that the appellant had failed to complete the restraint form for that patient as at 13 December 2017. The Senior Arbitrator took the view that the appellant’s assertion that he had completed the register in the Nurse Unit Manager’s (the NUM) office on 28 November 2017 was inconsistent with other factual material, including this email from the Clinical Nurse Consultant. That observation by the Senior Arbitrator had not been challenged in this appeal. ([146]–[147])
5. The appellant submitted that this evidence was material evidence that showed that the disciplinary process was unreasonable because there was no evidence that the other staff member was disciplined. The appellant’s entire behaviour in refusing and failing to adequately complete the Restraint Register was the subject of the disciplinary process and there was no evidence that the other staff member exhibited such behaviour. Whether or not the other staff member was disciplined in respect of her behaviour, about which there was no evidence, was irrelevant to the question of whether the disciplinary action taken by the respondent in respect of the appellant’s conduct was reasonable, which must be determined on its own facts. ([148])
6. The appellant further alleged that the Senior Arbitrator failed to take into account, or give sufficient weight to, the evidence that the Clinical Operations Manager lodged the complaint with AHPRA, indicating that she had discussed the complaint with the appellant, when she had not. The appellant said the failure to discuss the complaint with the appellant was procedurally unfair. ([149])
7. The Senior Arbitrator found it reasonable that the respondent commenced the disciplinary process in the context of numerous unheeded requests directed at the appellant to comply with his obligation to ensure the Restraint Register was completed. The Senior Arbitrator noted that the failure to do so, together with the appellant’s false entries in the observation charts, were serious matters. ([152])
8. Given the undisputed factual evidence of the numerous communications with the appellant about completing the Restraint Register, it could not be said that that concern had not been discussed with the appellant. ([153])
9. There was no evidence that the complaint about the appellant falsely completing the observation chart had been discussed with the appellant. It was necessary therefore to determine whether, on the basis of an assumption that there had been no such discussion, the failure to discuss the matter was sufficient evidence to displace the Senior Arbitrator’s decision that the respondent’s disciplinary action was reasonable. ([154])
10. The appellant did not dispute that he had falsified the records. The complaint form was not predicated by a requirement that the complaint be discussed with the appellant before the complaint could be lodged. The complaint form indicated that a complaint could have been lodged anonymously. ([155])
11. The appellant submitted that the failure to discuss the complaint with the appellant amounted to a denial of procedural fairness. The appellant did not explain why it was unfair for the respondent to lodge a complaint with AHPRA without having first discussed the complaint with the appellant. The appellant admitted that the allegation was true. In the context of patient safety and hospital obligations, the breach was serious. Taking into account those matters, it could not be said that the appellant had been treated unfairly. ([156])

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

12. It could not be said that the Senior Arbitrator failed to take into account a material fact which, if considered, would be of sufficient weight to disturb the Senior Arbitrator’s decision, in accordance with the principles in Raulston. ([157])
13. Any failure on the part of the Senior Arbitrator to give consideration to the absence of evidence that the Clinical Operations Manager had discussed the complaint with the appellant was, in the Deputy President’s view, immaterial. The probative value of such evidence had not been explained, other than it was unfair to the appellant. Even if the action by the Clinical Operations Manager in lodging the complaint was not reasonable, not every action in the disciplinary process must be reasonable. It followed that any failure on the part of the Senior Arbitrator to consider that evidence had not affected the outcome in this case, so that it is not appropriate for a Presidential member to intervene in the Senior Arbitrator’s decision that the disciplinary action was reasonable. ([158]–[160])

(Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 applied)

