Issue 2

This is the final issue of On Appeal, which covers Presidential and Court of Appeal decisions in the workers compensation jurisdiction. This issue includes a summary of the January and February 2021 decisions.

These summaries are designed to provide an overview of the most recent decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for independent research in relation to a particular issue or area of the law.

This issue, and previous issues, of On Appeal is available on the Personal Injury Commission website: http://www.pi.nsw.gov.au/

Decisions are published on AustLII, JADE and LexisNexis at the following websites:

http://www.austlii.edu.au/au/

http://www.jade.barnet.com.au/

http://www.lexisnexis.com.au

COURT OF APPEAL DECISION

Theoret v Aces Incorporated [2021] NSWCA 3

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

STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to 1987 Act came into force — whether s 82A of the 1987 Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012

Leeming, McCallum JJA, Garling J

2 February 2021

Facts

This appeal concerned the indexation of the appellant’s pre-injury-average weekly earnings (PIAWE) and s 82A of the 1987 Act.

The appellant worker was employed by the respondent employer as a disability support worker. She suffered several injuries in the course of her employment. On 23 December 2002, the appellant was struck on the face by a client and suffered facial, dental and neck injuries.

She first became entitled to weekly payments of workers compensation in 2004. However, her entitlement to weekly payments in respect of a different injury was not determined until April 2019. In the meantime, on 1 October 2012, substantial amendments to the 1987 Act were introduced including amendments to the process for determining the quantum of weekly payments. The appeal raised the application of those amendments where the entitlement to weekly payments arose before the commencement of the amendments, but the appellant was not an existing recipient of weekly payments at the time the amendments came into force.

Both before and after the commencement of the 2012 amendments, the statute provided for indexation of weekly compensation payments. Under the amended legislation a worker’s entitlement to weekly payments is calculated as a percentage of “pre-injury average weekly earnings”. In the appellant’s case, that sum is derived from her earnings back in 2002.

The issue to be determined on appeal was whether, under the amended provisions, the dollar amount determined by reference to the pre-injury earnings in 2002 is subject to indexation from the time the appellant first became entitled to receive weekly benefits for the relevant injury or only from April 2013, the first review date following the introduction of the 2012 amendments. The resolution of that issue turned on the proper construction of s 82A of the 1987 Act as currently in force.

Held: The appeal was allowed; the judgment of the Court below was set aside and the matter was remitted to the Workers Compensation Commission to be determined according to law.

NB: In Theoret v Aces Incorporated (No 2) [2021] NSWWCCPD 8, Phillips P revoked the Certificate of Determination dated 6 November 2019 and remitted the matter for re-determination by a different Arbitrator.

McCallum JA (Leeming JA and Garling J agreeing)

1. The appellant’s argument was not that s 82A should operate retrospectively but that it should apply to weekly compensation payments to which she became entitled after the commencement of the section. ([23])
2. The transitional provisions in Sch 6 Pt 19H cl 3(2) of the 1987 Act make plain that the 2012 amendments have no application to compensation paid before 1 October 2012. ([24])
3. Although the State Insurance Regulatory Authority is required to publish the number that represents the factor to be applied in the indexation task for each review date, the Authority’s failure to do so for review dates before the commencement of the 2012 amendments does not alter the construction of s 82A. The section gives effect to the relevant adjustment of its own force. It does not depend on the Authority fulfilling its duty, although the fulfilment of that duty has real utility. ([30], [32]–[33], [39], [47])
4. The words of sub-section 82A(5) operate as a deeming provision and indicate that historical indexation is not inconsistent with or prohibited by s 82A. ([34]–[35])

PRESIDENTIAL DECISIONS

Hitchings v Secretary, Department of Planning, Industry and Environment [2021] NSWWCCPD 12

Section 4 of the 1987 Act – whether the injury occurred in the course of employment – Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 considered and applied

Wood DP

19 February 2021

Facts

The appellant was employed by the respondent as a procurement officer. Initially the appellant, who resided at Port Macquarie, was required to work from the respondent’s Queanbeyan office. He was initially required to work five days a week at the Queanbeyan office. Those arrangements were changed and the appellant was to attend the Queanbeyan office on Mondays and Tuesdays, work in the Sydney office on Wednesdays and work from home in Port Macquarie on Thursdays and Fridays. As part of his duties, the appellant was also required to visit clients at various places within New South Wales.

On 8 October 2019, the appellant was driving from home very early in the morning, intending to travel to the Queanbeyan office. When he reached the vicinity of Kew, not far from Port Macquarie, the appellant suffered a severe onset of lower back pain associated with shooting left leg sciatica. He was unable to continue the journey and returned to Port Macquarie, where he sought medical treatment. He was certified to have no current capacity for work.

The appellant claimed compensation, which the respondent disputed on the basis that he was on a journey within the meaning of s 10 of the 1987 Act and there was not a real and substantial connection between the employment and the incident out of which the injury arose. The Arbitrator determined that the appellant did not suffer an injury in the course of his employment, the injury did not arise out of the appellant’s employment and there was no real or substantial connection between the appellant’s employment and the incident out of which the injury arose, while the appellant was on a journey between his place of abode and his place of employment. The worker appealed.

The issues on appeal were whether the Arbitrator erred in:

• (a) fact, law or discretion in finding that the medical evidence did not support the assertion that there was a connection between the back injury and the need to drive long distances as part of the appellant’s work duties (Ground 1);
• (b) fact and law in finding that there was not a real and substantial connection between the appellant’s back injury and the need for the appellant to drive long distances to carry out his duties (Ground 2), and
• (c) fact and law in finding that the appellant’s back injury did not arise out of or in the course of his employment when the Arbitrator had found that the appellant had injured his lower back as a result of driving to work (Ground 3).

Held: The Certificate of Determination dated 25 September 2020 was revoked. The matter was remitted to a different arbitrator for determination of the remaining issues.

Grounds 1 and 2

1. Grounds 1 and 2 of the appeal pertained to the question of whether there was a connection between the appellant’s employment and his injury. Deputy President Wood determined that the third ground of appeal succeeded, and the Certificate of Determination was to be revoked. It was not necessary to deal with Grounds 1 and 2. ([72])

