Issue 9: September 2020

Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203

APPEALS – right of appeal – scope of right – error of law – findings based on medical evidence – whether misunderstanding of claimant’s case – 1998 Act, s 353(1)

WORKERS’ COMPENSATION – entitlement to compensation – causal relation between accident and injury – delayed complaint of neck pain –neurological condition said to have painless onset – absence of reports of neck pain to treating medical practitioners

WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – workplace accident – claim by worker for lump sum compensation for cervical spine disease

Basten, Meagher JJA and Emmett AJA

3 September 2020

Facts

The appellant worker suffered injury in the course of his employment on 10 April 2012, after stumbling on a block of wood. It was undisputed that he suffered injury to his right knee, and it was also accepted he suffered injuries to his neck and/or back as a result.

He claimed lump sum compensation. The Arbitrator was not satisfied the worker’s cervical spine symptoms manifested or deteriorated at the time of or following the injury. The Arbitrator entered an award for the respondent in respect of the allegation of injury to the worker’s neck and dismissed the claim for permanent impairment compensation.

The worker appealed. The President confirmed the Arbitrator’s Certificate of Determination.

The issues on appeal were whether the President in making the same error as the Arbitrator, had erred in law by failing to respond to a substantial, clearly articulated argument and had failed to identify that error in accordance with Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088.

Held: The appeal was dismissed.

Meagher JA (Emmett AJA agreeing)

1. The appellant submitted that the Arbitrator, when dealing with his claim, and the President, in dealing with ground 3 of the appeal from the Arbitrator’s decision, proceeded upon a reading of Dr Farey’s (orthopaedic spinal surgeon) August 2018 report which was not available, with the result that there was a failure to address the appellant’s claim that the work accident caused or contributed to his condition of myelomalacia. ([80])
2. It was said that Dr Farey, in his report of 2 August 2018, opined as to two matters:

(a) that the appellant’s conditions of myelomalacia and cervical spondylosis were separate conditions which might arise independently, and

(b) that neck pain was a symptom of the latter, but not the former.

The appellant contended that by treating neck pain as a symptom of myelomalacia, the Arbitrator and President adopted a wrong reading of Dr Farey’s report; and that in doing so they failed to understand the essential premise of the appellant’s claim, resulting in a constructive failure to address it. ([81])

3. Meagher JA did not consider that the Arbitrator did not understand or failed to address the appellant’s case based on Dr Farey’s report, or that the President also erred in not concluding that the Arbitrator had misunderstood or failed to address that case. His Honour noted that Dr Farey’s opinion “that the myelomalacia may have been directly caused by the work accident did not depend on whether neck pain was a symptom of that condition once developed”. Meagher JA added it depended on whether there had been an acute spinal cord injury that was capable of causing that condition to develop acutely, which may have been the case if, as Dr Farey’s opinion assumed, the appellant experienced neck pain following the accident. ([83])
4. The appellant submitted there was a failure to deal with a core issue because the Arbitrator had misunderstood the appellant’s case, which was that in Dr Farey’s opinion, the appellant’s myelomalacia was a painless condition. It followed that in addressing the question whether it was due to the work accident, it was erroneous and irrelevant to ask whether there was a complaint of neck pain. Meagher JA held that submission overlooked two aspects of Dr Farey’s opinion:

(a) for myelomalacia to develop acutely, there had to be an acute spinal cord injury, and

(b) Dr Farey’s opinion that the work incident may have caused “further problems to his cervical spine” depended on the assumption that the appellant had experienced neck pain following the accident. ([85]–[86])

1. His Honour held that the President was alive to the appellant’s complaint that the case before the Arbitrator that was not dealt with was or included that Dr Farey’s opinion involved two distinct conditions, and that the second condition, myelomalacia, or spinal cord compression, was a painless condition. Meagher JA agreed with Basten JA’s conclusion that “the view that the [A]rbitrator was well aware that there were two separate conditions identified by Dr Farey in his report … was open based on the [A]rbitrator’s reasons”. For that reason, Meagher JA held that this aspect of the President’s decision involved no error of law. ([88], [90], [109])
2. Meagher JA concluded the President did not err in his reasons at [75] that the Arbitrator was correct, in the light of Dr Farey’s opinion, to consider whether the appellant had experienced neck pain following the accident. In doing so, the President did not misunderstand or misapply Dr Farey’s opinion, or fail to address the appellant’s arguments made in reliance on that report. His Honour held the appeal should be dismissed. ([111]–[112])

Emmett AJA

7. Emmett AJA agreed with Meagher JA, for the reasons given by his Honour “that the President did not err in concluding that the Arbitrator was correct, in the light of Dr Farey’s opinion to consider whether [the appellant] had experienced neck pain following the accident”. His Honour added that in doing so, “the President did not misunderstand or misapply either Dr Farey’s opinion or fail to address the [appellant’s] claim made in reliance on that report”. His Honour added that the President was:

   “right to conclude that the case before the Arbitrator was decided on the basis that the factual assumption on which Dr Farey’s opinion was based was not made out and that any challenge to the President’s conclusion in that regard depends on challenging the Arbitrator’s interpretation of Dr Farey’s report, an interpretation that was plainly open.”

   Emmett AJA noted that was not a challenge to a decision on a question of law, and the Court had no jurisdiction to entertain such a challenge. ([125]–[126])

   Basten JA (dissenting)

8. Basten JA was of the view that the President failed to address a central challenge to the Arbitrator’s reasoning. His Honour stated this was a claim based on a medical opinion, “which in turn, contrary to the arbitrator’s reasoning did not turn on an unproven factual premise”. Basten JA said this “involved an erroneous view of the facts; but it was also a failure to come to terms with the primary basis of the appeal from the [A]rbitrator”. His Honour was of the view the President had adopted the same misunderstanding of Dr Farey’s evidence “as to the significance of neck pain, and its absence”, and that the appeal should be upheld. ([69]–[71])

Helicopter Aerial Surveys Pty Limited v Duff [2020] NSWWCCPD 50

Section 9AA(3)(c) of the 1987 Act considered; whether Arbitrator erred in factual finding that the appellant’s principal place of business was located in New South Wales; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 principles considered

Phillips P

3 August 2020

Facts

The respondent was employed by the appellant as a maintenance coordinator in the appellant’s helicopter/commercial aviation business. Part of the appellant’s business was to lease or charter helicopters for the purpose of fish spotting in the Western Pacific Migratory fish zone.

