Appeal Case Summaries

Palasty v Lendlease Building Pty Limited [2021] NSWPICPD 19

WORKERS COMPENSATION – appellant’s failure to prove employment was main contributing factor; no challenge made to Arbitrator’s factual findings; requirement for appellant to demonstrate error of fact and law or discretion per Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76; 8 DDCR 120; application of Federal Broom Co Pty Limited v Semlitch [1964] HCA 34; 110 CLR 626 on the question of causation

Parker SC ADP

7 July 2021

Facts

The appellant commenced employment with the respondent as a Commercial Legal Graduate on 3 February 2020. He resigned on 23 April 2020, alleging that in the course of his employment, he was bullied, harassed, overworked and subject to unfair workplace expectations.

The appellant had a history of psychiatric ill health including drug induced psychosis and schizophrenia. It was the appellant’s case that at the time of commencing employment with the respondent his pre-existing psychiatric condition was well managed.

The issue before the Arbitrator was whether the appellant sustained a psychological injury pursuant to s 4 of the 1987 Act, including whether the employment was the main contributing factor to the injury. The Arbitrator determined this issue adversely to the appellant and entered an award for the respondent. The appellant appealed.

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

(a) failed to find that the evidence established that the appellant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the appellant’s psychological condition, and that the provisions of s 4(b)(ii) of the 1987 Act were satisfied (Ground 1);

(b) having correctly found that the appellant experienced an aggravation or exacerbation of his symptoms of schizophrenia around the time of his employment with the respondent, then failed to find that employment was the main contributing factor to such aggravation or exacerbation (in the absence of any evidence as to an alternative source of aggravation or exacerbation at the time) (Ground 2);

(c) having accepted that “there is no medical evidence of any alternative cause for the aggravation of the [appellant’s] condition”, proceeded to determine the matter on the basis that employment was not the relevant cause (Ground 3);

(d) concluded that the appellant had not established his case of aggravation “on the balance of probabilities”, whereas there was no countervailing lay or expert evidence which supported a source of aggravation other than the difficulties the appellant experienced during the course of his employment with the respondent, and which would be required in order to alter the balance which, given the evidence, was in the appellant’s favour (Ground 4);

(e) made a decision which is inconsistent with the medical opinions of all forensic examiners, and is devoid of any expert foundation (Ground 5);

(f) sought to diminish the weight of the medical consensus by erroneously asserting that the relevant specialists did not have “a sufficiently complete and accurate factual background” (Ground 6);

(g) erroneously required contemporaneous complaints as necessary for a finding pursuant to s 4(b)(ii) of aggravation or exacerbation of the appellant’s schizophrenia (Ground 7);

(h) penalised the appellant for the absence of clinical records in the proceedings, and erroneously stated the appellant had made no attempt to obtain those records and place them before the Commission (Ground 8);

(i) having noted that the appellant’s schizophrenia had for a considerable period been well managed, and troubled the appellant only occasionally when appropriately medicated, and that he was able to hold down other employment and complete a university degree, failed to recognise that the appellant’s employment with the respondent resulted in a clear change in his condition and was the obvious and only aggravating factor (Ground 9);

(j) erroneously proceeded to determine the matter on the basis that the appellant needed to establish that he was bullied or harassed, that he was subjected to unfair or unrealistic work expectations and that he was objectively provided with an excessive workload (Ground 10);

(k) having found that the appellant’s job entailed significant responsibilities, that he struggled with performance and was not able to complete work to the expected standard, and had been able to hold down jobs in the same industry and complete a university degree, failed to make the logical and consequential finding that his responsibilities in employment with the respondent, and his struggle to complete work to the expected standard, explain his psychological decompensation (i.e. the aggravation of his schizophrenia, thus rendering it symptomatic with incapacitating effects) (Ground 11);

(l) failed to provide proper reasons for her decision that the appellant’s employment with the respondent was not the main contributing factor to the aggravation of his underlying psychological condition (Ground 12), and

(m) failed to make awards pursuant to sections 36, 37 and 60 of the 1987 Act in the appellant’s favour (Ground 13).

Held: The Arbitrator’s Award was confirmed.