   Ground 3

2. The Arbitrator was required to determine whether the appellant was in the course of his employment when he suffered the injury or whether the injury arose out of the appellant’s employment. The issue in the alternative was that he was on a journey within the meaning of s 10 of the 1987 Act, and there was a real and substantial connection between the appellant’s employment and the incident out of which the injury arose. ([85])
3. The challenge to the Arbitrator’s finding that the appellant was not in the course of his employment when the injury occurred was in part premised on the assertion that the Arbitrator made a finding that the appellant had injured his lower back as a result of driving to work. In the process of determining whether the appellant suffered a personal injury on 8 October 2019, the Arbitrator reviewed the medical evidence and the relevant authorities as to what constitutes a “personal injury” for the purpose of s 4 of the 1987 Act. The Arbitrator did not make a finding that the personal injury was caused by the appellant driving to work. He simply accepted, on the basis of the evidence before him, that the onset of symptoms was sufficient to identify a sudden pathological change, which satisfied the requirements of s 4 of the 1987 Act. ([86]–[88])
4. Whether the injury occurred in the course of the appellant’s employment involves a temporal element. Of course, if the appellant had been successful in establishing the temporal element, he would have then had to satisfy the Arbitrator that his employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. As the Arbitrator found against the appellant, he did not proceed to consider s 9A. ([89])
5. It was important that this case did not involve an injury occurring during an interval in, or interruption to, the appellant’s employment duties. That is not to say that the observations in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) provide no assistance in the determination of whether the injury in this case occurred in the course of the appellant’s employment. While the Court in Hatzimanolis was considering factual circumstances which could be distinguished from the present case, the Court expressly considered the phrase “in the course of employment.” The reasons expressed in that decision provide useful guidance in a consideration of the proper application of s 4. ([91])
6. The Deputy President did not regard that the fact that the appellant travelled by car, which was not at the direction of the respondent, was determinative of whether the appellant was or was not in the course of his employment. The contractual arrangement between the appellant and the respondent that the respondent would not pay an allowance for the trip between the appellant’s abode and the respondent’s Queanbeyan office was also not determinative. The fact that the appellant travelled by car was clearly a practicality and the appellant’s acceptance that he was not to be reimbursed for that expense did not of itself indicate that the journey undertaken was a journey within the meaning of s 10 of the 1987 Act. ([94])
7. The determinative question is whether the journey undertaken by the appellant was a journey between the appellant’s place of abode and his place of employment, or whether the appellant was in the course of his employment once he left his abode on the morning of 8 October 2019. This requires a consideration of what was the appellant’s “place of employment.” ([95])
8. It was clear that the Arbitrator’s observation that the appellant’s course of employment would ordinarily be perceived as when he commenced work in Queanbeyan and ending when he completed his work that day in Queanbeyan indicated that the Arbitrator did not give proper consideration to the special circumstances in which the appellant worked. The nature of his duties were such that he would not have ceased to be in the course of his employment when he finished work in Queanbeyan on that day. He was then required to continue on to Sydney. In addition, the Arbitrator considered that the activity of driving to work on 8 October 2019 was no different from the activity of thousands of workers each day. That observation also indicated that the Arbitrator did not fully appreciate the circumstances in which the appellant attended to his weekly duties. Deputy President Wood concluded the appellant’s working week did not begin and end at the Queanbeyan office. ([96]–[97])
9. A consideration of the general nature, terms and circumstances of the appellant’s employment showed that the appellant was not simply embarking upon a journey from his place of abode to his place of employment. The Queanbeyan destination was just one destination on the overall route upon which the appellant embarked, having taken with him all of the things, both business and personal, which he would require at each destination throughout the working week. The character of the journey on 8 October 2019 was therefore not a journey within the meaning of s 10 of the 1987 Act. The circumstances were that once the appellant embarked upon that journey, he was in the course of his employment. ([98])

(Hatzimanolis applied)

10. It followed that the Arbitrator’s determination that the appellant was not in the course of his employment when the injury occurred was wrong. Ground Three of this appeal succeeded and the Arbitrator’s Certificate of Determination was revoked. ([99])
11. The Arbitrator did not determine the cause of the appellant’s injury. As a result of his findings he also did not give consideration to whether the appellant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. ([100])
12. An appeal from a decision of an Arbitrator is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. As a determination of the matter involved a consideration of matters not determined by the Arbitrator, those issues could not be determined on appeal. It was appropriate therefore to remit the matter to a different arbitrator for determination of the cause of the injury and whether the appellant’s employment was a substantial contributing factor to the injury. ([101])

Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1

Extension of time to appeal pursuant to r 16.2(5) of the 2011 Rules; injury arising out of employment – application of Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75; section 9A(2) of the 1987 Act; section 9B of the 1987 Act – application of Renew God’s Program Pty Ltd v Kim [2019] NSWWCCPD 45

Snell DP

13 January 2021

Facts

The worker was employed by the employer as a disability care worker. There was an incident in early 2013, when the worker had made a pudding and put it in the staff refrigerator. A co-worker took a sample of saliva from the mouth of a disabled boy and spread it over the pudding, unbeknown to the worker, who subsequently ate the pudding. A few months later, on 21 June 2013, another co-worker asked the worker if she had hepatitis yet and told her what had happened. The worker was upset, reported the matter and saw her general practitioner to have a blood test performed. She said that she was very stressed and worried.

There was a further incident on 23 June 2013. The worker, the only member of staff present, was driving a work bus, and she saw that a teenaged boy in the back, who was about six feet tall, had removed his seatbelt. She stopped and went to help the boy, who assaulted her. The worker could not use her remote control to open the back door of the bus and was trapped with the boy. She said she was “trapped and very afraid”, and the assault continued for “about an hour”. Eventually another departmental vehicle pulled over and freed her.

There was antipathy between the worker and the co-worker who had told her about the pudding. He accused her of “dobbing” and said he did not wish to work with her. The worker felt “threatened and abused” by him and did not wish to come in contact with him under any circumstances. The worker developed psychological symptoms and the employer accepted liability to pay compensation on a voluntary basis. She resumed on a return to work program in about November 2013. She suffered a significant stroke in June 2014 and did not work thereafter.

On about 24 December 2015, the worker was at a shopping centre when she saw Roberta, a person she had worked with, who had been “mean” to her and had been involved in the incident involving the pudding. The worker said she was “very shocked and surprised”, became distressed, found breathing difficult and her chest tightened. She experienced chest pain and attended Gosford Hospital and was diagnosed with Takotsubo Cardiomyopathy (TCM).

The worker claimed lump sum compensation. The employer accepted the occurrence of a psychological injury on or about 23 June 2013. It denied that the stroke in 2015 was an ‘injury’ or that it was a consequential condition that resulted from the psychological injury.

The Arbitrator found that the alleged injuries (both psychological and to the cardiovascular system) were made out. The finding was of two separate injuries within the meaning of s 4 of the 1987 Act, rather than a finding that the cardiac complaints represented a consequential condition. Thus s 65A(4) of the 1987 Act did not apply. The Arbitrator made an award on the basis of 20 per cent permanent impairment in respect of the cardiac injury (the identical assessment made by the parties’ medicolegal cardiologists). He referred permanent impairment in respect of the psychological injury to an AMS for assessment. The employer appealed.

The issues on appeal were whether the Arbitrator:

(a) erred in law in finding that the TCM injury arose out of the worker’s employment in that he:

1. applied the wrong legal test, and
2. failed to take account of the fact that that the worker was no longer employed by the employer (Ground 1);

(b) erred in law in finding that the worker’s employment was a substantial contributing factor to the TCM injury in accordance with s 9A of the 1987 Act (Ground 2), and

(c) erred in law and applied the wrong legal test in finding that the worker’s employment gave rise to a significantly greater risk of a ‘heart attack injury’ in accordance with s 9B of the 1987 Act (Ground 3).

Held: The employer’s application to extend time for the bringing of the appeal, pursuant to rule 16.2(5) of the 2011 Rules, was refused.

Application for an extension of time

1. The appeal was out of time because it was rejected, when initially lodged, due to non-compliance with the relevant procedural requirements. It has been regularly held that where an appeal is out of time, due to inadvertence or legal error, this does not constitute ‘exceptional circumstances’. Such circumstances are not “out of the ordinary course or unusual, or special, or uncommon”. The employer’s submissions did not specifically address the presence of ‘exceptional circumstances’. There was nothing out of the ordinary course, unusual, special or uncommon about an appeal becoming out of time in such circumstances. ‘Exceptional circumstances’ were not made out. The absence of ‘exceptional circumstances’ does not constitute the absence of a precondition to an extension. It is a matter the Presidential member is required to consider in dealing with whether the discretion should be exercised in the circumstances. The absence of ‘exceptional circumstances’ was a factor that militated against the extension of time. ([47])

   (Department of Education & Training v Mekhail [2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55; Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now deregistered) [2009] NSWWCCPD 64; Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1 applied)

2. The Deputy President accepted the appellant’s explanation of delay. He also held it was not suggested that the worker was prejudiced by the delay. If the application was refused the employer would lose any right it had to appeal. ([48]–[53])
3. Deputy President Snell formed the view, after a full consideration of the grounds, that the appeal, if time were extended, would fail. It followed that the appeal did not have reasonable prospects of success. ‘Exceptional circumstances’ were not established. It followed that there was no prejudice to the employer if the application to extend time was refused. The interests of justice did not favour granting the extension. The application of the employer, to extend time for the making of the appeal pursuant to r 16.2(5) of the 2011 Rules, was refused. ([56]–[57])

