Appeal Case Summaries

N & F Logistics Pty Ltd v Waitoa [2021] NSWPICPD 14

WORKERS COMPENSATION – Application for an extension of time; s 352(4) of the 1998 Act; r 16.2(5) of the 2011 Rules; admission of late documents; application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 – consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 applied – principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied; burden of proof – Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 discussed – a decision should be given on the basis of issues that have been litigated in the course of the trial – Chanaa v Zarour [2011] NSWCA 199 applied; the obligation to notify a matter as disputed – ss 289 and 289A of the 1998 Act – Galstyan & Markaryan t/as Rite Price Hair Care v WorkCover Authority of NSW [2006] NSWWCCPD 130, Melides v Meat Carter Pty Ltd [2019] NSWWCCPD 48, Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121; 5 DDCR 22; 66 NSWLR 594 distinguished

Wood DP

3 June 2021

Facts

This matter involved a claim for death benefits brought by Ms Waitoa (the first respondent), who was married to Mr Waitoa, and Mr Waitoa’s daughter (the fourth respondent) from an earlier relationship. Mr Waitoa worked as a truck driver and drowned in a fatal accident when his truck hit a tree and rolled into a dam on 15 January 2019.

The first respondent lodged a fatality claim form with the second respondent, Laundry Logistics Management Pty Ltd (LLM / the second respondent) on 1 February 2019. LLM disputed the claim in a notice issued pursuant to s 78 of the 1998 Act. LLM disputed that it employed Mr Waitoa. LLM advised that, following investigations, it believed that Mr Waitoa was employed by N & F Logistics Pty Ltd (the appellant), which company was not insured in respect of its workers compensation liability. The appellant disputed that it employed Mr Waitoa, either at all, or on the date of the accident.

N & F Logistics alleged it transferred Mr Waitoa’s employment to LLM shortly before the accident occurred.

The Senior Arbitrator determined that Mr Waitoa was employed by the appellant, who was uninsured, and ordered that the Workers Compensation Nominal Insurer (the third respondent) pay the lump sum death benefit pursuant to s 25(1)(a) of the 1987 Act, which was to be apportioned between the first respondent and the fourth respondent. The Senior Arbitrator also ordered the payment of weekly compensation for the benefit of the fourth respondent, who was a dependent child within s 25(1)(b) of the 1987 Act and ordered that the appellant reimburse the Nominal Insurer for the compensation paid.

N & F Logistics appealed the Senior Arbitrator’s finding that it was Mr Waitoa’s employer and was required to reimburse the Nominal Insurer for the compensation paid to the first and fourth respondents. No appeal was lodged in relation to the Senior Arbitrator’s findings in relation to apportionment or her finding that LLM was not a principal within the meaning of s 20 of the 1987 Act.

The appellant relied on the following grounds of appeal:

(a) Ground One: error of law by a constructive failure to exercise the Commission’s jurisdiction in declining to determine whether there was an “injury” in the course of employment;

(b) Ground Two: error of fact and law in finding that Mr Waitoa suffered an injury within the meaning of s 4 of the 1998 Act, such finding being against the weight of the evidence;

(c) Ground Three: error of law by the Senior Arbitrator misdirecting herself that the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw) did not apply;

(d) Ground Four: errors of fact and law in drawing inferences favourable to the first respondent when they were not open to her;

(e) Ground Five: error of mixed fact and law in finding that the written employment contract dated 1 June 2018 was not a sham, such finding being against the weight of the evidence and against authority;

(f) Ground Six: error of fact and law in finding that a transfer of notional employment on 4 January 2019 did not take place due to it being inconsistent with the “objective facts”, such finding being against the weight of the evidence;

(g) Ground Seven: error of fact and law in finding the payment of salary on 16 January was by the appellant and not LLM, with such finding being against the weight of the evidence, and

(h) Ground Eight: error of law in making adverse findings as to the credit of Mr Qian and Mr Vo, with such findings being against the weight of the evidence.

Held: The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the 2011 Rules was refused.