Ground 1

1. This ground was really an objection to the Arbitrator’s ultimate finding adverse to the appellant. There was no challenge to the Arbitrator’s conclusion in her reasons that she was not satisfied that the history recorded by the experts was credible or that the experts had “a sufficiently complete and accurate factual background at the time their opinions on causation were expressed.” ([52])
2. The appellant’s submissions did not engage with the Arbitrator’s conclusion that she was not satisfied on the balance of probabilities “that the events described by the [appellant] as set out above were real. [She was not] satisfied that the [appellant] was bullied or harassed. [She was not] satisfied that the [appellant] was subjected to unfair or unrealistic work expectations”. In this matter, the Arbitrator found as a fact that the events relied upon by the medical experts as the foundation of their consensus opinion, did not occur. That factual finding had the legal consequence that the consensus opinion could not be sustained. ([54]–[57])

(Commissioner of Police v Dalziel [2011] NSWCA 290 and Federal Broom Co Pty Limited v Semlitch [1964] HCA 34; 110 CLR 626 applied)

3. The appellant had to establish specifically some “event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed” that the medical referees found gave rise to the aggravation. The Arbitrator found that there was no occurrence, event, characteristic or condition of the work performed as asserted by the appellant and recorded by the medical referees. It followed that notwithstanding, the medical referees’ agreement on diagnosis, the appellant failed to establish that the main contributing factor to the aggravation was the employment. Ground 1 failed. ([59]–[61])

Ground 2

4. The happenstance that symptoms occurred “around” the time of the employment with the respondent was but one factor to be considered with the whole of the evidence. It was difficult to see how a finding of symptoms of schizophrenia “around the time” could lead only to one conclusion on the primary issue in the matter. In the Acting Deputy President’s view, the finding did not lead as the only “possibility” to a conclusion that the employment was the main contributing factor. The finding that the appellant had symptoms “around the time of his employment” with the respondent did not contradict the evidence of Dr Williams that he did not have symptoms as at 20 April 2020. The contradiction between what Dr Williams recorded on 20 April 2020 and what was recorded in the clinical records of the appellant’s doctors and the medicolegal experts was specifically addressed by the Arbitrator. Ground 2 failed. ([66]–[72])

Ground 3

5. The onus was on the appellant to establish that the employment was the main contributing factor in relation to exacerbation. That meant that the appellant was required to persuade the Arbitrator that the opinions of the three medicolegal doctors were soundly based on the facts as found. The absence of an alternative explanation for the appellant’s condition did not prove that the employment was the main contributing factor to the aggravation of the schizophrenia. ([75]–[76])
6. The point was not whether there was evidence of an alternative cause. The point was did the appellant prove that the employment was a material contributing factor to this aggravation? He did not. It followed the appellant failed to prove that the employment was the main contributing factor to the symptoms recorded by the specialists after his resignation. Ground 3 failed. ([77]–[79])

Ground 4

7. The Arbitrator’s favourable finding to the appellant at [179] of the reasons, did not detract from nor did it demonstrate error in the Arbitrator’s conclusion that the histories on which the opinions were based were not sufficiently supported by the evidence. This ground failed. ([82]–[83])

Ground 5

8. The appellant did not engage with or challenge the Arbitrator’s determination that the material relied upon by the medical witnesses was not established to her satisfaction. She was not persuaded that the appellant had experienced the events regarded by the medical witnesses as causative. Unless that finding of the Arbitrator was displaced, it inevitably followed that the opinion evidence would not be accepted. The appellant had not established that the Arbitrator was wrong in her conclusion that the appellant had not proven the facts assumed by the experts for the purpose of their reports. This ground failed. ([87]–[90])

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

Ground 6

9. As the respondent submitted, the appellant merely emphasised aspects of the factual matrix, submitting that the Arbitrator should have reached a different conclusion. But that did not demonstrate error. That may demonstrate that a different decision maker might reasonably have reached a different conclusion but that would not be a basis for revising the Arbitrator’s conclusion unless it demonstrated error of fact, law or discretion. The ground of appeal as expressed merely suggested that the Arbitrator did not attach sufficient weight to the “factual background” without identifying what aspect of the factual background was so affected or indicating in what respects the Arbitrator was in error. No error was demonstrated. Ground 6 failed. ([96]–[100])

Ground 7

10. The Arbitrator’s finding that the appellant’s “job entailed significant responsibilities” and that he “struggled with performance and was not able to complete work to the expected standard” did not provide a sufficient foundation for the conclusion that the employment was the main contributor to the aggravation of the appellant’s underlying condition. ([107])
11. The Arbitrator did not require contemporaneous records, she merely noted that there were no such records as confirmatory of her acceptance of the respondent’s evidence contradictory to that of the appellant. She committed no error in doing so. Ground 7 was not made out. ([108]–[111])

Ground 8

12. There was no ground of appeal that the appellant was denied procedural fairness or that the decision of the Arbitrator should be upset for bias. The Acting Deputy President held there was nothing in the reasons to indicate discrimination against the appellant or his advisors. ([118]–[123])
13. The procedure in the Workers Compensation Commission meant that the evidence to be relied on by the parties was disclosed in advance of the hearing before the Arbitrator. It must have been known to the appellant and his advisers that the respondent’s case was to the effect that he did not have the symptomatic response of which he subsequently complained during the period of employment. It was for the appellant to marshal such evidence as he could to overcome the respondent’s evidence to this effect. This ground failed. ([125]–[127])

