Issue 11: November 2019

Kekec v Turbo Exhaust Centre Pty Limited [2019] NSWWCCPD 51

Alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308, ‘judicial notice’ in the Commission, ‘worker’ issues and the totality of the relationship – application of Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 and Pitcher v Langford (1991) 23 NSWLR 142

Snell DP

22 October 2019

Facts

The appellant, Mr Kekec, and Mr Kabaran, the owner/managing director of the respondent, executed a document described as an “employment contract” on 11 August 2014. Mr Kabaran, as part of that agreement, sponsored the appellant as his employer in a subclass 457 visa.

On 20 June 2015, there was an explosion at the respondent’s premises in which the appellant was injured. The Arbitrator made a series of factual findings regarding the circumstances of the explosion and ultimately found that the appellant was not a worker. The Arbitrator entered an award in favour of the respondent. The claimant appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) his factual findings regarding the circumstances of the explosion on 20 June 2015, and

(b) finding that the appellant was not a worker or deemed worker of the respondent.

Held: The Arbitrator’s determination dated 5 February 2019 was confirmed.

Grounds 1 to 12

1. Grounds 1 to 12 dealt, in various ways, with the Arbitrator’s factual findings regarding the circumstances of the explosion on 20 June 2015. Essentially, the appellant argued that the Arbitrator’s findings breached the principle in Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (Fox v Percy). The appellant asserted that the Arbitrator’s findings were inconsistent with the incontrovertible facts. The appellant also submitted that that there was error as described in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, that the probabilities so outweighed the conclusion at which the Arbitrator arrived, that his conclusion had been shown to be wrong. ([116])
2. Grounds 1 to 4 asserted error in the Arbitrator’s finding that he was not satisfied the explosion occurred in circumstances where the appellant was using his vapour recovery unit to transfer gas from a large gas bottle to a small one. These grounds raised issues which included the appropriateness of the Arbitrator’s acceptance or rejection of documentary evidence from emergency services and the Royal North Shore Hospital. ([117])
3. The cases run by the parties were in stark contrast to each other. Each accused the other of dishonesty. Each accused the other of having a financial motivation for this. The Deputy President held the Arbitrator approached the fact-finding task before him with a stated awareness of the principles in Fox v Percy. The Arbitrator specifically referred to a submission by the appellant’s senior counsel, that there were “two cardinal principles” to be considered in determining the matter. These were looking closely at “spontaneous statements made at the scene of the accident”, and that findings could not be made that were “inconsistent with incontrovertible facts”. ([182], [185])

(Fox v Percy applied)

4. The Arbitrator’s rejection of the contents of the Ambulance Service Retrieval Record was open to him on the evidence. Ground 3 could not succeed. ([199])
5. After extensively reviewing the evidence, Deputy President Snell held that it was open to the Arbitrator to form the view that he did, preferring the evidence in the initial statements to the later statements dating from 22 June 2017. The Deputy President was not persuaded that in approaching the Arbitrator’s conclusions, on the basis described in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, that the probabilities so outweighed the conclusion at which the Arbitrator arrived, that his conclusion had been shown to be wrong. ([239])
6. Grounds 1 to 12 failed. ([240]–[298])

Ground Nos 13, 14, 15, 16, 17, 18 and 19

7. Grounds 13, 14, 15, 16, 17 and 18 dealt with the relationship between the parties and the application of the written contract. Ground 19 was a “conclusory” ground. ([299], [377])
8. The Arbitrator, dealing with the ‘worker’ issue, was required to have regard to the totality of the relationship. The written contract was a relevant part of that enquiry, but it was not determinative. In a passage from Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens), which the Arbitrator quoted in his reasons, Wilson and Dawson JJ referred to examples of indicia which may be relevant in individual cases, and observed “the actual terms and terminology of the contract will always be of considerable importance”. This was consistent with the Arbitrator’s description in the reasons at [158], of the basis on which he approached the ‘worker’ issue. It followed that the Arbitrator did not err in having regard to relevant indicia in considering whether, having regard to the totality of the relationship, a relationship of master and servant existed. Ground 13 failed. ([326])
9. On any conventional analysis, considering the indicia of employment consistent with decisions such as Stevens and Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263, if the totality of the relationship between the parties was consistent with the written contract, the relationship would be one of master and servant. The contract, by its terms, contemplated that it could be brought to an end by either party. ([330])
10. If the employment contract governed the relationship between the parties, one would reasonably expect that the respondent would pay wages and other benefits to the appellant, consistent with that contract. The evidence did not suggest that the appellant made an issue about the failure to do so. The failure of the respondent to pay the benefits provided for in the contract, and the failure of the appellant to seek to have the respondent comply with those obligations, was on its face consistent with the parties adopting a position that their relationship was not governed by that contract. It was potentially consistent with the employment contract having been “ignored or abandoned”. ([333])