On the papers

1. The appellant sought an oral hearing of the appeal, submitting that the Commission would be assisted by oral submissions in order to “clarify” the written submissions as the issues in the proceedings were “complex and voluminous”. ([8])
2. A decision as to whether a matter ought to be determined on the papers requires a consideration of all of the evidence and submissions, and whether the parties have been afforded procedural fairness in order to address any issue arising from such evidence. ([9])
   
   (Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 applied)

3. A review of the procedural history of this matter disclosed that the appeal was non-compliant in respect of certain procedural issues, and the appellant was requested to comply. Both the first respondent and the fourth respondent were also requested to provide amended submissions in order to comply with Practice Direction No 6, which was in force at the time. The appellant’s submissions and the fourth respondent’s appeal submissions remained non-compliant. The appellant was also given the opportunity to respond to the submissions made by the respondents. The appellant filed additional evidence on 11 February 2021 seeking to address the reason for the delay in bringing the appeal. A delegate of the then Registrar provided the parties with the opportunity to address the additional evidence. The first three respondents complied. The fourth respondent provided submissions out of time, made no application for an extension of time to file those submissions, and those submissions were rejected. ([10])
4. All parties had had the opportunity to address in written submissions before the Deputy President as to whether the Senior Arbitrator had, or had not, fallen into error. Parties to an appeal who have been given ample opportunity to make submissions in writing cannot rely on having the opportunity for an oral hearing in circumstances where their written submissions are non-compliant with the Commission’s practice directions or are inadequate because of their own omissions. ([11])
5. The Deputy President was satisfied that she had sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this was the appropriate course in the circumstances.

Ground 1

6. The appellant asserted that the question of injury was in issue. The appellant contended that its general liability dispute was sufficient to include an issue as to injury. The pleadings, together with the Senior Arbitrator’s observations and the submissions made by LLM and the first and fourth respondents, disclosed that there was no such issue or dispute raised at all until the close of the proceedings, when the appellant made closing submissions to the Senior Arbitrator. It was patently clear that there was no such dispute for the Senior Arbitrator to determine. ([232])
7. The appellant was a party to the proceedings and had the opportunity to put in issue whatever matters it wished to dispute. It filed a reply to the application and identified those issues it intended to rely upon, which did not include any issue about whether Mr Waitoa was injured in the course of employment. Despite several other opportunities where it could have made an application pursuant to s 289A of the 1998 Act to raise a late issue, it did not do so. It was abundantly clear that, in this case, the parties had proceeded on the basis that the question of injury was conceded and that the Senior Arbitrator was not required to determine the issue. It followed that the Senior Arbitrator did not err in failing to deal with the issue of injury and this ground had no merit. ([245]–[246])

Ground 2

8. The appellant contended that the Senior Arbitrator failed to provide reasons for her determination that Mr Waitoa died in the course of his employment, and that the weight of the evidence did not support that conclusion. As with Ground 1, the pleadings, the transcript and the Senior Arbitrator’s reasons disclosed that there had been no such dispute raised at any time prior to the appellant’s closing submissions. The Senior Arbitrator rejected the submissions because the issue was not raised before her. ([247])
9. Wood DP held that the Senior Arbitrator was correct to deal with the matter in the manner set out in her reasons. Having done so, the issue was not before her to determine. It is not an error for a decision maker to fail to deal with an issue that was not litigated and the obligation to give reasons has to be considered in the light of the issues raised by the parties. It followed this ground also had no merit. ([248]–[250])
   
   (Chanaa v Zarour [2011] NSWCA 199, and Brambles Industries Limited v Bell [2010] NSWCA 162 applied)

Ground 3

10. The appellant contended that the Senior Arbitrator’s rejection of the evidence of Mr Qian and Mr Vo might result in serious consequences for the appellant, such as allegations of criminal conduct. The appellant submitted that, in those circumstances, the Senior Arbitrator was required to give more careful consideration to the evidence before drawing inferences from the evidentiary facts in accordance with Briginshaw. ([251])
11. It was apparent from the Senior Arbitrator’s reasons that the she did not reach a conclusion that Mr Qian and/or Mr Vo were lying or that they had been involved in criminal conduct. The Senior Arbitrator did not misdirect herself in relation to the principles in Briginshaw and nor did she disregard them. She clearly took into account the need to carefully analyse the available evidence before arriving at her conclusion that the evidence from Mr Qian and Mr Vo was unreliable. She did not go so far as to find that their actions constituted, or would likely constitute, criminal conduct. She took into account the need to look carefully at, and take care in assessing, the evidence. The manner in which she dealt with the evidence disclosed no error and, consequently, this ground of appeal had no merit. ([255]–[257])

Ground 4

12. The appellant submitted that the evidence against the transfer having not occurred was no better than equally balanced with the evidence that the transfer did occur, so that the Senior Arbitrator was in error to conclude that she was satisfied that Mr Waitoa’s employment was not transferred to LLM prior to his death. The Deputy President held that the Senior Arbitrator did not err in taking into account the evidence that LLM paid no wages to Mr Waitoa or in taking into account the employment contract. She concluded that the Senior Arbitrator’s conclusions were not inconsistent with incontrovertible facts or glaringly improbable. The appellant’s submissions were not persuasive of error on the part of the Senior Arbitrator and this ground of appeal had no merit. ([258]–[273])

