Issue 1: January 2009
Welcome to the first edition of ‘On Appeal’.
In response to a request from a number of arbitrators that the Commission provide a short overview or summary of Presidential decisions, the Presidential unit has prepared the first, of what will be a monthly publication, of short summaries of presidential decisions and Court of Appeal decisions issued in the previous month.
Issue 1 - January 2009 includes a summary of the December 2008 decisions.
These summaries are designed to provide a brief overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, but I hope they will assist you and focus your reading and case law research.
We are committed to making the Commission’s resources as practical and useful as possible, and I welcome your feedback and suggestions as we develop this publication and tailor it to your needs.
I would like to acknowledge the contributions made by the legal and administrative staff in the Presidential unit in preparing this publication and am hopeful that it will be a useful reference and resource.
Judge Greg Keating
29 January 2009
Court of appeal decisions
Complexity - To certify or not to certify? That is the question.
“Totality of the relationship” in determining issue of ‘worker’.
Conflicting inferences from known facts.
Evidence is not “no evidence”.
Suitable duties must be suitable.
Rugby player loses appeal for knee injury.
The use of medical evidence in determining section 9A of the 1987 Act.
Court of Appeal decisions:
Akora Holdings Pty Limited v Ljubicic  NSWCA 339
Power of Presidential member to review findings made, and inferences drawn, by an Arbitrator
Hodgson JA; Basten JA; Campbell JA
5 December 2008
- The worker was injured in 1997 in the course of his employment with Akora Holdings Pty Ltd and was awarded compensation. In 2004 his former employer lodged in the Commission, an application to vary the award by having it terminated because of a change of circumstances.
- The matter had a complex procedural history. The Appellant was twice successful before two different arbitrators however twice on appeal a presidential member revoked the arbitrator’s decision and remitted the matter for a further hearing. It was from the decision of Acting Deputy President Handley, that the Appellant sought leave to appeal.
- The case in the Commission focused on a contract that the worker had entered into with his wife in 2002 with an entity known as Corporate Cleaning Utilities. The amount payable under the contract, calculated on a weekly basis, exceeded the amount of the worker’s earnings, but for his injury, at the relevant time.
- The issue considered by the second arbitrator was whether the income from the cleaning business constituted earnings of the worker, in whole or in part. A factual difficulty in determining this question arose from the lack of acceptable evidence as to who did the work required under the cleaning contract and what expenses may have been properly set-off against the gross payments. The second arbitrator terminated the award (compensation payments) from 6 October 2004.
- ADP Handley in his determination dated 19 July 2007, revoked the second arbitrator’s decision and remitted the matter for re-determination by another arbitrator. ADP Handley set aside the second arbitrator’s decision because he considered that, absent further procedural steps, the conclusion reached demonstrated unwarranted speculation in circumstances where the onus of proof lay on the employer and further steps were available which might provide a firmer basis for a conclusion.
- The appeal to the Court of Appeal was brought by Akora Holdings Pty Ltd against the decision of ADP Handley dated 19 July 2007.
Issues on appeal:
- That the Deputy President had erred in finding that the arbitrator had committed an “error of law” by not following the approach outlined in Cage Developments Pty Ltd t/as Monaro Mix Specified Concrete v Schubert  2 NSWLR 227, in determining how much of the gross payments were properly attributable to the worker’s labour.
- The Appellant relied upon the remarks of Dixon CJ in Hampton Court Ltd v Crooks  HCA 28; 97 CLR 367 at 371, in which he noted that in circumstances where “the facts can hardly be within the knowledge of the plaintiff and, all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant” further evidence was required but “very little might have been enough”.
Held Basten JA with whom Hodgson JA and Campbell JA agreed:
- Dixon CJ’s proposition did not avail the appellant in the present case as it was not in terms of a principle of law but described a practical approach to the burden of proof in particular circumstances and that:
- the Deputy President was at liberty not to follow such an approach if he thought it inappropriate in the circumstances;
- even if the approach did generally constitute a principle of evidence or procedure to be followed in applying the relevant burden of proof, it did not bind the Commission.