On 5 January 2015, whilst in Pohnpei, Micronesia, pursuant to this business, the respondent suffered severe injuries in a helicopter accident. Given that the injury was suffered by the respondent overseas, the Arbitrator had to consider the provisions of s 9AA of the 1987 Act and whether the respondent’s employment was connected with the state of New South Wales. The appellant to this appeal disputed whether or not the respondent’s principal place of business was in Australia and hence the only issue to be decided related to s 9AA(3)(c) of the 1987 Act.

The facts in this matter were not in dispute. The appellant argued that as a result of the absence of certain facts, the respondent had failed to discharge his burden of proof. The respondent, to the contrary, pointed to a number of facts which it said substantiated the proposition that the respondent’s principal place of business was in New South Wales.

The Arbitrator noted that whether the appellant employer conducted business or had a registered office overseas was irrelevant to the consideration of s 9AA(3)(c) of the 1987 Act. He found that the evidence established that the employer’s principal place of business in Australia was in New South Wales at the time of injury. The Arbitrator found the evidence of the respondent’s administrative, financial, employment and operational activities which occurred in New South Wales satisfied the test in Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 in which Roche DP cited Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78. That the helicopter work was all outside Australia and some administrative tasks were conducted in Micronesia was not relevant for the purposes of s 9AA(3)(c) of the 1987 Act. The employer appealed.

The single issue on appeal was whether the Arbitrator erred in finding that the respondent’s principal place of business in Australia was located in New South Wales and in doing so overlooked material facts and/or failed to give them appropriate weight.

Held: The Certificate of Determination dated 2 December 2019 was confirmed.

Discussion

1. The Arbitrator found that there was “enough evidence” to establish that the respondent’s principal place of business was in Sydney, before making the formal finding that the respondent’s employment with the appellant was connected with New South Wales. This was a finding of fact. For a finding of fact such as this to be disturbed on appeal, it must be shown that the Arbitrator was wrong. ([22]–[25])

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

2. The Arbitrator set out the correct legal test with respect to s 9AA(3)(c), and no issue was taken with this formulation. The Arbitrator then proceeded to consider and find facts which were then used by the Arbitrator to make his ultimate finding at [34] of the reasons. The appellant must show that the Arbitrator was in fact wrong. There were two pieces of evidence that were very inconvenient to the appellant’s case. Mr Jones, director of the appellant company for 26 years, gave relevant evidence and admissions about the appellant’s business, which the appellant took no issue with. The second fact was from Mr Jones’ communication with WorkCover where he said the appellant was an Australian company located in Sydney New South Wales and all of its commercial business activity was conducted from Sydney. ([25])
3. The President also observed that the contract of employment (signed between the respondent and Mr Jones on behalf of the appellant) recorded the appellant’s address as an address in Sydney, and in two places recorded that the place of engagement or point of hire was Sydney. ([26])
4. For the appellant to succeed in its challenge to the Arbitrator’s factual findings, it would need to displace the evidence of Mr Jones. The inferences the appellant urged the President to draw on appeal would require the rejection of the evidence of the appellant’s director, which had not been challenged. Whilst the rules of evidence do not apply to these proceedings, as such statements of a director would normally bind a party, they remain factual elements of the case which must be displaced in order for this appeal to succeed. The Arbitrator found that the evidence established that the appellant’s principal place of business in Australia was in New South Wales, and referred to the email from Mr Jones to WorkCover. These facts, and the admission that the commercial business activity “is conducted from Sydney”, had not been displaced. The appellant attempted to displace those facts by pointing to what it said was deficiencies in the evidence or where there was no evidence, such as its assertion that there was no evidence before the Arbitrator on which to base his finding that the business base was in Sydney. His Honour rejected that submission, holding this was incorrect as the contract of employment clearly stated that the employer’s address was an address in Sydney. ([27])
5. The appellant also asserted there was no evidence the appellant employed anyone in New South Wales to answer telephone calls, letters or queries, or clear the mailbox. The President held this was not determinative nor relevant to the question as to the employer’s principal place of business. To the contrary, there was uncontested evidence of Mr Jones that all of the appellant’s commercial business activity was conducted from Sydney. ([28])
6. The appellant also complained that the Arbitrator did not consider that wages were paid in Guam. The President held it was of no moment that the respondent received payment at the place where he was working. The fact that work was conducted overseas did not detract from the employer’s principal place of business being in New South Wales if it had otherwise been proven. This submission did not advance the appellant’s case. ([29])

(Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 applied)

7. There was uncontroverted evidence available to the Arbitrator that the appellant’s principal place of business was in New South Wales. No error in the Arbitrator’s approach had been identified and the appeal failed. ([30])

Seles v State Transit Authority of NSW [2020] NSWWCCPD 55

Findings of fact – Fox v Percy [2003] HCA 22; 214 CLR 118; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied; Adequacy of reasons – Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied; Acceptance of and weight to be afforded to the evidence – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367

Wood DP

27 August 2020

Facts

The appellant was employed by the respondent as a personal assistant. On 22 May 2012, as she was preparing to leave work, the appellant tripped and fell down two steps, suffering an undisplaced fracture of the right radial head of the elbow joint. The appellant claimed compensation and the claim was accepted. The appellant returned to work three weeks later and continued to work, until she took maternity leave in about early 2014. The appellant thereafter remained at home as a full-time carer of her two children.

On 1 March 2018, the appellant was lifting her daughter into a low chair when her arm locked. When she let go of her daughter, the arm unlocked, and at the same time she experienced pain and a strange numbness. The appellant asserted that she had previously felt the symptoms of numbness but attributed them to holding her sleeping children.

The appellant claimed compensation, alleging that the symptoms resulted from the work-related injury that had occurred in 2012. The respondent ultimately declined liability, denying that there was a causal connection between the injury on 22 May 2012 and the incident on 1 March 2018.

The Senior Arbitrator found that she was not satisfied that there was a causal connection between the symptoms commencing from 1 March 2018 and the injury on 22 May 2012. The appellant appealed that decision.

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

(a) fact by failing to find a causal link between the appellant’s injury sustained on 1 March 2018 and the accepted work injury on 22 May 2012 (Ground 1);

(b) fact and law in failing to provide any or any adequate reasons for preferring the medico-legal opinion of Dr O’Sullivan (neurologist qualified by the respondent) over those of the numerous opinions expressed by the appellant’s treating doctors (Ground 2);

(c) law by giving any or undue weight to the opinion of Dr O’Sullivan (Ground 3), and

(d) fact by drawing an adverse inference against the appellant in respect of her perceived failure to qualify a medical opinion to counter that of Dr O’Sullivan, which led to an error of law by failing to properly exercise her discretion. (Ground 4).

Held: The Senior Arbitrator’s Certificate of Determination dated 7 April 2020 was confirmed.