(Pitcher v Langford (1991) 23 NSWLR 142 (Langford) applied)

11. The Arbitrator correctly observed that it is “usual and to be expected” that an employee will be paid. The Arbitrator noted that, other than a few thousand dollars that the appellant “cannot identify as being related to any particular work”, the appellant did not receive remuneration during the period of his eight-month residency in Australia, leading up to the date of accident. The Arbitrator regarded this as strongly indicative that the appellant was not working under a contract of service for the respondent. The Arbitrator thought it consistent with the appellant’s earlier statements “that he was running his own business”. The Arbitrator was entitled to attach significant weight to this evidence about remuneration. ([334])
12. The appellant was in Australia for about eight months prior to the accident. The various matters described in Ground 17 did not explain why, if the employment contract between the parties remained on foot during that time, he was not remunerated pursuant to it at any stage over the period. The matters raised in Ground 17 were essentially first instance submissions, going to the weight to be attached to the evidence about the lack of remuneration. Weight is peculiarly a matter for the first instance decision maker, unless a finding is so against the weight of the evidence that some error must have been involved. The Arbitrator did not place undue reliance on the evidence regarding the failure of the parties to comply with the provisions in the written contract regarding remuneration. It was evidence that was relevant to an assessment of the totality of the relationship, and properly taken into account. Ground 17 failed. ([343])

(Shellharbour City Council v Rigby [2006] NSWCA 308, at [144] applied)

13. Whether or not the evidence overall supported a conclusion that the appellant had entered into a partnership with Mr Kabaran or the respondent, the evidence accepted by the Arbitrator, both in the appellant’s earlier statements and the evidence of Mr Kabaran, was inconsistent with the proposition that the appellant was employed by the respondent under a contract of service. It was consistent with the appellant being in business on his own account. The appellant’s description of this arrangement was inconsistent with the relationship described in the written contract, and inconsistent with a relationship of master and servant. It was not a question of dealing with a “hybrid” arrangement. The appellant’s statements described the remuneration provisions in the written contract as being “on paper”, and being remuneration that was “never actually paid in reality”. The evidence overall, excluding the appellant’s statements dated 22 June 2017 and subsequently (which were not accepted) was consistent with the employment contract having been “ignored or abandoned”, to use the language from Langford. In the statement dated 24 July 2015 the appellant described his arrangement with Mr Kabaran as “an informal agreement between friends”. In his statement dated 13 October 2015 he described it as “a verbal arrangement ... There was never any formalised agreement”. His description of the relationship was inconsistent with it being governed by the written employment contract. ([355])

    (Langford applied)

14. Deputy President Snell ultimately held that the Arbitrator’s conclusion was open. Grounds 13–19 failed. ([318]–[379])
15. Deputy President Snell confirmed the Arbitrator’s determination. ([380])

Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53

Estoppel; Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 considered; Workers Compensation Legislation Amendment Act 2018; Pt 19L of Sch 6 of the Workers Compensation Act 1987 considered

Phillips P

28 October 2019

Facts

On 15 April 2015, the worker injured himself when he lost his footing and fell forward on his right leg whilst working as a cleaner. The worker’s medical records showed a history of osteoarthritis in both knees since 2009.

The worker made a claim, which was contested by the respondent in its s 74 notice dated 15 May 2015.

On 9 February 2016, the worker brought proceedings in the Commission for weekly compensation and the cost of proposed right total knee replacement surgery (Matter Number 658/16). The worker pleaded “aggravation of osteoarthritis in the right knee with partial tear of the [medial] meniscus and [medial] collateral ligament of the right knee” as a result of the 15 April 2015 incident. The worker underwent a right total knee replacement on 3 March 2016.