- The interrelationship of sections 353 and 354 of the 1998 Act demonstrated that the Deputy President was bound to apply legal principle, including the terms of the relevant legislation and any general law principle relevant to the application before him: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-30 (Gleeson CJ and Handley JA) and 40-41 (Kirby P).
- In so far as the Deputy President did not himself determine the application, but merely set aside the existing decision and remitted the application for re-determination, the scoop of the error in point of law was limited.
- If the Deputy President had wrongly identified the law to be applied, a relevant error might have arisen, but the legal principle must be a matter of substantive law and not procedure or evidence, as to which wide scope is permitted by section 354.
- To the extent that the Deputy President purported to identify legal error on the part of the Arbitrator, that conclusion may itself be said to reveal legal error on the part of the Deputy President, however read in context, it was not a material or operative error and that if that conclusion was removed from the Deputy President’s reasons, it was sufficiently clear that he would still have set aside the decision of the arbitrator for reasons articulated in his decision.
- Appeal dismissed.
Complexity - To certify or not to certify? That is the question
Costs – application for certificate of complexity; factors to be considered.
2 December 2008
- Application was made by the Appellant Worker, seeking certification that the matter was complex, and a consequential uplift of twenty per cent of the costs recoverable pursuant to certain of the items in Table 1 of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulations’).
- The Appellant Worker referred to the following matters in his submissions in support of the application:
- The proceedings were on foot for a significant period of time (the Application to Resolve a Dispute having been filed on 26 February 2008, and the decision in the appeal being dated 4 November 2008).
- There was a significant body of documentary material, including transcript of the arbitral hearing.
- The matter involved complex questions of fact and law, particularly going to the potential application of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).
- The injury was of a psychological nature, requiring the obtaining of a lengthy and detailed statement from the Appellant Worker, and review of various guidelines, policy documents and disciplinary guidelines from the Respondent Employer.
1. A matter is not more or less complex as a consequence of the time proceedings are on foot. There are many reasons why some proceedings take longer than others, not necessarily involving complexity.
2. The volume of the documentary material is of only limited relevance. It may indicate complexity depending on its contents. However there are many matters, which are not complex, in which bulky material is obtained and put into evidence (e.g. employment records or hospital records).
3. It is necessary to have regard to the substance of the issues between the parties, rather than to the volume of documentary material generated.
4. Complex legal and factual questions are more relevant as follows:
- The original statement obtained by the solicitors for the Appellant Worker, and attached to the Application to Resolve a Dispute (‘ARD’), was eight pages in length, and dealt with a variety of relevant factual matters. The ARD also included two highly relevant statements from lay witnesses, corroborating much of the Appellant Worker’s evidence. These were each four pages in length.
- The Respondent Employer put on a significant body of material, attached to its Reply and subsequently, in which it disputed parts of the Appellant Worker’s evidence. The matter was complicated by the existence of an earlier motorcycle accident, which resulted in psychological sequelae for which the Appellant Worker was being treated before and during the period of incapacity the subject of the claim. The Respondent Employer relied upon records and reports dealing with that treatment.
- There was a relatively complex issue regarding causation of the period of incapacity the subject of the claim.
- The evidence overall exposed factual issues of more than usual complexity.
- Whether section 11A of the 1987 Act afforded the Respondent Employer a defence involved a consideration of the legal test contained in that section, authorities relevant to the test, and the section’s possible application to the facts of this matter.
The matter was certified as complex with the percentage increase to be twenty percent, as submitted on the Appellant Worker’s behalf.
“Totality of the relationship” in determining issue of ‘worker’
R Elkin & P Pinney t/as Crescent Head Tavern v Bradshaw  NSWWCCPD 142
Worker –Employee /employer relationship
3 December 2008
- The Worker injured her left wrist when she tripped and fell while performing in a musical duo, with her husband at the Crescent Head Tavern on 13 February 2004.