Ground 1

1. Ground 1 alleged error of fact on the part of the Senior Arbitrator by failing to find a causal link between the appellant’s injury sustained on 1 March 2018 and the accepted work injury on 22 May 2012. A decision as to causation is a factual decision requiring consideration of the evidence and the inferences that can be drawn from that evidence. Findings of fact will not necessarily be disturbed if they have rational support in the evidence. Where there is no preponderance of view, it is not sufficient that the appeal court prefers a view contrary to that arrived at by an arbitrator. ([91]–[94])

   (Fox v Percy [2003] HCA 22; 214 CLR 118; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir); Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied)

2. The appellant’s submissions in support of this ground were in part reliant upon her assertion that her right elbow symptoms persisted after the injury in 2012 and up to the 2018 incident. The appellant pointed to her evidence that the elbow would from time to time “lock”, as well as the entries in Dr Gunning’s (general practitioner) clinical notes on 24 February 2016 and 4 November 2016. ([95])
3. The Senior Arbitrator dealt with the entries in the clinical notes. The Senior Arbitrator also addressed the appellant’s assertion that her symptoms persisted after 2012. ([96]–[97])
4. It was apparent that the Senior Arbitrator did not consider the absence of an opinion from Prof Stoodley (neurosurgeon) was critical, she simply remarked that it was not helpful. This was in the context of her evaluation of all of the medical evidence addressing the question of causation, which she was required to determine. The Senior Arbitrator gave reasons for rejecting the opinions of Dr Presgrave (treating neurologist and neurophysiologist) and Dr Granot (neurologist and neurophysiologist, qualified by the appellant) and noted that Dr Teo (pain management specialist) did not provide an opinion on causation. It was reasonable for the Senior Arbitrator to look for other evidence which might have assisted the appellant’s case and conclude that it was unhelpful that there was an absence of such evidence. It was immaterial that Prof Stoodley may have shared the same diagnosis as Dr Granot where there was an absence of reasoned opinion from Prof Stoodley as to whether there was a causal connection between that diagnosis and the 2012 injury. ([100])
5. The Senior Arbitrator considered  the medical evidence and formed a preference for the opinion of Dr O’Sullivan over that of Dr Presgrave and Dr Granot, a preference which was open to her for the reasons she provided. It cannot be said that other probabilities so outweigh that chosen by the Senior Arbitrator that it can be said that her conclusion was wrong or that material facts have been overlooked or given too little weight, as required by the principles enunciated in Whiteley Muir. ([102])
6. The appellant also referred to the Senior Arbitrator’s observation that Dr Granot did not express a view about the relationship between the Chronic Regional Pain Syndrome (CRPS) and the 2012 injury and submits that the observation was inconsistent with the opinion expressed by Dr Granot in his report dated 24 September 2018. The Senior Arbitrator correctly observed that in one of his reports, Dr Granot did not express a view on causation. That does not lead to a conclusion that the Senior Arbitrator erred when she: clearly took into account Dr Granot’s opinion expressed in the report dated 24 September 2018 [sic 2019]; gave it consideration, and concluded that she could afford it little or no weight because it was based on an assumption that there had been persistent medial pain since the 2012 injury, which was not made out on the evidence. ([103]–[104])
7. Deputy President Wood held the appellant had failed to establish error on the part of the Senior Arbitrator in respect of her determination that she was not persuaded on the balance of probabilities that there was a causal connection between the symptoms arising from 1 March 2018 and the work-related injury on 22 May 2012. It followed that Ground 1 of the appeal failed. ([105]–[106])

Ground 2

8. Ground 2 alleged that the Senior Arbitrator erred in failing to provide any or any adequate reasons for preferring the medico-legal opinion of Dr O’Sullivan over those of the numerous opinions expressed by the appellant’s treating doctors. ([107])
9. An analysis of whether there has been a failure to provide adequate reasons requires several considerations. Section 294 of the 1998 Act imposes a statutory obligation on an arbitrator to provide reasons for his or her decision. Rule 15.6 of the 2011 Rules also requires an arbitrator to give reasons for his or her decision. It is necessary to consider the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate. There is no failure to give reasons if the steps in the judge’s reasoning were readily apparent. ([108]–[111])

(Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (Pollard); Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, and Musija v Kresa [2010] VSCA 163 applied)

10. The appellant’s submissions in respect of this ground of appeal were jointly presented with the submission going to Ground 3, which was a separate ground of appeal. Such an approach is not satisfactory. It is not a matter for a Presidential member to sift through the submissions and identify which submissions relate to which ground of appeal. Practice Direction No 6 requires that submissions should be set out separately and succinctly under each separately identified ground of appeal. ([112])
11. In the face of the lack of any submissions pertaining to the alleged failure to give reasons, it was difficult to see how the appellant could establish error of the kind required by s 352(5) of the 1998 Act. ([115])
12. All of the facts identified by the Senior Arbitrator were founded in the evidence. The reasons were sufficient to address the issue presented by the appellant’s case and the contest between the parties, as discussed in Pollard, and were sufficient to discharge the Senior Arbitrator’s statutory obligations pursuant to s 294 of the 1998 Act and r 15.6 of the 2011 Rules. Consequently, Ground 2 failed. ([116]–[117])

(Pollard applied)

Ground 3

13. Ground 3 alleged an error of law by the Senior Arbitrator having given any or undue weight to the opinion of Dr O’Sullivan. The appellant submitted that the diagnosis of CRPS provided by Dr Granot was supported by the opinion of Dr Teo, who considered that the condition would evolve over time. The appellant did not explain how that submission assisted her assertion of error on the part of the Senior Arbitrator. ([118], [120])
14. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to evidence is generally a matter that falls within the province of the primary decision maker. ([119])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367, and Shellharbour City Council v Rigby [2006] NSWCA 308 applied)

15. Ultimately, the Senior Arbitrator did not determine this matter on the basis of whether the appellant did or did not suffer from CRPS. The Senior Arbitrator correctly directed her attention to whether the appellant’s work-related injury materially contributed to the symptoms that developed from March 2018. In doing so, she rejected the chain of causation proposed by Dr Granot because it was based upon there being persisting medial pain since the work-related injury, which fact was not supported by the evidence. There was no error disclosed in the Senior Arbitrator’s reasons for doing so. ([124])
16. The appellant asserted that the Senior Arbitrator should not have accepted the opinion of Dr O’Sullivan because Dr O’Sullivan did not provide a reasoned analysis to support his conclusion. Deputy President Wood held the appellant’s submission could not be accepted. ([125])
17. The Deputy President concluded it was open to the Senior Arbitrator to accept Dr O’Sullivan’s process of reasoning to support the medical opinion arrived at by that medical expert. The Arbitrator’s acceptance of Dr O’Sullivan’s opinion was rational and open to her for the reasons enunciated by her. The appellant had pointed to no proper reason to disturb that finding and Ground 3 failed. ([126])