On 5 May 2016, Consent Orders were entered into by the parties (amended on 17 May 2016) which, amongst other things, resulted in payments of weekly compensation and s 60 expenses to the worker (Order 4). The Consent Orders amended the pleaded injury adding an allegation of “injury to the right knee sustained as a result of the nature and conditions of employment over the entire period of the applicant's employment with the respondent up to 15 April 2015”. Order 5 of the Consent Orders provided the respondent meet the cost of reasonably necessary medical expenses up to 4 March 2016, but thereafter provided an award for the respondent employer for s 60 expenses, including the cost of a right total knee replacement on the grounds that this surgery was not reasonably necessary as a result of the right knee injury on 15 April 2015.

In 2018, the worker made a claim for lump sum compensation, which was contested in the respondent’s s 74 notice dated 17 December 2018.

On 28 November 2018, the worker brought further proceedings in the Commission seeking lump sum compensation for 18% WPI on the basis of reports by Dr Giblin dated 8 February 2018. The injury in these proceedings was described as “sustained injury due to the nature and conditions of [the worker’s] employment, including walking down stairs and lost his footing, fell forward on his right leg causing injury to his right knee, resulting in total knee replacement surgery.” At the hearing before the Arbitrator this was amended to remove the reference to “the nature and conditions of employment.”

The respondent relied upon Order 5 of the Consent Orders in matter no 658/16 to defend the allegation that the injury of 15 April 2015 had resulted in right total knee replacement surgery. The worker however relied upon the reports of Dr Giblin dated 8 February 2018. Contrary to other medical evidence, Dr Giblin’s report noted the worker had no pain or loss of function in his right knee prior to the 15 April 2015 incident. The respondent argued that Dr Giblin’s reports were inadmissible on this basis by offending rules 15.1 and 15.2 of the 2011 Rules.

The Arbitrator found the worker was estopped from alleging that he has any entitlement to compensation upon the basis that injury to the right knee was caused by the fall of 15 April 2015.

The Arbitrator noted the difficulty in Dr Giblin’s evidence was that he either ignored or was not aware of the Consent Orders, however he did not find Dr Giblin’s opinion inadmissible. In respect of deduction under s 323 of the 1998 Act, the Arbitrator noted Dr Giblin based his opinion on a false assumption that there had been no symptoms or treatment regarding the worker’s right knee, which in turn affected his opinion regarding the application of s 323 of the 1998 Act. Notwithstanding, the Arbitrator accepted Dr Giblin’s opinion that a 50% deduction was appropriate. This finding had the effect that in any event, the worker was unable to establish that he was entitled to be assessed by an AMS, as a 10% assessment was insufficient to meet the relevant threshold for entitlement to lump sum payment.

This appeal challenged the Arbitrator’s finding that the worker was estopped from pursuing his claim for permanent impairment compensation due to the entering of consent orders in matter no 658/16. This appeal further challenged the Arbitrator’s decision to proceed to determine a medical dispute, relying upon the 2018 amending Act effective 1 January 2019.

Held: The Arbitrator’s Certificate of Determination dated 18 March 2019 was confirmed.

Ground 1 – estoppel issue

1. The respondent employer relied on the Consent Orders (5 and 17 May 2016) as creating relevant estoppels to the worker’s claims in the appeal proceedings. The worker contended that the estoppel was limited to the claim pertaining to injury to the worker’s right knee as a result of the nature and conditions of his employment. The worker contended that the estoppel did not extend or apply to his claim for having suffered a frank injury to his right knee on 15 April 2015.
2. The President referred to the decision of Roche DP in Bouchmouni v Bakhos Matta t/as Western Red Services in respect of whether consent orders can give rise to res judicata estoppels. The President noted that in order to consider the issue of estoppel in this case, it was necessary to examine the pleadings, the evidence and the s 74 notices of 15 May 2015 and 17 December 2018 to ascertain exactly what was “necessarily decided” by the Consent Orders of 5 and 17 May 2016. It was also necessary to consider the text of the Consent Order itself. ([86])

(Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4, [33]–[47], Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, [186], Isaacs v Ocean Accident & Guarantee Corporation Ltd & Winslette (1958) SR (NSW) 69; (1957) 75 WN (NSW) 48 [75], DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423, [429] applied.)