    (Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156, and Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 ; 112 ALR 641 applied)

Ground 5

13. This ground of appeal reiterated the same allegation of error as that asserted in Ground 4, focussing on the purported error by the Senior Arbitrator in accepting the contract of employment as evidence that the appellant was Mr Waitoa’s employer. For the same reasons as those expressed in Ground 4, the appellant brought no persuasive argument that the Senior Arbitrator’s conclusion was inconsistent with incontrovertible facts or glaringly improbable and there was, therefore, no merit to this ground of appeal. ([274]–[278])

Grounds 6 and 7

14. Primarily, the Senior Arbitrator did not accept that Mr Qian’s evidence about the transfer was reliable. Those reasons provided a sound basis for her satisfaction that the transfer had not occurred. The Senior Arbitrator provided substantive reasons as to why Mr Qian’s evidence was unreliable and considered the evidence about the payment on that date in the context of the whole of the evidence, which included that Mr Qian made the payment, and it was never reimbursed by LLM. There was nothing to show that the Senior Arbitrator’s conclusions about these matters were not open to her on the evidence. There was no error in her approach and these grounds of appeal had no merit. ([281]–[283])

Ground 8

15. The appellant asserted that the use by the Senior Arbitrator of descriptors such as “inconsistent,” “extraordinary,” “incongruous” and “beggars belief” in relation to Mr Qian’s evidence meant that she was required to assess the evidence in accordance with “the Briginshaw standard.” Referring to her earlier discussion of the application of Briginshaw in Ground 3, the Deputy President held there was no error on the part of the Senior Arbitrator. ([284])
16. The appellant referred to the discrepancies in the evidence identified by the Senior Arbitrator yet asserted that the evidence of Mr Qian and Mr Vo was unchallenged. It was not open to the appellant to assert that the evidence of Mr Qian and Mr Vo was unchallenged. The Senior Arbitrator went to some lengths to identify the inconsistencies between that evidence and the objective facts and the reason that Mr Qian’s evidence was unreliable. ([286])
17. The Senior Arbitrator’s findings referred to by the appellant were factual findings. The appellant had not identified any error of the kind required and this ground of appeal had no merit. ([287])

Conclusion

The appeal had no merit. The appellant had failed to show that exceptional circumstances existed and that a failure to extend the time to appeal would cause a substantial injustice. The Deputy President declined to extend the time to appeal. ([288])

Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15

WORKERS COMPENSATION – alleged factual error, application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399

Snell DP

4 June 2021

Facts

The appellant worker was employed by the respondent as a stevedore unloading ships.

The appellant injured his right shoulder in previous employment in 1990 and 1991. He said that in his current job, he did not experience any symptoms in his back or shoulders.

The appellant was involved in an incident on 20 April 2019 when he was descending a steel ladder into the hold of a ship. He slipped off a rung and fell “about 1.5 to 2 metres before I grabbed on to right edge of the ladder with my right arm. I also caught my right foot on one of the rungs to stop my fall”, taking the weight of his body on his hands. He said he felt “immediate pain in [his] back”. He reported the matter and went home. He saw a general practitioner on 22 April 2019 and was prescribed Endone. He was off work until 23 April 2019, when at the suggestion of the respondent he obtained a certificate of capacity to resume work for 20 hours per week. He said he could not cope with the pain in his back and his certification was reduced to 12 hours per week.

The appellant asked to be taken off Endone in August 2019. As he “transitioned to panadeine forte for pain management, [he] immediately noticed pain in [his] shoulders”. Scans revealed pathology in both shoulders. He was certified “completely unfit for work” from 26 September 2019. The respondent denied liability for bilateral shoulder injuries in a s 78 notice dated 17 October 2019. It denied liability for ongoing compensation benefits in a s 78 notice dated 8 September 2020 on the basis that incapacity no longer resulted from the employment injury.

The appellant claimed injuries to his back and both shoulders and sought the cost of treatment to both shoulders, including cortisone injections, the cost of orthopaedic consultations and potential surgery to the shoulders. The Member was not satisfied that the appellant suffered injury to his shoulders on 20 April 2019 and entered an award for the respondent. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) failing to apply the correct test as to causation as required by law (Ground 1);

(b) giving legally required consideration to the matter:

(i) finding in favour of the respondent as to liability for injury by taking into account the irrelevant consideration of whether there was a prior injury to the left shoulder.

(ii) failing to take into account the relevant consideration of injury to the right shoulder.

(iii) failing to give proper consideration as to questions of injury (Ground 2), and

(c) fact in determining that the appellant had not injured his shoulders in the course of employment with the respondent (Ground 3).

Held: The Certificate of Determination dated 1 December 2020 was confirmed.

