Issue 8: August 2020

Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA 151

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

DEEDS – deed of release – construction – express terms of deed – whether deed of release relating to the settlement of complaints relating to discriminatory conduct discharged liabilities arising out of workers’ compensation legislation – where entitlement to sue under workers compensation legislation expressly preserved

WORKERS’ COMPENSATION – entitlement to compensation – exclusions – payment to settle complaint under Anti-Discrimination Act 1977 (NSW) – whether payment constituted “damages” under the 1987 Act, s 149 – operation of the 1987 Act, s 151A, s 280B

WORDS AND PHRASES – “damages”, “monetary compensation” – the 1987 Act, ss 149, 151A

Basten, Leeming JJA and Emmett AJA

23 July 2020

Facts

The appellant’s employment with the respondent was terminated in March 2018. Immediately following the termination of his employment, the appellant made a complaint to the President of the Anti-Discrimination Board. He complained of discrimination on the grounds of disability and victimisation in the course of his employment. The complaint was settled at conciliation and a Deed was entered into. The appellant was paid $29,412, together with a further $4,400 on account of his legal costs.

Before the discrimination complaint was settled, the appellant claimed compensation under the 1987 Act on the basis he had suffered aggravation, acceleration, exacerbation or deterioration of a psychological condition. The respondent asserted the appellant had received a payment of “damages” “in respect of” the same injury and that his claim was precluded by operation of s 151A(1) of the 1987 Act. The Arbitrator accepted this argument, finding in favour of the employer and dismissed the worker’s claim. On appeal, the President confirmed the Arbitrator’s determination. The President’s determination was appealed by the worker to the Court of Appeal.

The issues on appeal were whether:

(a) the grounds relied on by the appellant identified a decision in point of law, and

(b) the payment under the Deed constituted the payment of “damages” “in respect of” the injury the subject of the workers’ compensation claim, so as to disentitle the appellant from relief under the 1987 Act, by reason of the operation of s 151A of that Act.

Held: Appeal allowed, the decisions of the Arbitrator and President were set aside and the matter was remitted to the Commission for determination of the remaining issues in dispute.

In relation to (i)

Per Basten, Leeming JJA and Emmett AJA

1. Whether the entry into the Deed and the making of the payment disentitled the appellant from recovering compensation or damages under the 1987 Act involved an analysis of (a) the operation of the Deed, and (b) the construction of s 151A(1): both are questions of law. ([7], [75], [93])

   In relation to (ii)

   per Leeming JA, Emmett AJA agreeing

2. The definition of “damages”, which accords with the general principle governing the character of payments made pursuant to a settlement, is to require an analysis of what was being compromised, so it is necessary to identify whether the claims compromised by the Deed were “in respect of an injury”. ([82]–[83], [97])

   (Commissioners of Taxation (NSW) v Meeks [1915] HCA 34; 19 CLR 568 and Heavy Minerals Pty Ltd v Federal Commissioner of Taxation [1966] HCA 60; 115 CLR 512; Henry Jones (IXL) Ltd v Commissioner of Taxation [1991] FCA 488; 31 FCR 64; McLaurin v Federal Commissioner of Taxation [1961] HCA 9; 104 CLR 381; The National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15; 105 CLR 569, discussed)

   Per Basten, Leeming JJA and Emmett AJA

3. The proper construction of the Deed negates any possibility that the payment by way of “damages” was intended to settle any claim for workers’ compensation or work injury damages which might be available subject to the controls imposed by the 1987 Act and the following of the procedures set out in the 1998 Act. ([66], [85], [101])

   (Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 applied)

4. The primary, if not the sole, purpose of the settlement was to provide a final resolution of the subject matter of the complaints of unlawful discrimination under the Anti-Discrimination Act. The recitals expressly recognised that the parties were aware of, and did not intend to resolve, any claim the appellant might have “pursuant to any applicable [w]orkers’ [c]ompensation legislation”. The operative provisions related to the settlement of the anti-discrimination complaint, and had express exclusions in relation to workers’ compensation legislation. ([58]–[59], [63], [85], [101])

   Per Basten JA

5. The operation of s 151A(1) of the 1987 Act should be addressed first: the Deed cannot vary the operation of s 151A(1) which will apply “despite any contract to the contrary”: s 234 of the 1998 Act. ([8]).
6. The legislative purpose of s 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury. The workers’ compensation acts are concerned with “damages” payable in respect of an injury caused by the negligence or other tort of the employer, and not amounts recoverable in satisfaction of a liability created by an extraneous statutory scheme. ([18], [36])

(Dionisatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281; 91 NSWLR 34 applied)

7. The statutory protections provided by the Anti-Discrimination Act form a discrete and independent statutory scheme. A purposive construction of the two separate and independent schemes of regulation does not support a payment resulting from a complaint of discriminatory conduct, even if the discrimination gave rise to a personal injury, should foreclose any claim for workers’ compensation or work injury damages. ([44], [51])

(Commissioner of Police v Estate of Russell [2002] NSWCA 272; 55 NSWLR 232; Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587; Hall v A & A Sheiban Pty Ltd [1989] FCA 72; 20 FCR 217; Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22; Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127 discussed)

Naidu v State of New South Wales [2020] NSWCA 147

APPEALS – leave – extension of time – appeal from Workers Compensation Commission refusing substantial extension of time to appeal from arbitrator’s decision – requirement of “exceptional circumstances” in order to grant extension – Deputy President found exceptional circumstances not established – Deputy President considered appeal not fairly arguable – no basis for grant of leave to bring a further appeal made out

Basten and Leeming JJA

15 July 2020

Facts

The appellant sought leave to appeal from a decision of Snell DP refusing leave to extend time to appeal from a decision of an Arbitrator. The appellant suffered injury to her right ankle and foot on 5 November 2007, while pushing a trolley. In 2013, the appellant’s claim for a psychological injury in respect of alleged bullying upon her return to work was rejected by an Arbitrator, more than five years after she had ceased work.

In 2019, the worker sought to appeal from the Arbitrator’s determination to a Presidential member of the Commission. The Deputy President refused leave to extend the time to make an appeal, holding ‘exceptional circumstances’ were not established, the delay was not adequately explained and the appeal was not fairly arguable. The appellant sought leave to appeal the Deputy President’s decision to the NSW Court of Appeal. The question of leave was determined by the Court on the papers.

The preliminary issue before the Court was whether leave should be granted to extend the time within which to apply for leave to appeal, and whether the summons seeking leave to appeal should be dismissed.

The issues the appellant sought to raise on appeal were:

(a) whether the Deputy President erred in failing to hold a conference or formal hearing (Ground 1);

(b) whether the Deputy President acted upon errors of legal principle when he failed to find that the Arbitrator had misconceived his role or made errors based on speculation (Ground 2);

(c) whether the Deputy President should have taken into account, but erroneously failed to take into account, certain material (Ground 3);

(d) whether the Deputy President, not being satisfied that the discretion in r 16.2(5) of the 2011 Rules ought to be exercised, was bound by the 1998 Act to consider the exercise of discretion under r 1.6(2) of the 2011 Rules (Ground 4), and

(e) whether the Arbitrator drew inferences which were not reasonably available (Ground 5).

Held: time within which to apply for leave to appeal was extended to 18 May 2020, and the summons seeking leave to appeal filed 18 May 2020 was dismissed with costs.

The application for leave to appeal to the Court of Appeal

1. Pursuant to s 353 of the 1998 Act, a further appeal (from an appeal to the Commission constituted by a Presidential member) lies to the Court of Appeal, confined to cases where a person is aggrieved in point of law, and only by leave from an interlocutory decision, such as the Deputy President’s decision. The Court observed there was some delay in filing the summons seeking leave, but that was explained in the materials before the Court. The Court granted the requisite extension of time to lodge her summons seeking leave to appeal. ([19])
2. No aspect of Ground 1 warranted a grant of leave. The Court observed that in the appellant’s original appeal application, when she was unrepresented, and the further amended application, lodged when she was legally represented, the appellant requested her appeal to be determined on the papers. ([21])
3. The Court found Ground 2 went only to the merits of the application, not the extension of time. The Court observed that on no view did this ground amount to an error that was plain on the face of the reasons of the Deputy President giving rise to clear injustice. ([22])
4. In respect of Ground 3, the appellant submitted the Deputy President failed to consider or turn his mind to five documents, being an investigation report by MJM Investigations; a medical report of Dr Burman dated 13 August 2010; a statement from a solicitor dated 10 November 2014, and two statements from the appellant, both dated 8 May 2019 (one dealing with the delay, the other dealing with the underlying events). The Court observed the Deputy President was conscious of this material and regarded it as before him. It commented it was clear that the inference the appellant sought to draw was not established, and that insofar as any of the material the subject of this ground bore on the question of delay and establishing exceptional circumstances, it was taken into account. The Court concluded this ground did not give rise to a basis on which to grant leave. ([23]–[27])
5. In relation to Ground 4, the Court observed r 1.6 of the 2011 Rules is a power to dispense with compliance with the rules. There was nothing in this ground warranting a grant of leave. The Court noted that it was not suggested that the Deputy President was ever asked to dispense with the rule, and so far as that may be seen, he was not asked to do so. ([28]–[31])
6. The Court held that Ground 5, even taken at its highest, did not materially detract from the difficulties faced by the appellant concerning the lengthy and substantially unexplained delay and the failure to find exceptional circumstances. ([32])