3. The President noted in the earlier proceedings, the worker pleaded a frank injury to his right knee on 15 April 2015. A review of the s 74 notice dated 15 May 2015 reveals issue being taken by the employer regarding the injury itself on 15 April 2015. There was no traversing of any nature and conditions claim with respect to the worker’s right knee because no such claim had been pleaded in matter no 658/16. ([88] and [90])
4. The President found the following matters had been “necessarily decided” by the Consent Orders:
   
   
   (a) That the respondent employer in matter no 658/16 obtained an award in its favour with respect to the allegation that the worker had suffered injury to his right knee sustained as a result of the nature and conditions of his employment over the entire period of that employment, up to and including 15 April 2015.
   
   (b) That there was an award for the respondent employer with regards to s 60 expenses after 4 March 2016, including an award for the respondent employer with respect to the cost of a right total knee replacement on the grounds that that was not reasonably necessary as a result of the right knee injury suffered on 15 April 2015. ([97])

5. The President found that what was not necessarily decided one way or the other was whether the worker had suffered a frank injury to his right knee on 15 April 2015, although the orders in his favour in Orders 4 and 5 by definition could only apply to that injury. ([98])
6. The President therefore found that the learned Arbitrator was in error to find that the worker was estopped from seeking further compensation. The President found that no relevant estoppel arose with respect to these appeal proceedings arising from the Consent Orders of 5 and 17 May 2016. ([99])
7. Ground One was therefore upheld.

Grounds 2 and 3 – ultra vires issue

8. The President accepted the respondent’s submission that Grounds 2 and 3 related to the same asserted error, namely whether the repeal of s 65(3) of the 1987 Act, which commenced on 1 January 2019, applied to the worker’s claim. The President noted that all the facts pertaining to the worker’s claim occurred prior to 1 January 2019, including the filing of the claim in the Commission. ([101])
9. The President noted the relevant legislative alteration was that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an AMS. That prohibition was removed and the Commission was then empowered to determine such matters itself. ([102]–[105])
10. In respect to the application of the 2018 amendments to the worker, the President saw it necessary to consider firstly whether the amendments were procedural or substantive and secondly, the application (or not) of cl 2 of Pt 19L of Sch 6 of the 1987 Act to this case. ([77])
11. The worker relied upon Guzman v Trade West Pty Ltd, where the Arbitrator was found to have exceeded jurisdiction by resolving a medical dispute. The President noted that Guzman was decided prior to the 2018 amending Act which commenced on 1 January 2019. The worker further relied upon the decision of Sir Owen Dixon in Maxwell v Murphy regarding the common law principle of statutory interpretation, that if a statute is silent on the question of retrospectivity then it should be considered to operate in futuro. The President however noted the distinction between procedural statutes and statutes which create or modify or abolish substantive rights and liabilities, as described by Fullagar J in Maxwell. This issue was further considered by the High Court in Victrawl, which said the question was:

“… whether the provision’s operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable.” ([76]–[78], [106]–[107]).

(Guzman v Trade West Pty Ltd [2017] NSWWCCPD 44 distinguished, Maxwell v Murphy [1957] HCA 7; 96 CLR 261, [286] per Fullagar applied, Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; 183 CLR 595,615 applied)