Ground 1

4. Deputy President Snell held it was plain that the Arbitrator’s reasoning did not proceed on the simple basis that Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) provided an appropriate test for determining whether injury arising out of the employment was established. The reasons did not suggest that the Arbitrator dealt with the passage from Kooragang in this way. Immediately before quoting it, the Arbitrator referred to the passage as being relevant when “assessing issues of causation in the workers compensation context”. The Deputy President did not accept the employer’s submission that the Arbitrator applied a wrong test to the principles governing the establishment of injury ‘arising out of’ employment, on the basis of his reference to the test in Kooragang as the test on causation. ([76])
5. The employer submitted that “‘arising out of the employment’ requires a causative element which is not satisfied by the mere fact of being employed”. Deputy President Snell held the Arbitrator specifically referred to the need to examine any causal link between the accepted psychological injury and the condition of TCM. The psychological injury was, of course, one that was accepted as resulting from events to which the worker was exposed as part of her employment duties with the employer. The Arbitrator found that the psychological work injury was “the main contributing factor” to the TCM injury. It was inherent in this finding that the work duties which caused the psychological injury were, in the unusual factual circumstances of this case, also causative of the TCM injury. ([77])
6. The Deputy President concluded the Arbitrator approached the issue of whether the worker suffered injury ‘arising out of’ her employment in a fashion consistent with the authorities. He did not accept that the Arbitrator applied a wrong legal test. Ground 1 would not succeed. ([81]–[84])

Ground 2

7. Deputy President Snell held the Arbitrator clearly recognised that s 9A was a different test, and required satisfaction that was separate from, the causal test governing whether injury ‘arose out of’ employment. ([93]–[95])

   (Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 (Badawi) applied)

8. The Deputy President had earlier concluded that the Arbitrator did not err in finding injury ‘arising out of’ the employment, on the basis of the established causal link between the work caused psychological injury and the condition of TCM. The employer submitted that the Arbitrator, in then dealing with s 9A, failed to consider other factors, such as the fact that the worker (as at December 2015) no longer worked for the employer, and that the worker’s attendance at the shopping centre at that time was unconnected with her employment duties. It remained necessary for the Arbitrator to consider the factors in s 9A(2) to the extent to which they were relevant, in dealing with whether s 9A was satisfied. It is possible that the same causal connection that supported a finding of injury ‘arising out of’ the employment could also support a conclusion that s 9A was satisfied. ([96])
9. Section 9A(1) requires that “the employment concerned” be a ‘substantial contributing factor’ to the injury. The plurality in Badawi said that “‘employment’ for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A”. In the current matter, the ‘employment concerned’ was the worker’s employment as a disability care worker. This was the ‘employment’ for the purposes of s 4 and was also the ‘employment’ “under consideration in s 9A”. Whether s 9A was satisfied, in respect of the found ‘heart attack injury’, could not be ascertained by reference to the worker’s employment in December 2015, at a point in time after her employment had come to an end. The fact that the worker was not employed in December 2015 could not constitute ‘the employment concerned’ in considering whether s 9A was satisfied. ([99]–[100])
10. It was specifically noted in Badawi that there will be circumstances where the causal relationship, which supports a conclusion that there was injury arising from employment, will also be sufficient to satisfy s 9A. Given the strong causal relationship between the worker’s relevant employment duties and the TCM injury, this in the Deputy President’s view was such a case. It followed that the basis on which the Arbitrator concluded that s 9A was satisfied, in the particular factual circumstances, did not involve error. If the Arbitrator had engaged in a consideration of “the time and place of the injury” in accordance with cl (a) of s 9A(2) this would not have changed the result. Ground 2 would not succeed. ([106]–[107])

Ground 3

11. Both parties accepted that s 9B had application in the circumstances. Neither party argued that De Silva v Secretary, Department of Finance, Services and Innovation [2015] NSWWCC 279 or Renew God’s Program Pty Ltd v Kim [2019] NSWWCCPD 45 was wrong. The following could be taken from those decisions:

    (a)     the worker carries the onus of establishing that the test in s 9B is satisfied;

    (b)     where the words ‘an injury’ first appear in s 9B(1), this refers to an injury asserted by a worker, in respect of which compensation is otherwise payable, subject to satisfaction of the test in s 9B;

    (c)     where s 9B(1) refers to ‘the nature of the employment concerned’, it refers to “what the worker in fact does in the employment that caused or contributed to the injury”;

    (d)     s 9B(1) requires that the relevant risk of suffering the injury in the employment concerned be significantly greater than the risk had the worker not been employed in employment of that nature. ‘Significant’ in this context means ‘important; of consequence’. The comparison involves an assessment of comparative risks and is not a true test of causation. The test involves an evaluative judgment, and

    (e)     the test requires satisfaction on all of the evidence. It does not necessarily “require that there be medical evidence to some particular effect”. In cases raising s 9B it is desirable that there be medical evidence addressing the requirements of the section. ([111])

12. The ‘heart attack injury’ suffered by the worker was Takotsubo Cardiomyopathy. The ‘employment concerned’ was the worker’s employment that caused or contributed to the injury. This was her employment with the employer as a disability care worker. For the worker to establish that s 9B was satisfied, it was necessary that she establish her risk of suffering Takotsubo Cardiomyopathy was significantly greater than had she not been employed in that employment. ([112])
13. The assessment of comparative risks, called for by the section, involves comparing the risk in the employment that caused the heart attack injury, with the risk if the worker was not employed in that employment. Although it is not a true test of causation, it does require assessment of the risk in the actual employment in which injury was suffered. This is then compared with the risk if the worker was not so employed. It is necessary that the first of these risks be ‘significantly greater’ than the second. On the medical evidence, the significantly greater risk of the heart attack injury (Takotsubo Cardiomyopathy) given rise to by the actual employment, was associated with the risk of psychological injury in the actual employment. On the evidence this included both bullying and harassment by fellow workers and the risk of being assaulted. A comparison between those levels of risk was what the section required. The risk associated with the actual employment was significantly greater than if the worker was not so employed. This was because only the first of the scenarios (the actual employment) carried the risk of psychological injury, which had been causative of the heart attack injury which the worker suffered. It followed that Ground 3 would fail. ([116]–[117])

Disposition of the appeal

14. Following a full consideration of the grounds of appeal on their merits, the Deputy President concluded that each would fail. As such, the interests of justice did not require that the employer’s application to extend time be granted. ([118])

Craddock v GH Varley Pty Ltd[2021] NSWWCCPD 10

Factual error: application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; clinical notes of treating doctors – Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; application of weight of expert evidence in the Commission: application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 and associated authorities; admission of fresh evidence on appeal: application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501

Snell DP

11 February 2021

Facts

The appellant worker was employed by the respondent as a production worker. On 29 March 2017, there was an incident when the appellant was using an air rivet gun which was connected to compressed air. The air hose blew off the machine and struck the appellant in the vicinity of his abdomen. There was an issue regarding precisely where on his body the appellant was struck and the nature of any injury sustained.

The worker’s employment with the respondent was subsequently terminated on 24 May 2017 and he obtained sedentary work with another employer from 22 October 2017 to 18 August 2019.

The worker claimed weekly compensation from 24 May 2017 to 22 October 2017 and from 19 August 2019 to date and continuing, together with medical and related expenses pursuant to s 60 of the 1987 Act. The Arbitrator made an award in favour of the respondent. The worker appealed.