Conclusion and orders

The Court concluded no proper basis had been made out to establish that there was error in finding that there were no exceptional circumstances warranting an extension of time. The proposed grounds challenging other parts of the Deputy President’s decision did not warrant a grant of leave. There was no sound basis on which the Court should grant leave to appeal. ([33])

Li v Brighton Australia Pty Ltd [2020] NSWWCCPD 44

Injury occurring during an interval or interlude within an overall period or episode of work: application of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473; and Comcare v PVYW [2013] HCA 41; 303 ALR 1; alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156

Snell AP

16 July 2020

Facts

The appellant was a gyprocker/plasterer from Sydney who was working on the construction of the Calvary Hospital, which was close to Adelaide’s CBD. The appellant’s accommodation was paid for by the respondent and he was given a meal allowance. The motel the appellant stayed at did not provide meals and he could not buy his lunch at the job site. The appellant remained in Adelaide on the weekends as it was not practical for him to return to Sydney.

On a Sunday evening, the appellant and some colleagues went to a restaurant they frequently ate at in Chinatown. He ate his dinner and ordered takeaway for his lunch the next day. An altercation broke out when other patrons began assaulting the appellant’s colleagues. The appellant came to the aid of his colleagues, Mr Liu and Mr Zhang and in that process, the appellant was glassed in the eye. He lost his vision in one eye and the vision in his other eye was also affected.

The Arbitrator held that the injury did not arise out of or in the appellant’s course of employment, and that the appellant’s employment was not a substantial contributing factor and made an award in favour of the respondent. This appeal was against that decision.

The issues on appeal were whether the Arbitrator erred in:

(a) his finding as a fact that after dinner the appellant and Mr Liu ordered takeaway food and erred in law in making a finding of fact not available on the evidence (Ground 1);

(b) law in finding that the injury did not occur because of the appellant’s mere presence at the restaurant, this finding not being available on the evidence (Ground 2);

(c) law in making a finding of fact not available on the evidence that the appellant’s injury did not occur while the appellant was waiting for takeaway food, and in expressing a conclusion as to causation as a finding of fact (Ground 3);

(d) law in making a finding that was not available on the evidence, being that the sole cause of the injury was the appellant coming to the aid of his co-workers (Ground 4);

(e) law in finding the respondent had no knowledge the appellant would attend a Chinese restaurant and that the respondent had not encouraged or approved this attendance. These findings were against the weight of the evidence (Ground 5);

(f) law in making the following findings that were against the weight of the evidence:

(i) that the appellant might buy food away from his accommodation site, and

(ii) the respondent had no knowledge the appellant would assist a fellow employee during an unprovoked assault during a work interval (Ground 6);

(g) law in finding that the injury did not occur in the course of or arising out of the appellant’s employment (Ground 7);

(h) law in finding that the appellant’s injury [sic, employment] did not substantially contribute to the appellant’s injury (Ground 8);

(i) law in failing to consider the full circumstances of the injury, in failing to consider the reasonable incidents of the appellant’s employment (Ground 9), and

(j) law in wrongly applying the law as to what constituted a connection to ‘inducement or encouragement’ by the respondent as the appellant’s employer (Ground 10).

Held: The Arbitrator’s decision dated 27 February 2020 was confirmed.

Ground 1

1. The appellant submitted the evidence relevant to this finding was found in the statement of the appellant dated 16 July 2019, together with the statements of Mr Zhang and Mr Liu. The appellant submitted his statement dated 16 July 2019 was silent regarding whether his takeaway order was placed at the same time that he ordered his dinner, or after eating his dinner. It was submitted that Mr Zhang’s statement was also silent on this point and that Mr Liu’s statement similarly did not deal with whether the three of them had eaten their dinner before the takeaway order was placed. The appellant submitted the finding that the takeaway order was placed by the appellant “after dinner was not open on the evidence”. ([39])
2. The respondent submitted that in the appellant’s statement dated 10 January 2020, he stated “I ate dinner with my two work colleagues at the restaurant, but then I ordered an extra 1 meal to take to work for lunch the next day”. Acting President Snell held the passage in the statement dated 10 January 2020 was sufficient to support the factual finding challenged in Ground 1. The appellant additionally did not identify a basis on which this error, if made out, would have affected the result. Ground 1 failed. ([40]–[41])

Ground 5

3. It was convenient for Snell AP to deal with Ground 5, which potentially gave context to the arguments made by the parties relevant to Grounds 2, 3 and 4. ([42])
4. The appellant, at first instance, did not base his submission on the proposition that his case depended on the respondent having induced or encouraged his attendance at the specific restaurant where the injury occurred. ([49])
5. It was inherent in the Arbitrator’s finding at [65(cc)] that the approach he adopted was consistent with that submitted by the respondent. His finding was a specific one, that there was no evidence the respondent knew of the practice of the appellant and his colleagues in attending “the restaurant in Chinatown where the assault occurred”. This led to the Arbitrator’s conclusion that he was “not satisfied the employer knew of their attendances at that restaurant, or encouraged or approved of them”. ([51])
6. The way in which Ground 5 was expressed was inconsistent with the finding the Arbitrator made at [65(cc)]. The Arbitrator’s finding related to attendance at “the restaurant in China Town where the assault occurred”. Ground 5, in contrast, referred to the finding as if it referred to attendance at “a China Town restaurant”. The effect of this was that the appellant’s submissions on this ground directed themselves to whether the respondent had knowledge of the appellant attending restaurants in the Chinatown district, rather than to whether it had knowledge of attendance at the restaurant where the appellant suffered injury (which was the finding made). Whether the Arbitrator asked himself the wrong question in making his finding at [65(cc)] was not raised in Ground 5. ([52]–[54])
7. Snell AP held this ground was essentially misconceived. It was not, in the circumstances, appropriate to deal with Ground 5 on some more expansive basis, regarding whether knowledge of attendance by the appellant and other workers, at restaurants in the Chinatown district, was sufficient to put the respondent on notice of this practice, such that it could be inferred the appellant’s attendance on 17 March 2019 was approved or encouraged by the respondent. This argument was not raised in Ground 5 and was not addressed in the respondent’s submissions. ([55])
8. The respondent was correct in its submission, that there was no direct evidence it had knowledge of the use by the appellant of the restaurant at which he was injured. None of the evidence referred to by the appellant, in the submissions on this ground, supported the proposition that the respondent had prior notice of the appellant or his colleagues using the restaurant at which he was injured, before (or on) the night of the injury. The appellant submitted an inference was available that the respondent was aware that the appellant and his co-workers ate their main daily meal in Chinatown district restaurants and brought their takeaway food from nearby Chinese restaurants. If it was accepted the respondent was aware of such matters, this was not inconsistent with findings actually made by the Arbitrator. The finding made by the Arbitrator in the reasons at [65(cc)] was properly available to him in the circumstances and was not against the weight of the evidence. Whether it reflected an appropriate approach, to whether the respondent induced or encouraged the appellant to be in the restaurant on the night he was injured, is a different question. This was further touched on in the consideration of Ground 7. Ground 5 did not succeed. ([56]–[57])

Grounds 2, 3, and 4

9. Grounds 2, 3 and 4 went to the relationship between the appellant’s presence at the restaurant and the injury. The matter was conducted, appropriately, on the basis that the injury occurred in “an interval or interlude within an overall period or episode of work”, such that the principles in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) and Comcare v PVYW [2013] HCA 41; 303 ALR 1 (PVYW) were engaged. ([58], [67])
10. Grounds 2, 3 and 4 raised the same fundamental issue. Consistent with the passage from PVYW, at [38], the question was “how was the injury brought about?” The effect of the Arbitrator’s findings at [65(t)], [65(u)] and [65(v)] was that the Arbitrator found the injury was not brought about by the appellant being in a place (the restaurant where the injury occurred) nor by the activity he initially carried on there of consuming a meal, followed by ordering and waiting for takeaway. The Arbitrator found the appellant was engaged in an activity “at the time of injury”. This was the activity of assisting his work colleagues after they were assaulted. ([70])
11. In considering how the Arbitrator dealt with the factual findings challenged in Grounds 2, 3 and 4, it is necessary that his reasons be read as a whole. The way in which the Arbitrator dealt with these issues was consistent with the principles in Hatzimanolis and PVYW, it did not involve error. It flowed that the appellant was not in the course of his employment when he suffered injury, consistent with those principles. ([75])