Ground 9

14. The challenge in this ground of appeal started with the premise that there was a change in the appellant’s condition from one of well managed schizophrenia before employment to uncontrolled schizophrenia after the employment with the respondent. The Arbitrator’s well-reasoned conclusion to the contrary was not challenged either by the ground of appeal or the submissions in support. It was for the appellant to make good the proposition he was “relatively well prior to commencing employment with the respondent”. This he failed to do for the reasons indicated by the Arbitrator. This ground was not made good. ([133]–[135])

Ground 10

15. The appellant was required to prove the case that he had pleaded. It was not open to the appellant on appeal to change the case advanced at first instance. Ground 10 was not established and failed. ([142]–[147])

Ground 11

16. There was no obligation on the Arbitrator to find a causal factor to explain the onset of the appellant’s symptoms. All that she was required to do was explain why she was not satisfied that the case advanced by the appellant should be upheld. In the Acting Deputy President’s view, she explained and provided detailed reasons for the decision she made. The reasons satisfied the requirements for appellate review and for explaining to the losing party, the appellant, the reasons why he did not succeed. This ground failed. ([151]–[154])

    (NSW Police Force v Hahn [2017] NSWWCCPD 51 applied)

Ground 12

17. The parties made the same submissions in support of Ground 12 as they did in support of Ground 11. The resolution of Ground 11 resolved Ground 12. Ground 12 failed. ([155])

Ground 13

18. The appellant and the respondent both acknowledged that this ground was consequential upon the outcome of the other grounds of appeal and the overall determination of the matter. Acting Deputy President Parker SC agreed. It did not stand as a separate ground of appeal and was dismissed. ([156])

Secretary, Department of Education v BB [2021] NSWPICPD 21

WORKERS COMPENSATION – Section 11A of the 1987 Act – requirement for medical opinion where several potentially causative events may have contributed to the psychological injury – Hamad v Q Catering Limited [2017] NSWWCCPD 6 discussed and applied – application of s 34 of the 1987 Act – the maximum statutory cap on weekly payments

Wood DP

13 July 2021

Facts

The respondent worker claimed weekly compensation, treatment expenses and lump sum compensation for 17% whole person impairment as a result of psychological injury incurred in his employment with the appellant. The respondent alleged injury occurred as a consequence of:

(a) exposure to violent, aggressive and anti-social behaviour by students;

(b) unreasonable criticism and victimisation by his superiors involving micromanagement, unfair treatment and lack of support in the context of him raising concerns about his welfare;

(c) exposure to negative interactions with and bullying and harassment by his superiors.

The appellant conceded that the respondent suffered a psychological injury in the course of his employment, to which his employment was a substantial contributing factor, in accordance with ss 4 and 9A of the 1987 Act.

The matter was first heard by an Arbitrator who found in favour of the employer. This decision was appealed by the worker. Snell DP, on the first appeal, upheld the worker’s appeal and remitted the matter for re-determination.

The Senior Arbitrator conducted the re-determination and found in favour of the worker. She rejected the employer’s defence based on s 11A(1) of the 1987 Act. The employer lodged the present appeal against the Senior Arbitrator’s determination in favour of the worker.

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

(a) by finding that the appellant had failed to make out a defence under s 11A of the 1987 Act by rejecting the opinion of Dr Martin on the basis that the doctor had failed to properly consider the evidence about:

(i) the effect of student aggression,

(ii) the respondent’s workload, and

(iii) the relationship with the careers advisor,

without first determining that those matters caused the respondent’s psychological injury (Ground 1), and

(b) in finding that the respondent was entitled to weekly compensation at the rate of $2,206.25 from 6 July 2018 to 19 November 2019, when that amount exceeded the statutory maximum determined under s 34 of the 1987 Act (Ground 2).

Held: The Certificate of Determination was revoked in part.