Ground 4

18. Ground 4 alleged error of fact by drawing an adverse inference against the appellant in respect of her perceived failure to qualify a medical opinion to counter that of Dr O’Sullivan, which led to an error of law by failing to properly exercise her discretion. ([127])
19. The Deputy President did not accept the Arbitrator’s reasoning at [65] resulted in an adverse inference being drawn against the appellant. It was plain that Dr O’Sullivan’s opinion was not traversed by evidence adduced on the appellant’s behalf. The Senior Arbitrator’s remarks were simply that, in the absence of evidence to contradict Dr O’Sullivan’s reasons and conclusion, it was open to her to accept that evidence. That reasoning involved no error. It was not apparent from the Senior Arbitrator’s reasons that she drew any adverse inference of the kind described by the appellant and Ground 4 of the appeal also failed. ([129]–[130])

Calvary Home Care Services Ltd trading as Calvary Silver Circle v Vernon [2020] NSWWCCPD 54

Alleged factual error; the weight of evidence: application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; procedural fairness: application of Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 and related authorities

Snell DP

27 August 2020

Facts

The respondent was employed by the appellant as a casual support worker. She attended the homes of clients to provide home care, respite and personal care. The respondent experienced right shoulder pain in February 2013 whilst vacuuming at work. She had medical treatment, and periods of working on restricted duties. She was eventually certified fit for her normal duties, although said that her right shoulder continued to bother her. She said the symptoms became “worse as time wore on”. The respondent stated she had a “significant deterioration” of her symptoms at work while vacuuming on 3 July 2014. She had time off work, periods on selected duties and underwent rehabilitation. She came under the care of Dr Osborne, an orthopaedic surgeon. She ceased work from April 2015.

On 23 August 2017, the respondent underwent surgery to the right shoulder (arthroscopic acromioplasty) at the hands of Dr Osborne. She said that after this surgery, she became heavily reliant on her left arm to perform day to day tasks. The respondent said that from approximately two months after the surgery, she began experiencing pain in her left shoulder. In September 2018, she declined a suggestion by Dr Osborne that she undergo surgery to her left shoulder. On 10 April 2019, the insurer declined liability for any consequential condition in the respondent’s left shoulder.

The respondent claimed lump sum compensation based on an assessment by Dr Patrick, (surgeon qualified by the respondent) of 18% WPI (combined WPI of 9% for the right shoulder and 10% WPI for the left shoulder). The injury to the right shoulder was not disputed. The appellant declined liability on the basis that the accepted right shoulder injury was under the threshold. The Arbitrator found the condition of the left shoulder was consequential to the right shoulder injury. The matter was referred to an AMS to assess WPI in respect of both upper extremities as a result of injury deemed to have occurred on 3 July 2014. This appeal was brought against that decision.

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

(a) accepting the opinion of Dr Patrick regarding causation of the left shoulder condition (Ground 1);

(b) determining credit in the respondent’s favour because the respondent was not cross-examined (Ground 2), and

(c) finding the respondent first noticed left shoulder symptoms approximately two months following right shoulder surgery and the failure to give proper reasons (Ground 3).

The appellant made a general submission that the Arbitrator erred in fact and law in failing to properly assess the evidence regarding any causal connection between the right shoulder injury and the respondent’s left shoulder condition.

Held: The Certificate of Determination dated 28 April 2020 was revoked and the matter was remitted for re-determination by another Arbitrator.

Interlocutory decision

1. The appellant raised the prospect that the arbitral decision may be interlocutory, on the basis it did not finally dispose of the rights of the parties. The decision referring the matter to an AMS for assessment did not finally dispose of the rights of the parties and was appropriately characterised as interlocutory. The Deputy President was of the opinion that it was necessary for the proper and effective determination of the dispute that leave be granted pursuant to s 352(3A) of the 1998 Act. Leave was granted. ([11]–[12])

   (Licul v Corney [1976] HCA 6; (1994) 180 CLR 213; DP World Sydney Ltd v Kelly [2011] NSWWCCPD 43, and Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50 applied)

   Ground 1

2. Ground 1 raised issues regarding the reports of Dr Osborne and whether the Arbitrator erred in how she dealt with these. It raised issues regarding the weight afforded to the evidence, particularly the reports of Dr Patrick. ([40])

   Is error made out?

3. The Arbitrator stated that she reached her conclusion on causation weighing “all of the evidence in the balance”. This was clearly appropriate. The appellant’s attack on the factual findings was largely based on whether the Arbitrator gave appropriate weight to certain aspects of the reports of Dr Osborne. ([55])

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

4. The appellant sought to identify specific factual error and referred to the reasons at [41], where the Arbitrator stated that Dr Osborne’s reports, considered in their entirety, showed that the respondent was reporting “that she was still troubled by pain and restriction in her right shoulder”. The appellant submitted this was “unsupported by the evidence of Dr Osborne and amounts to an error of fact”. ([56])
5. Deputy President Snell held that on a fair reading of Dr Osborne’s reports, in their entirety, they supported the Arbitrator’s conclusion that they were consistent with the reporting of pain and restriction in the respondent’s right shoulder. It was clear from Dr Osborne’s reports that the respondent did not at any time experience a full recovery from the right shoulder symptoms. The alleged factual error described above was not made out. The appellant’s submissions described the Arbitrator as determining that Dr Osborne’s reports were “consistent with [the respondent’s] evidence that she had ongoing problems with her right shoulder following the surgery”. Such a conclusion on the Arbitrator’s part was consistent with Dr Osborne’s reports, considered overall. It was not erroneous. ([59])
6. The appellant submitted Dr Patrick’s opinion was based on a history that in the months following the right shoulder surgery, the respondent used her left arm for “everything” and did not use her right arm “at all”. It submitted this was not an accurate history. It submitted Dr Patrick’s opinion was deprived of weight, and the respondent could not on that basis discharge her onus. ([60])
7. The Deputy President held the Arbitrator’s fact finding was not simply based on the reports of Dr Osborne and Dr Patrick, but also on the respondent’s evidence. ([61])
8. Deputy President Snell held there was evidence that permitted acceptance of Dr Patrick’s opinion on causation. This did not mean that the opinion had to be accepted, but the issue was the weight to be afforded to it. It was not necessary that the history on which Dr Patrick proceeded be “precisely consonant” with the facts as ultimately proved, simply that the assumed facts provided a “fair climate” for expression of the opinion. The Arbitrator accepted that the respondent was restricted in the use of her dominant right arm following surgery on 23 August 2017. She accepted that the respondent never had a full recovery following that surgery. She accepted that the respondent relied heavily on her non-dominant left arm in the post-operative recovery period. She accepted that the respondent developed symptoms in her left shoulder subsequent to the surgery. These matters afforded a fair climate for the acceptance of Dr Patrick’s opinion. The presence of this factual basis was a matter for the Arbitrator, as the tribunal of fact, to assess. Ground 1 failed. ([38], [65]–[66])

(Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 applied)

Ground 2

9. Both parties accepted that a failure to cross-examine in the Commission does not preclude an adverse credit finding. It does not militate against such a finding in appropriate circumstances. This is subject to principles of procedural fairness that are inherent in JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 (Kitanoski), at [121]. ([72]–[74])

   (Kitanoski, and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 applied)

10. The appellant submitted, and the Deputy President accepted, that the respondent’s credit was put in issue. This was properly accepted by the respondent. ([75]–[77])

    (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, and Boral Besser Masonry Ltd v Jabarkhill [1999] NSWCA 476; 19 NSWCCR 227 applied)

11. The respondent argued that the reference to a failure to cross-examine was not determinative, the same result would have prevailed in any event. The appellant submitted “the absence of cross-examin[ation] was clearly a factor that was considered by the Arbitrator and formed part of her reasoning process”. ([78])
12. The absence of cross-examination was referred to twice in the Arbitrator’s reasons. On its face, it was a factor relied on by the Arbitrator in accepting the respondent’s evidence. The Arbitrator relied in part on acceptance of the respondent’s evidence in her fact finding. One could not conclude that “a properly conducted trial could not possibly have produced a different result”. Ground 2 succeeded. It was unnecessary in the circumstances for the Deputy President to deal with Ground 3. It was appropriate that the matter be remitted for re-determination by another arbitrator. ([61], [63], [79]–[81])

Ausgrid v Parasiliti [2020] NSWWCCPD 51

Alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; an arbitrator’s duty to provide adequate reasons: application of Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Snell DP

6 August 2020

Facts

The respondent was employed by the appellant from 1986 to 2015 (when he accepted a voluntary redundancy) as an electrical cable technician. Over the many years while he worked with the appellant, the respondent developed problems with his left shoulder and his back. His description of his duties is of arduous physical work. He also developed problems in his right shoulder, although the timing of these is more controversial. He said that by the time he left this employment “the job was becoming too much for me”.

The respondent was assessed at his then solicitors’ request by Dr Giblin, an orthopaedic surgeon, who in reports dated 16 May 2016 and 4 December 2018 assessed him as suffering 16 per cent whole person impairment (increased to 17 per cent in the later report) in respect of his lumbar spine and both upper extremities (shoulders). This was as a result of work injury with the appellant. The respondent made claims for permanent impairment compensation on this basis. The appellant had the respondent examined by Dr Machart, an orthopaedic surgeon, who reported on 28 November 2016. The appellant denied liability for the claim for lump sum compensation in a s 74 notice dated 15 December 2016. It raised other issues in correspondence. The s 74 notice disputed, amongst other things, the allegations relating to the right shoulder.

Before the Commission, the claim in respect of the right shoulder was pursued on alternative bases. It was alleged the right shoulder was injured due to the ‘nature and conditions’ of the respondent’s employment with a deemed date of injury of 1 May 2012. It was also alleged that the right shoulder condition was ‘consequential’ as a result of favouring the injured left shoulder.

The Arbitrator found that the respondent had not discharged the onus of proving injury to the right shoulder as a result of the ’nature and conditions’ of employment. She found the respondent had sustained a consequential condition of the right shoulder as a result of the accepted left shoulder injury. She ordered that the matter be referred to an AMS to assess whole person impairment in respect of the lumbar spine and both upper extremities (shoulders). This appeal was brought against the decision that there was a consequential condition of the right shoulder and that the right upper extremity should be included in the referral.

The sole ground of appeal was whether the Arbitrator “erred in finding that the worker sustained a consequential condition at his right shoulder as a result of the injury to his left shoulder, and in doing so failed to provide adequate reasons.”

Held: To the extent to which it was necessary, leave to appeal was granted pursuant to s 352(3A) of the 1998 Act. The Arbitrator’s decision dated 12 December 2019 was confirmed.

Interlocutory appeal

1. Neither party had addressed whether the decision appealed was interlocutory. The appeal was against orders referring the matter to an AMS for assessment of permanent impairment. Such appeals have frequently been held to be of an interlocutory nature, as the orders at first instance do not finally dispose of the rights of the parties. A common approach is that leave is granted in such circumstances so that issues regarding the referral can be dealt with before an examination by an AMS occurs. To the extent to which it was necessary, the Deputy President granted leave to appeal pursuant to s 352(3A) of the 1998 Act. ([12])

   (Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439, at [11], Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37, at [27] (and the cases cited therein) applied)

   Consideration

2. The single ground potentially raised two alleged errors. The first was that there was error in making a finding of a consequential condition in the right shoulder as a result of the conceded left shoulder injury. The second was that the Arbitrator failed to provide adequate reasons. If the intention was to frame two separate alleged errors, this should have been made clear in two separate grounds. Notwithstanding the way in which the ground was framed, the respondent sought to deal with the merits of the various matters raised in the submissions. The Deputy President did the same. ([49])
3. The appellant submitted the Arbitrator failed to deal with why she accepted there was an overuse injury to the right shoulder after the respondent ceased work. Deputy President Snell observed the Arbitrator referred to the respondent’s evidence of increased reliance on his right arm following the left arm injury. This was not restricted to work activities, it extended to use of the right arm at home. The Arbitrator referred to histories of increasing left shoulder symptoms and treatment in 2013 (after the respondent left the employment). As the respondent correctly submitted, this evidence was not challenged and would explain “increasing reliance on the contralateral limb”. The Arbitrator accepted that the respondent continued to experience left shoulder symptoms. She noted these were sufficiently serious that Dr Popoff recommended surgery to the left shoulder in 2013, although this was declined. The Arbitrator noted Dr Richards’ reference to “ongoing issues” in the left shoulder in his 2017 report. The Arbitrator noted Dr Kumaran’s notes and Dr Richards’ report indicated right shoulder symptoms became more severe in early 2017. ([50]–[51])
4. The appellant was critical of the weight given to Dr Giblin’s opinion on the presence of a consequential condition, given the Arbitrator’s rejection of the doctor’s opinion on whether there was right shoulder injury as a result of the ‘nature and conditions’ of employment. The Arbitrator gave a specific reason for rejecting Dr Giblin’s opinion on the ‘nature and conditions’ injury. She said the doctor had not engaged with the absence of contemporaneous evidence of right shoulder symptoms, until well after the respondent was incapacitated by his other injuries. This factor was not relevant to the finding of a consequential injury, which could result from overuse of the right shoulder that post-dated the employment with the appellant. It was open to a judge (or an arbitrator) to accept the evidence of a witness on one issue but not on another. ([52])

(Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 applied)

5. The Arbitrator specifically referred to the specialist medical evidence from Dr Giblin and Dr Popoff, which supported her conclusion. The appellant also criticised the Arbitrator for failing to explain why weight was given to the opinion of Dr Popoff. The Arbitrator said that she gave weight to Dr Popoff’s opinion “as a qualified orthopaedic surgeon”. The topic on which the doctor was expressing an opinion fell, of course, within the expertise of an orthopaedic surgeon. Otherwise, the weight to be given to the doctor’s opinion was largely a matter for the Arbitrator, unless there was a finding that was so against the weight of evidence that some error must have been involved. A submission to that effect was not made. ([53])

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

6. The appellant submitted “Dr Machart, for the [a]ppellant, gets a very brief mention”. The Arbitrator gave a specific reason for not accepting the opinion of Dr Machart: the doctor did not deal with the specific question she considered on this point. Dr Machart did not deal with whether overuse of the right shoulder, due to the accepted injury to the left shoulder, other than in the course of employment, resulted in a consequential injury. There was no specific challenge made to the basis on which the Arbitrator dealt with Dr Machart’s opinion. ([54])
7. The Arbitrator’s findings were clearly open to her on the evidence, and error on that basis was not made out. It was necessary that the Arbitrator’s reasons be read as a whole. The submission that the Arbitrator did not explain why she found the right shoulder condition resulted from overuse, subsequent to the respondent’s employment with the appellant, was without merit. The Arbitrator made clear findings which were referenced to evidence and for which she gave reasons. ([13]–[17], [56]–[58])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227; Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied)

8. The Arbitrator’s reasons complied with her duty to give reasons and with her statutory obligation in this regard. ([59])

   (NSW Police Force v Newby [2009] NSWWCCPD 75 applied)

9. The appellant’s ground of appeal failed. It followed that the appeal failed. ([60])

Wilkinson v State of New South Wales [2020] NSWWCCPD 52

Section 11A(1) of the 1987 Act – whether the respondent’s action with respect to discipline was reasonable; Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Irwin v Director General of Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) discussed and applied

Wood DP

13 August 2020

Facts

The appellant was employed by the respondent as a civilian Crime Scene Officer, investigating crime scenes for the NSW Police Force in Broken Hill. The appellant commenced working in Broken Hill in January 2015. At that time, the appellant was married, however the couple separated in about September 2015. The couple had one child of the relationship (the daughter), and the appellant had a son from a previous relationship. There were long standing custody issues in relation to the daughter after the break-up of the marriage.

On 23 January 2019, the appellant’s former husband attended the Broken Hill Police Station and made an application for an Apprehended Domestic Violence Order (ADVO) against the appellant. The appellant was served with a copy of the application for the ADVO, which directed the appellant to attend the Broken Hill Local Court on 15 February 2019.

The respondent then issued an Interim Risk Management Plan on 29 January 2019, which placed a restriction on the appellant, in that she was not to handle firearms or be involved in matters where firearms were present.

On 13 February 2019, the respondent handed the appellant a letter dated 7 February 2019, which contained allegations of misconduct on the part of the appellant. The appellant ceased work on 15 February 2019, alleging that she suffered a psychological injury caused by two of the allegations, which she asserted were incorrect. The appellant had previously suffered from a non-work-related psychological condition.

The Arbitrator found that the receipt of the letter alleging misconduct and the respondent’s subsequent investigation were the main contributing factors to the aggravation or exacerbation of the appellant’s psychological condition, but that the injury was caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline, pursuant to s 11A(1) of the 1987 Act. The appellant appealed.

The appellant brought 12 grounds of appeal. However, it was only necessary for Deputy President Wood to determine two of these, being Grounds 1 and 11, namely:

(a) Ground 1: An “error of law in that the Arbitrator applied the wrong test when purporting to evaluate whether a defence pursuant to section 11A was available, by failing to consider the correct and relevant question of whether the actions of the respondent were reasonable on an objective basis, and by erroneously requiring evidence of subjective wrong-doing – negligence, carelessness, malice and the deliberate expression of inaccurate allegations – as a necessary basis for a finding that the actions of the respondent were not reasonable”, and

(b) Ground 11: “An error of mixed fact and law in finding that the worker’s injury resulted from ‘the letter alleging misconduct and the subsequent investigation’, notwithstanding that there was no evidence that ‘the subsequent investigation’ caused her injury”.

Held: The Arbitrator’s Certificate of Determination was revoked, and findings and orders were made in their place that the appellant suffered a psychological injury in accordance with s 4(b)(ii) of the 1987 Act; the injury did not result from reasonable action taken in respect of discipline in accordance with s 11A(1) of the 1987 Act, and the matter was remitted to a different Arbitrator for determination of the appellant’s entitlements to weekly compensation and treatment expenses.

Ground 11

1. It was convenient that Ground 11 was dealt with first. The appellant contended that there was no basis for the Arbitrator’s finding that the appellant’s injury resulted from the “subsequent investigation.” The appellant asserted that the injury resulted solely from being confronted with the unfounded allegations. The appellant pleaded her case as “a personal injury and/or aggravation of a disease” within the meaning of s 11A(3) of the 1987 Act which was caused by the appellant “receiving allegations of misconduct that were demonstrably incorrect and which were eventually dismissed”. ([46]–[49])
2. The respondent’s submissions at arbitration were of little assistance in the identification of the actions taken by the respondent with respect to discipline which were said to be reasonable. Even if those submissions could be said to indicate reliance on the respondent’s actions subsequent to the allegations being made in the letter dated 7 February 2019, there was no factual or medical evidence to support the notion that those subsequent actions (about which there is little information) were causative of the appellant’s injury. ([57])
3. The Arbitrator based her conclusion that the respondent suffered injury as a result of receiving the letter of allegations and the subsequent investigations on the opinion of Dr Mateo, general practitioner. Dr Mateo’s evidence was that the appellant suffered injury following receipt of the letter of allegation and on her return to work on 15 February 2019 when she suffered panic attacks. Dr Mateo’s evidence was not supportive of the conclusion reached by the Arbitrator that the psychological injury was in any part caused by the subsequent investigations. That proposition was not squarely raised before the Arbitrator by either party, not supported by any medical evidence and there was no other basis upon which it was open to the Arbitrator to form that view. ([58])
4. It followed that Ground 11 of the appeal succeeded and the Arbitrator’s findings that the subsequent internal investigation was a contributing factor to the aggravation or exacerbation of the applicant’s psychological condition, which action was reasonable, were revoked. ([59])