- She made a claim for section 60 expenses and compensation under sections 66 and 67 of the Workers Compensation Act 1987.
- The Arbitrator found that a relationship of employer and employee did exist between the Worker and the Tavern and awarded section 60 expenses and remitted the claim to the Registrar for referral to an AMS.
The Tavern appealed.
1. The worker was carrying on a business of her own as a member of a duo hired out to play at the Tavern by an agency.
2. The relationship between the parties was not that of employer and employee.
3. It was well established that a court must consider the totality of the relationship between the parties when considering the issue of ‘worker’: Stevens v Brodribb Sawmilling Company Pty Ltd  HCA 1 (‘Stevens’) at .
4. In the recent Court of Appeal case of Westfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing  NSWCA 186 (‘Westfarmers’), Basten JA, referred to the importance of “control” as a factor in determining the nature of this relationship and that it was one of a number of indicia which must be considered, (as explained by Mason J in Stevens at ).
5. That the Arbitrator appeared to have fallen into error in confusing the notion of reasonable ‘direction’ for the carrying out of the Worker’s performance with the concept of ‘control’ and that no consideration was given to the “other relevant matters” as referred to by Mason J in Stevens.
6. That the Arbitrator, though faced with conflicting evidence on the issue of control, ignored the primary task of examining the totality of the relationship between the parties to determine the issue of ‘worker’.
7. That the directions given by the Tavern appear to fall squarely into the category of “the contractual right to control the carrying out of work”: Westfarmers.
8. The Worker, as a member of a duo, was ‘directed’ to a venue to perform by the agency; the duo provided their own equipment and created “goodwill as a saleable assert” in the course of their performances (Stevens -).
9. There was no evidence of receiving remuneration from or tax deducted by the Tavern and no evidence on sick leave, holidays and restrictions on accepting employment elsewhere.
In concluding the Acting Deputy President also noted that the worker’s concerns as to safety factors at the Tavern may ground another cause of action, but not one in which she could determine in the present case.
The Arbitrator’s decision was revoked and award made in favour of Respondent Employer.
Conflicting inferences from known facts
Shao Wen Zheng v Guo Yong Yang & Ors  NSWWCCPD 144
Procedural fairness; a party’s right to be heard on issues in dispute; whether work being performed under a contract of service; section 20 of the Workers Compensation Act 1987; failure to determine issues in dispute
(Two appeals were lodged in this matter, both of which were dealt with in this decision by DP Roche.)
9 December 2008
- Mr Zheng lacerated his left arm while using an electric grinder to cut a timber skirting board at a house at 23 Berrille Road, Narwee. His claim turned on the resolution of two main issues:
- whether, at the time of the incident, he was a “worker” employed by the First Respondent, Mr Yang, or was engaged in a personal or private activity or as an independent contractor.
- if Mr Zheng was employed by Mr Yang at the time of the injury, whether the owners of 23 Berrille Road (the Third Respondents, Chan E Lu and Chi Kai Chung) were liable as principles under section 20 of the Workers Compensation Act of NSW 1987.
- Mr Yang was uninsured and, as a result, the Workcover Authority of NSW (‘WorkCover’) was joined as the Second Respondent, acting for the Nominal Insurer under section 154C of the 1987 Act.
- Mr Zheng came to Australia from China where his young son still lives with his ex-wife. Within days of arriving, Mr Zheng met Mr Yang, a self-employed renovating contractor, who specialised in tile and timber floor replacement. Mr Zheng travelled to Canberra to start work with Mr Yang.
- After a month in Canberra Mr Zheng returned to Sydney and did casual work at different furniture factories. In or about the second week of April 2005, Mr Yang asked Mr Zheng if he would return to work for him on a job replacing flooring at a home at 23 Berrille Road, Narwee (‘23 Berrille Road’) the residential property owned by Ms E Lu and Mrs Chung.
- On 25 April 2005, Mr Zheng was working with Mr Yang at 23 Berrille Road, using an electric grinder to cut a skirting board when the grinder allegedly slipped forward and struck Mr Zheng’s left wrist causing a severe laceration. Mr Zheng was taken to hospital by ambulance and underwent emergency surgery to his left wrist.