Ground 1

1. The appellant asserted that the Senior Arbitrator was required to make findings as to which matters caused the injury. The first limb of this ground of appeal asserted that the Senior Arbitrator fell into error because she rejected Dr Martin’s opinion on the basis that he had not properly considered the effect of student aggression. The second limb of this ground asserted error on the part of the Senior Arbitrator by failing to make a finding that the respondent’s workload caused injury. In the third limb of this ground, the appellant contended that the Senior Arbitrator failed to make a finding that the respondent suffered a psychological injury as a result of the excessive workload. ([161], [164]–[166])
2. As the Senior Arbitrator observed, there was no real dispute that the events complained of by the respondent occurred. The contest between witnesses was the competing version of what transpired in those events and whether those events could be explained or justified. There was no issue that the respondent suffered a psychological injury in the course of his employment. Thus, in this matter, the Senior Arbitrator’s task was to make a determination, taking into account the competing medical opinions, as to whether events that were causative of the injury were events that fell within s 11A(1) of the 1987 Act, and if so, whether those events were the whole or predominant cause. ([168])
3. There was nothing remarkable about the Senior Arbitrator’s exercise in evaluating the medical evidence and her reasons were logical. It was implicit in her reasoned logic and her conclusions reached that the Senior Arbitrator rejected the opinion of Dr Martin and accepted the respondent’s medical case that the events that fell outside of the ambit of s 11A were causative of the respondent’s psychological injury. It was then incumbent upon the Senior Arbitrator to evaluate whether the matters relied upon by the appellant were causative matters which fell within the ambit of s 11A(1) of the 1987 Act and, in this case, whether those matters which did fall within the context of performance appraisal, discipline or transfer were the predominant cause of the injury. ([178])
4. The appellant asserted that the Senior Arbitrator was required to make findings as to which matters caused the injury. The appellant contended, however, that it was not open to the Senior Arbitrator to reject the opinion of Dr Martin on the question of causation in relation to the student incidents, excessive workload and interactions with the careers adviser, without first making a positive finding that the incidents were causative. The Senior Arbitrator took the appropriate step of evaluating the medical evidence before rejecting the opinion of Dr Martin. Her rejection of Dr Martin’s opinion was that Dr Martin failed to give proper consideration to matters that fell outside of the ambit of s 11A(1) which were potentially causative, so that his conclusion as to what predominantly caused the injury was flawed. ([181])
5. An arbitrator is required to give reasons for his or her determination. Section 294(2) of the 1998 Act (which is in the same terms as it was prior to the 2020 amendments) requires that when a Certificate of Determination is issued by the Commission, a “brief statement” setting out the Commission’s reasons must be attached. To ascertain whether the Arbitrator’s reasons are adequate, it is necessary to take into account the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate. The “real” issue in this case was whether the appellant’s defence to the respondent’s claim for compensation in respect of an accepted work related psychological injury was made out. ([183]–[186])

(Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21, and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied)

6. In that context, and addressing the conflict between the medical evidence, the Senior Arbitrator gave adequate reasons for preferring the evidence provided by Dr Sidrak, Dr Ismail and the EAP psychologist, as well as Dr Gertler, over that of Dr Martin in respect of whether the student behaviour, the respondent’s workload and the interpersonal conflict were causative of the injury. ([187])
7. It was clear that, in the context of more than one potentially causative event, whether the events were causative of the psychological injury requires medical evidence. It was, therefore, incumbent upon the Senior Arbitrator to determine the weight to be afforded to, and the acceptance or rejection of, medical opinions about causation, before she concluded what was, or was not causative of the injury. Whether events were causative of the injury is a matter for medical opinion. Whether they fall within the parameters of s 11A(1) is a legal question. ([188])

(Hamad v Q Catering Limited [2017] NSWWCCPD 6 applied)

8. The Senior Arbitrator’s conclusions about the medical evidence as to causation were findings of fact. It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker, and is a finding of fact. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence. The Senior Arbitrator’s reasons provided a rational, evidence based platform on which to reject the opinion of Dr Martin. The Senior Arbitrator’s ultimate conclusion was that, in circumstances whereby she did not accept the opinion of Dr Martin, there was no satisfactory evidence supporting the appellant’s assertion that the respondent’s psychological injury resulted from reasonable action taken by or on behalf of the appellant and thus, the appellant’s defence to the claim failed. ([189]
   

   (Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, and Fox v Percy [2003] HCA 22; 214 CLR 118 applied)

9. It was implicit in the Senior Arbitrator’s reasons that she considered that the student behaviour, the perceived excessive workload and the interpersonal conflict, which were not matters that fell within s 11A(1) of the 1987 Act, were causative factors. The Senior Arbitrator’s determination did not, however, turn on those implicit findings. It was accepted that the respondent suffered from a work related psychological injury. Once that was not in issue, it was a matter for the appellant, who bore the onus of proof, to establish its defence under s 11A of the 1987 Act. In the absence of probative evidence to support that defence, and the competing body of opinion that countered the defence, the defence failed. The Senior Arbitrator made that finding, a finding she arrived at with due consideration of the evidence and supported by reasoned explanation. The appellant had failed to show error on the part of the Senior Arbitrator and this ground of appeal failed. ([190]–[191])