Ground 1

5. The appellant alleged that the Arbitrator applied the wrong test when evaluating whether the defence pursuant to s 11A(1) was available to the respondent. The appellant submitted that the Arbitrator failed to ask the correct question of whether the respondent’s actions were reasonable on an objective basis. The appellant alleged that the Arbitrator erroneously required evidence of wrongdoing, namely negligence, carelessness or malice and of deliberately making inaccurate allegations as a basis for a finding that the respondent’s actions were reasonable. The appellant submitted that the Arbitrator’s focus on the absence of negligence, carelessness and malice and lack of a deliberate intention to express those inaccurate allegations was indicative that the Arbitrator regarded that the respondent’s subjective beliefs were determinative of whether the respondent’s actions were reasonable. ([60]–[61])
6. A decision as to whether the actions of the respondent were reasonable requires a broad evaluative judgment. Where the psychological injury is wholly or predominantly caused by the respondent’s disciplinary action, it is the reasonableness of that action that must be assessed. The assessment of reasonableness should take into account the rights of the appellant and the objectives of the respondent, and whether an action is reasonable should, in all the circumstances, be addressed by a question of fairness. The reasonableness of the respondent’s actions should be assessed “by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care.” ([66], [72]–[74])

(Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie) and Irwin v Director General of Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) (Irwin) applied)

7. It was apparent that, despite having referred to and quoted the principles in Irwin and Heggie, the Arbitrator’s reasoning process fell short of those considerations. The Deputy President accepted that the Arbitrator erred by failing to apply the principles in the above authorities in her assessment of whether the respondent’s actions were reasonable. The absence of malice and/or negligence, and whether the respondent’s actions were careless or involved a deliberate intention, are matters that are not determinative of the question of reasonableness. The Arbitrator did not turn her mind to the rights of the appellant or to questions of fairness. Nor did she look to the knowledge the respondent could have obtained had the respondent made reasonable inquiries or exercised reasonable care. Insofar as the Arbitrator considered the respondent’s actions in putting in place the Interim Risk Management Plan and the subsequent investigations, her consideration went beyond the actions that were causative of the injury, contrary to the principle enunciated in Heggie. Having failed to apply the correct test, the Arbitrator’s conclusion that the respondent’s actions were reasonable was an error of law and was revoked. ([75])

   Re-determination

8. Deputy President Wood held the respondent’s action in making those allegations was not reasonable action with respect to discipline and the defence relied upon by the respondent pursuant to s 11A(1) of the 1987 Act was not made out. ([82])

   (Irwin and Heggie applied)

9. It followed that the appellant was entitled to claim weekly compensation and treatment expenses pursuant to s 60 of the 1987 Act. The respondent’s liability for that compensation had not been determined by a primary decision maker. Deputy President Wood, therefore, did not have jurisdiction to determine those matters as her power to determine matters was limited to the correction of error in accordance with s 352(5) of the 1998 Act. Consequently, it was necessary to remit the remaining issues to an arbitrator for determination. ([83])

Woolworths Ltd v Galea [2020] NSWWCCPD 53

Causation: application of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 and Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260

Snell DP

19 August 2020

Facts

The respondent worked for the appellant as a picker and packer, and forklift driver. She suffered an injury, the occurrence of which is not controversial, when she fell at work on 27 June 2017. She suffered a fracture of the left scaphoid. She initially was treated by Dr Hamsi, who she said was the appellant’s “preferred doctor”. Dr Hamsi referred her to a plastic surgeon, Dr Dowd. She came under the care of a different general practitioner, Dr Lim, from 21 July 2017. Dr Dowd operated on the respondent on 26 July 2017, performing open reduction and internal fixation of the left scaphoid.

The respondent stated that following her left hand injury she had difficulty performing tasks. She had to care for her disabled son which became difficult. She stated that she could not cook proper meals for herself and her son between the time of the injury and the surgery. She felt her son was malnourished. She described this as “a very stressful time”. The respondent stated that she started to develop a rash over her legs, back and buttocks one week after the surgery. The skin condition was diagnosed as lichen planus. It was treated and cleared up with time. The respondent was left with altered pigmentation of the skin, which she described as “very noticeable”, over the back, buttocks, legs and arms where the rash had been.

In the Certificate of Determination dated 28 April 2020, there was a finding that the conceded left hand injury “was a material contribution to [the respondent’s] consequential condition of Lichen Planus”. There was a finding that the respondent “thereby suffered consequent post-inflammatory hyperpigmentation on her back, buttocks, legs and arms”. The matter was referred to an AMS to assess whole person impairment in respect of the left upper extremity and scarring. This appeal was brought against the finding, and referral to an AMS, on the basis that the condition of lichen planus was consequential on the conceded injury to the left upper extremity.

The issues on appeal were whether the Arbitrator erred in:

(a) law in finding that lichen planus was causally related to the accepted left hand injury (Ground 1);

(b) law by reversing the onus of proof (Ground 2);

(c) law by failing to provide the appellant with procedural fairness by not dealing with its submissions (Ground 3);

(d) law and/or fact by failing to place adequate weight upon the opinions of Dr Curtin and Dr Abdulla (Ground 4);

(e) law and/or fact by failing to place little probative value upon the opinions of Dr Lai and Dr Lim (Ground 5), and

(f) law by making impermissible inferences regarding the respondent’s consumption of medication (Ground 6).

Held: The Arbitrator’s decision dated 28 April 2020 was revoked and the matter was remitted for re-determination by another Arbitrator.