- On 4 August 2005, Mr Zheng claimed, through his solicitor, on the uninsured liability and indemnity scheme. In response, WorkCover sought certain documentation from his solicitors and instigated an investigation of the claim. By letter dated 15 March 2006, Workcover declined Mr Zheng’s claim on the basis that it had been “unable to substantiate an employer/employee relationship between Mr Zheng and the alleged employer.”
- The matter was listed for conciliation/arbitration on 30 June 2008 but could not be completed and was adjourned until 30 July 2008. On 30 July 2008, the Arbitrator interrupted WorkCover’s submissions and indicated that he wished to deal with the “section 20 principal issue”. He then heard submissions on that issue but declined Mr Zheng’s application that he also determine the issues of injury and incapacity.
- In an ex tempore decision the Arbitrator found that Mr Zheng was an employee of the First Respondent who was employed as a contractor by the Third Respondent. The Third Respondent was liable as principal pursuant to section 20.
Issues on appeal
WorkCover appealed against the Arbitrator’s determination on the grounds that the Arbitrator failed to provide any adequate reasons for his determination, and that he denied procedural fairness to Workcover by not allowing its counsel to complete submissions on the issue of employment.
Mr Zheng appealed the Arbitrator’s determination on the grounds that he erred in:
- finding that Mr Yang was employed as a contractor of Ms E Lu and Mrs Chung;
- finding that Ms E Lu and Mrs Chung were liable as principals pursuant to section 20 of the 1987 Act;
- failing to make a determination as to injury and incapacity, and
- terminating the hearing to ensure that the alleged section 20 principal was joined to the proceedings and that any further matters dealing with the alleged section 20 principal should be brought by way of fresh proceedings.
1. Arbitrators and Presidential members are required to comply with the rules of natural justice and procedural fairness. In the present matter, fairness in all the circumstances required that each party be given a reasonable opportunity to be heard. (per Kirby J in Allesch v Maunz  203 CLR 172 at 185). That opportunity was denied to WorkCover and its appeal succeeded. 
2. The Arbitrator failed to determine the issues of injury or incapacity, though those issues were in dispute, were properly before him and he was expressly invited to do so. A failure to determine disputed issues on the basis of the facts and arguments presented at arbitration constitutes an error. (see Najdovski v Crnojlovic  NSWCA 175 at 21). Therefore, Mr Zheng’s appeal also succeeded. 
3. Mr Zheng was employed by Mr Yang under a contract of service in or about April 2005 for the purpose of laying timber floor boards at 23 Berrille Road, Narwee and that whilst he was engaged in that activity he sustained a serious injury to his left forearm, as detailed in the medical evidence. 
4. The evidence did not support a finding, inferentially or otherwise, of a contract between Mr Yang and the Third Respondents. Where direct proof is not available it is possible to draw an inference from known facts. However, those facts must do more than “give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture” (per Dixon J, Williams, Web, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (unreported, High Court, 27 April 1951) cited in Holloway v McFeeters  HCA 25: 94 CLR 470 at 480-481). The law “does not authorise a court to choose between guesses” (Jones v Dunkel  HCA 8; 101 CLR 298 at 305).
5. If the finding at (4) was incorrect and it was appropriate to infer that the work performed by Mr Yang was performed under a contract with the Third Respondents, section 20 was not satisfied by the mere existence of such a contract. The contract must be one entered “in the course of and for the purpose of” the principal’s trade or business for the execution by or under the contractor (Mr Yang) of the whole or part of “any work undertaken by the principal”. The evidence did not, however, establish that the Third Respondents conducted a trade or business, or that the work being performed by Mr Yang was part of any work (or business) undertaken by them.  and 
6. Mr Zheng was and is totally incapacitated for work. 
7. A child can be dependent for support on both parents and the obligation on each parent to provide support is joint and several. Mr Zheng was entitled to recover compensation on the basis that his child was and is dependent for support on him. 