14. The appellant further asserted that the Senior Arbitrator erred by failing to consider, or by affording too little weight to, the evidence that consisted of a series of emails passing between the appellant, the NUM and the Clinical Operations Manager, commencing from 6 December 2017. The appellant submitted that the email from the Clinical Operations Manager to the appellant dated 6 December 2017 requested an informal meeting with the appellant to discuss the events on 22 November 2017 and advised that she was not dealing with issues of misconduct. The appellant explained that it was not alleged that there was a case of misconduct, which was inconsistent with the Senior Arbitrator’s ultimate conclusion that the complaints about the appellant’s conduct were serious. The appellant submitted that he was happy to attend an informal meeting at a later date, and without explanation, the Clinical Operations Manager proceeded to lodge the complaint with AHPRA. The appellant submitted that in that context, he was handed two disciplinary letters, and he was informed that there would be a formal meeting, which he said was not reasonable. The appellant said that the Senior Arbitrator failed to consider all  the circumstances. ([161]–[162])
15. In concluding that the conduct was serious, the Senior Arbitrator took into account the potential impact upon patients if the Restraint Register was not completed and the observations were not made. Neither of those matters were expressed to be the subject of the email proposing an informal meeting. Deputy President Wood did not accept the appellant’s submission that it was unreasonable that the respondent elected to propose a formal meeting to investigate those matters, rather than conduct the informal meeting proposed to address the appellant’s conduct on the shift on 21/22 November 2017. The Senior Arbitrator could not be said to have erred in finding that the conduct was reasonable in that context. Further, it could not be said that it was not open to the Senior Arbitrator to consider that the appellant’s failure to complete the Restraint Register and falsely sign off on patient observations was serious. ([166]–[167])
16. The appellant further asserted that the Senior Arbitrator gave inconsistent and insufficient reasons to explain her conclusion that the actions were reasonable. Deputy President Wood held there was no inconsistency in the Senior Arbitrator’s reasons or her ultimate conclusion. ([168]–[170])
17. The Deputy President ultimately held it was abundantly clear that the Senior Arbitrator found that the disciplinary action which predominantly caused the injury was the receipt by the appellant of the two letters dated 28 December 2017. It was also abundantly clear that the Senior Arbitrator provided sufficient reasons to explain that conclusion. The conclusion reached by the Senior Arbitrator was open to her. The appellant had failed to establish error on the part of the Senior Arbitrator. There was no basis upon which the Senior Arbitrator’s determination should be disturbed and the determination was confirmed. ([175]–[178])

Qantas Airways Ltd v Coleman [2020] NSWWCCPD 42

Alleged factual error: the drawing of inferences; an Arbitrator’s duty to provide adequate reasons

Snell DP

30 June 2020

Facts

The respondent was employed by the appellant as a long-haul flight attendant. He suffered an employment injury on 20 May 2016, the occurrence of which was not in issue. The respondent had been working on a 15 hour flight from Sydney to Santiago, Chile.

When the passengers on the flight had disembarked, the respondent retrieved his carry-on bag, which weighed about 15 kilograms, from an overhead locker. As he was sliding it from the locker it slipped and fell, causing the respondent to take its weight. The respondent suffered injury to his dominant right arm and shoulder, which was undisputed. He stated that he reported to the Customer Service Manager on the flight that he had injured his right shoulder and elbow, and also that he had an uncomfortable numbness sensation and tingling in both hands, including the fingertips.

The appellant only operated two flights per week between Sydney and Santiago, so the respondent was in Santiago for a number of days before there was a flight back to Sydney. He did not see a doctor in Santiago. He said there were no reserve cabin crew in Santiago and he had to work on the return flight to Sydney, with other members of the crew performing the heavier duties for him. He said the Customer Service Manager failed to record the symptoms in his left hand of which he complained.

On returning to Australia the respondent came under the care of doctors in Sydney and on the mid-North Coast where he lived. He submitted a claim form dated 31 May 2016, which referred to the symptoms in the right arm, but not the left. The appellant accepted liability for the injury to the right arm. Dr Nicklin, a plastic and reconstructive surgeon, diagnosed right-sided ulnar neuropathy secondary to cubital tunnel, for which he operated on 15 September 2016. Around Christmas time in 2016 the respondent developed clawing of his left hand. Dr Nicklin diagnosed ulnar nerve impingement and recommended urgent left elbow surgery. This was performed by Dr Darveniza on 10 March 2017. The appellant declined liability for injury to the left arm.

The respondent was also referred to Dr Sher, an orthopaedic surgeon, for treatment of his right shoulder. Dr Sher operated on the shoulder on 5 April 2017, a procedure involving arthroscopic acromioplasty, rotator cuff repair and biceps tenodesis.

The respondent made a claim for lump sum compensation in respect of 17 per cent whole person impairment involving the left and right upper extremities. The appellant disputed the claim. It accepted ‘injury’ to the right upper extremity but not to the left upper extremity. It stated that permanent impairment resulting from the accepted right sided injury was not greater than 10 per cent and therefore was not compensable under s 66(1) of the 1987 Act.

In respect of the left upper extremity, which was disputed, the Arbitrator found that the respondent had injured his left ulnar nerve in the employment injury on 20 May 2016. He referred the matter to an AMS to assess whole person impairment in respect of the right upper extremity (shoulder, ulnar nerve) and the left upper extremity (ulnar nerve). This appeal was brought against that decision.

The issues on appeal were whether the Arbitrator:

(a) erroneously inferred that the respondent’s left arm was involved in the incident on 20 May 2016 (Ground 1);

(b) determined the respondent sustained an injury as defined in s 4 of the 1987 Act, to the left arm based upon the erroneous inference made, referred to in (a) above (Ground 2), and

(c) failed to provide adequate reasons addressing the nexus between the ulnar neuropathy of the left arm (pathology) and the incident on 20 May 2016 (Ground 3).