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

12. The appellant’s submissions referred to the fact that if he was not present at the relevant restaurant he would not have been injured. The appellant, dealing with Ground 7, submitted that the injury was one arising out of the employment as he was required to eat so as to be ready for work on the following day. In Tran v Vo [2017] NSWCA 134 it was said that the “critical enquiry was what the [worker] actually did in her employment”. The cause of injury was the physical altercation; the evidence does not suggest this arose from the employment. There was not a sufficient causal connection between the appellant’s work duties with the respondent and the injury. The Arbitrator did not err in concluding that the injury was not one arising out of the appellant’s employment. Grounds 2, 3 and 4 failed. ([76]–[81])

    Ground 6

13. Ground 6 involved challenge to two separate findings made in the reasons at [65(dd)]. The challenge to the first of the findings did not make any meaningful attempt to identify appealable error. The matters to which the appellant referred were not inconsistent with the finding made by the Arbitrator at [65(aa)] of the reasons. That part of the ground failed. The second limb of the ground challenged the finding that the Arbitrator was not satisfied the respondent knew that the appellant would come to the aid of his colleagues in an affray at the restaurant. There were no submissions directed to this second limb. It followed that Ground 6 failed. The argument regarding whether the respondent encouraged or induced the appellant’s activity, in coming to the assistance of his co-workers, was also raised by the appellant’s submissions in Ground 7, where it was dealt with. ([82], [85])

    Ground 7

14. Ground 7 was broadly and generally expressed, that there was error in finding the injury did not occur in the course of or arising out of the appellant’s employment. It restated arguments that were dealt with above, particularly in the consideration of Grounds 2, 3 and 4, dealing with whether the injury occurred in circumstances such that it was in the course of or arising out of the appellant’s employment. ([86], [91])
15. Whether the appellant was in the course of his employment in the circumstances was to be determined with reference to the relevant authorities, particularly Hatzimanolis and PVYW. The appellant (and his fellow workers) were put up by the respondent in accommodation where meals were unavailable, and the respondent paid them an allowance to cover the cost of meals. It was the appellant’s practice to eat meals in Chinatown and to buy takeaway there for his lunch. The respondent provided a microwave at the work site in which such meals could be reheated. The Arbitrator found that the respondent encouraged and approved these practices. The appellant argued he was in the course of his employment on the date of injury, from when he left his accommodation to travel to the restaurant to the time he sustained injury. ([92])
16. The Arbitrator found the respondent’s inducement and encouragement did not extend to attendance by the appellant at the specific restaurant at which the injury occurred, as the evidence did not suggest the respondent knew of the practice of attending and dining at the specific restaurant, and accordingly, it could not have approved or encouraged the practice. Whether the Arbitrator erred in this regard was not directly raised in the grounds of appeal or the submissions. If such an argument had been raised successfully by the appellant, it would not in any event have represented appealable error. It would not have vitiated the result, due to the further finding that the appellant was engaged in an activity at the time of injury, that had not been induced or encouraged by the respondent. ([93]–[94])
17. Whether the appellant was in the course of his employment when he attended at the restaurant was not determinative of whether the injury occurred in the course of employment. The issue was whether the respondent induced or encouraged the appellant to engage in the activity in which he was engaged at the time of injury. This involved the appellant’s actions in seeking to protect his colleagues from physical assault. There was no basis to infer that the respondent induced or encouraged the appellant to engage in this activity. Contrary to the appellant’s submissions, it is difficult to envisage an employer would induce or encourage an employee to engage in such an activity. This was an observation and not determinative. There was no evidence of the respondent inducing or encouraging such an activity, and no basis on which such matters could be properly inferred. At best such an inference would involve “mere conjecture”. It followed that Ground 7 failed. ([97]–[99])

(PVYW, Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Luxton v Vines [1952] HCA 19; 85 CLR 352 and Fuller-Lyons v New South Wales [2015] HCA 31 applied)

Ground 8

18. The appellant submitted that in Inverell Shire Council v Lewis (1992) 8 NSWCCR 562, the injury occurred at a place where the employer had encouraged the worker to stay, and while he was doing something reasonably incidental to his temporary residence. That decision well predated the decision in PVYW which the Arbitrator applied in the current matter. The critical matter in the current case was the finding that at the time of injury the appellant was engaged in an activity that was not the subject of inducement or encouragement on the respondent’s part. Consistent with PVYW, the issue was whether the respondent induced or encouraged the appellant to engage in that activity. Inducement or encouragement to be at a place then becomes irrelevant. Ground 8 failed. ([102]–[103])

    Grounds 9 and 10

19. The appellant had not identified error in these grounds. Clearly the factual situation associated with the injury in PVYW was different to that in the current matter. The Arbitrator did not deal with the matter on the basis there was some factual similarity between the two. The Arbitrator applied statements of principle in PVYW, by which he was bound. He did not err in doing so. The balance of the appellant’s submissions dealing with this ground deal with whether the respondent induced or encouraged the appellant to dine at the restaurant at which he was injured. The Arbitrator’s factual findings were largely consistent with the case the appellant ran in this regard. ([108])

There were two important respects in which the findings did not reflect the case run by the appellant. The Arbitrator was not satisfied the respondent “encouraged or approved” the appellant’s attendance at the specific restaurant where he was injured. The Arbitrator was not satisfied the respondent knew the appellant would come to the aid of his colleagues in an affray. There was no evidence the respondent induced or encouraged the appellant to engage in that activity. The Acting President concluded earlier in his decision that even if there was error in the finding regarding inducing or encouraging attendance at the specific restaurant, this would not be appealable error. The finding that there was no evidence the respondent induced or encouraged the appellant to engage in the activity in which he was engaged at the time of the injury, was inconsistent with the appellant being in the course of his employment when injured. The argument that the injury alternatively was one arising out of the employment was correctly rejected by the Arbitrator. Grounds 9 and 10 failed. ([109]–[110])

State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48

Paragraph (b) of section 59 of the 1987 Act: ‘therapeutic treatment given by direction of a medical practitioner’; an arbitrator’s duty to give adequate reasons

Snell DP

30 July 2020

Facts

The respondent was a registered nurse who worked in the Emergency Department of the Gosford Hospital. On 21 March 2017, there was an incident in which a patient who was in a rage, loud and abusive, came towards the respondent in a corridor of the hospital. The patient was tackled by another staff member and detained by security. The respondent thought she was going to be hurt. The incident triggered reminders of an occasion at work at the hospital in 1999, in which the respondent witnessed a patient beating another to death.

The respondent suffered panic attacks on 7 and 11 April 2017 and ceased work for about eight weeks, after which she resumed on restricted hours and duties. The insurer voluntarily accepted liability for payment of the respondent’s entitlement to weekly compensation, and medical and related expenses pursuant to s 60 of the 1987 Act.

In March 2018, the respondent acquired a dog. She gave it some training with the help of a representative from “mindDogs Australia”, the purpose of which was to train the dog to become an assistance dog. Dr Cordowiner (the respondent’s general practitioner) and Ms Patton (the respondent’s psychologist) recommended that she obtain an ‘assistance dog’ to assist with “relief of [her] anxiety and PTSD”.  The respondent denied liability to pay for an assistance dog in a s 74 notice dated 8 August 2018 and a s 287A review notice dated 8 October 2018. It denied that an assistance dog was ‘medical or related treatment’ within the definition in s 59 of the 1987 Act. It denied that an assistance dog was “reasonably necessary treatment” pursuant to s 60 of the 1987 Act.

The Arbitrator found that the supply of an assistance dog was ‘therapeutic treatment’ within the meaning of para (b) of s 59 of the 1987 Act, and that this was reasonably necessary medical treatment. It was ordered that the appellant pay the “cost of and reasonably associated with the provision and maintenance of an assistance dog”. The employer appealed.

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

(a) finding that an assistance dog constituted therapeutic treatment for the purpose of satisfying the definition of medical or related treatment pursuant to s 59 of the 1987 Act (Ground 1), and

(b) failing to give adequate and/or sufficient reasons for the finding that the provision and maintenance of an assistance dog was therapeutic treatment for the purpose of s 59(b) of the 1987 Act (Ground 2).

Held: The Arbitrator’s decision dated 20 March 2020 was confirmed.