Grounds 1 and 2

1. It is necessary that the Arbitrator’s reasons be read as a whole. The Arbitrator briefly summarised the test on causation to be applied, which he described as “accepted”, in the reasons at [43]. The appellant’s submissions did not identify specific error in the test the Arbitrator there set out, notwithstanding the general submission that the correct legal test was not applied. The respondent accepted that, if the Arbitrator reversed the onus, this would be error. It submitted this was not what the Arbitrator did. The respondent submitted that, having correctly observed that the evidence did not deny the possibility of a connection, the Arbitrator was “guided significantly by the matters set out in [44]” of the reasons. ([37])

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

2. The appellant’s submissions proceeded on the basis that the “dispositive paragraphs” of the reasons were those at [45] to [51]. That is, the discussion of what the Arbitrator described as the “medical question”. In considering the test applied by the Arbitrator, it was appropriate to have regard to the reasons at [43], which set out the Arbitrator’s description of the test that he said was to be applied. ([38])
3. The passage of Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262; 19 NSWCCR 385 (Seltsam) which the Arbitrator quoted included a well-known passage from the judgment of Herron CJ in EMI Australia Ltd v Bes [1970] 2 NSWR 238 (Bes). That passage included the statement that “if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable”. The Arbitrator approached the causation issue in light of the passage from Bes. It is artificial to analyse the reasons on the basis that the reasoning on causation is confined to the reasons at [45] to [51]. The Deputy President accepted the respondent’s submission that the lay findings at [44] were also part of the dispositive reasoning. The findings regarding the lay evidence were relevant to the causation issue and the Arbitrator was entitled to have regard to them. ([39])
4. This did not conclude the question of whether the Arbitrator dealt correctly with the causation issue which was raised. The appellant relied on Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 (Christensen), in which McColl JA said that if the causal connection is possible, this “open[s] the door to the temporal inquiry”, an inquiry that “could not be undertaken in isolation from the medical evidence”. The appellant’s medical evidence allowed the possibility that there could be a causal connection between the conceded left hand injury and the condition of lichen planus. There were competing medical cases on the causation issue. ([40]–[41])
5. The temporal inquiry could not be undertaken in isolation from the medical evidence. The Arbitrator was required, in the circumstances, to seek to resolve the medical conflict by way of rational analysis. For the reasons provided for Grounds 3, 4 and 5 below, which dealt with the Arbitrator’s treatment of the medical evidence, the approach taken by the Arbitrator did not adequately deal with the medical evidence and was inconsistent with the decision in Christensen. As a consequence, Grounds 1 and 2 succeeded. ([43])

Ground 6

6. The Arbitrator and the parties had proceeded on the basis that the reports and other material from Dr Lim did not provide direct evidence of the medication consumed by the respondent, following the left hand injury up to the development of the skin condition. The Arbitrator drew an inference that Dr Lim would have been made aware of the treatment being administered by Dr Hamsi, before the respondent’s care was transferred to him from Dr Hamsi. The Arbitrator additionally inferred that Dr Lim’s opinion reflected his knowledge of the medication he then prescribed. The Arbitrator specifically acknowledged there was no evidence that the respondent was being treated with anti-inflammatory medication. In his report dated 21 July 2017 Dr Lim referred to management as including “Simple analgesia”. The doctor’s report dated 20 November 2018 also referred to his management plan as including “Simple analgesia”. Direct evidence was not adduced from the respondent regarding the medications she took. ([51]–[52])
7. The submissions did not suggest there was any evidence that Dr Hamsi’s treatment regime, including a record of prescribed medications, was made available to Dr Lim. It may or may not have been. The inference drawn by the Arbitrator, regarding medications that were prescribed by Dr Hamsi, was conjecture. One could not be satisfied of its correctness on the probabilities. It was not reasonably open. ([53])

(Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 19; 85 CLR 352, and Flounders v Millar[2007] NSWCA 238 applied)

8. There was an additional inference drawn, that medication consumed by the respondent, from when she came under Dr Lim’s care, included “pain medications such as post-operative non-steroidal anti-inflammatory drugs”. The reason given for drawing this inference was that “Dr Lim’s opinion was based upon his knowledge of the medication he had been prescribing”. In Deputy President Snell’s view, it was reasonably open to the Arbitrator to draw this inference on the probabilities. It could not be said that the Arbitrator was wrong to draw this inference. The inference was of limited probative value in any event, given its general nature (“pain medications such as post-operative non-steroidal anti-inflammatory drugs”). ([54])
9. It followed that Ground 6 succeeded in respect of the inference drawn on the basis of the medication prescribed by Dr Hamsi, but not in respect of that prescribed by Dr Lim. ([55])

Grounds 3, 4 and 5

10. These grounds raised issues going to how the Arbitrator dealt with the parties’ medical cases and were dealt with together. The Arbitrator found the appellant’s medical case did not support a conclusion that it was impossible that there was a causal link between the left hand injury and the condition of lichen planus. That conclusion was consistent with the evidence and was not attacked on this appeal. Consistent with the decision in Christensen, it was then necessary that the Arbitrator engage in the temporal inquiry in conjunction with a consideration of the medical evidence. It was necessary that the Arbitrator seek to resolve the medical issue “rationally by examination and analysis”. ([56], [67])

    (Hume v Walton [2005] NSWCA 148 referred to)

11. The Arbitrator described the issues raised by the parties in their submissions. The appellant challenged the qualifications of Dr Lai and Dr Lim to express the medical opinions they did on the causation issue. The appellant challenged whether the factual assumptions on which the views of Dr Lai and Dr Lim were based (malnourishment, stress, the ingestion of medication) were made good on the evidence). This potentially raised issues of weight on the basis of Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399. ([68])
12. There were multiple issues relevant to resolution of the medical dispute in the matter, including issues associated with the lay evidence. The appellant’s attack on the expert qualifications of the respondent’s medical witnesses and their specialist expertise was not dealt with. The appellant’s argument, that the reports of Dr Abdulla (consultant dermatologist) and Dr Curtin (a hand and plastic surgeon qualified by the insurer) were, because of their expertise, entitled to greater weight than those of Dr Lai and Dr Lim, was not dealt with. The finding that the factual basis of the assumptions underlying the respondent’s medical case (stress and malnourishment) was established, was based on a bare finding without reference to specific evidence. The Arbitrator found that “pain medications such as post-operative non-steroidal anti-inflammatory drugs” were consumed prior to the onset of lichen planus. This was based on an inference described at [50] of the reasons, together with the inferences described at subparas (d) and (e) of the reasons at [44]. The availability of these inferences was discussed above in the consideration of Ground 6. The Deputy President had concluded the inference drawn relating to the ingestion of medication, whilst the respondent was under the care of Dr Hamsi, was erroneous. ([69]–[70])
13. The Arbitrator did not “enter into the issues canvassed” to explain why he preferred the respondent’s medical case over that of the appellant. The approach taken to the expert evidence was inconsistent with Christensen. Having found that Bes had application, it remained, in the circumstances of the case, necessary that the Arbitrator deal with causation, and the parties’ medical cases, in a way consistent with the decision in Christensen. This did not occur and constituted error. The approach taken by the Arbitrator was consistent with the summation by the appellant. This had the effect that, having concluded the appellant’s medical case did not exclude causation as a possibility, the Arbitrator then inverted the onus in how he assessed the parties’ medical cases. Grounds 3, 4 and 5 succeeded. ([71]–[72])

Disposition of the appeal

14. The various grounds had succeeded, Ground 6 in part. The appropriate order was that the matter be remitted for re-determination before a different Arbitrator. ([73])