Mr Zheng was employed by Mr Yang, but section 20 did not apply as there was no evidence supporting the existence of a contract between Mr Yang and the Third Respondents. As Mr Yang was uninsured, payments were ordered to be made by WorkCover, acting for the Nominal Insurer, from the Workers Compensation Insurance Fund established under section 154D of the 1987 Act. As to orders to be made when the employer is uninsured, see paragraph .
Evidence is not “no evidence”
IF & LM Smith v Barrass  NSWWCCPD 143
The arbitration proceedings included lengthy oral evidence and raised significant credit issues that were not transcribed; error of law in making findings of “no evidence”; appeal upheld but absence of transcript, oral evidence and credit of witnesses necessitated remitting to a new arbitrator for determination.
Keating J, President
5 December 2008
- Mr Barrass was employed as a wool classer/presser with the Appellant. He claimed that on both 20 October 2004 and 3 November 2004, whilst he was penning sheep, a sheep ran at him and struck his right knee causing injury.
- The Smiths, relied on a number of signed statements and statutory declarations from various witnesses, including a statutory declaration from Mr Theobold that Mr Barrass had stated that he had injured his knee water skiing and was getting his knee fixed on Ian Smith’s workers compensation. The Smiths disputed the claim, principally on the basis that:
- Mr Barrass did not sustain injury as alleged and had suffered a previous injury to his right knee requiring surgery
- After leaving the employ of the Smiths, Mr Barrass suffered a further injury to his right knee, in the employ of ‘Packing Pro Workshop’.
All witnesses who provided signed statement and/or statutory declarations gave evidence and were cross-examined.
- The Arbitrator awarded the Worker weekly compensation at $450.00 per week from 6 January 2007 to date and continuing and requested the Registrar refer Mr Barrass to an Approved Medical Specialist for assessment of whole person impairment.
Issues on appeal
The Smiths appealed the decision submitting that the Arbitrator had erred:
- in relying on “purported evidence” and in finding that there was “absolutely no evidence” that Mr Barrrass had previously injured his knee in a water-skiing accident, and
- in finding that that he would have difficulty performing his duties if he had a pre existing knee injury.
- in finding that other than the recurrent claim form there was no evidence in respect of the incident on 10 October 2005 whilst employed by ‘Packing Pro Workshop’.
1. Arbitrator’s are under a statutory duty to provide adequate reasons for their decisions and their decisions must be based on logical and probative evidence (see section 294(2) of the 1998 Act and Part 15, Rule 15.6 of the Workers Compensation Commission Rules 2006).
2. When evidence is disputed the Arbitrator must give a clear explanation the reasons for preferring some evidence to other evidence (see Mayne Group Limited v Mikhail  NSWWCCPD 249 at ; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd  NSWCA 134 and Hume v Walton  NSWCA 148).
3. The Arbitrator failed to have regard to Mr Theobold’s sworn written evidence of an admission by the Worker that he had suffered a previous injury to his right knee in a water-skiing accident and indicated an intention to pursue a potentially fraudulent workers compensation claim.
4. The Arbitrator’s finding of “purported evidence” and “absolutely no evidence” in relation to a previous water-skiing incident in the presence of Mr Theobald’s evidence was not open to him, particularly where no reasons were given for rejecting Mr Theobald’s evidence.
- The Arbitrator attempted to record the hearing, however the sound card could not be located that consequently there is no sound recording from which the Commission could prepare a transcript.
- Although the appeal was able to proceed in the absence of a transcript, and His Honour determined the appeal, he found that given the Arbitrator’s findings on the evidence, together with the absence of transcript of conflicting oral evidence and cross examination of the witnesses, he was not able to re determine the matter and he remitted it to a new arbitrator for determination afresh.
Suitable duties must be suitable
Styash Pty Ltd v Nguyen  NSWWCCPD 146
Absence of transcript; assessment of ability to earn; suitable duties; intermittency of employment; section 40 assessment, section 40 discretion.