Ground 1

Whether the argument based on the definition in paragraph (b) of section 59 was raised

1. The appellant submitted the provision of an assistance dog did not fall within the definition of ‘therapeutic treatment’ and referred to Woollahra Council v Beck [1996] NSWCC 43; 14 NSWCCR 179 (Beck) and Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) in support of this. The respondent argued the appellant did not raise this at first instance and should not be allowed to do so on appeal. ([48])
2. Deputy President Snell observed that the appellant addressed the issue of whether the provision of an assistance dog fell within the definition of ‘medical or related treatment’ in s 59 and did so by reference to Western Suburbs Leagues Club v Everill [2001] NSWCA 56 (Everill). The appellant did not raise, at the arbitration hearing, any argument based on Beck, that ‘treatment’ involved a worker being “the (mainly) passive recipient of some other person’s ministrations”. It did not raise an argument based on Beck and Rose that ‘therapeutic treatment’ must involve “the provision of a service pertaining to medication, surgery or other medical service”. The appellant was not, in the circumstances, permitted to raise these fresh arguments on appeal. ([53]–[56])

(Mamo v Surace [2014] NSWCA 58 and Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 applied)

3. The Deputy President noted that Ground 1 involved an issue of statutory interpretation. In case he was in error in the approach taken to whether the fresh arguments could be raised on appeal, the Deputy President dealt with the arguments in the context of the broader issue regarding whether provision of an assistance dog fell within para (b) of s 59. ([57])

   Therapeutic treatment

4. The respondent stated there was no dispute that provision of the dog was therapeutic; the appellant’s submission conceded provision of the dog “facilitated the [r]espondent increasing her functionality”. Snell DP accepted this was an available and appropriate interpretation of the concession inherent in the appellant’s submission. ([58])
5. The respondent submitted it was inappropriate to confine ‘medical or related treatment’ to the provision of a service. Section 59 provides that “medical or related treatment includes …” and then sets out the various paragraphs (a) to (h). The content of those paragraphs necessarily falls within the broad definition of ‘medical or related treatment’. The respondent submitted there are a number of items “which are goods not services”. Paragraph (d) provides for the provision of “crutches, artificial members, eyes or teeth and other artificial aids or spectacles”. Paragraph (e) provides for “nursing, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment”. Paragraph (g) provides for modification of a worker’s home or vehicle. The respondent submitted the section should be read as a whole. It would be inconsistent to read down the term ‘treatment’ to mean only services. The respondent submitted the legislature has not confined the term in that way.  This submission was consistent with the structure of the section. ([62])
6. A number of the paragraphs in s 59 clearly relate to matters that are not services, yet by the terms of the definition they constitute ‘medical or related treatment’. ([63])

(Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450; Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611, and Pearce and Geddes, Statutory Interpretation in Australia, 8th ed., p 151 referred to)

7. There have been many recent instances of appellate courts doubting the utility of dictionary definitions in the task of statutory interpretation. Little assistance is to be gained from the various dictionary definitions on which the parties relied in the current case. This includes the dictionary definition referred to in Beck, on which the appellant relied. ([66]–[67])

   (State of New South Wales v Chapman-Davis [2016] NSWCA 237 applied)

8. The word ‘treatment’ is not, in the opening words of s 59, restricted to the provision of services. The Deputy President could not see any valid reason why the word should be given a narrower meaning in para (b) than that which it has in the opening words of s 59. Snell DP accepted that the phrase ‘medical or related treatment’ in s 59 should not be restricted to the provision of a service. There was no reason why the word, where it forms part of the phrase ‘therapeutic treatment’, should be constrained in the way for which the appellant argued. Treatment can extend to the provision of things in an appropriate case. This was consistent with the structure of s 59 and with the decision in Rose. This remains subject to the proviso in Everill, that the meaning of the matters described in the various paragraphs in s 59 is to be understood in the context of the phrase ‘medical or related treatment’ which is being defined. ([68])
9. The nature of the treatment the subject of this claim is unusual, in that it relates to the provision of an assistance dog. It must, however, be for the purpose of treatment, that is, it must be “designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition limiting the deleterious effects of a condition and restoring health”. Additionally, it must be by direction of a medical practitioner. ([69])
10. The term ‘therapeutic treatment’ is broad and general. The Arbitrator found that “all the medical professionals agreed that having an assistance dog was therapeutic to [the respondent’s] psychological condition”. This finding was not challenged on this appeal. Provision of the assistance dog, on the evidence overall, comfortably falls within the description of treatment in Rose, as being “designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition limiting the deleterious effects of a condition and restoring health”. ([72])
11. Section 59 is a provision that goes to the conferring of benefits and Snell DP accepted that, in the event of ambiguity, a construction that is favourable to the worker should be preferred. In a general sense, this was supportive of the view that the Deputy President had reached. ([73])

(ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328, and Bird v Commonwealth [1988] HCA 23; 165 CLR 1 applied)

12. Without seeking to set the outer limits of the phrase, the term ‘therapeutic treatment’ in para (b) of s 59 is, in the Deputy President’s view, sufficiently broad to encompass the provision of an assistance dog in an appropriate case. It followed that Ground 1 failed. This was so taking account of the arguments raised by the appellant, including those raised for the first time on the appeal. ([74]–[75])

    Ground 2

13. It is necessary that the reasons be read as a whole. The Arbitrator, dealing with whether the treatment was reasonably necessary, summarised the medical evidence overall. This included multiple references in the Arbitrator’s reasons to the efficacy of an assistance dog in the treatment of the respondent’s psychological condition. There was reference to a report from Ms Bell (an occupational therapist) which stated “assistant dogs are medical aids”. The reasons referred to Dr Cordowiner (the respondent’s general practitioner) saying the respondent’s functioning “would significantly benefit from an assistance dog and is a form of therapy”. The reasons referred to Ms Patton, the treating psychologist, saying “I do recommend that a service dog be included as treatment, to address [the respondent’s] workplace injury”.  Associate Professor Robertson said that an “assistance dog appears to have enabled this patient to re-engage with employment and improve on her clinical progress”. Dr Ng (who did not examine the respondent) said that “the literature did not indicate that service or companion dogs were a mainstream treatment”. In discussing the evidence relevant to whether provision of the assistance dog was ‘reasonably necessary’, the Arbitrator observed the respondent “said she obtains great benefit from her assistance dog”. ([91])

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

14. The Arbitrator’s thorough examination of the medical evidence in his reasons clearly described the evidence which justified his conclusion that provision of the assistance dog constituted ‘therapeutic treatment’. The Arbitrator found that the treatment was “given by direction of a medical practitioner”, a finding not challenged on this appeal. Deputy President Snell accepted the respondent’s submission that the Arbitrator’s reasons at [105] involved a straightforward application of the words of the section. The Arbitrator made the necessary findings to satisfy the requirements of para (b). It followed from those findings that the matter fell within the definition in para (b), and therefore provision of the assistance dog fell within the definition of ‘medical or related treatment’ in s 59. The Arbitrator’s reasons complied with his duty to provide reasons. Ground 2 failed. ([94]–[96])

Another matter

The Arbitrator’s findings included one that the requirement in para (b) of s 59, that the relevant treatment be by direction of a medical practitioner, was satisfied on the basis of a direction of Ms Patton, a psychologist. That finding was not challenged on appeal, there were no submissions relating to it and the Deputy President did not consider its correctness. He said these reasons should not be taken as an endorsement of the approach taken to that issue. ([98])

Mission Australia v Eves [2020] NSWWCCPD 49

Whether error on the part of the Arbitrator in determining that the respondent was on a journey to which s 10 of the 1987 Act applied – Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439, Hook v Rolfe (1996) 2 NSWCCR 81 discussed; s 10(3A) of the 1987 Act – whether error on the part of the Arbitrator in determining that there was a real and substantial connection between the respondent’s employment and the injury – Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72, Australia and New Zealand Banking Group Limited v Khullar [2020] NSWWCCPD 3 discussed

Wood DP

31 July 2020

Facts

The respondent was employed by the appellant as a community support worker. During the course of her employment, she experienced a number of stressors. The respondent consulted her general practitioner who certified that the respondent had no capacity for work from 11 February 2016 as a result of her psychological condition. She returned to work on 19 February 2016. The return to work arrangements included a requirement that the respondent have no face to face interaction with a superior, Ms Howarth. Unfortunately, Ms Howarth spoke directly to the respondent. As a result, Mr Jobson, the appellant’s injury management adviser, directed the respondent to cease work for two weeks from 19 February 2016 to 4 March 2016, so that the appellant could put in place a return to work plan.

The respondent left work in a distressed and shocked state at approximately 10 am or 10.30 am on 19 February 2016. The respondent formed the intention that she would travel to Cobar that day to stay at her mother’s home. She spent the day attending to various matters, including packing her bags, arranging her medications and attempting to pay her rent to cover her accommodation for the following two weeks.

The respondent left to travel to Cobar at about 6.30 pm to 6.45 pm. At approximately 8.30 pm, the respondent was severely injured when her motor vehicle veered off the road and hit a tree. The respondent claimed she was injured while on a journey from her employment to her place of abode in accordance with s 10 of the 1987 Act. She claimed weekly payments and treatment expenses in respect of the psychological injury alleged to have occurred on 10 February 2016 and the injuries sustained in the motor vehicle accident on 19 February 2016. The Arbitrator found in favour of the respondent in respect of both the psychological injury on 10 February 2016 and the injuries sustained in the motor vehicle accident on 19 February 2016. The employer appealed.

The issues on appeal were whether the Arbitrator erred:

(a) in finding that the respondent was on a journey within the meaning of s 10 of the 1987 Act (Ground 1), or, in the alternative,

(b) in finding that there was a real and substantial connection between the respondent’s employment and the motor vehicle accident (Ground 2).

