Issue 12: December 2019
This issue includes a summary of the November 2019 decisions.
These summaries are designed to provide an overview of the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for independent research in relation to a particular issue or area of the law.
This issue, and previous issues, of On Appeal is available on the WCC website: http://www.wcc.nsw.gov.au/
Decisions are published on AustLII, JADE and LexisNexis at the following websites:
|ADP||Acting Deputy President|
|AMS||Approved Medical Specialist|
|Commission||Workers Compensation Commission|
|MAC||Medical Assessment Certificate|
|Reply||Reply to Application to Resolve a Dispute|
|WPI||Whole person impairment|
|1987 Act||Workers Compensation Act 1987|
|1998 Act||Workplace Injury Management and Workers Compensation Act 1998|
|2003 Regulation||Workers Compensation Regulation 2003|
|2010 Regulation||Workers Compensation Regulation 2010|
|2010 Rules||Workers Compensation Rules 2010|
|2011 Rules||Workers Compensation Rules 2011|
|2012 amending Act||Workers Compensation Legislation Amendment Act 2012|
|2015 amending Act||Workers Compensation Amendment Act 2015|
Drawing of inferences: Luxton v Vines  HCA 19; 85 CLR 352, weight of evidence: Shellharbour City Council v Rigby  NSWCA 308, expert evidence in the Commission: Hancock v East Coast Timber Products Pty Limited  NSWCA 11; 8 DDCR 399 and associated authorities, dealing with competing expert evidence: Hume v Walton  NSWCA 148, Eckersley v Binnie (1988) 18 Con LR 1 and associated authorities, procedural fairness and warning parties of an arbitrator’s proposed course: Kuhl v Zurich Financial Services Australia Ltd  HCA 11; 243 CLR 361, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 63; 231 ALR 592; 81 ALJR 515.
Whether certain findings of fact made by the Senior Arbitrator were available on the evidence; Davis v Council of the City of Wagga Wagga  NSWCA 34; regarding contents of medical notes considered.
Factual findings – whether material facts were overlooked or misconstrued; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 considered; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 considered
Application to extend time pursuant to r 16.2(5) of the 2011 Rules, explanation of delay, ‘exceptional circumstances’, fairly arguable appeal, the nature of appealable error 14
State of New South Wales v Barrett  NSWWCCPD 56
Drawing of inferences: Luxton v Vines  HCA 19; 85 CLR 352, weight of evidence: Shellharbour City Council v Rigby  NSWCA 308, expert evidence in the Commission: Hancock v East Coast Timber Products Pty Limited  NSWCA 11; 8 DDCR 399 and associated authorities, dealing with competing expert evidence: Hume v Walton  NSWCA 148, Eckersley v Binnie (1988) 18 Con LR 1 and associated authorities, procedural fairness and warning parties of an arbitrator’s proposed course: Kuhl v Zurich Financial Services Australia Ltd  HCA 11; 243 CLR 361, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 63; 231 ALR 592; 81 ALJR 515
4 November 2019
The late Mrs Barrett worked as a nurse from 1999. She last worked at Westmead Hospital, and she was promoted to the position of Clinical Nurse Specialist in the Day Surgery Team, from 7 November 2012. She suffered psychological and physical injuries, the occurrence of which was not controversial. Mrs Barrett died on 30 March 2015 from liver failure. This claim was brought by Mrs Barrett’s husband (Mr Barrett) for the lump sum death benefit applicable pursuant to s 25 of the 1987 Act, at the date of her death. It was not in issue that Mr Barrett was dependent on Mrs Barrett. It was alleged that Mrs Barrett consumed large amounts of medication and drank excessive amounts of alcohol as a result of her injuries, resulting in her death. This appeal was against an arbitral decision in Mr Barrett’s favour. The issue raised went to the causal connection between the employment injuries and Mrs Barrett’s death.