12. The President noted that the repeal of s 65(3) did not impair or repeal the worker’s capacity to bring a claim seeking permanent impairment compensation. That right remained unaffected by the amending legislation. The President further noted the Arbitrator assessed the worker’s claim for permanent impairment benefits at 10%, which did not meet the threshold for an entitlement to lump sum compensation. The President noted that the worker’s concern appeared to lie solely in the Arbitrator acting ultra vires by virtue of the statutory bar in s 65(3) of the 1987 Act, as opposed to the merits of the Arbitrator’s determination in respect of Dr Giblin’s report. The President found that the change in procedure had the effect of vesting jurisdiction in an arbitrator, which jurisdiction did not exist prior to 1 January 2019. The conferral (or withdrawal) of jurisdiction from either a decision maker or a commission is a matter of substance rather than procedure. This consideration, however, was not the end of the matter. ([120]–[123])
13. The President proceeded to consider relevant transitional provisions. The respondent asserted that cl 2(1) of Pt 19L had the effect of making the 2018 amendments as to how permanent impairment might be assessed applicable to the worker. The worker relied upon cl 2(2) of Pt 19L to assert the opposite. ([124])
14. The President noted the phrase in cl(2)(2) of Pt 19L which states “the 2018 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment”. The President found the claim the worker sought to bring was not a claim in relation to compensation paid or payable in respect of any period prior to 1 January 2019. Rather, the worker sought the referral of his claim for permanent impairment to an AMS to have his claim for lump sum compensation assessed. ([125]–[126])
15. The President noted the worker’s claim for lump sum compensation was not “compensation paid or payable in respect of any period”. Section 66(1) of the 1987 Act states that this “[p]ermanent impairment compensation is in addition to any other compensation under this Act.” The President found that Pt 19L(2)(2) had no application to the worker’s claim as the compensation he was claiming was not paid or payable in respect of any period prior to 1 January 2019. Nothing was “payable” in a formal sense until either the AMS assesses permanent impairment above the threshold or the parties consent to an assessment amount. Further, any amount paid or payable under s 66 of the 1987 Act is not a payment “in respect of any period” as a payment for weekly compensation, for example, would be. Consequently, the President found that the effect of Pt 19L(2)(1) with respect to the worker’s claim was to make the amendments from the 2018 amending Act applicable to his claim. That being the case, the Arbitrator was acting within power when he proceeded to determine the worker’s claim for lump sum compensation, consistently with the 2018 amending Act. ([126])
16. Grounds 2 and 3 were not made out.  As described above, the President upheld Ground One of the appeal, meaning the 5 and 17 May 2016 Consent Orders did not serve to estop the worker from pursuing his claim for lump sum compensation. However, the Arbitrator properly assessed the worker’s entitlement at 10% WPI, and by virtue of the provisions of s 66(1) of the 1987 Act, the worker did not meet the threshold for entitlement to lump sum compensation provided for by that provision. The result of this finding was that the Arbitrator’s award in favour of the respondent was confirmed.

Le Twins Pty Limited v Luo [2019] NSWWCCPD 52

Causation; assessment of whole person impairment; whether two injuries received approximately a year apart are causally connected; whether pathology in the left shoulder ‘resulted from’ the initial right shoulder injury; two distinct injuries; combined assessment of both injuries not permitted; neither assessment of the two shoulders separately was greater than 10 per cent whole person impairment; award for respondent employer; Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 discussed; drawing of inferences from the evidence

Parker SC ADP

25 October 2019

Facts

The respondent worker injured his right shoulder on 18 August 2015, which was accepted by the appellant employer. On 19 August 2016, the worker was lifting three heavy plates out of a warmer with his left hand when he felt a sharp pain at his left shoulder. The appellant also accepted liability and paid compensation for a frank injury to the left shoulder on this date.

The worker claimed lump sum compensation in respect of 13% whole person impairment of his bilateral upper extremities (shoulders) resulting from the injury on 18 August 2015. He claimed that the condition in his left shoulder was consequential to the original right shoulder injury.

The Arbitrator was satisfied that the injury to the respondent’s right shoulder on 18 August 2015 materially contributed to the incident on 19 August 2016 and the pathology it caused. She was satisfied that there was an unbroken causal chain and that the pathology in the respondent’s left shoulder ‘resulted from’ the injury on 18 August 2015. The Arbitrator found that the respondent sustained a consequential condition affecting his left shoulder as a result of the injury of 18 August 2015 to the right shoulder. She entered an award in favour of the respondent in respect of 12% whole person impairment, which was a combined assessment of each shoulder. The employer appealed.

The grounds of appeal were:

(a) Ground 1: The Arbitrator erred in not first identifying the pathological change that occurred in the left shoulder on 19 August 2016;

(b) Ground 2: The Arbitrator’s failure to identify the pathological change caused her to fall into error with respect to her findings as to causation;

(c) Ground 3: The Arbitrator fell into error in relying on inferences which were not available on the evidence;

(d) Ground 4: The Arbitrator made an error in relying on Murphy v Allity Management Services [2015] NSWWCCPD 49 to support a finding of more than one cause of injury, and

(e) Ground 5: The Arbitrator made an error of law in concluding that there was an unbroken causal chain and the pathology in the left shoulder ‘resulted from’ the right shoulder injury on 18 August 2015.

Held: The Order of the Arbitrator made 5 April 2019 was revoked and in substitution therefore an award in favour of the respondent was entered.