Held: The Arbitrator’s amended Certificate of Determination dated 3 March 2020 was confirmed.

Ground 1

1. The appellant submitted that there was no evidentiary basis for the Arbitrator’s finding that the respondent was on a journey pursuant to s 10 of the 1987 Act. The error was said to have been occasioned when the Arbitrator:

   (a) observed that the respondent left the appellant’s premises in her car with the intention of travelling to her mother’s house in Cobar that night, and

   (b) concluded that the respondent formed the intention before she left work that she would travel to Cobar.

   The appellant submitted that there was no evidence that the respondent’s car was parked on the appellant’s premises and no evidence that she remained on those premises while on a telephone call with her mother. ([79]–[80])

2. Deputy President Wood held it was not overtly apparent from the Arbitrator’s reasons that he drew an inference from the evidence that the respondent’s car was parked on the appellant’s premises. Even if he did, an erroneous inference drawn does not necessarily constitute an appealable error. The error must have resulted in some substantial wrong. It was immaterial whether the respondent’s car was parked on the appellant’s premises, or whether the respondent left the premises before reaching her car. The respondent may have left her place of work but had yet to reach her place of abode when, as the Arbitrator correctly concluded, she formed the intention to drive to Cobar. ([81])

   (Walshe v Prest [2005] NSWCA 333, at [27] applied)

3. It was evident from the respondent’s statement that the respondent left the appellant’s office and proceeded to her car, where she attempted to call her mother, spoke to her family friend and then was able to speak to her mother. In the paragraph that followed, the respondent stated that she drove to her residence in Bourke. The respondent gave evidence that she then twice spoke to her mother again, when her mother gave instructions on what the respondent needed to do and reminded her to collect her medications. The sequence as reported by the respondent in her statement was uncontested that the first telephone conversation the respondent had with her mother occurred before the respondent set out to drive anywhere. Further, the respondent expressed her intention at that stage to “go home.” ([85])
4. The respondent’s uncontested evidence was that she formed the intention to spend the night in Cobar before she commenced driving to her Bourke residence. That may have been after the respondent left the appellant’s premises, at the direction of the appellant, but in the circumstances of this case, whether the intention to travel to Cobar was formed on the appellant’s premises or in the car before the respondent began driving on her journey, was immaterial. It was open to the Arbitrator to conclude that the respondent formed that intention while sitting in her car. ([86])
5. The appellant submitted that Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 (Vetter) could be distinguished from the present case because in Vetter, the worker periodically travelled to her grandmother’s house and always had the ultimate intention of arriving at her own residence. The Deputy President did not accept that submission. While the facts in Vetter were different to the facts in this case, the factual difference did not impact upon the application of the High Court’s observations about the effect of the journey not being a direct route between the place of employment and the place of abode. If it was accepted that the respondent intended her destination to be Cobar, then, applying the High Court’s observations, the fact that the respondent first went to her Bourke residence did not detract from the character of the journey as a whole. ([89], [91])
6. The appellant further challenged the Arbitrator’s finding on the basis that the journey could not be a “periodic journey” because there was no evidence that the respondent had taken that journey on any other occasion. The Arbitrator considered that submission made by the appellant. He concluded that, in accordance with Glass JA’s observations in Hook v Rolfe (1996) 2 NSWCCR 81, the place of abode is the place where the worker intended to spend the night having the character of his or her place of abode, even though he or she may travel to that particular place on one occasion only. There was no error in the Arbitrator’s reasons in respect of accepting that the journey was a periodic journey, despite the fact that it may have been undertaken on one occasion only. ([92])
7. The Arbitrator’s conclusion that the respondent was injured while on a journey within the meaning of s 10 of the 1987 Act was founded on the evidence, consistent with the relevant authorities and open to him. The appellant had not established error on the part of the Arbitrator and this ground of appeal failed. ([98])

Ground 2

8. The appellant submitted the Arbitrator’s reasons were very brief and did not involve a consideration of the caselaw or the wording of s 10 of the 1987 Act. The appellant cited the passage in the Arbitrator’s reasoning at [104]–[105], where the Arbitrator said that the respondent would not have been on that journey but for the state of distress in which she left the appellant’s premises, so that there was a real and substantial connection between her employment and the accident. The appellant asserted that the Arbitrator did not apply the relevant authorities, but merely said that the respondent would not have been on that journey had it not been for her distress. The appellant submits that this does not address the question of whether there was a real and substantial connection between the respondent’s employment and the accident. The appellant says that the relevant authorities indicate that what is required is evidence that the appellant encouraged, required or expected the respondent to ultimately make the journey to her mother’s house in Cobar. ([99]–[100])
9. The respondent contended that the appellant made no submissions about s 10(3A) of the 1987 Act which amounted to an acceptance that there was a real and substantial connection between the respondent’s employment and the injury. Deputy President Wood noted the matter was identified as an issue in the proceedings when the matter first came before the Arbitrator on 16 October 2019. Having identified that issue as being a dispute before him, after hearing from the parties the Arbitrator proceeded to determine the issue, without the assistance of submissions from the appellant. The obligation to give reasons is dependent upon the submissions presented to the judicial officer and there is no duty to give reasons for failing to accept submissions never put. ([101])

(Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34, at [15] applied)

10. It was difficult, in those circumstances, to understand why even the briefest of reasons would not be sufficient to support a finding in favour of the respondent. Nonetheless, Wood DP did not accept that the Arbitrator’s reasons were insufficient. The Arbitrator’s reasons must be considered as a whole. ([102]–[103])

    (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 443 applied)

11. The Arbitrator’s reasoning process included a consideration of the principles in Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina). Bina was discussed and applied in Singh and Singh v Wickenden [2014] NSWWCCPD 13, State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26 (McCoy) and Field v Department of Education and Communities [2014] NSWWCCPD 16. To say that the Arbitrator failed to “go down the path” of considering the relevant authorities ignored the Arbitrator’s whole reasoning process which included consideration and application of the principles in Bina, which principles were discussed in the subsequent cases. The authorities do not establish that in every case, the activity being undertaken was one which the worker was required, authorised or expected to do. ([108]–[109])
12. In any event, Wood DP saw little difference between the real and substantial connection in McCoy, where the worker, who was in a tired state and in a hurry, tripped on the way to the employer’s Christmas party, which she had been encouraged to attend. The respondent in this case was directed to leave her employment for two weeks because of her work injury, was in a distressed and emotional state because of her work injury and veered from the road. At the end of the day, the Arbitrator reached a conclusion by applying the principles established in Bina to the facts of this case without the benefit of any submissions that were contrary to the conclusions he reached. In the circumstances, considering the facts of this case, the evidence, and reading the Arbitrator’s reasons as a whole, his reasons were sufficient. Consequently, the appellant had not identified error on the part of the Arbitrator and this ground failed. ([110]–[112])

Candy v MC Connor Racing Pty Ltd [2020] NSWWCCPD 43

Whether error in determining the issue of injury to the right hip and whether the need for surgery to the right hip resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied

Wood DP

7 July 2020

Facts

The appellant was a racehorse track work rider. She suffered numerous injuries in the course of her employment, including an injury on 20 April 2013, in which she suffered a traumatic brain injury that affected her ability to recall matters in any detail.

These proceedings concerned an incident that occurred on 25 June 2018 which involved the appellant suffering a fall from a horse she was exercising for the respondent. The appellant alleged that she was thrown from the horse but was not injured so she re-mounted the horse. The appellant said that the horse again threw her off and then fell on her and trampled her, causing injury to her right hip.

The appellant claimed future treatment expenses in respect of the cost of a total right hip replacement, recommended by Dr Nabavi, orthopaedic surgeon. The respondent disputed that the injury on 25 June 2018 was the main contributing factor to the cause or aggravation of a pre-existing disease in the right hip and disputed the right hip was injured in the incident. On that basis it was not liable to pay the appellant compensation.

The Senior Arbitrator determined that she was not satisfied that the appellant suffered an injury to the right hip and entered an award for the respondent. The appellant appealed that decision.

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

(a) finding that the incident relied on was quite similar to that referred to by Dr Jordan in 2015 (Ground 1);

(b) placing weight on the appellant not having mentioned in her statement that she had an earlier fall and that she had consulted Dr Jordan in 2015 for right hip pain (Ground 2);

(c) placing weight upon Dr Bodel not having access to the earlier x-rays or scans or being aware of the injury suffered by the appellant in 2015 (Ground 3);

(d) considering that the views of Dr Powell on causation should not be accepted because of a lack of knowledge concerning earlier complaints of right hip pain and lack of such a complaint to Dr Li immediately following her injury (Ground 4);

(e) stating that it was very difficult for the Senior Arbitrator on the basis of the evidence from Dr Nabavi to make a sound finding as to the nature of the injury on 25 June 2018 (Ground 5), and

(f) finding that she could not make a “common-sense” evaluation of the causal chain because key information was missing (Ground 6).