Keating J, President
23 December 2008
- Styash employed Mr Nguyen as a labouring assistant to a printer.
- On 5 September 2002 Mr Nguyen fell from a printer suffering a comminuted fracture of his right wrist requiring internal fixation. In June 2003 he underwent further surgery to remove the fixation. As a result of increasing pain in his wrist he was subsequently offered wrist fusion surgery, which he declined.
- In 2004 Mr Nguyen, by consent agreement, received compensation under section 66 in respect of 12% whole person impairment and $8,500.00 under section 67 for pain and suffering.
- He remained in receipt of weekly compensation payments until 29 November 2007, when liability for ongoing payments was declined on the basis of vocational assessments that Mr Nguyen could earn in excess of his pre-injury earnings in a range of occupations.
- In June 2008, Mr Nguyen, brought new proceedings in the Commission claiming additional compensation under section 66 and 67, medical expenses and weekly compensation payments from 29 November 2007 to date and continuing.
- The Arbitrator made an award in favour of the Worker for weekly compensation payments at the rate of $426.17 per week from 29 November 2007 to date and continuing and remitted the matter to the Registrar for referral to an Approved Medical Specialist. The Worker discontinued the section 60 claim.
- Sound card not located and no transcript of arbitral hearing available.
Issues on appeal:
- Styash appealed submitting that the Worker was capable of working between 30 and 40 hours per week earning $298.77 to $562.80
1. The appeal was able to proceed in the absence of a transcript of the arbitral proceedings for the following reasons:
- documentary evidence available
- the Arbitrator’s written statement of reasons
- the parties submissions on appeal
- the credit of the Worker is not in issue on appeal
- oral evidence was within a narrow compass
- the parties agreed that the Arbitrator encapsulated the evidence in the statement of reasons.
2. The Arbitrator was required to state his findings and reasons to enable a proper understanding of the basis upon which his decision was reached (Pettitt v Dunkley  1 NSWLR 376).
3. It was not necessary for the Arbitrator to refer especially to the medical certificates from Dr Ly, general practitioner because he addressed in detail the point made by Dr Ly, namely the Worker’s suitability for particular work. Provided the test in Pettitt is met, the Arbitrator was not obliged to refer to every aspect of the evidence (see Mashiati v Australian Poultry Limited (1995) 11 NSWCCR 345 at 354).
4. The Arbitrator’s reasons disclosed that he reviewed all the medical evidence in assessing the Workers’ capacity for work.
5. In assessing the Worker’s ability to earn consideration must be given to the Worker’s particular circumstances (see Burke CCJ in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 at 180).
6. Consistent with ADP Snell’s decision in Tuwai v Rail Services Australia and Anor  NSWWCCPD 232, intermittency of employment is an appropriate factor to take into account in assessing a worker’s ability to earn.
7. The Arbitrator correctly applied the test in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526.
8. The Appellant’s submission that the Arbitrator should have exercised his discretion to reduce the amount awarded on the basis of his previous poor work history and his regular participation in gambling for the following reasons:
- Although Mr Nguyen had a limited employment history since arriving in Australia, and before taking up employment with Styash, he had been employed full time by Styash for over four years at the time of his injury.
- He had developed skills in the printing industry, he was married with two children and financial commitments and it was reasonable to infer that had he not suffered injury, he would have continued in full time employment.
- The proceeds of gambling were not relevant to the assessment of weekly earnings and were irrelevant to the exercise of discretion.
- The Arbitrator’s decision was confirmed on appeal.
Rugby player loses appeal for knee injury
Tiritabua v Bartter Enterprises Pty Ltd  NSWWCCPD 145
Evidence; disease; aggravation of disease
15 December 2008
- Mr Tiritabua was a keen rugby player who worked as a “pick-up crew member” for the Respondent Employer, Bartter Enterprises Pty Ltd. Essentially, he worked as a labourer whose duties included, among other things, running after and catching chickens, operating a forklift, and general maintenance.