The issues on appeal were raised in the following grounds:

(a) the Arbitrator erred in fact finding in that she effectively concluded the air hose struck the appellant above the umbilicus rather than on the left side of the abdomen because there was ‘no reason’ to think that Dr Chin’s record was not accurate (Ground 1);

(b) the Arbitrator erred in fact finding in that she concluded Dr Chin’s record was ‘the only contemporaneous record’ (Ground 2);

(c) the Arbitrator erred in fact finding in that she concluded the opinions of the three specialists were not given in a ‘fair climate’ (Ground 3), and

(d) fresh evidence (on which the appellant sought leave to rely) assists in concluding that the other probabilities so outweigh that chosen by the Arbitrator as to conclude the Arbitrator was wrong (Ground 4).

Held: The Arbitrator’s decision dated 8 September 2020 (amended 17 September 2020) was revoked. The matter was remitted for re-determination by a different Arbitrator.

The appellant’s application to admit fresh evidence

1. The appellant sought leave to admit fresh evidence pursuant to s 352(6) of the 1998 Act. It consisted of two photographs and a short statement identifying the photographs. Deputy President Snell held that the documents did not satisfy the first of the threshold questions identified in CHEP Australia Ltd v Strickland[2013] NSWCA 351; 12 DDCR 501 and could not be admitted on that basis. The question then becomes whether the fresh evidence satisfies the second of the threshold tests. This involves a consideration of the result that would emerge depending on whether or not the evidence is taken into account. It is necessary to deal with the various grounds of appeal, to consider whether or not the result that emerges is different depending on whether the fresh evidence is taken into account. Deputy President Snell then proceeded to consider Grounds 1, 2 and 3 together. ([29]–[43])

   Grounds 1, 2 and 3

2. This was a matter in which each of the three relevant specialist medical opinions, dealing with the causal relationship between the incident relied on and the appellant’s diagnosed condition, supported the appellant’s case. The Arbitrator concluded that none of those three opinions had any probative weight, on the basis of the principles in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 (Paric). Grounds 1 to 2 challenged the Arbitrator’s fact finding regarding the location of the blow suffered by the appellant in the incident, both in accepting the note made by Dr Chin and in whether she dealt satisfactorily with other evidence which arguably was to the contrary. Ground 3 challenged the availability of the Arbitrator’s conclusion that each of those three opinions was deprived of any probative force in the circumstances. ([55])
3. The reliability of the appellant’s account of both the incident and the subsequent events became an issue, particularly in the context of the issue about the weight of the medical evidence and the decision in Paric. ([67])
4. To take the case run by the respondent at its highest, in the absence of the fresh evidence, one could assume the accuracy of Dr Chin’s description in the clinical note on 29 March 2017, that there was a “visible mark from airhose above umbilicus”. The history she recorded of the incident was simply “hit on abdo by airhose this morning – at work”. It did not suggest a history that the location of the mark was the only point at which the airhose struck or injured the appellant’s abdomen. The lay and medical evidence was consistent with the proposition that the appellant was struck on the stomach region. It did not restrict the impact to the place where Dr Chin said she saw a mark. This would accord with common sense given that, on the history in the appellant’s statement and as recorded by Dr Mendelsohn, the impact was sufficiently violent that the device “tore through his clothes”. ([83])
5. Deputy President Snell held there was error in the fact finding, in that the analysis proceeded on the basis that any injury was confined to a location at or close to the red mark identified by Dr Chin. The Arbitrator approached the matter on the basis that the site of the red mark represented the site of where the appellant was actually struck. The appellant’s statement, the statements of the lay witnesses, and the histories on which Drs Mendelsohn, Draganic, and Garvey relied, were not confined in this way. They referred to trauma to the abdomen or stomach in a more general sense. The Deputy President accepted the appellant’s submission that the Arbitrator erred in how she dealt with the evidence regarding the mechanics and location of the trauma to the appellant’s abdomen. She focussed on Dr Chin’s description of the location of a mark and failed to engage with the other evidence on the topic. ([84])
6. It was also necessary that the Arbitrator deal with the evidence in Dr Chin’s notes having regard to the principles in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (Davis) and associated authorities. The Arbitrator referred appropriately to that line of authority. She did not exercise the caution that those authorities require. The clinical note from Dr Chin’s consultation on 29 March 2017 referred to the mechanics of the incident very briefly: “hit on abdo by airhose this morning – at work”. There was nothing specific about the nature of the way in which the appellant was struck, where or with what force. The note was entitled to some weight, but the use made of it exceeded what was appropriate in light of Davis and associated authorities. The Arbitrator approached the matter on the basis that the appellant was struck only at or close to the place where Dr Chin described a mark. ([85]–[86])
7. Additionally, the identification of a precise point of impact, and consideration of its importance, proceeded on the basis that the significance of these matters was increased by the history of prior intra-abdominal problems such as pain, vomiting, nausea and diarrhoea. Why that was so was not explained. It was contrary to the only medical opinion on the topic, from Dr Mendelsohn, who considered the intra-abdominal symptoms were irrelevant to the abdominal wall neuralgia which was diagnosed as resulting from the incident. The appellant had succeeded in demonstrating appealable error of the kind described in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505. Grounds 1 and 2 succeeded. ([25], [87])
8. There was also error in the approach taken by the Arbitrator in the application of the principles in Paric and associated authorities. There were three expert reports that supported the causal relationship between the incident and the relevant abdominal nerve damage, including the report commissioned by the respondent’s solicitors. If there was a lack of correlation between the facts as proved and the assumed facts relied on by the experts in reaching their views, this did not mean that the expert opinion was deprived of all weight. Even if there are deficiencies in this regard, it is necessary to assess what weight should be afforded to the expert opinion in the circumstances of the particular case. In some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. ([88])

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

9. The force of Dr Chin’s note regarding the location of the mark (which was entitled to some weight) had to be dealt with in the context of the issues and evidence overall, in considering the weight to be given to the opinions of Drs Mendelsohn, Draganic and Garvey. There was much other evidence which needed to be considered before concluding these opinions were deprived of any probative force. The approach that was taken involved concluding, on the basis of these two identified deficiencies in the history, that there was not a ‘fair climate’ for the opinions of these three specialists. The opinions of these doctors (there was no other expert opinion to the contrary) were then ignored, in concluding that the appellant had failed to discharge his onus of proof. It followed that Ground 3 also succeeded. The appellant’s appeal was entitled to succeed. ([51]–[54], [92]–[93])

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

   The fresh evidence application and Ground 4

10. The appeal succeeded in the absence of the fresh evidence. In those circumstances it could not be concluded that absence of the fresh evidence would cause ‘substantial injustice’. The result that emerged was the same in the absence of the fresh evidence. It followed that the application to admit fresh evidence was refused. In the absence of the fresh evidence, Ground 4 did not arise. ([39]–[42], [94])

Toll Transport Pty Ltd v Smith [2021] NSWWCCPD 7

Whether the incapacity for work resulted from the pleaded injury – Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 considered; alleged error of fact – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118 applied

Wood DP

5 February 2021

Facts

The respondent worker was employed by the appellant as a driver. The respondent suffered several injuries both prior to and in the course of his employment with the appellant. He was injured in a motor vehicle accident on 5 April 2019. He claimed he injured his neck, left shoulder, left thumb and low back. The employer accepted liability for the injuries.

The respondent had no capacity for work for a period and was then certified as fit for work on suitable duties, which at times were not made available. He was then certified fit for pre-injury duties on a work trial from 17 July 2019. The respondent commenced those duties and, on 19 July 2019, suffered significant neck and left shoulder pain while attempting to tighten a ratchet on the chain around a load. He was again certified as having no capacity for work.