Ground 2

10. The appellant submitted that the award of weekly payments at the rate of $2,206.25 exceeded the maximum statutory cap provided for in s 34 of the 1987 Act, and thus, the Senior Arbitrator fell into error in awarding that amount. The respondent submitted that s 34 was not raised in either the notice disputing liability or in the appellant’s reply filed in the proceedings. ([192])
11. The reply lodged in the proceedings at Part 4.1 did disclose that the appellant raised the issue that the statutory cap applied to any award of weekly compensation, albeit referring to s 35 of the 1987 Act, rather than the correct section, s 34. The amount awarded by the Senior Arbitrator was, therefore, an error. The Senior Arbitrator was not assisted by the complete absence of submissions from either party in relation to the respondent’s entitlements to weekly compensation. Despite the incorrect statutory reference, Deputy President Wood was of the view that the cap on the respondent’s entitlement to compensation was put in issue and the statutory limitation prescribed by s 34 applied in this case. ([193])
12. Deputy President Wood held that the requisite error was established, the parties had been heard on the issue, and there was no dispute that the appellant’s schedule of indexed statutory limitations on weekly payments was correct. The Deputy President accepted the appellant’s schedule as to the correct entitlements and determined that the respondent was entitled to weekly payments of compensation pursuant to s 37 of the 1987 Act in accordance with that schedule. ([196])

Maitland City Council v McInnes [2021] NSWPICPD 22

WORKERS COMPENSATION – application to rely on fresh or additional evidence pursuant to s 352(6) of the 1998 Act, failure to give notice of injury in compliance with s 254 of the 1998 Act – ‘special circumstances’, failure to claim compensation in compliance with s 261 of the 1998 Act – ‘ignorance, mistake, absence from the State or other reasonable cause’, findings of ‘injury’ pursuant to s 4 of the 1987 Act, weight of a medico-legal assessment carried out by audio-visual link, a member’s duty to give reasons

Snell DP

23 July 2021

Facts

The respondent worker was employed by the appellant on its maintenance team repairing potholes. His duties involved him taking asphalt on a shovel from the truck’s hopper, and walking up to 25 metres to a pothole which he would repair. On 1 July 2019, after working with his team repairing potholes, the respondent was disposing of left over asphalt, scraping it from the walls of the hopper. He was bent over closing the door of the hopper, which was slightly damaged, when he felt “pinching pain” in the lower back.

On the following day, the respondent had an interview with human resources about unrelated matters. He took leave for unrelated matters thereafter before resigning on 1 September 2019. He moved to Queensland on 1 October 2019.

The respondent undertook some short-term employment thereafter. He described a progressive escalation in back pain from 1 July 2019 to February 2020. He made a claim on 12 February 2020. The respondent did not, to that time, report the injury to the appellant or make a claim for compensation in respect of it. The appellant declined liability. It relied upon the failure to give notice and the failure to make a claim within time. It disputed the occurrence of injury and whether the requirement of ‘main contributing factor’ for the purposes of the ‘disease’ provisions was satisfied.

The Senior Arbitrator determined that the respondent’s failure to give notice of injury and to make a claim for compensation within time were excused pursuant to ss 254(3)(b) and 261(4)(a) respectively of the 1998 Act. There was a finding that the respondent had suffered injury to the back from 12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019. There was a finding that employment was a substantial contributing factor. There was an award for continuing weekly payments and the payment of medical expenses. The employer appealed.

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

(a) finding that the worker sustained injury to his lower back arising out of or in the course of his employment from 12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019 (Ground 1);

(b) finding that employment was a substantial contributing factor to his injury (Ground 2);

(c) his finding that the worker’s failure to give notice of his injury was occasioned by the special circumstances identified in s 254(3)(b) of the 1998 Act (Ground 3);

(d) his finding that the worker’s failure to make a claim was occasioned by the special circumstances identified in s 261(4)(a) of the 1998 Act (Ground 4), and

(e) that he gave insufficient weight to the attack made to [sic] the worker’s credit and by doing so formed erroneous deliberations on the totality of the evidence (Ground 5).

Held: The Certificate of Determination dated 16 November 2020 was confirmed.

Grounds 3, 4 and 5

1. Much of the appellant’s attack under these grounds consisted of attempts to reargue factual issues that were decided adversely to the appellant by the Senior Arbitrator. The appeal was subject to s 352(5) of the 1998 Act and the principles that govern such appeals. It is insufficient on appeal to simply argue that a different factual conclusion is preferable. It is necessary to establish error. ([8]–[12], [83])

   (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, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