The issues on appeal were whether the Arbitrator erred in:
(a) fact and discretion in placing weight on the evidence listed below:
i. the bank records;
ii Mr Barrett’s belief, and
iii the medical evidence (Ground One);
(b) law and discretion in accepting Dr Talley’s opinion and rejecting Dr Sethi’s opinion (Ground Two), and
(c) denying procedural fairness (Ground Three).
Held: The Arbitrator’s decision dated 11 April 2019 was confirmed.
The bank records
- Deputy President Snell held it was open to the Arbitrator to draw the inference which the Arbitrator did, that Mrs Barrett was essentially making the alcohol purchases referred to in the banking records for herself. The weight given to this evidence was largely a matter for the Arbitrator. There was a significant increase in the level of purchases from liquor outlets after November 2012. It was open to the Arbitrator to adopt the approach he did, treating this evidence as of limited weight, but generally confirmatory of the view reached by Dr Talley regarding Mrs Barrett’s levels of alcohol consumption over time. (–)
(Shellharbour City Council v Rigby  NSWCA 308, at  applied)
Mr Barrett’s belief regarding alcohol consumption
- The appellant submitted Mr Barrett’s evidence regarding his wife’s drinking before the psychological injury was held to be wrong. The appellant referred to Mr Barrett’s work commitments (travelling and long hours), his lack of close attention to his wife’s use of alcohol, and Mrs Barrett hiding the extent of her drinking. It submitted it was “not open to accept [Mr Barrett’s] belief at all”, it “lacked any evidentiary weight”, and its use was erroneous. ()
- The Arbitrator found he was “comfortably satisfied there was an increase in Mrs Barrett’s alcohol use after the psychological injury – or in the period of about two years before her death”. The Arbitrator referred to a number of factors that supported his view on this. One factor was his acceptance of Mr Barrett’s evidence that he noticed “a significant increase in the extent of her drinking after the psychological injury”. The Arbitrator’s rejection of Mr Barrett’s evidence, about his wife’s drinking prior to the psychological injury was based on specific matters, not rejection of his credibility in a more general sense. (–)
- The Arbitrator correctly noted that he “was not required to accept the whole of the evidence of one witness”. The appellant submitted that, given the rejection of Mr Barrett’s evidence regarding his wife’s earlier drinking, “it was not open to accept his belief at all”, and his belief “lacked any evidentiary weight”. The appellant’s submissions on this issue were wrong and were rejected. It was open to the Arbitrator to accept the evidence of Mr Barrett on this issue. The Arbitrator explained why he did not accept the evidence about Mrs Barrett’s drinking prior to November 2012, but accepted the evidence related to the subsequent period. ()
The medical evidence and patterns of alcohol consumption
- The Arbitrator found alcohol use increased in the two years prior to Mrs Barrett’s death. The appellant submitted that this was erroneous, referring to the following:
(a) The Arbitrator based this in part on medical histories. The appellant submitted that it could not be established who the histories came from. It said that neither Mr Barrett or Mrs Barrett was a reliable witness.
(b) The appellant submitted that Dr Co’burn’s report dated 9 June 2016 could not support the factual finding that Mrs Barrett increased her alcohol consumption since January 2013. Dr Co’burn (Mrs Barrett’s GP) had limited expertise on the topic, and did not identify his assumptions or reasoning process.