The respondent returned to work on 15 August 2019 and produced a certificate certifying that he was fit for pre-injury duties. The appellant provided him with administrative/office duties as a precaution. On 2 September 2019, the respondent reported that he was unable to work because of significant neck and shoulder pain which was associated with migraine headaches. He did not cite a particular precipitating event, but it appeared that the onset occurred when he was reaching out to his grandchild.

The respondent was put off work again and his employment was terminated in October 2019. The appellant disputed liability from 9 November 2019, asserting that, by the time of the incident on 19 July 2019, the respondent had recovered from the effects of the injury on 5 April 2019 and any symptoms from which the respondent suffered were not referrable to the accepted injury.

The respondent sought weekly payments from 9 November 2019 and treatment expenses. The Arbitrator found in favour of the worker and awarded him ongoing weekly payments and treatment expenses. The employer appealed.

The issues on appeal were whether the Arbitrator erred:

(a) in finding that as a result of the injuries to the respondent’s cervical spine, lower back, left thumb and the symptoms in the left shoulder, the respondent was totally or partially incapacitated for work until 8 November 2019 (Ground 1);

(b) in finding that from 9 November 2019 the respondent was incapacitated for his pre-injury duties by reason of injury to the cervical spine and lower back (Ground 2);

(c) in entering an award in favour of the respondent pursuant to s 37 of the 1987 Act from 9 November 2019 to date and continuing (Ground 3);

(d) in his fact-finding process, including the facts found which underpinned his orders (Ground 4);

(e) by failing to provide sufficient reasons (Ground 5), and

(f) by finding that the opinion of Dr Porteous was of sufficient weight to support the respondent’s case of incapacity (Ground 6).

Held: The Certificate of Determination dated 23 September 2020 was confirmed.

Discussion

1. Grounds 1–3 of the appeal asserted error by the Arbitrator in finding the respondent was not fit for his pre-injury duties during the period up to 8 November 2019 and from 9 November 2019, and awarding the respondent a continuing weekly payment of compensation pursuant to s 37 of the 1987 Act. The appellant’s submissions in support of these grounds were largely reliant upon the proposition that the effects of the pleaded injury had resolved, and any symptoms and incapacity resulted from new events in July 2019 and/or September 2019. The fact-finding process adopted by the Arbitrator which resulted in the award of weekly payments was challenged in Ground 4. It was convenient for Wood DP to deal with Ground 4 before turning to the first three grounds. ([123])

   Ground 4

2. The appellant asserted that the Arbitrator erred in his fact-finding process which led to his conclusion that the effects of the pleaded injury continued, which resulted in the respondent being entitled to weekly payments of compensation. ([124])
3. The Arbitrator’s task was to evaluate that evidence in order to reach a factual conclusion as to whether he was satisfied that the aggravation to the respondent’s degenerative condition in the neck and lower back continued. Whether the respondent’s incapacity resulted from the pleaded injury had to be determined on the facts of this case. ([134]–[136])

(Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied)

4. The Arbitrator’s finding that the effects of the pleaded injury continued was a finding of fact which had a sound basis in the evidence. Wood DP held it is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is a factual exercise and generally a matter that falls within the province of the primary decision maker. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence. ([138])

   (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308, and Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 applied)

5. The Arbitrator’s finding that the effects of the pleaded injury continued was open to him on the evidence. The appellant had provided no convincing submission upon which to found its allegation of error on the part of the Arbitrator in his fact finding process and this ground of appeal failed. ([139])

   Grounds 1, 2 and 3

6. The appellant alleged that the Arbitrator erred in finding that, as a result of the injuries to the respondent’s cervical spine, lower back, left thumb and the symptoms in the left shoulder, the respondent was totally or partially incapacitated for work until 8 November 2019, from 9 November 2019 and erred in entering a continuing award. ([140])
7. Deputy President Wood held that the Arbitrator did not find that the respondent’s capacity for work was compromised by the left shoulder injury. The Arbitrator found that the respondent’s injuries to his neck and back affected his capacity for work to varying degrees at all times from 5 April 2019. As was pointed out in Ground 4, the respondent never returned to his pre-injury duties, except for the few days during which he trialled his usual duties and suffered a further aggravation of his condition. The Deputy President held it was open to the Arbitrator to find that the effects of the pleaded injuries to the neck and back continued. The appellant’s submissions that the Arbitrator was in error in finding that the respondent lacked capacity for work rested upon the argument that the pleaded injuries resolved. That argument failed. The overwhelming evidence, referred to in the consideration of Ground 4, supported the respondent’s claim that he suffered a continuing incapacity. The appellant did not challenge the Arbitrator’s finding as to the extent of the respondent’s capacity for work, the quantum of the entitlement to weekly payments, or the application of s 37 of the 1987 Act. The appellant had failed to identify error on the part of the Arbitrator in his determination. Grounds 1, 2 and 3 failed. ([141]–[142])

Ground 5

8. Ground 5 of the appeal asserted error on the part of the Arbitrator in that the Arbitrator failed to give an explanation, or adequate reasons for:

   (a) rejecting the opinion of Dr Smith about the reliability of the respondent’s evidence;

   (b) inferring that the respondent’s doctors were of the view that the respondent’s symptoms were referrable to the pleaded incident in the back and neck continued;

   (c) considering that Dr Porteous clearly understood that the doctors were of that view;

   (d) observing that he would be reluctant to accept the opinion of Dr Smith because Dr Smith had examined the respondent on only one occasion, when Dr Smith’s view was supported by that of Dr McIntosh, and

   (e) failing to accept Dr Smith’s opinion that the respondent’s capacity for work was restricted for a closed period only. ([143])

9. The Arbitrator’s conclusion in relation to whether the left shoulder symptoms resulted from the pleaded injury had not been challenged in this appeal, so that it was not necessary to deal with that aspect of the medical opinions. Wood DP held that the fact that Dr McIntosh came to the same view as Dr Smith was of little value in determining the medical issue before the Commission. Dr McIntosh was not medically qualified and had never examined the respondent. His evidence was limited to the general theory of whether the ergonomic forces involved in the pleaded injury would be likely to have a prolonged effect. The appropriately qualified medical experts were in a better position to opine whether the respondent’s symptoms are referrable to the pleaded incident. ([146]–[147])
10. The Arbitrator’s reasons for rejecting Dr Smith’s evidence were logical, sound and sufficiently clear. The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case. The Arbitrator was not required to give lengthy reasons. When considering the adequacy of the Arbitrator’s reasons, the decision must be read as a whole, and not with an eye attuned to finding error. In that context, the reasons provided by the Arbitrator for the rejection of Dr Smith’s opinion were adequate. It followed that Ground 5 of the appeal failed. ([148]–[149])

(Mifsud v Campbell (1991) 21 NSWLR 725, and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)

Ground 6

11. In this ground, the appellant asserted that the Arbitrator erred by finding that the opinion of Dr Porteous was of sufficient weight to support the respondent’s case of incapacity. The appellant submitted that it was clear on a plain reading of Dr Porteous’ report that Dr Porteous did not have regard to the respondent’s actual history when forming his opinion. ([150])
12. Deputy President Wood held it was abundantly clear that Dr Porteous was aware of the respondent’s “actual history.” Having reviewed the notice issued pursuant to s 78, which made clear reference to the certificate issued, as well as the general practitioners’ clinical records, it was most likely that Dr Porteous was well aware of the contents of the certificate of capacity issued on 15 August 2019 and at least the opinions of Dr Au and Dr Benjamin that the respondent was fit for a trial of pre-injury duties. ([156])
13. As the respondent submitted, the certification referred to had to be considered in the context of all of the evidence that the aggravation of the respondent’s condition in the neck and lower back had ceased. The evidence about the respondent returning to “pre-injury” duties was that the respondent advised Dr Benjamin that he would be prepared to trial full duties. The appellant’s logistics manager referred to the duties as a “trial”. In that context, it was open to Dr Porteous to consider that there was a continuing relationship between the appellant’s fluctuating but ongoing symptoms and the pleaded injury. ([157])
14. The appellant’s assertion that Dr Porteous’ observation that there was an unbroken temporal association with the pleaded injury led to the inference that Dr Porteous was unaware of the respondent’s situation in August 2019 was not made out. Consequently, Ground 6 of the appeal failed. ([158])