2. The appellant was critical of the Senior Arbitrator’s reliance on the respondent’s fearfulness of losing his job if he reported the injury, a factor described by the Senior Arbitrator as “credible”. The appellant’s submission failed to take account of the fragile nature of the respondent’s employment as at 1 July 2019. The respondent had “an interview with HR” on 2 July 2019 at which he signed legal documents, wanted a week off due to issues raised at the meeting and was unable to reveal what was discussed. He ultimately resigned on 1 September 2019 because of conditions imposed as a result of the HR meeting. The Senior Arbitrator found that the respondent feared the loss of his job and his evidence in this regard was “credible”. This factual finding was open in the circumstances and did not involve error. ([84]–[85])
3. The appellant was critical of the Senior Arbitrator’s acceptance of the respondent’s evidence that he thought he had suffered a minor strain. It submitted the respondent’s statement, that he thought the injury involved a muscle strain, could not be accepted as ‘credible evidence’. Snell DP held it was difficult to see why, from a lay perspective, the respondent’s stated belief that he thought he had suffered a muscle strain inherently lacked credibility. The history did not suggest the respondent sought any medical assistance around this time. Although the Senior Arbitrator did not rely on this, it was noteworthy that Dr Bodel’s history also indicated that the doctor found the history “a little difficult to understand around this stage”. The appellant’s submissions did not advance any persuasive argument for why the respondent’s evidence on this point was not credible. They did not advance a basis for a conclusion that the Senior Arbitrator erred in accepting the respondent’s evidence on the issue. ([86]–[89])
4. The appellant had not identified error on the Senior Arbitrator’s part in dealing with the respondent’s psychological and emotional difficulties. Further, the Senior Arbitrator’s view that the claim form was of little weight was open. ([92], [96])
5. A number of criticisms were made by the appellant of the respondent’s credibility. In respect of a number of these, the Senior Arbitrator did not accept the criticisms made by the appellant. Snell DP concluded that the Senior Arbitrator’s approach was open to him on the evidence and did not involve appealable error within the meaning of s 352(5) of the 1998 Act. ([99])
6. There were aspects of the respondent’s evidence that the Senior Arbitrator found to be unreliable. He did not make a finding that the respondent was deliberately untruthful. The circumstances did not raise the principles in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117. It was open to the Senior Arbitrator, on the evidence as a whole, to determine which aspects of the respondent’s evidence he accepted and which he did not. He carried out this task by reference to whether the respondent’s evidence was corroborated, whether there was evidence inconsistent with it, whether it was challenged and its inherent credibility. The appellant had not made out its challenges in Grounds 3, 4 and 5. Those grounds failed. ([106])

Ground 1

7. Ground 1 made an allegation that the Senior Arbitrator’s finding of injury was erroneous. The ground did not identify the error on which it relied. The submissions covered multiple topics. The matters raised dealt with the following:
   

   (a) Whether allegations of injury pursuant to subss 4(a) and 4(b) of the 1987 Act were mutually exclusive?

   Snell DP accepted the appellant’s submission that the finding of injury made by the Senior Arbitrator was one pursuant to s 4(a) of the 1987 Act. The Senior Arbitrator specifically rejected the proposition that a finding of ‘disease’ should be made. If the condition present constituted a ‘disease’ it would still be possible (if the evidence warranted it) to make a finding of injury pursuant to s 4(a). This was not inconsistent with Rail Services Australia v Dimovski [2004] NSWCA 267 . ([126]–[132])

   (b) Whether the opinion evidence of Dr Bodel was sufficient to support a finding of injury on 1 July 2019 pursuant to s 4(a)?

   Snell DP found that on the medical evidence, it was open to the Senior Arbitrator to make a finding that the event on 1 July 2019 satisfied the legal requirements to constitute an ‘injury’ pursuant to s 4(a) of the 1987 Act. Whether the doctor regarded the injury as being governed by s 4(b) of the 1987 Act (assuming that to be true) was not to the point. Although Dr Bodel described a number of matters as causal contributors to the back condition, he considered the external disc rupture occurred when the respondent rose from a bent position while cleaning out the hopper. Dr Bodel’s medical description of what occurred on 1 July 2019 satisfied the test to find an ‘injury simpliciter’ consistent with Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 and Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298. ([133]–[144])

   (c) Whether there were other factors that militated against a finding of injury on 1 July 2019 pursuant to s 4(a)?

   Snell DP did not accept the submission that the Senior Arbitrator, in the circumstances, was precluded from making a finding of injury pursuant to s 4(a) of the 1987 Act. ([145]–[148])

   (d) Whether it was open to the Senior Arbitrator to make a finding of injury pursuant to s 4(a) as a result of the “heavy and repetitive nature of [the respondent’s] employment duties from 12 March 2012 to 1 July 2019”?

   Snell DP held that in this matter, the Senior Arbitrator did not make a finding of injury pursuant to both subcll (a) and (b) of s 4. In the reasons at [195], he specifically rejected the proposition that there was “a disease process in terms of s 4(b)(i) of the 1987 Act”. The Senior Arbitrator’s reasons proceeded on the basis that s 4(b)(ii) was not relied on. To the extent that this aspect of the submissions sought to raise the issue of whether findings pursuant subcll (a) and (b) of s 4 are mutually exclusive, this did not arise. The Senior Arbitrator’s injury finding was solely on the basis of s 4(a). The issue rather was whether it was open to the Senior Arbitrator, on the evidence that was before him, to make the finding which he did of injury pursuant to s 4(a). ([149]–[151])

   (e) Whether it was open to the Senior Arbitrator to make a finding that the respondent’s back injury resulted from both the ‘nature and conditions’ of employment and the incident on 1 July 2019?