Held: The Arbitrator’s decision dated 30 January 2020 was confirmed.

Ground 1

1. In considering whether an inference should be drawn, it is necessary to have regard to the evidence as a whole, “the united force of all the circumstances”. In a civil case this consideration is on the probabilities. ([34]–[38])

   (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 19; 85 CLR 352; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, and Fuller-Lyons v New South Wales [2015] HCA 31 applied)

2. The appellant submitted that, because the respondent’s statement did not contain direct evidence of the involvement of his left arm in the incident, the “only finding of fact that was available” was that the respondent “used his right arm alone, to remove the bag from the overhead locker”. Deputy President Snell held that the respondent’s statement did not exclude the possibility that he used his left arm at the time of the incident. It was simply silent regarding what use, if any, was made of the left arm at that time. An inference that the left arm was involved in some way was not inconsistent with direct evidence from the respondent. The evidence as a whole included the history (accepted by the Arbitrator) that the respondent had no left upper limb symptoms prior to the incident, and that following the incident, he experienced “immediate symptoms in both upper limbs”. ([39]–[40])
3. The Deputy President observed the Arbitrator recognised that the claim form and a ‘Statement of Events’ were completed by the respondent and did not refer to injury to the left upper limb. The respondent gave evidence that he mentioned symptoms involving both hands to his Customer Service Manager on the date of injury, although the manager did not record it. Snell DP held there was no evidence from the appellant to contradict that of the respondent on this point. He could not see that this evidence about the incident report assisted the appellant’s case in the circumstances. At best, from the appellant’s point of view, it was neutral. ([41])
4. The appellant criticised the Arbitrator’s finding at [76] of the reasons, in which he accepted a submission on the respondent’s part that the respondent initially concentrated on those parts of the body that caused him most concern. The appellant submitted it was erroneous to accept a submission that was not supported by evidence. The respondent submitted this aspect was addressed in his statement. Deputy President Snell held the Arbitrator was entitled to make findings “within the realm of common knowledge and experience”. A conclusion that an injured person, in giving a medical history, would tend to give more attention to his most concerning problems would constitute such a matter. ([43])

(Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 applied)

5. Additionally, even if this error was made out, the appellant did not deal with whether, and in what way, it would affect the result. This argument was not made out. The Deputy President held the conclusion drawn by the Arbitrator, that the left arm was involved in the incident, was available on the evidence. The appellant must demonstrate that the Arbitrator was wrong if it was to succeed on this ground. This the appellant had not succeeded in doing. The various attacks made by the appellant in support of Ground 1 were not made out. Ground 1 failed. ([44])

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

   Ground 2

6. For the reasons given under Ground 1, the Deputy President concluded that the inference the subject of Ground 1 was not drawn in error. It followed that Ground 2 failed. ([49])

   Ground 3

7. The submission that the finding, that the incident involved the left arm, involved factual error and could not support the finding on causation, depended on the acceptance of the arguments supporting Grounds Nos. 1 and 2. Those grounds had failed. ([53])
8. In general terms, the symptoms the appellant specifically referred to were the symptoms the respondent complained of when he returned to Australia, when consulting Dr Hirschowitz (the initial doctor consulted after the respondent returned to Australia), Dr Simon (who conducted the nerve conduction tests) and Dr Best (a treating surgeon). They were the symptoms and signs which the Arbitrator found gave contemporaneous support to the allegation of injury to the left arm. ([54])
9. The respondent’s history did not involve previous left upper limb symptoms. The accepted history was consistent with the respondent initially experiencing symptoms in both upper limbs, worse on the right but including the left, when the incident occurred. The earliest medical evidence, from Dr Hirschowitz in late May and early June 2016, recorded symptoms the doctor described as bilateral carpal tunnel syndrome, which the Arbitrator accepted as consistent with the presence of bilateral hand symptoms at the time. This led to a referral for bilateral nerve conduction studies. The respondent was referred to Dr Nicklin who operated on the right cubital tunnel, releasing the ulnar nerve, on 15 September 2016. ([55]–[56])
10. The chain of events, leading up to Dr Nicklin’s report dated 7 February 2017, dealing with causation of the injury to the left ulnar nerve, is set out in the Arbitrator’s reasoning.  The Arbitrator accepted the opinion of Dr Nicklin, a treating surgeon, in preference to the appellant’s medical case. He gave reasons for doing so. The Arbitrator’s reasons complied with his obligation to give adequate reasons. Ground 3 failed. ([57]–[59])

(Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 and NSW Police Force v Newby [2009] NSWWCCPD 75 applied)