Ground 1

1. The primary matter in issue before the Member was whether the appellant had suffered the alleged injury to his shoulders in the incident on 20 April 2019. Snell DP held it was clear that the parties and the Member approached the hearing on the basis that there was a fundamental issue regarding whether the appellant had suffered the alleged injury to his shoulders. ([34]–[38])
2. The Member’s assessment of the weight to be afforded to the respective medical cases, and her preference for the respondent’s medical evidence having regard to the adequacy of the recorded histories, was consistent with authority. ([42])
   
   (Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 applied)


3. The decisions in Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 deal with the sometimes moving evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability with a view to reducing the damages otherwise recoverable. Those decisions, and the decisions in Brown v Lewis [2006] NSWCA 87and Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461 which discuss them, make it clear that the ultimate persuasive onus remains with the plaintiff (the worker in the context of the current proceedings). The appellant did not make out a prima facie case “that he has been incapacitated as a result of the injuries inflicted upon him by the defendant’s negligence” (to appropriate the words used in Purkess). The appellant failed to establish that he suffered the alleged shoulder injuries as a result of the incident. The Deputy President did not accept the appellant’s submission that he was entitled to succeed in the absence of the respondent proving a novus actus interveniens.

Ground 2

4. The fundamental difficulty with the appellant’s argument, regarding whether he suffered injury to the shoulders in the incident, was largely the same in respect of both shoulders. It referenced the time gap in experiencing and reporting shoulder symptoms after the incident (four months), the medical significance of that gap, and whether Endone consumption during the period satisfactorily explained the gap. ([50])
5. The submission that the Member was distracted from her real task of determining whether there was bilateral shoulder injury was without merit. This issue was decided by reference to the medical and lay evidence. Clear reasons were provided for the conclusion the Member reached. Ground 2 failed. ([54]–[55])

Ground 3

6. The appellant argued there was a factual error in determining that he did not injure his shoulders in the course of his employment. He stated that Grounds 1 and 2 alleged errors of law. Ground 3 alleged factual error. The appellant relied, in respect of Ground 3, on the submissions he made in support of Grounds 1 and 2. For the reasons in Grounds 1 and 2, and having regard to the established principles governing appeals pursuant to s 352(5) of the 1998 Act, Ground 3 failed. ([12]–[16], [56]–[58])
   
   (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 ; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227 ; Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 ; 12 DDCR 95, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

Younan v Inner West Council [2021] NSWPICPD 16

WORKERS COMPENSATION – Section 11A(1) of the 1987 Act; application of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 – ‘reasonable action’

King SC ADP

7 June 2021

Facts

The appellant was a Development Assessment Officer (Assessment Planner) for the respondent, the Inner West Council which came into existence in May 2016 following the merger of Ashfield, Leichhardt and Marrickville Councils. She had originally been employed by the former Ashfield Council from 2005. She ceased work in June 2018.

The appellant claimed that she suffered from depression, loss of confidence and was incapacitated for work “... due to years of abuse, discrimination, humiliation & harassment by previous and current superiors ...”.

The appellant claimed that after initially having no problems at work, in 2008 she had a new supervisor, Mr Bas, and her working environment changed. She said she was subject to bullying, harassment, etc. She was given a first warning by Mr Bas for unsatisfactory performance of her duties in 2011.

The appellant had several months off work by reason of psychological problems. When she returned to work, she was transferred to the Leichhardt Service Centre of the respondent. When her supervisor there changed to Mr Betts in 2017, the appellant claimed he too behaved badly towards her, acting in an abusive and condescending manner which reminded her of Mr Bas. There was an alleged adverse impact on her psychological condition, in particular her memory, concentration and performance of her duties.

Mr Betts claimed that the appellant’s performance was sub-standard and this led to a regime of weekly meetings with her and the issuing of warnings to her. A final warning was given dated 21 June 2018 whereafter the appellant went on sick leave.

Before the Arbitrator, the respondent relied on s 11A(1) of the 1987 Act that the appellant’s psychological injury found by him was caused by reasonable action on the part of the respondent with respect to performance appraisal, transfer and discipline of her. The Arbitrator accepted this and entered an award for the respondent. The worker appealed.

The issues on appeal were whether the Arbitrator erred in holding that the respondent had discharged its onus of proving that the appellant’s psychological injury found by him was caused by reasonable action on the part of the respondent with respect to performance appraisal, transfer and discipline of her. Put another way, was the Arbitrator correct to hold that the respondent had made good the application of s 11A of the 1987 Act.

Held: The Arbitrator’s Certificate of Determination of 29 September 2020 was confirmed.