- In 1991, he injured his right knee while playing rugby. He continued his normal duties until he injured his left knee playing rugby in 1995. Again, he returned to and continued his normal duties. He also returned to rugby and played until 2003. In late 2005 his right knee caused him some difficulties and at that time, or in early 2006, he made enquiries about getting specialist treatment for his right knee.
- As Mr Tiritabua stepped off a forklift at work on 11 January 2006, he turned and felt severe pain in the left side of his left knee. He reported the incident, but did not stop work until 12 January 2006.
- Mr Tiritabua made a claim for injury to his left knee, which eventually settled by consent in proceedings before the Commission on 17 October 2006, with the insurer agreeing to pay a closed period of compensation and reasonably necessary medical expenses.
- On 28 March 2007, Mr Tiritabua underwent bilateral knee replacement operations and, as a result, he was off work from 28 March until 5 June 2007.
- By letter dated 22 January 2008, Mr Tiritabua claimed compensation for the time off work, medical expenses and lump sum compensation in respect of both knees and pain and suffering.
- In respect of the left knee, Mr Tiritabua alleged he received a twisting injury to that knee on or about 11 January 2006 and that, as a result of the nature and conditions of his employment and the incident on 11 January 2006, he had aggravated pre-existing degenerative changes in that knee.
- In respect of his right knee, he alleged that the nature and conditions of his employment, which involved walking and running over rough and uneven surfaces and repeated lifting and bending, caused or alternatively aggravated degenerative changes in that knee. In addition, he alleged that he walked with a limp as a consequence of his left knee injury and, as a result, aggravated the pre-existing degenerative changes in his right knee. He alleged a deemed date of injury of 28 March 2007.
- The Arbitrator found for Mr Tiritabua in respect of the left knee injury but not in respect of the right knee injury. Balancing the medical evidence, the Arbitrator did not accept that the nature of the employment was causative of the “symptoms and pathology” Mr Tiritabua experienced with his right knee.
- There was a real probability that the injury was caused by the years of playing rugby and may well have occurred anyway bearing in mind the pre-existing degenerative condition, which was well known to Mr Tiritabua.
Issues on appeal
Mr Tiritabua argued that the Arbitrator had erred:
- as there was no medical evidence that specifically outlined the nature of his football injuries;
- in not accepting Dr Rowe’s evidence that the right knee symptoms were made worse following the incident in January 2006 and that the right knee had been aggravated as a result of Mr Tiritabua’s gait, as a consequence of the left knee injury, and
- in failing to deal with whether Mr Tiritabua had suffered an injury in the nature of an aggravation under section 16 of the 1987 Act, either as a result of the nature and conditions of employment or as a result of the altered gait consequent upon the left knee injury.
1. The evidence as to the nature of Mr Tiritabua’s duties and the connection between those duties and his right knee symptoms was unsatisfactory. There was no persuasive evidence that Mr Tiritabua’s right knee symptoms, or the increase in those symptoms, resulted from his duties with Bartter’s. 
2. Whilst there was no doubt that Mr Tiritabua’s right knee symptoms did increase over time, that fact alone did not establish an injury under section 4(b)(ii) of the 1987 Act as a result of the nature and conditions of his employment. 
3. Whilst the medical histories suggested that the ground where Mr Tiritabua did some of his work had potholes and was uneven, there was no evidence that he ever sustained an injury to his knee as a result of stepping into such a hole or as a result of walking over uneven ground. 
4. Dr Rowe’s opinion that the right knee symptoms were due to “the general nature of his work” was unpersuasive, as there was no evidence that Mr Tiritabua developed symptoms at work and it ignored Mr Tiritabua’s past history of a right knee injury playing rugby. 
5. Mr Tiritabua had to establish that the right knee condition resulted from the left knee injury (see Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). The evidence was unpersuasive and did not establish the necessary connection. Whilst it is true that Mr Tiritabua had to use a support for an undefined period following his left knee injury, he gave no evidence that his altered gait affected his right knee. 