   The Senior Arbitrator’s reasons clearly recognised that the weight of Dr Bodel’s opinion was affected by limitations in the way in which the doctor’s assessment was carried out, but he considered it was not deprived of all weight. This approach was open in the circumstances. There was no evidence to the effect that Dr Bodel’s opinion was deprived of all weight by the circumstances in which the respondent was examined. The only medical evidence on that topic was from Dr Bodel and was to the contrary. The extent to which the weight afforded to an expert opinion is affected, if at all, by the way in which the assessment is carried out, depends on the facts and circumstances of the particular case. The way in which the Senior Arbitrator dealt with this aspect of the evidence did not involve error. ([152]–[157])

8. It followed that Ground 1 failed. ([158])

Ground 2

9. The appellant’s submission, that it was erroneous to apply the test in s 9A of ‘substantial contributing factor’, was dependent on acceptance that the basis of any proposed ‘injury’ finding was pursuant to the ‘disease’ provisions in s 4(b). This was contrary to the finding of injury the Senior Arbitrator made. ([162])
10. The only specific attack the appellant made on the Senior Arbitrator’s analysis dealing with s 9A was to submit that absence of an alternate cause was not evidence that the pathology resulted from employment. Whilst this may be true, when a fact-finder is weighing evidence to consider whether something is proved on the probabilities the absence of evidence to the contrary is relevant to that task. The Senior Arbitrator’s remark about other evidence did not, in any event, appear to be dispositive. It appeared at the end of a passage in which he has considered the evidence relevant to s 9A and found s 9A to be satisfied “given the [respondent’s] medical and factual evidence”. The analysis did not suggest the Senior Arbitrator was dependent on the absence of evidence to the contrary in reaching this conclusion. ([165])
11. The appellant was critical of the adequacy of the Senior Arbitrator’s reasons dealing with s 9A. The reasons clearly enough exposed why the relevant findings of fact were made in dealing with s 9A. The reasons given by the Senior Arbitrator, dealing with the s 9A issue, complied with his obligation to provide adequate reasons. Ground 2 failed. ([166]–[168])

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

Stanshall v The Urban Fringe Kings Langley Pty Ltd [2021] NSWPICPD 23

WORKERS COMPENSATION – Mason v Demasi [2009] NSWCA 227 and Michelle Gai Weston t/as Northmead Beauty Therapy v Szenczy [2019] NSWWCCPD 38 distinguished; appellant bore onus in respect of alleged consequential condition; discretion of first instance decision-maker to weigh evidence; no error

Phillips P

26 July 2021

Facts

The appellant applied for a referral to an AMS to determine whole person impairment for the purposes of a claim under s 66 of the 1987 Act. The application was made with respect to both upper extremities and the neck/cervical spine. The respondent both below and on appeal accepted that the application with respect to both upper extremities ought to be referred to an AMS, but opposed the appellant’s claim with respect to her neck/cervical spine.

The Arbitrator found that the appellant suffered injury to her right shoulder and a consequential condition in her left shoulder. The Arbitrator found that the appellant did not sustain a consequential injury to her cervical spine/neck. The Arbitrator remitted the matter to the Registrar for referral to an AMS to assess whole person impairment of the right and left shoulders. The appellant appealed against the award in favour of the respondent in respect of the cervical spine.

The issues on appeal were whether the Arbitrator erred in:

(a) law when determining the claim by reference to histories given to doctors, namely by failing to apply the principle as articulated in Mason v Demasi [2009] NSWCA 227 (Demasi) (Ground 1), and

(b) determining, contrary to the evidence, that the appellant had failed to discharge the onus of proof to prove that she had a consequential condition of her cervical spine (Ground 2).

Held: The Certificate of Determination dated 20 January 2021 was confirmed.