Evidence

1. Acting Deputy President King SC said that the histories given to the psychiatrists who gave evidence made it clear that the appellant’s perception of events at work was that she was being subjected to bullying/harassment etc, and further that her perception was at least at times of her being the object of deliberate behaviour of her superiors in the nature of a conspiracy against her. ([26])
2. The effect of the respondent’s evidence could fairly be stated as being that the appellant displayed sub-standard performance at work or difficulty in coping to an acceptable standard, and came under a regime of monitoring which included the giving of written warnings, calling upon her to attend meetings to discuss her performance, and ultimately culminated in the giving of a final warning. The regime which was instituted and continued up until the time the appellant went off work was on the respondent’s case necessary and justified and involved no behaviour which could be said to involve bullying, harassment, etc. There was no conspiracy to harm or get rid of the appellant. There was a genuine desire to bring about an improvement in her performance so that it achieved an acceptable standard. ([33])

The Arbitrator’s reasons

3. Under the heading “Injury”, in which the Arbitrator found in the appellant’s favour, he correctly noted, by reference to authority, that a misperception of actual events can provide a basis for a finding of injury, that is, can sustain finding a fact to that effect which is sound in law. ([38])
4. However, the Arbitrator went on under the heading “Section 11A Defence”, referencing Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, to correctly deal with the respondent’s defence, upon the basis that whatever may have been the appellant’s perception, in determining whether the respondent had discharged its onus, it was necessary to find what the reality of events in the workplace was. ([39])
5. In the Acting Deputy President’s opinion, the Arbitrator’s discharge of that task was both thorough and betrayed no error. He painstakingly, chronologically, and fairly summarised the evidence as to what happened. He correctly characterised the events involving the appellant in her workplace as satisfying the requirements of s 11A. Even if the Acting Deputy President was wrong in that view, that is to say if there were another interpretation of some or all of the events available which differed from that arrived at by the Arbitrator, the Acting Deputy President was firmly of the view that the evidence made it clear that his findings were at least open to him. In these circumstances, when it was kept in mind that in order to succeed upon this appeal the appellant must show error of, relevantly, law or fact (there being no question of the exercise of a discretion), error was not demonstrated. ([40])
6. Acting Deputy President King SC held that the Arbitrator did consider the totality of the appellant’s case. The Arbitrator squarely dealt with the appellant’s case as pleaded and advanced in evidence, covering the lengthy period from the beginning of her interaction with Mr Bas to June 2018. Thus, the relevant period “before 2011” was dealt with by the Arbitrator. ([69]–[70])

Consideration and conclusion

7. Both before the Arbitrator and on appeal the appellant placed reliance on the questioning of her by Mr Bas about the tattoo of a cross on her right wrist and the continuation of that questioning in relation to her husband and her sons. Upon the basis that it was not disputed by Mr Bas and can be taken to have happened, it could by no stretch of the imagination be regarded as coming within s 11A. The continuing of the questioning or the conversation beyond the initial enquiry was entirely inappropriate. It could well have caused distress. But on the Acting Deputy President’s view of the appellant’s case it was not supportable as the real cause of her psychological injury, either in itself or in combination with other events which would not without it have caused the injury. On the contrary, the thrust of her case, perhaps prudently influenced by the lack of importance of this incident in the eyes of the psychiatrists whose reports were relied upon, depended upon other conduct, in the main of Messrs Bas and Betts. ([72])
8. King SC ADP held that findings of fact made by the Arbitrator as to the characterisation of that conduct and of the associated documents for the purposes of s 11A was correct. For the sake of clarity, by “the associated documents”, the Acting Deputy President meant the warning notices and letters issued to the appellant, and in relation to the appellant’s written grievance and her complaints about her treatment, the conduct of the respondent viewed as a corporation extended to the investigation and findings that there was no substance in the appellant’s complaints. (As to the handwritten contemporaneous material from Mr Betts, it was to be seen as in a different category from the evidence just referred to, in that there was no indication that at any relevant time the appellant had access to or was affected by his contemporaneous notes. Nonetheless they in King SC ADP’s opinion had the considerable importance the Arbitrator assigned to them: they were entirely consistent with the respondent’s case and supportive of it.) The appeal was dismissed and the determination of the Arbitrator confirmed. ([73]–[74])

Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17

WORKERS COMPENSATION – Section 294 of the 1998 Act – adequacy of reasons – ex tempore decisions – addendum to oral reasons added at the end of their delivery

Phillips P

8 June 2021

Facts

The respondent worker was a teacher employed by the appellant. She alleged she sustained injury to her right knee in the course of her employment on 30 January 2008, when bending down to the floor teaching year 1 students (the first incident).