Southern Meats Pty Ltd v Tucker [2021] NSWWCCPD 2

Rejection of uncontradicted expert evidence, acceptance of expert evidence – Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 applied; whether error to prefer the evidence of a treating surgeon over the evidence of a medico-legal expert – Shellharbour City Council v Rigby [2006] NSWCA 308 applied; lack of complaints of symptoms prior to cessation of employment – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 discussed

Wood DP

14 January 2021

Facts

The respondent worker was employed by the appellant as a labourer in the appellant’s abattoir. He suffered injuries to his left shoulder in 2012, on 5 February 2015 and in late May 2015. He ceased work in September 2015. The respondent developed symptoms in his right shoulder, which were first recorded by his physiotherapist on 26 July 2016. The respondent asserted that the right shoulder symptoms arose as a result of the heavy nature of his work with the appellant. He also attributed the symptoms to having to use the right arm more because of the left shoulder injury. The respondent made a claim for the cost of surgery to the right shoulder in the form of a reverse total shoulder replacement.

The appellant accepted liability for the left shoulder condition, but disputed liability in relation to the right shoulder on the basis that the right shoulder was not injured as alleged, was not symptomatic as a consequence of the left shoulder injury and the surgery was not reasonably necessary. He sought an order that the proposed surgery to the right shoulder was reasonably necessary and that the employer pay for the cost of the surgery. He relied on the recommendation by his treating orthopaedic surgeon, Dr Kinzel, and qualified opinion by Dr Pillemer. A/Prof Miniter, orthopaedic surgeon qualified by the appellant recommended conservative management.

The Senior Arbitrator held the proposed surgery to the right shoulder was reasonably necessary and ordered the appellant pay the cost of the surgery. The employer appealed.

The issues on appeal were whether the Senior Arbitrator erred:

(a) in fact by concluding that A/Prof Miniter’s examination finding of a full range of movement of the respondent’s right shoulder upon examination on 3 April 2018 was relevant to the weight that his opinion ought to be afforded (Ground 1);

(b) in fact by concluding that A/Prof Miniter’s opinion failed to consider what the respondent did with his right arm at a time when he could not use his left arm (Ground 2);

(c) in fact by assigning additional weight to Dr Kinzel’s opinion because she had examined the respondent on many occasions (Ground 3);

(d) by relying upon her conclusion that Dr Kinzel’s “familiarity with the work” assisted her to conclude that the worker had sustained an injury of the right shoulder “in accordance with section 4(b)(ii) of the 1987 Act” (Ground 4), and

(e) by rejecting A/Prof Miniter’s conclusion that any injury to the right shoulder due to the nature and conditions of employment would have been accompanied by complaints of pain (Ground 5).

Held: The Senior Arbitrator’s Certificate of Determination dated 8 September 2020 was confirmed.

Ground 1

1. The appellant submitted the Senior Arbitrator fell into error by concluding that A/Prof Miniter’s finding of a full range of movement in the respondent’s right shoulder was relevant to the weight that ought to be afforded to A/Prof Miniter’s opinion. Firstly, the appellant submitted that there was no evidentiary basis upon which a conclusion could be reached that the range of movement could not vary over a period of weeks between medical examinations. ([91])
2. Wood DP held it was clear that A/Prof Miniter took into account that the respondent had a full range of motion of the right shoulder when he was considering whether the respondent suffered from a consequential condition in that shoulder, which was an issue the Senior Arbitrator was required to determine. The Senior Arbitrator provided reasons as to why she preferred the evidence from Dr Pillemer as to the respondent’s right shoulder limitations. Her reasoning was that there was no record in A/Prof Miniter’s report of the actual right shoulder examination, whereas Dr Pillemer’s observations were recorded in detail. It is implicit in her conclusion that the evidence from Dr Pillemer showed that the respondent did have limitations of movement, the fact of which lent support to the presence of a symptomatic condition in the right shoulder, which was one step in the process of determining the issue before her. ([93])
3. The appellant asserted that the conflict between the findings recorded by Dr Pillemer and A/Prof Miniter should have been put to those experts in order for those experts to explain their findings. The appellant said that, without that having occurred, the Senior Arbitrator could not infer that one of the experts was wrong. Dr Pillemer clearly explained his findings on examination in the table referred to by the Senior Arbitrator. A/Prof Miniter provided no explanation for his finding and only made reference to it as a basis for his opinion that the respondent did not suffer from a consequential condition in the right shoulder. ([94])
4. The Deputy President observed that the Senior Arbitrator found that that evidence was inadequate to support A/Prof Miniter’s conclusion. If an expert’s observations require clarification, it is a matter for the party relying on that opinion to adduce sufficient evidence from that expert to explain his or her observations and conclusions. In circumstances where that does not occur, it is open to the decision maker to find that evidence unsatisfactory and prefer a different view. Wood DP held there was no error in the Senior Arbitrator rejecting A/Prof Miniter’s opinion that the respondent did not suffer from a consequential condition because there was no restriction of movement in the right shoulder, a clinical finding that formed the basis of his opinion. It followed that Ground 1 of the appeal failed. ([95]–[97])

Ground 2

5. The appellant alleged that the Senior Arbitrator reached an erroneous conclusion by preferring the opinions of Dr Kinzel and Dr Pillemer on the basis that A/Prof Miniter failed to take into consideration what activities the respondent was doing with his right arm while he could not use his left arm. ([98])
6. Deputy President Wood held it was necessary to consider whether there was a proper basis available to the Senior Arbitrator to prefer the opinions of the respondent’s experts over that of A/Prof Miniter. The Senior Arbitrator’s task in assessing the evidence was made somewhat difficult because of the absence of the evidence identified by the appellant. The Senior Arbitrator turned to the medical evidence, and the report from the Trinitas Group Assessment, to glean evidence of the facts she was required to determine. The Senior Arbitrator was entitled to take that approach and rely upon the histories recorded in the medical evidence. The history taken by medical experts is evidence of the facts. ([101])

(Guthrie v Spence [2009] NSWCA 369, [75]; Smith v Parkes Shire Council [2010] NSWWCCPD 130, [96] applied)

7. While there was no direct evidence from the respondent as to a greater reliance being placed on his right arm, the fact that he was experiencing restrictions in the use of his left arm was well recorded by the respondent’s treatment providers, the respondent’s qualified expert and the assessment conducted by the Trinitas Group. Further, there was evidence recorded by the physiotherapist, Ms McNamara, that the respondent complained of right shoulder symptoms as early as 25 July 2016. Deputy President Wood concluded the Senior Arbitrator was well placed to form the view that the respondent was using his right arm to compensate for those limitations and accordingly developed a consequential condition in the right shoulder. ([106])
8. The restriction of function of the left shoulder was well documented throughout the medical evidence. Overall, that evidence was evidence of the fact that the respondent suffered limitation of movement of his left arm, placed reliance on his right arm and, as a result, developed symptoms in his right shoulder. The respondent’s case was therefore clearly identified, and it was incumbent upon the appellant to adduce evidence to address each element of the case. ([109])
9. The absence of there being a frank injury to the right shoulder is not relevant to the question of whether the right shoulder symptoms were as a consequence of the left shoulder injury. The contemporaneity of complaints is not always determinative of whether a worker suffered injury and is less determinative in relation to an allegation of a condition consequent upon an accepted work-related injury. ([111])

(Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied)

10. Deputy President Wood concluded that the Senior Arbitrator conducted a proper analysis of the expert medical evidence and did not fail to apply the correct test. The opinions expressed by both Dr Pillemer and Dr Kinzel were based upon facts that were consistent with the available evidence. The opinions were logical and probative, and it was open to the Senior Arbitrator to accept those opinions and to give preference to them over the opinion of A/Prof Miniter. The allegation that the Senior Arbitrator erred by concluding that A/Prof Miniter failed to take the identified matters into account was not made out and this ground of appeal failed. ([117]–[118])

    Grounds 3 and 4

11. The appellant asserted error on the part of the Senior Arbitrator by affording greater weight to the evidence of Dr Kinzel because she was the respondent’s treating doctor and saw the respondent more frequently than A/Prof Miniter. This criticism was raised in respect of Dr Kinzel’s opinion that the right shoulder symptoms arose as a consequence of the restrictions in the respondent’s ability to use his left shoulder (Ground 3) and that the right shoulder was injured as a result of the nature and conditions of employment (Ground 4).
12. The respondent submitted that a worker is almost invariably examined by a treating doctor more frequently than by a medico-legal expert, so that if the treating doctor’s evidence is to be preferred on that basis, an opinion from a qualified expert would be meaningless. Deputy President Wood did not accept that submission and did not accept that the Senior Arbitrator erred in that regard. It is logical that a treating medical practitioner who examines and treats a patient on a number of occasions has more opportunity to obtain an accurate history and record complaints than does a qualified expert. That does not always mean that the treating doctor’s opinion will be accepted over that of the qualified expert, but it is one factor that a decision maker can take into account. The role of the decision maker is to weigh the evidence of each expert and provide reasons for affording greater weight to the opinion of one expert over another. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of an arbitrator, unless it can be said that the finding was so against the weight of the evidence that some error must have been involved. It cannot be said that the Senior Arbitrator’s conclusion as to the weight to be afforded to the opinion of Dr Kinzel was so against the weight of the evidence that it was wrong. Dr Kinzel’s evidence was consistent with all of the medical experts other than A/Prof Miniter. It followed that Grounds 3 and 4 failed. ([122]–[123])

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

Ground 5

13. The appellant asserted that the Senior Arbitrator erred by rejecting A/Prof Miniter’s conclusion that if the respondent injured his right shoulder as a result of the nature and conditions of his employment, the injury would have been accompanied by contemporaneous complaints of pain. The appellant contended that this conclusion was not addressed by either Dr Pillemer or Dr Kinzel and the Senior Arbitrator did not assess why the expert opinions did not address that point. ([124])
14. The Deputy President held that the Senior Arbitrator provided a thorough review of the evidence from Dr Kinzel, Dr Pillemer and A/Prof Miniter, as well as the relevant clinical records from Dr Mahfoud and McNamara Physiotherapy. She noted it was difficult to reconcile the conflict in the expert opinions before embarking upon an analysis of those opinions. The Senior Arbitrator provided reasons as to why she found A/Prof Miniter’s opinion unpersuasive. ([125])
15. The appellant’s allegation of error on the part of the Senior Arbitrator appeared to rest on the proposition that A/Prof Miniter’s conclusion that there would have been a contemporaneous complaint remained unanswered by Dr Pillemer or Dr Kinzel. If the appellant’s submission was that because that conclusion was not contradicted, the Senior Arbitrator was bound to accept it, the submission was wrong. A court, or in this case the Commission, is not obliged to take the opinion of an expert as conclusive even though there is no expert evidence to contradict it. The Senior Arbitrator took the evidence and the appellant’s submission about that evidence and acted upon it. Her conclusion was not unreasonable or perverse. This ground of appeal failed. ([127]–[129])

(Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 and Ellis v Wallsend District Hospital(1989) 17 NSWLR 553 applied)

Semic v Brighton Australia Pty Limited [2021] NSWWCCPD 5

Whether the Arbitrator was correct in finding that a case of consequential injuries allegedly resulting from a back injury which was not in dispute had not been made out specifically by reason of the Arbitrator’s view that the applicant’s evidence was unconvincing

King SC ADP

28 January 2021

Facts

The appellant worker was a labourer and plasterer. On 12 April 2016, he injured his lower back in the course of his employment. Whilst on light duties and whilst favouring the right side of his low back, the appellant was asked to perform heavy work lifting and carrying steel posts weighing about 50 kilograms. His evidence was that because of his back trouble he went about the work, with which he was familiar, in a different fashion from the way he would have done it before his back injury. He claimed whilst he was lifting a steel post with his left arm, he injured his left shoulder.

The appellant was of the view that he would not have injured his left shoulder had he not had back pain and right leg nerve pain which caused him to alter the way he was lifting.

The appellant said that in May 2016 he began to experience increasing reflux and heartburn which he attributed to medication he took for pain relief, and that throughout May and June 2016 he learned from his general practitioner that his blood pressure had increased. He also claimed he developed a consequential condition in his right shoulder and digestive system.

The Arbitrator found that the appellant had not made out a case of consequential injury to his left shoulder, right shoulder, digestive system and cardiovascular system following a low back injury in the course of his employment with the respondent on 12 April 2016. The occurrence of the back injury was conceded by the respondent and was common ground in the proceedings. The worker appealed.

The issues on appeal were whether:

(a) the Arbitrator erred in overlooking material facts or giving them too much or too little weight when determining whether the appellant suffered consequential injuries to his left and right shoulder;

(b) in respect of the appellant’s shoulders, other probabilities overbore the Arbitrator’s conclusion;

(c) the approach taken by the Arbitrator as to causation was erroneous and that he applied an incorrect test to whether the appellant suffered consequential conditions in his left shoulder, right shoulder and digestive system and (presumably) also his cardiovascular system, and

(d) the Arbitrator failed to consider the appellant’s case in respect of his digestive system as asserting an aggravation of a pre-existing condition given the view expressed by Dr Greenberg in his third report of 21 February 2020.

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

Discussion of the evidence

1. Given that, understandably, the appellant’s own evidence and that of his wife lent support to his claim, it was important to accept, as the Arbitrator did, that their evidence was being put into statement form years after the relevant events, so that fading memory was possible, and that notwithstanding what the Arbitrator accepted as an attempt to be frank and comprehensive in the evidence, there could be a subconscious desire to advance the claim. These considerations are plainly forceful common sense considerations. Acting Deputy President King SC agreed that an analysis of the contemporaneous medical evidence evolving in the records and reports over time therefore required careful analysis and comparison with the evidentiary statements. ([17]–[18])
2. The Acting Deputy President observed that the Arbitrator directed himself in law consistently with a well-known line of authority including cases like Mason v Demasi[2009] NSWCA 227. Against a background of a claim in which the appellant carried the onus of proof, the medical records and reports revealing his condition before and after that injury were of real significance. They were so treated by the Arbitrator. ([19]–[20])
3. As to the appellant’s right shoulder, given his right handedness, the assertion that he had had to use his right arm more than usual to favour his left arm would certainly call for detailed and compelling lay and medical evidence. The Arbitrator in his thorough analysis found no such evidence, and noted that the claim in respect of the right shoulder was supported by very experienced and able counsel for the appellant “but faintly”. That was an entirely understandable approach from counsel upon the evidence. ([22])