Held: The Senior Arbitrator’s Certificate of Determination dated 6 January 2020 was confirmed.

Ground 1

1. The appellant asserted that her truthfulness was not questioned and her evidence that she suffered from pain in her right hip from the time of the injury was not challenged. The transcript confirmed that the respondent submitted that the history given by the appellant should be treated with a degree of caution. The respondent submitted at length on the histories recorded by the treating doctors and the contemporaneous documents and pointed out the inconsistencies between that evidence and the evidence of the appellant, including the past history provided to Dr Bodel. ([97]–[98])
2. The appellant’s assertion that her evidence that she suffered from pain in her right hip from the time of the injury was not challenged could not be accepted. There was a clear challenge as to the reliability of that evidence expressed by the respondent in submissions to the Senior Arbitrator. Wood DP held the Senior Arbitrator did not make an adverse finding in respect of the appellant’s credit. However, it was clearly available to the Senior Arbitrator to consider the appellant’s statement evidence as unreliable and look to where the appellant’s evidence sat in the context of the overwhelming contradictory evidence. A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence. ([100])

(Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 and Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied)

3. The Deputy President found there were discrepancies in the reports of how the injury occurred, but held it could not be said that the Senior Arbitrator was wrong in observing that the horse falling on the appellant (as asserted by the appellant in her statement and reported to Dr Bodel) was a similar description to that of the horse landing on top of the appellant, as recorded by Dr Jordan in 2015. ([106])
4. In any event, the Senior Arbitrator’s observation was not a finding, and it was not apparent from the appellant’s submissions how the observation was said to have infected the Senior Arbitrator’s ultimate decision. It followed that this ground failed. ([107]–[108])

Ground 2

5. The appellant submitted that it was irrelevant that the appellant did not disclose the 2015 injury in her statement. Whether the appellant suffered an injury to her right hip in the 2018 injury was in issue. It was unremarkable that the injury was pleaded as an aggravation of a disease. The relevance of having not provided the history of the 2015 injury was that the Senior Arbitrator, having treated the appellant’s evidence with caution, was tasked with finding sufficient evidence to establish that an injury to the right hip occurred in 2018, regardless of whether it was an aggravation of a pre-existing condition. ([109], [111])
6. The two medico-legal specialists, who were tasked with providing an opinion as to whether the need for the surgery was causally related to an alleged right hip injury in 2018 were not appraised of a full history, including the history of an earlier documented injury to the right hip. The absence of a correct history can be, and was in this case, fatal to the acceptance or otherwise of the evidence from those specialists. The absence of that evidence was important to the conclusions reached by the specialists in respect of causation and the need for surgery. The Senior Arbitrator’s consideration of the weight to be afforded to the evidence of the two specialists in the absence of that evidence was an important consideration as to whether the conclusions reached by the specialists in respect of causation and the need for surgery were soundly based. ([112])
7. The appellant’s assertion that there was an absence of complaints relating to the right hip immediately prior to the 2018 injury could not be accepted. There was no cogent evidence to that effect. The clinical notes for the period from 25 November 2014 and 6 June 2018 were not in evidence. It was clear from the report of Dr Jordan in 2015 that during that period, the appellant did complain of right hip symptoms. At some stage prior to the 2018 injury Dr Nabavi treated the appellant for right hip symptoms. There was no evidence to support or refute that the appellant was symptom free in the right hip “immediately” prior to the 2018 injury. It followed that Ground 2 also failed. ([113]–[114])

Ground 3

8. The appellant submitted that the question to be determined was whether the appellant aggravated her right hip condition in the pleaded injury. Deputy President Wood held it was clear from Dr Bodel’s comment that he himself considered that, for the purpose of determining whether a pre-existing condition had been aggravated and the nature of that injury, he would have been better informed if he had been provided with the radiological investigations. ([116]–[118])
9. The importance of having reviewed the complete radiological picture was apparent. The appellant alleged an aggravation of the disease condition in her right hip. While the post injury investigation showed a labral tear, as speculated by Dr Bodel, it was by no means clear that that pathology arose as a consequence of the injury in June 2018 or whether it was pre-existing. That was a question to be properly answered by a properly informed medical expert and Dr Bodel was not properly informed. It was clearly open to the Senior Arbitrator to consider that factor, which was one of several factors, in the weight to be afforded to Dr Bodel’s opinion. Ground 3 failed. ([119]–[120])

Ground 4

10. The appellant asserted that Dr Powell was aware that the appellant had experienced right hip pain since the 2018 injury. The appellant expressed the view that it would be doubtful that, had Dr Powell been appraised of the evidence of prior symptoms, his opinion would probably have changed. Wood DP was of the view that whether Dr Powell would have remained of the same opinion as to whether the appellant’s hip condition was aggravated or further aggravated in the injury on 25 June 2018 was very much a matter for that medical expert to say, after a consideration of the whole of the evidence. The appellant’s submission on this point was speculative. ([122]–[123])
11. The appellant’s submission that the presence of significant lower back pain following the 2018 injury might well have masked the right hip pain was somewhat inconsistent with the appellant’s submission that the appellant suffered right hip pain from the outset and was also speculative. There was no evidence from the appellant or elsewhere that this was the case. ([124])
12. The Senior Arbitrator took into account the effect of the appellant’s brain injury, which caused her to look to other evidence to establish what injury occurred. The complaints of right hip pain to Dr Nabavi in August 2018 were made in the context of the appellant having been referred in respect of left hip pain following the fall in June 2018. The fact that there was also a complaint of right hip pain, which had been the subject of complaint to Dr Nabavi prior to the 2018 injury, was not of itself probative evidence that the injury on 25 June 2018 was causative of those symptoms. ([127])
13. The Senior Arbitrator, though not basing her findings on credit, preferred one view over another of the primary facts. In order to disturb the Senior Arbitrator’s finding, other probabilities must be so preponderant that the Senior Arbitrator’s finding must have been wrong. The opinion of Dr Powell was based on an inaccurate premise and was arrived at without the benefit of a complete medical history on the background of a complex, longstanding, hip condition. On that basis, the Senior Arbitrator concluded that she could give no weight to Dr Powell’s opinion. That conclusion was available to her on the evidence. There was no preponderance of evidence that would indicate that the opposite inference should have been drawn. It followed that Ground 4 failed. ([128]–[129])

(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

Ground 5

14. The appellant submitted that there was sufficient medical evidence to satisfy the Senior Arbitrator as to the cause of the appellant’s right hip disability. The Deputy President held the Senior Arbitrator appropriately rejected the opinions of Dr Powell and Dr Bodel. The Senior Arbitrator found the appellant’s evidence unreliable and that finding was open to her. The evidence from Dr Nabavi did not assist in respect of the question of causation. The serious nature of the injury could not be questioned, but the injury sustained in that incident was in issue and required sufficient proof to establish the occurrence of that injury as a fact. The Senior Arbitrator’s finding that Dr Nabavi’s evidence did not assist and that it was difficult to make a sound finding as to the nature of the injury was available to her on the state of the evidence. Ground 5 of the appeal also failed. ([130]–[132])

    Ground 6

15. The appellant once again relied on the assertion that the appellant was a witness of truth and there was no attack on her credibility. She asserted that this was the “key” to establishing that the right hip pain originated from the injury on 25 June 2018. Wood DP held there were no contrary incontrovertible established facts and there was acceptable evidence that the appellant’s right hip symptoms were longstanding. Another explanation for the right hip pain could have been the injury to the right hip in 2015. There was no established error in the weight the Senior Arbitrator placed on that evidence and she provided proper reasons for reaching her conclusions in that regard. Ground 6 of the appeal failed. ([133]–[135])

Srirudrakantha v Homebush Out of School Hours [2020] NSWWCCPD 45

Whether error in determining that the effects of the exacerbation of pre-existing arthritis had ceased – Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 applied; adequacy of reasons – s 294(2) of the 1998 Act – Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, NSW Police Force v Hahn [2017] NSWWCCPD 51 discussed

Wood DP

21 July 2020

Facts

The appellant was employed as a carer of school children aged between 6 and 12 years old during before and after school hours. She alleged that on 23 August 2017, while supervising children in the playground, she was tripped by a student and she fell onto her back. She alleged that she suffered injury to her right shoulder and right knee. The appellant further alleged that as a result of the fall, she also suffered injury to her lumbar and cervical spines, or alternatively aggravated, exacerbated, accelerated or deteriorated a pre-existing asymptomatic disease process in the lumbar and cervical spines. The appellant further alleged that as a consequence of the injuries, she relied more heavily on her left shoulder and left knee, and those also became symptomatic.

The respondent initially accepted liability for the injuries to the right shoulder and right knee. In a s 78 notice dated 29 April 2019, the respondent disputed the alleged injuries to the cervical spine, lumbar spine, left shoulder and left knee. The respondent also denied further liability for the right shoulder and right knee on the basis that the appellant’s right shoulder and right knee injuries had resolved, and she no longer suffered an incapacity for work or required treatment in respect of the right shoulder and right knee.