On 30 November 2018, the respondent alleged that whilst she was on a bus accompanying students leaving the Ryde Aquatic Centre, the bus driver pulled out from the kerb, struck a brick wall before reversing at speed and then striking a road sign. She was taken by ambulance to hospital, with alleged injury to her right shoulder, neck, back and body, fractured ribs, and left shoulder (the second incident).

On 6 December 2019, whilst travelling on a bus to Ryde Aquatic Centre with students, the respondent alleges that the driver braked, and her feet slid forward, causing her to strike her right knee on the seat in front of her (the third incident).

Ultimately, on 1 June 2020, the respondent underwent a total right knee replacement. She claimed the cost of the surgery, asserting it was reasonably necessary as a result of the injury she sustained in the third incident.

The dispute before the Arbitrator essentially centred around the acceptance and rejection of the medicolegal opinions, principally of Dr Broe (the treating surgeon), and Dr Wallace (qualified by the insurer). Dr Broe supported the respondent’s position that the surgery was reasonably necessary. After having initially agreed, Dr Wallace ultimately changed his opinion and performed a ‘backflip’ in his view. Dr Wallace concluded that there was no right knee injury before 6 December 2019, so surgery was not reasonably necessary as a result of the incident of 6 December 2019 alone.

The Arbitrator found that the surgery was reasonably necessary and ordered the appellant pay for the costs of the surgery. The employer appealed.

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

(a) failing to properly engage with the submissions made by the appellant, and the evidence before him, and failing to provide proper reasons (Ground 1), and

(b) failing to properly consider the report of Dr McGee-Collett, and in failing to find that the worker suffered significant right knee symptoms prior to 6 December 2019 (Ground 2).

Held: The Certificate of Determination dated 12 November 2020 was revoked and the matter was remitted to another member.

Ground 1

1. This ground of appeal alleged that the Arbitrator made three errors. Firstly it was alleged that the Arbitrator failed to engage with submissions that were made by the appellant on the critical question of whether on the basis of the injury pleaded, this caused or materially contributed to the need for surgery. Secondly it was alleged that the Arbitrator failed to deal with the evidence that was before him on this question, and finally it was alleged that the Arbitrator failed to provide proper reasons. ([76])
2. The obligation to give reasons is defined in the statute. Section 294(2) of the 1998 Act mandates that a brief statement of the reasons is to be attached to the Commission’s certificate. Various cases have held that this obligation does not require lengthy or elaborate reasons. However whilst this has long been the law, an Arbitrator is required to engage with the issues canvassed by the parties. The question therefore arose whether or not the Arbitrator had met this standard in his decision. The fact that the decision was made ex tempore did not in any way detract from or modify this obligation. ([77])
   
   (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and University of New South Wales v Brooks [2014] NSWWCCPD 68 applied)

3. The argument clearly advanced on behalf of the employer before the Arbitrator involved a review of the medical evidence and a submission that the requirement of material contribution had not been established on the basis of that evidence, which was of course the case which had been pursued by the appellant. The case having been put in this manner, it was incumbent upon the Arbitrator to deal with this argument. ([79])
4. In terms of how the Arbitrator dealt with this submission, it could not be said that it had been grappled or dealt with in terms. Rather, the approach was to record salient points from both Dr Broe’s and Dr Wallace’s reports and to examine the history recorded in the report of Dr Edwards of 19 May 2019. The Arbitrator’s finding that he was “comfortably satisfied that the applicant, on the balance of probabilities, has demonstrated the existence of a pathological change in her right knee as a result of the frank personal injury suffered by her on 6 December 2019” did not engage with the argument advanced by the appellant. This was not a question which engaged with the commonsense evaluation of the casual chain as set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; the question for consideration here was whether the argument that was fairly and squarely advanced by the appellant was dealt with. ([80]–[81])
5. The President held that whilst the Arbitrator’s result for all intents and purposes had dismissed the appellant’s argument that was conducted below, a close consideration of the Arbitrator’s reasons did not reveal how the argument that was submitted to him was rejected. Clearly the appellant submitted to the Arbitrator difficulties with the medical evidence, which in their submission meant that Ms Bridgefoot could not establish an entitlement. At the very least, this required the Arbitrator to attempt to resolve or grapple with that issue in terms of the doctors’ opinions. It was not possible to discern exactly how the medical evidence was construed to reach the result. The failure to deal with the argument was a constructive failure to exercise jurisdiction in the sense referred to in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26, and was thus an error of law. Ground One was established. ([83]–[84])