Consideration and conclusion

4. In order to overturn the decision of the Arbitrator, it is for the appellant to show that the Arbitrator made relevant error of fact, law or discretion. The appellant carries the onus of showing error of one or more of those kinds, and it is not sufficient for the decision of the Arbitrator to be disturbed on appeal that the Presidential member might think that another view was available. It is necessary to show that the Arbitrator was wrong and that the correct view is the other view. ([47])
5. Acting Deputy President King SC characterised the entirety of the Arbitrator’s decision as involving determinations of fact. True it was that Ground 3 of the Grounds of appeal involved an argument that there was at least to a degree error of law in not applying the correct test of causation, but the Acting Deputy President did not think that the appellant made that proposition good. ([49])
6. In this connection, the test of causation is simply whether the alleged conditions that were said to be consequential upon the accepted back injury “resulted from” the back injury in the accepted Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 sense. The case was conducted before the Arbitrator on that basis and decided by him on that basis, and in particular, Acting Deputy President King SC did not think the suggested error advanced in paragraph [37] of the appellant’s submissions existed. The test the Arbitrator applied was the one contended for. ([50])
7. Whilst being initially troubled in respect of the Arbitrator’s decisions in respect of the left shoulder and gastro-intestinal symptoms upon his initial consideration of the papers; the Acting Deputy President came to the conclusion that the Arbitrator could not be said to have been wrong in finding himself unpersuaded by the appellant’s case in respect of those two conditions. ([52])
8. As to the left shoulder, the delay in mentioning it and the absence of any corroboration from Dr Eftekhar of the circumstances, themselves conflicting, in which the appellant sought to explain the absence of the mention of the condition in the doctor’s notes before 21 July 2016, were matters which went against the appellant and supported the Arbitrator’s decision. Having considered generally the Arbitrator’s disposition of this claim, again the Acting Deputy President was not convinced that he was wrong. ([53])
9. As to the allegation of consequential injury to the digestive tract, the evidence was unsatisfactory and the Arbitrator’s decision was correct as he articulated it. ([54])
10. The remaining allegations in respect of the right shoulder injury and cardiovascular system were, in Acting Deputy President King SC’s view, correctly evaluated and found wanting by the Arbitrator for the reasons he gave. ([55])
11. The Arbitrator’s Certificate of Determination dated 3 August 2020 was confirmed. ([56])

Ceccato v Australian Steel Mill Services Pty Ltd (No 2) [2021] NSWWCCPD 6

Reconsideration application pursuant to s 350(3) of the 1998 Act

Snell DP

29 January 2021

Facts

This matter involved a psychological injury suffered by the appellant in the employ of the respondent. The Arbitrator originally determined the dispute and held the respondent had established a defence pursuant to s 11A of the 1987 Act. An appeal against that determination was lodged out of time and determined by Snell DP on 14 September 2020. Snell DP determined the appeal did not have reasonable prospects of success and found that the appellant had not demonstrated the presence of ‘exceptional circumstances’ within the meaning of r 16.2(5) of the 2011 Rules. He concluded that loss of the right to appeal would not work demonstrable and substantial injustice and declined the appellant’s application to extend time (the Presidential decision).

On 7 October 2020, the appellant lodged a reconsideration application that sought admission of 15 annexed documents and identified 18 “Grounds for Reconsideration”, which were in the nature of appeal grounds alleging error. The reconsideration application, in its heading, referred to both the arbitral decision dated 28 April 2020 and the Presidential decision dated 14 September 2020. It was ultimately dealt with as an application to reconsider the Presidential decision.

Held: The appellant’s application pursuant to section 350(3) of the 1998 Act to reconsider the Commission’s decision dated 14 September 2020 was refused.

The appellant’s ‘fresh evidence’

1. The principles governing the admission of fresh evidence pursuant to s 352(6) of the 1998 Act apply. These were discussed in the Presidential decision. This included discussion of the decision in CHEP Australia Ltd v Strickland[2013] NSWCA 351; 12 DDCR 501, and the two alternative threshold questions in s 352(6) identified in that decision. The second of those threshold questions is where unavailability of the evidence would cause ‘substantial injustice’, in the sense that the result would be different if the evidence were taken into account. In the context of a reconsideration application, it is additionally necessary that the fresh evidence, if it is to change the result, be evidence that satisfies the criteria in Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642. After briefly summarising the material sought to be relied on as ‘fresh evidence’, Deputy President Snell refused to admit any of the material. ([20]–[50])

   Exercise of the discretion pursuant to s 350(3) of the 1998 Act

2. The decision in the Presidential appeal was issued on 14 September 2020. The appellant lodged the reconsideration application under cover of an email to the Registry on 7 October 2020. He was, at that point, within time to lodge an appeal pursuant to s 353 of the 1998 Act, had he wished to do so. The workers compensation legislation and Rules do not make provision for when a reconsideration application pursuant to s 350(3) may be brought. It is necessary that an applicant for reconsideration “move with appropriate speed and diligence” to bring the matter that is relied on to the Commission’s attention. ([51]–[52])
3. The appellant submitted that he was diagnosed with a significant health problem in July 2020, which required surgery in mid-2020, with subsequent complications. He submitted that this condition, in combination with his psychological injury, made it difficult to cope. He says he developed palpitations which required cardiac monitoring involving an ECG and Holter monitoring. ([53])
4. The appellant submitted he was concerned that an appeal to the Supreme Court would “take an additional toll on his health”. He submitted he had not worked for over three years and has a disabled son; he has had and will have expenses associated with treatment of his health condition. He submitted he had not received unemployment benefits and that court proceedings would add to his “financial burden”. He submitted he did not believe he could “face those rigours if he was to have a concurrent court case”. He submitted the decision should be reconsidered rather than appealed. ([56])
5. Deputy President Snell held there was no medical evidence that dealt, with any specificity, with the treatment which the appellant has required and will require for his medical condition, its extent and duration, and why this would be inconsistent with the institution of an appeal pursuant to s 353 of the 1998 Act. The Presidential decision was issued on 14 September 2020. On 7 October 2020, the appellant lodged the reconsideration application, a document 76 pages in length, plus annexures. According to the index, the appellant was the author of the whole of this document except for the annexures. The evidence as a whole did not support the proposition that the appellant was not able to form a decision, give instructions, and otherwise appropriately involve himself in an appeal pursuant to s 353, if that was the appropriate chosen course. ([58])
6. The reconsideration application was not, in any real way, based on fresh evidence. The fresh evidence the appellant sought to rely on, to the extent that it was relevant, was evidence that was available, or could with reasonable diligence have been available, for use in the proceedings before the Arbitrator. A “party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again”. ([61])

(Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 applied)

7. The appellant relied on 18 “Grounds for Reconsideration”. These grounds sought to identify error. They read as if they were grounds of appeal. The lengthy accompanying submissions sought to identify error in the arbitral decision and included references to alleged error in the Presidential decision. What the appellant sought to do in the reconsideration application was to reargue, at length, multiple points which were decided in the arbitral decision, which was then confirmed in the Presidential decision. There is a public interest that litigation should not proceed indefinitely. The appellant sought to use the reconsideration power as a full alternative to the provision in s 353 for appeal to the Court of Appeal. ([62])
8. Section 353(1) provides for appeal by a party aggrieved by a decision in point of law. Section 353(4) provides that various appeals, including an appeal from an interlocutory decision, may only be made with leave of the Court of Appeal. To allow unrestricted challenge against a decision of a Presidential member, by way of reconsideration, has the potential to be inconsistent with how the legislature has provided for a Presidential decision to be challenged in the Court of Appeal. This is consistent with the need to properly control the exercise of the power in s 350(3) by exercise of the discretion. The primary mode of challenge to alleged error of law by a Presidential member is by way of appeal pursuant to s 353 of the 1998 Act, which specifically provides for appeal from a Presidential member to the Court of Appeal. Deputy President Snell was not persuaded, in the circumstances of this case, that the Commission’s discretionary power to reconsider should be exercised. For these reasons, the application for reconsideration of the Presidential decision in this matter, pursuant to s 350(3) of the 1998 Act was refused. ([64]–[65])

(Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412 applied)