The Arbitrator’s decision was confirmed.
The use of medical evidence in determining section 9A of the 1987 Act
Duc Dien Tran v Salmat Document Management Solutions Pty Ltd (wrongly sued as Salmat Pty Ltd)  NSWWWCCPD 147
23 December 2008
- Mr Tran was employed by Salmat as a laser operator. His duties required him to bend, lift boxes of paper weighing about 12 kilograms, and stand for prolonged periods over 12 hour shifts. The physical demands of his duties increased with the introduction of an Enterprise Bargaining Agreement in 2005.
- He first noticed back pain in January 2007 but he did not report his symptoms until November 2007.
- He was placed on light duties in December 2007 until February 2008 when Salmat informed him that he would no longer be provided with light work and he would not be paid workers compensation. He was told to go home and to come back when he could do his normal duties.
- Mr Tran attended on three different GPs all of whom recorded that he had sustained an injury to his back in the course of his employment.
- For medico-legal purposes, Mr Tran saw Dr Ellis, who recorded that Mr Tran’s duties required him to “bend, lift and carry two boxes at a time, one in each hand loading the trolleys, pushing the trolleys to the machines unloading it to the machines”.
- Salmat denied the claim on the basis that Mr Tran’s condition was one of mild lumbar spondylosis and that his employment had not been a substantial contributing factor to its development.
- The Arbitrator found in favour of Salmat as she was not satisfied that Mr Tran had discharged the onus on him to demonstrate that his back and right leg symptoms were causally related to his employment.
Issues on Appeal
- Whether the Arbitrator erred in failing to make findings in relation to the nature and conditions of Mr Tran’s employment, her treatment of the evidence, in particular the medical evidence, and in her application of Hevi Lift (PNG) Limited v Etherington  NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’).
1. Mr Tran’s duties involved bending, lifting and prolonged standing.
2. The Arbitrator overstated the effect of the principles in Hevi Lift and their application to section 9A of the 1987 Act .
3. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (McMahon v Lagana  NSWCA 164; (2004) 4 DDCR 348) to be decided after a consideration of all the evidence. “It is not purely a medical question” (ADP Snell in Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor  NSWWCCPD 222 at ) .
4. The medical evidence established that Mr Tran suffered from a degenerative disease in the form of lumbar spondylosis with lumbar disc disruption or desiccation that encroached on the thecal sac. These findings provided a logical and consistent explanation for Mr Tran’s symptoms and there is no persuasive evidence that he sustained an injury to his spine outside his employment that would account for them .
5. Drs Ly, Ellis and Liew all expressly identified the aspects of Mr Tran’s employment, namely, the bending, lifting and standing involved in that work, that caused the injury. Mr Tran’s work involved the activities described in the medical reports and, therefore, the histories provided a “fair climate” for the acceptance of their opinions (Paric v John Holland Constructions Pty Ltd  2 NSWLR 505 at 509-510; Brady v Commissioner of Police (2003) 25 NSWCCR 58)  & .
The Arbitrator’s decision was revoked and the matter remitted to another arbitrator for determination of the deemed date of injury and calculation of Mr Tran’s entitlement to compensation.
The arbitration was conducted “on the papers” following written submissions from both sides. Neither side made submissions on the issue of injury, the application of Hevi Lift, nor the medical histories, but only submitted on the wage records and sections 38 and 40 of the 1987 Act.
Given this background, if the medical histories troubled the Arbitrator to such an extent that she considered them to be determinative, she had an obligation to seek further submissions from the parties on that issue. The failure to do so meant that the Arbitrator determined the case on issues that were not argued before her. Whilst an arbitrator is not restricted by the arguments presented by the parties, if an arbitrator “contemplates determining the case on a different basis he or she must inform the parties” of that prospect so that they have an opportunity to make appropriate submissions and a “failure so to inform the parties will ordinarily result in a denial of procedural fairness” (see Ipp JA (Mason P agreeing) at  and  in Seltsam Pty Limited v Ghaleb  NSWCA 208).