Before the Commission, the appellant claimed weekly payments of compensation on an ongoing basis from 29 April 2019, alleging $364.34 per week as her pre-injury average weekly earnings (PIAWE) and asserting she had no capacity for work. The appellant also claimed an amount of $5,643.54 in respect of incurred treatment expenses pursuant to s 60 of the 1987 Act.

The Arbitrator determined:

(a) the appellant suffered injury to her right shoulder, namely aggravation of pre-existing arthritis, and right knee, namely an exacerbation of pre-existing osteoarthritis, arising out of and in the course of her employment on 23 August 2017;

(b) the appellant had not proven the effects of the injury to her right knee persisted beyond 2017;

(c) the appellant had not established she suffered injury to her neck or back;

(d) the appellant had not established that she suffered consequential injuries to her back or left knee, and

(e) no finding in relation to the alleged consequential condition to the appellant’s left shoulder.

The Arbitrator held that the appellant had not established she had an entitlement to weekly compensation after 28 April 2019, as on the evidence before the Commission she is not precluded by reason injury to her right shoulder (or any condition of her left shoulder) from earning her pre-injury average weekly earnings. The Arbitrator ordered the respondent pay the appellant’s hospital and medical expenses pursuant to s 60 in respect of the appellant’s right shoulder.

The appellant appealed that decision.

The appeal was brought under the following grounds:

(a) Ground 1: the Arbitrator erred in fact and law by finding that the injury to the right knee;

(i) merely involved a transient exacerbation of a longstanding condition, and;

(ii) did not persist beyond 2017,

which findings were not open on the available evidence.

(b) Ground 2: the Arbitrator erred in fact and law by failing to provide adequate reasons for his finding that the exacerbation of the appellant’s right knee arthritis was transient and the effects of which would not have persisted beyond 2017;

(c) Ground 3: the Arbitrator erred in fact and law by failing to find that the appellant suffered consequential conditions affecting her left knee and back as a result of the undisputed right knee injury;

(d) Ground 4: the Arbitrator erred in fact and law by failing to consider the evidence of the appellant’s incapacity and failing to consider that the appellant’s undisputed right shoulder injury would have reduced her earning capacity, thus giving rise to an entitlement to weekly payments;

(e) Ground 5: the Arbitrator erred in fact and law by failing to consider whether the appellant’s right knee injury and the consequential conditions in the left knee and back reduced the appellant’s capacity, giving rise to an entitlement to weekly payments;

(f) Ground 6: the Arbitrator erred in fact and law in failing to provide reasons for the determination that the appellant is not entitled to receive weekly payments, and

(g) Ground 7: the Arbitrator erred in fact and law by failing to order the respondent to pay the appellant weekly benefits pursuant to s 37 of the 1987 Act and to pay medical expenses pursuant to s 60 of the 1987 Act in respect of the right knee, left knee and back, in addition to the right shoulder.

Held: The Arbitrator’s Certificate of Determination dated 2 March 2020 was confirmed.

Discussion

1. The appellant did not take issue with the Arbitrator’s conclusion that the appellant’s own evidence was unreliable, nor did she take issue with the Arbitrator’s findings that the neck and back were not injured in the fall on 23 August 2017. The challenge was limited to the Arbitrator’s findings that the right knee injury was merely transient, that the appellant did not suffer from consequential conditions in the lumbar spine and left knee and the Arbitrator’s finding in relation to the appellant’s work capacity. ([118])
2. In order to demonstrate error on the part of the Arbitrator in respect of findings of fact, what is required is to establish that material facts have been overlooked or given too little weight, or that other probabilities so outweigh the Arbitrator’s conclusion that it can be said his conclusion was wrong. ([119])

(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied)

Ground 1

3. Ground 1 asserted error on the part of the Arbitrator in finding that the injury to the right knee was merely a transient exacerbation of a longstanding condition which did not persist beyond 2017. The appellant contended that there was no evidence to support such a finding. The appellant submitted that the lack of reference in the Homebush Medical Practice clinical notes was not a sufficient reason to support such a finding. ([121])
4. The Arbitrator did not accept that the appellant’s evidence was reliable so that it was necessary for him to look at the documentary evidence in order to ascertain whether the appellant had made out her case. The Arbitrator took into account the lack of reports in the clinical notes of continued pain in the right knee, but he did not do so in isolation from the other evidence available to him. The Arbitrator noted the significant prior history of symptoms complained of by the appellant just months before the injury and that the x-ray of the right knee undertaken after the reported injury showed similar findings to an earlier x-ray undertaken in 2013. He noted that the appellant had failed to refer at all to those previous symptoms and that there did not appear to have been any structural damage to the knee in the injury. The Arbitrator also gave reasons for discounting the opinions of Dr Gehr, Dr Lim and Dr Mason. The Arbitrator accepted the opinion of Dr Bosanquet. Those were all matters that the Arbitrator was entitled to take into account when considering whether the aggravation of the disease process in the appellant’s right knee continued. That was, whether the right knee condition continued to be more grave, more serious or more grievous in its effect on the appellant. ([122])

(Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 applied)

5. The appellant had failed to establish error of the kind required on the part of the Arbitrator. Ground 1 was not made out and failed. ([126])

   Ground 2

6. Ground 2 asserted the Arbitrator failed to give adequate reasons for his decision that the exacerbation of the appellant’s right knee arthritis had ceased. The submissions on this ground mirrored those made in respect of Ground 1. That is, it was insufficient to satisfy the Arbitrator’s obligation to give reasons that the Arbitrator simply relied on the absence of reference to the right knee in the clinical notes and that such reliance was inconsistent with the certificates of capacity issued in April and June 2018. ([127])
7. An Arbitrator has a statutory obligation to give a brief statement of reasons for their decision pursuant to s 294(2) of the 1998 Act. The reasons are not required to be lengthy or elaborate. A consideration whether an Arbitrator has complied with the obligation to give reasons must give regard to the overall reasoning process, read as a whole and without an eye attuned to error. ([129])

(Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167, and Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 applied)

8. In the context of the Commission, and the Arbitrator’s obligations to provide brief reasons for his conclusion, reading the statement of reasons as a whole, the Deputy President was satisfied that the Arbitrator had complied with his obligations in this regard. It followed that Ground 2 of the appeal failed. ([132])

   Ground 3

9. The appellant asserted that the Arbitrator further erred by failing to find that she suffered from conditions in her left knee and back as a consequence of the right knee injury. The appellant’s submissions indicated that this allegation of error was dependent upon the Arbitrator having erred in determining that the right knee exacerbation had ceased and that the exacerbation had abated in 2017. The Deputy President held the Arbitrator was not in error in finding as he did with regard to the exacerbation of the right knee condition having ceased in 2017. That, in part, disposed of this ground. ([133])
10. The Arbitrator placed no weight on the opinion of Dr Gehr because the conclusions reached were not based on a reliable history. It was open to the Arbitrator to reject the opinion of Dr Gehr. The appellant put forward no compelling reason as to why the Arbitrator erred in failing to find the conditions in the left knee and the back were consequent upon the right knee injury. It followed that Ground 3 failed. ([135]–[138])

(Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied)

Ground 5

11. Ground 5 alleged that the Arbitrator erred by failing to give consideration to the appellant’s reduced capacity that resulted from the right knee and the consequential conditions in the back and left knee. The Arbitrator found that, before the claim for weekly payments commenced, the appellant had recovered from the effects of the exacerbation of the right knee condition. He further found against the appellant in respect of the allegation that the appellant suffered consequential conditions in her left knee and back as a result of the right knee injury. The Arbitrator’s findings in that regard were open to him and there was no reason to disturb those findings on appeal. Consequently, the Arbitrator’s failure to consider those matters in the assessment of the appellant’s capacity for work was not an error of fact or law as alleged, and this ground of appeal failed. ([139]–[141])

    Ground 7

12. Ground 7 maintained that the Arbitrator erred by failing to award the appellant weekly benefits in respect of the appellant’s right knee, left knee and back and by failing to order that the respondent pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act in respect of the appellant’s right knee, left knee and back. ([142])
13. This ground of appeal was substantially the same as Ground 5. As the Arbitrator’s findings in relation to the right knee, left knee and back were open to him, there was no reason to disturb those findings on appeal. It followed that the Arbitrator’s failure to consider those matters in respect of the claim for weekly payments and treatment expenses was not an error of fact or law as alleged, and this ground of appeal also failed. ([143])