Ground 2

6. Given the President’s decision with respect to Ground 1, it was unnecessary for his Honour to deal with Ground 2 at length. ([86])
7. Ground 2 asserted that the Arbitrator, having completed delivering his ex tempore reasons, could not then add to those reasons, the award having been made. This was not technically correct in that the decision is not formally entered in the Commission’s records until the Certificate of Determination is issued. There was no suggestion that the Certificate of Determination was issued before the Arbitrator embarked upon his additional remarks. ([87])
8. Decisions of the Commission are final and binding. However, a decision is not vitiated because of any informality or want of form. Additionally, the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and proceedings can be conducted with as little formality and technicality as the proper consideration of the matter permits. ([88])
9. This dispute was exactly the type of dispute which lends itself readily to an ex tempore decision, which was completely in simpatico with the objectives of the former Workers Compensation Commission set out in s 367 of the 1998 Act. The approach taken by the Arbitrator in terms of the discussion had with counsel at the conclusion of the delivery of the oral reasons was consistent with the statutory provisions under which the former Workers Compensation Commission operated. The approach urged upon the President by the appellant in this respect would introduce a level of formality and rigidity in the Commission’s operations which are contrary to the objectives and conduct of the tribunal generally. Whilst it is true that decisions are final, s 350(3) enables the Commission to undertake a reconsideration of any matter that it has previously dealt with and alter or amend that decision. Patently, the Arbitrator in this case was not exercising the s 350(3) power, the President merely referred to this provision as being illustrative of the flexibility in approach that has been bestowed on the Commission by the Parliament. There was no error in this approach and the President rejected Ground 2. ([89]–[90])

Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18

WORKERS COMPENSATION – leave to appeal an interlocutory decision – monetary threshold to appeal – assessment of permanent impairment – whether a Member can decline to refer a body part for assessment by a medical assessor

Parker SC ADP

16 June 2021

Facts

The appellant claimed that on around 22 December 2010, he was moving approximately 500 boxes of brake discs, which weighed around 10 kgs each. After this, he started feeling pain in his neck and shoulders.

On 6 August 2013, he had returned to work and was pick and packing and was required to cut steel bolts with a bolt cutter, which he said were not fit for purpose and he was required to use excessive force on a repetitive basis. The appellant noticed pain in his left shoulder, elbow and neck.

The appellant ceased work on 7 January 2015. He claimed he sustained injury to his right and left shoulders and cervical spine, as a result of the nature and conditions of employment, with the deemed date of injury being 7 January 2015. In the alternative, he claimed that the incident on 22 December 2010 amounted to a frank incident, giving rise to permanent impairment.

After hearing submissions at the initial teleconference, the Arbitrator held that the appellant had made a claim based on the nature and conditions deemed to have occurred on a specific date. The Arbitrator did not accept that Dr Wong, qualified by the appellant, had expressed the view that the nature and conditions of employment caused any whole person impairment of the left upper extremity. The Arbitrator declined to include the left upper extremity in remitting the matter to the Registrar for referral to an AMS to assess whole person impairment. The worker appealed the Arbitrator’s declinature to include the left upper extremity in the remitter to the Registrar for referral to an AMS.

The issues on appeal were whether the Arbitrator erred in law when he failed to:

(a) include the left upper extremity in his orders for remitting the matter to the Registrar for referral to an Approved Medical Specialist (Ground 1), and

(b) give proper reasons for his decision that he would not refer a body part that has no assessable impairment for assessment by an AMS (Ground 2).

Held: Leave to appeal was granted. The Certificate of Determination dated 4 December 2020 was varied, by adding the left upper extremity to the remitter to the President for referral to the medical assessor.

Threshold matters: s 352(3) of the 1998 Act

1. There was a dispute as to whether the amount in issue satisfied the threshold requirement in s 352(3), that is, whether the amount involved was at least $5,000 and 20% of the amount awarded. ([23])
2. Where a monetary sum is not awarded by the Arbitrator or Member “the amount of compensation at issue on the appeal” is determined by reference to the compensation claimed in the Application. Where no compensation had been awarded at first instance, it has been held that it was not necessary to satisfy s 352(3)(b) of the 1998 Act. ([27])
   
   (Fine Meats (Boners PM) Pty Limited v Hart [2007] NSWWCCPD 154 (Hart), at [17] applied)

3. Although in Hart, Roche DP considered a differently worded s 352, the current wording was considered in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart [2021] NSWPICPD 5, where Snell DP said the “approach adopted” in Hart was appropriate. Parker SC ADP agreed and followed this approach The Acting Deputy President held the monetary threshold was satisfied. ([28]–[31])

   Interlocutory: s 352(3A) of the 1998 Act

4. It was agreed that the decision of the Arbitrator was an interlocutory decision and that leave was required under s 352(3A) of the 1998 Act. The Acting Deputy President granted leave to appeal. ([32]–[37])