Ground 5

1. It was convenient that this ground be dealt with first. It was common ground that the respondent had sustained injury to his right shoulder on 18 August 2015 and injury to his left shoulder on 19 August 2016. The issue for determination was identified by the Arbitrator as “for the applicant to succeed in his claim for lump sum compensation, he must, amongst other things, establish that any permanent impairment in his left shoulder resulted from the injury to his right shoulder.” ([16], [21]–[22])
2. The requirement that the decision maker address the statute is imperative as is made clear in Comcare v Martin [2016] HCA 43; 258 CLR 467 (Comcare v Martin). The error of law identified in Comcare v Martin at [42] was that the Full Federal Court did not address or interrogate the statutory text, context and purpose. In the Acting Deputy President’s view, the Arbitrator in the present matter likewise failed to interrogate the text, context and purpose of s 322 of the 1998 Act. The decision was therefore affected by legal error. ([27]–[30])
3. The conclusion expressed by the Arbitrator that the injury to the right shoulder on 18 August 2015 materially contributed to the incident on 19 August 2016, was not based on a proper “interrogation” of s 322. ([31])
4. The correct question for the purpose of s 322(2) was did the impairments result “from the same injury”; for the purpose of s 322(3) the correct question was did the impairments result from the “same incident”. The Arbitrator’s reasons did not address the relevant question under either s 322(2) or (3). For this reason the conclusion at [82]–[83] of the statement of reasons was affected by legal error and was set aside. ([32])
5. The Arbitrator’s decision was affected by error of law. The two assessments should not have been combined to achieve an overall assessment of 12% for the purpose of an award under s 66(1). ([34])
6. Acting Deputy President Parker SC’s conclusion with respect to Ground 5 was dispositive of the appeal. However, lest he be wrong and in deference to the parties’ submissions, he considered the additional grounds of appeal below.

Grounds 1 and 2

7. There was no contest on the issue of injury. The Arbitrator was not required to determine whether the respondent had injured his shoulders. As the respondent correctly submitted it was common ground that the respondent had suffered an injury to the right shoulder on 18 August 2015 and an injury to the left shoulder on 19 August 2016. ([41])
8. In any event, it is not necessary for the respondent to establish a diagnosis or a particular pathological condition. What is required is for the worker to establish that he sustained an injury in the qualifying circumstances contemplated by the legislation. ([42])

(Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468; 90 ALJR 626; 331 ALR 369 applied)

9. It was not correct to say that the Arbitrator failed to identify the pathological changes necessary for her determination. She considered and referred to the evidence as to the pathology in each of the respondent’s shoulders. ([47])
10. Acting Deputy President Parker SC’s view was the error was not that the Arbitrator failed to identify the pathology. She was not required to do more than she did in this regard because there was no dispute that the respondent had sustained injuries to both shoulders. The Arbitrator erred because she did not consider causation for the purpose of s 322 of the 1998 Act as she was required to do. ([50]–[51])
11. In the Acting Deputy President’s view, the respondent’s submissions in answer to grounds 1 and 2 of the appeal, namely that they misconceive the relevant enquiry and task of the Arbitrator, were correct. Grounds 1 and 2 of the appeal were rejected. ([52])

Ground 3

12. Acting Deputy President Parker SC was of the view that the proven facts did not support the inferences drawn by the Arbitrator in her reasons at [77] and [80]. The fact that the plates were of an unspecified weight, that the respondent had an injury to his right shoulder and that in lifting using his left hand he sustained an injury to his left shoulder did not properly give rise to an inference that had he not had an injury to the right shoulder he would have lifted with the right dominant arm or performed a bilateral lift. Were it necessary to be determined the Acting Deputy President would have upheld the appeal with respect to ground 3. ([56]–[64])

    Ground 4

13. Acting Deputy President Parker SC did not regard the Arbitrator’s conclusion at [81] of her reasons that a condition may have more than one cause as incorrect. Most conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation. Ground 4 would have been dismissed. ([71]–[73])

    Re-determination

14. As the individual assessments resulting from the separate injuries did not result in a degree of permanent impairment greater than 10%, the respondent was not was not entitled to compensation under s 66(1) of the 1987 Act. The Certificate of Determination was revoked and in substitution an award was entered in favour of the respondent.” ([82]–[85])