Grounds 4 and 6

14. Grounds 4 and 6 alleged that the Arbitrator erred in failing to award the appellant weekly compensation in respect of the right shoulder injury. The errors were said to be that the Arbitrator failed to consider the appellant’s incapacity and the reduction in the appellant’s earning capacity resulting from the undisputed right shoulder injury (Ground 4) and failed to provide reasons for his determination that the appellant had no entitlement to weekly payments (Ground 6). ([144])
15. Given that the Arbitrator had found against the appellant in respect of all other allegations of injury and consequential conditions, the Arbitrator’s approach was undoubtedly correct. ([147])
16. As part of his reasoning process, the Arbitrator noted that Dr Sher’s opinion that the appellant was fit for unrestricted duties was qualified by a limitation in overhead lifting. The Arbitrator's view of Dr Sher’s opinion was not inconsistent. ([150])

The Arbitrator had limited evidence before him in respect of the issue of the effect of the right shoulder injury on the appellant’s work capacity. It was not surprising that his reasons were brief. The Arbitrator concluded that the appellant had not established that she was incapable of performing her pre-injury duties as a result of the right shoulder injury. Had the Arbitrator determined that the appellant was fit for her pre-injury duties, the reasons may not have been sufficient to show how he reached such a conclusion. The state of the evidence, as discussed by the Arbitrator, was such that there was a lack of evidence to assist in the need to determine the relevant alleged limits on the appellant’s capacity to perform her former duties in the period commencing April 2019. The deficiencies in the evidence were apparent from the Arbitrator’s discussion of the evidence and it was apparent that such deficiency was the reason for the Arbitrator’s conclusion. It followed that Grounds 4 and 6 of the appeal failed. ([156]–[157])

Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46

Monetary threshold required by s 352(3) of 1998 Act – Popovic v Liverpool City Council [2017] NSWWCCPD 49, Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33, Corporate Management Services (Australia) Pty Ltd v Country Energy [2010] NSWWCCPD 5 discussed; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 applied

Wood DP

23 July 2020

Facts

The respondent worker was employed by the appellant as the restaurant manager of a restaurant. He described a number of stressors in the course of his employment, including a performance review on 9 February 2019. The next day, he claimed he was suffering from a psychological injury as a result of his employment and ceased work. The appellant accepted he had suffered a psychological injury and that the respondent’s employment was a substantial contributing factor to the injury. The appellant declined liability for the injury on the basis of s 11A of the 1987 Act, alleging the respondent’s injury was wholly or predominantly caused by reasonable action taken by the appellant in respect of performance appraisal and/or discipline.

The respondent commenced proceedings, claiming weekly payments of compensation and treatment expenses pursuant to s 60 of the 1987 Act. The matter proceeded to arbitration on 3 October 2019. Arbitrator Wynyard delivered an ex tempore decision, ordering the appellant to pay the respondent’s s 60 expenses and directing the parties to file written submissions in respect of the claim for weekly payments of compensation by 11 October 2019. In a Certificate of Determination (COD) dated 9 October 2019, the Arbitrator confirmed the direction and the orders made.

Both parties complied with the direction to file written submissions in respect of the claim for weekly payments, however, on 14 October 2019, the respondent advised the Commission and the appellant by email that the claim for weekly payments was discontinued. On 4 November 2019, the appellant filed an appeal from the decision of the Arbitrator in respect of the COD dated 9 October 2019. It was apparent that the Arbitrator was not advised that the claim for weekly payments had been discontinued. The Arbitrator issued a further COD dated 5 December 2019, ordering the appellant to pay the respondent weekly compensation payments. That COD was not the subject of an appeal.

The preliminary issues on appeal were:

(a) whether the monetary threshold to appeal had been met, and

(b) what was the status of the COD dated 5 December 2019.

Held: The monetary threshold in s 352(3)(a) of the 1998 Act was not satisfied, and there was no right of appeal.

Threshold matters

1. The appeal lodged was against the Arbitrator’s COD issued on 9 October 2019, in which the Arbitrator ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act. The treatment expenses claimed in the Application to Resolve a Dispute (ARD) were expressed to be in respect of past expenses totalling $1,721.63 and the relevant receipts and invoices for those expenses were attached to the ARD. There was no claim made for future treatment expenses. ([14])
2. In the Appeal Application and the Notice of Opposition, the parties had not made submissions about the requirement to satisfy subss 352(3)(a) and 352(3)(b). On 29 June 2020, Wood DP issued a Direction seeking that the parties each do so. The Deputy President directed the attention of the parties to the decision of Corporate Management Services (Australia) Pty Ltd v Country Energy [2010] NSWWCCPD 5 (Corporate Management Services). In the Direction, Wood DP also sought submissions from the parties as to the status of the COD issued on 5 December 2019, given that the weekly payments claim had been discontinued prior to the COD being issued. ([16])

Consideration

3. The Deputy President noted that on 14 July 2020, the respondent wrote to the Commission requesting the COD to be reconsidered by either the Registrar or an arbitrator. Wood DP accepted the submissions of both parties that the status of the COD of 5 December 2019 was not a matter for her consideration. The current appeal was limited to a challenge to the COD issued by the Arbitrator dated 9 October 2019. As the appellant submitted, a decision of an arbitrator is not subject to appeal or review other than in accordance with the 1998 Act. The Presidential member’s power to intervene is limited by s 352(5) of the 1998 Act to the determination of whether the Arbitrator’s decision was affected by error of fact, law or discretion and the correction of such error. In the absence of an appeal being lodged in respect of the COD dated 5 December 2019, Wood DP did not have jurisdiction to determine its status. ([25]–[26])
4. In order to bring the appeal, the appellant must establish that the monetary threshold pursuant to s 352(3)(a) of the 1998 Act has been met. The appellant submitted that the respondent conceded in its Opposition to the Appeal Against Decision of Arbitrator that the threshold had been met. Whether the respondent made that concession (which in any event was subsequently withdrawn in the respondent’s further submissions) was immaterial. There is no discretion to permit the conduct of an appeal where the monetary threshold has not been satisfied. ([27])

(Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18 applied)

5. Section 352 of the 1998 Act was extensively amended by the Workers Compensation Legislation Amendment Act 2010 (the 2010 amendments) and the current provisions apply to decisions of arbitrators on and from 1 February 2011. Prior to the 2010 amendments, the requirement to meet the monetary threshold was set out in s 352(2) of the 1998 Act. As s 352(2) was expressed in identical terms to s 352(3) as it now appears, and the pre-2011 authorities dealing with the former s 352(2) are equally applicable to the issues relating to the monetary threshold pursuant to the current s 352(3). ([28])

   (Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193 applied)

6. In this case, the appeal brought by the appellant was from the decision of the Arbitrator recorded in the COD dated 9 October 2019. The appellant submitted that the inclusion of the weekly payments dispute in this appeal squarely put the quantum of the claim as greater than $5,000. The only compensation awarded by the Arbitrator in the COD dated 9 October 2019 was in respect of the respondent’s treatment expenses pursuant to s 60 of the 1987 Act, particularised as an amount of past expenses totalling $1,721.63. At the time of the issuing of the COD, the respondent’s entitlement to weekly compensation was in issue but before the appeal was lodged by the appellant, the claim for weekly compensation was discontinued. The decision must have a real capacity to put in issue on the appeal the amount of compensation, determined by reference to the decision or the claim. ([35]–[36])

   (Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (Regan) and Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3 (Sheridan) applied)

7. Deputy President Wood held it was apparent from the COD dated 9 October 2019, that the Arbitrator had yet to determine the issue in relation to the claim for weekly payments when he issued his ex tempore orders on 3 October 2019, which were confirmed in the COD dated 9 October 2019. The Deputy President noted that the appellant did not dispute receiving the notification from the respondent on 14 October 2019 that the claim for weekly payments was withdrawn. The respondent merely disputed that the claim was discontinued prior to 3 October 2019, when the Arbitrator made his initial findings in relation to the claim for treatment expenses pursuant to s 60 of the 1987 Act and the various interlocutory decision and directions. ([40])
8. It was not disputed before the Deputy President that the respondent provided notice to the Commission and the appellant on 14 October 2019 that he discontinued his claim for weekly payments. In accordance with r 15.7(3) of the 2011 Rules, the discontinuance took effect from that date, which was before the appellant lodged this appeal and before the Arbitrator delivered his decision in respect of the weekly payments. In those circumstances it could not be said, therefore, that the amount of weekly payments claimed but not on foot when this appeal was lodged was part of the amount in issue on this appeal in accordance with s 352(3)(a) of the 1998 Act. ([41])

(Sheridan, Regan, Popovic v Liverpool City Council [2017] NSWWCCPD 49, Corporate Management Services, and Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33 applied)

9. The appellant sought to distinguish Corporate Management Services on the basis that in the present case, the weekly compensation remained on foot. The Deputy President did not accept that submission. The weekly payments claim was clearly discontinued before the appeal was lodged and what remained was an amount of compensation in respect of treatment expenses which were below the threshold. Corporate Management Services was not distinguishable from this case. It followed the threshold requirement in s 352(3)(a) of the 1998 Act had not been met and there could be no appeal from the decision of the Arbitrator dated 9 October 2019. ([42]–[43])