Ground 1

5. The appellant argued that the Arbitrator had made a finding that there had been injury to the cervical spine, the right upper extremity and the left upper extremity. It contended that once that finding had been made, the Arbitrator remitted the matter for assessment by an AMS. Pursuant to s 322(3), the appellant submitted the AMS was to assess the degree of permanent impairment that resulted from the injuries arising out of the same incident. The appellant argued that once there had been a finding of injury, it was a matter for the AMS to determine whether the injuries found result in a whole person impairment. ([43])
6. The scheme of the Act is well established. The Arbitrators determine matters affecting liability, leaving medical issues to be determined by appointed AMSs. This remains the overall scheme of the Act notwithstanding the amendments to s 65 of the 1987 Act. Section 65 of the 1987 Act was amended in 2018 to repeal subsection (3). The effect of that amendment is to remove the prohibition on the Commission that prevented the Commission from awarding permanent impairment compensation “unless the degree of permanent impairment has been assessed by an approved medical specialist”. ([51]–[52])
7. Section 65(1) provides that the degree of permanent impairment that results from an injury is to be assessed as provided for in section 65 itself and Part 7 of Chapter 7 of the 1998 Act. The repeal of s 65(3) has no effect on s 65(1) which remains the controlling provision so far as assessment of the degree of permanent impairment is concerned. ([54])
8. The amendment to s 65 does not authorise the Commission to make an assessment of the degree of permanent impairment. The assessment of the degree of permanent impairment remains the province of the AMS. It followed that notwithstanding the absence of subsection (3) in section 65, assessment of the left upper extremity could only be performed by the AMS. ([55])
9. The respondent’s submission was that because the specialists qualified by the parties have each assessed the appellant as having 0% impairment of the left upper extremity, there is no medical dispute within s 319 of the 1998 Act. It followed, so the argument ran, there was no jurisdiction to refer the matter to the Registrar for referral to an AMS. The premise of the argument was that s 319 is not engaged unless at least one of the qualified specialists has assessed the worker to have a percentage impairment of the relevant body part. In the Acting Deputy President’s view, that premise of the respondent’s argument was incorrect. ([62]–[63])
10. Parker SC ADP held s 319 of the 1998 Act is concerned with a dispute between “a claimant and the person on whom the claim is made”. It is engaged when the claim is refused by the person on whom the claim is made by reason of the topics specified in paragraphs (a) to (g). ([64])
11. In this matter, by the s 78 Notice, the respondent disputed that the appellant was “entitled to permanent impairment compensation for injury resulting from the nature and conditions of [the appellant’s] employment.” The Arbitrator resolved the issue concerning whether the appellant has sustained injury resulting from the nature and conditions of employment, but he had no jurisdiction to assess the degree of “permanent impairment.” That issue could only be resolved by referral to an AMS. There was and remained a “dispute” within the meaning of s 319 which was required to be referred to an AMS for assessment: s 65(1). ([65]–[72])
    
    (Guzman v Trade West Pty Limited [2017] NSWWCCPD 44 and Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 considered)

12. In this matter, the Arbitrator implicitly assumed that the evidence of the qualified specialists would in the event carry the day. But it was not the views of Dr Wong and Dr Powell (qualified by the respondent) that were determinative. Further, the Arbitrator had no jurisdiction to assess the degree of permanent impairment and therefore did not have jurisdiction to determine that the degree of permanent impairment was 0%. ([73])
13. Even under the amended s 65 the degree of permanent impairment that results from the injury is to be assessed by the AMS: s 65(1). Furthermore in this matter the Arbitrator was not concerned at this point with making an award of compensation for permanent impairment rather, the issue with which he was concerned was whether the left upper extremity was to be included in the referral. ([74])
14. The Arbitrator’s role at this point was to determine whether or not there was a dispute within the meaning of s 319. That question depended on the stated position of the respondent that the appellant was not entitled to permanent impairment compensation for injury resulting from the nature and conditions of the employment. There was a dispute between the parties as defined by s 319. It followed that the degree of permanent impairment was to be assessed by an AMS. It was not open to the Arbitrator to assume that the assessment for the left upper limb was 0%. Ground 1 of the appeal was made out. ([50], [75]–[77])

Ground 2

15. Acting Deputy President Parker SC held the Arbitrator expressed no reason for adopting the position he adopted. He expressed adequate reasons as to why there was no assessed percentage from Dr Wong, but he did not grapple with why there was no medical dispute within the meaning of s 319 of the 1998 Act. In the Acting Deputy President’s view, the Arbitrator failed to give adequate reasons for his decision not to refer to the AMS the left upper limb or alternatively the reason given was erroneous. Ground 2 of the appeal was made out. ([82]–[85])