Ground 1

1. The appellant asserted that the Arbitrator made a material error of law by failing to apply the principles in Demasi. ([67])
2. In Demasi, the injured claimant’s evidence and credit were subject to attack on the basis of accounts given to various doctors and allied health professionals which firstly appeared to be inconsistent with each other and secondly with her evidence, or a combination of both. Basten JA, relying upon Container Terminals Australia Limited v Huseyin [2008] NSWCA 320 recorded that the difficulties in such an exercise should be well understood, and that such inconsistencies should be approached with caution. In Demasi Simpson JA, as a result of the attack and adverse findings upon the appellant’s credit, set out in some detail the evidence, both lay and medical, and how it had been deployed to undermine the appellant’s credit in the first instance proceedings. This led to a conclusion that the analysis that had been undertaken showed that the claimant’s claim had not been subjected to a fair assessment and that the adverse findings regarding the claimant’s credit were not warranted on a proper examination of the evidence. ([68])
3. The President held it was clear from Demasi that the Court of Appeal was providing a warning regarding the use to which medical records can be made adverse to a claimant. His Honour held that the Arbitrator did not offend the principles arising from Demasi, and as a result no error of law has been occasioned. In the President’s opinion, the circumstances that arose in Demasi and which led to the warning that appears in the Court of Appeal decision could be distinguished from the current circumstances. The current circumstances could also be distinguished from those discussed in the decision of Michelle Gai Weston t/as Northmead Beauty Therapy v Szenczy [2019] NSWWCCPD 38 . ([70])
4. The Arbitrator made no adverse finding as to the appellant’s credit. No adverse credit finding was made contrary to the appellant’s interests as a result of the Arbitrator’s consideration of the medical records. Medical notes, for the reasons outlined by Basten JA in Demasi, do need to be read with caution. They are not proofs of evidence taken for the purposes of legal proceedings; the purpose of a medical examination is entirely different. In this case, it was plain from a consideration of the medical records that there were pre-injury complaints of neck pain given by the appellant to certain medical practitioners. ([71]–[72])
5. Whilst the Arbitrator found aspects of Dr Panjratan’s report ambiguous, he found that “he does have the advantage of having engaged with the fact that the applicant had some neck pain before the onset of her shoulder condition”. That was not to say that the medical evidence relied upon by the appellant did not record the appellant’s complaints of neck pain, they most certainly did. What they were lacking was the unchallenged histories from the medical notes which recorded that the appellant had suffered neck pain prior to the onset of her right shoulder pain. As a result of not having this information, those doctors’ opinions were proffered in its absence. It was within this circumstance that the Arbitrator was called upon to weigh the competing medical opinions and he preferred the opinion of the doctor (Dr Panjratan) who was aware of these prior complaints and delivered an opinion armed with that knowledge. The appellant complained that this process was unfair to have used the notes in this manner. The President held the Arbitrator was entitled to construe Dr Panjratan’s opinion which was made with the benefit of the entirety of the appellant’s history. ([73]–[74], [78])
6. The appellant complained that the Arbitrator used the failure to provide a history to some doctors but not to others as a vehicle to extinguish the appellant’s claim for a consequential condition. To do so, it was contended, was not expressing and putting into place the cautionary conduct required of trial judges and Arbitrators as identified in Demasi. The President held that this was not what occurred. The task that was undertaken by the Arbitrator was to consider the evidence, weigh it and then decide whether it is to be accepted, rejected, or that some evidence is to be preferred over another. The weight to be afforded to particular evidence is a matter for the Arbitrator, the first instance decision maker, and is a finding of fact. Such findings of fact are not disturbed on appeal if there is support for those findings within the evidence. The Arbitrator’s reasons as to why Dr Panjratan’s opinion was preferred were based upon a rational consideration of the evidence. ([79]–[80])

(Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 applied)

7. The President concluded that the appellant’s complaints that Demasi had not been followed were incorrect. His Honour was of the view that the cautions which Demasi stands for could be distinguished from the circumstances in this matter, particularly, where no issue was taken with the accuracy of what was recorded in the notes. Ground 1 was not made out and was dismissed. ([82]–[83])

Ground 2

8. It was noted that at all times in the conduct of the matter, the appellant bore the onus of proof with respect to her alleged consequential condition relating to her neck/cervical spine. What was in contest in this matter was the relationship between the complaints of neck pain, which were not doubted, and the accepted injuries. ([85]–[86])
9. The appellant complained of not being able to “call witnesses and cross-examine experts” in the Commission. It is true that there is no presumptive right to call oral evidence, leave must be sought. It was clear from a consideration of Dr Panjratan’s report that his ultimate opinion was significantly affected by a consideration of pre-injury neck complaints that were found in the medical records. The President observed it was open to the appellant to attempt to address this issue regarding prior neck complaints, but this was not done. As stated in relation to Ground 1, the Arbitrator was entirely within his discretion as a first instance decision maker to weigh the evidence and to arrive at the conclusions that he did. The appellant pointed to significant evidence of neck pain and stated that this evidence created “a more probable inference than not that neck pain (not migraines) was an associated symptom of and relating to the damage to the right shoulder and the consequential overuse of the left shoulder.” As the respondent to this appeal accepted, the appellant “provided evidence to support this contention.” What was required to be decided by the Arbitrator, however, was the origin of that neck pain and he did so based upon the consideration of the evidence. Notwithstanding the case presented by the appellant, she was unable to discharge her burden of proof with respect to proving that her claimed neck/cervical spine condition was consequent upon the accepted injury. Ground 2 also failed. ([87]–[88])