(c) Dr Talley’s opinion could not be accepted, it was based on an incorrect assumption. Reference was made to the appellant’s submissions on Ground Two. ()
- In respect of (a) above, the submission that Mr Barrett was an unreliable witness was without merit. ()
- In relation to (b) above, Dr Co’burn’s report did not identify the reasoning process on which it was based, sufficiently to allow the Commission to evaluate the doctor’s opinion. It was a “bare ipse dixit”. As an expression of expert opinion, the report did not carry weight, and did not provide probative evidence on which the Commission could act. That was the issue of whether there was a causal relationship between Mrs Barrett’s excessive drinking after the psychological injury and her death from liver disease. The Arbitrator was aware of the deficiency in the report, and correctly referred to the lack of supportive reasoning. ()
- The Arbitrator referred to the fact that Dr Co’burn was the treating general practitioner since at least January 2013. The Arbitrator, correctly, did not accept Dr Co’burn’s opinion on causation of the deteriorating liver disease and death. However, it was inherent in how Dr Co’burn expressed himself, that the doctor accepted there had been an excessive consumption of alcohol since the psychological injury. The only use the Arbitrator made of Dr Co’burn’s opinion was to regard it as confirmatory, of an opinion the Arbitrator had formed in any event, that Mrs Barrett’s alcohol consumption significantly increased since the psychological injury. It was available to the Arbitrator to accept Dr Co’burn on this limited issue. For the doctor, it would have been a matter of history and impression. It did not, in any event, affect the result, as the Arbitrator had independently reached that conclusion based on other evidence. This part of the appellant’s attack on the decision failed. ()
- The balance of the appellant’s submissions on this ground went to whether the Arbitrator erred in accepting the opinion of Dr Talley (in Mr Barrett’s case) in preference to that of Dr Sethi (in the appellant’s case). For the reasons given in dealing with Ground Two, the Arbitrator did not err in accepting the opinion evidence of Dr Talley in preference to that of Dr Sethi. Ground One failed. ()
- Deputy President Snell accepted that it is necessary to read the decision as a whole. ().
(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)
- The Arbitrator’s preference for Dr Talley was clearly open to him. He gave reasons for this conclusion. The conclusion was based not only on the expressed opinions of Dr Talley and Dr Sethi, it was based also on the other lay evidence and medical histories that the Arbitrator identified as being supportive of the conclusion. ()
- The Arbitrator’s reasoning, towards his acceptance of Dr Talley’s opinion, was not, on the reasons, based on the “strident fashion” in which Dr Sethi’s opinion was expressed. Deputy President Snell did not accept the submission that the Arbitrator decided the matter on the basis of demeanour. The Arbitrator sought to apply the principles in Fox v Percy. He had regard to objective factors such as the biochemistry results from time to time, contemporary materials such as the recorded histories in December 2014 and March 2015, and his view of the apparent logic of events. (–)
- Deputy President Snell held it was open to the Arbitrator to prefer the evidence of Dr Talley to that of Dr Sethi, notwithstanding that Dr Talley did not furnish a further report subsequent to that of Dr Sethi dated 20 December 2018. The Arbitrator found the views of Dr Talley more persuasive and gave valid reasons for this view. ()
- The Arbitrator was required to deal with the conflict of expert evidence consistent with established principles. The acceptability of the expert evidence included consideration of whether either Dr Talley or Dr Sethi was “found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable”. The Arbitrator was entitled to “take account of demonstrated partisanship and lack of objectivity”. The Arbitrator’s comments about how Dr Sethi expressed himself in his reports were plainly potentially relevant to these issues, particularly whether Dr Sethi’s views were partisan or lacked objectivity. Ultimately, the Arbitrator reasoned to a preference for Dr Talley’s views, without making such a finding regarding Dr Sethi. Ground Two failed. (, )
(Wiki v Atlantis Relocations (NSW) Pty Limited  NSWCA 174; 60 NSWLR 127; Hume v Walton  NSWCA 148; Eckersley v Binnie (1988) 18 Con LR 1, and Taupau v HVAC Constructions (Queensland) Pty Limited  NSWCA 293 considered)
- Deputy President Snell concluded above that the Arbitrator did not deal with the competing medical cases on the basis of ‘demeanour’. The submission that it was erroneous to reject Dr Sethi’s views when Mr Barrett had not put on further evidence, to respond to Dr Sethi’s last report, was raised as part of Ground Two and rejected. This effectively was sufficient to also dispose of Ground Three. ()
- In relation to the submission that the Arbitrator was in some way under an obligation to warn the appellant of the basis on which he proposed dealing with the case, Deputy President Snell held that even if it were accepted that the way in which the Arbitrator dealt with the expert evidence involved a consideration of demeanour, such a consideration could only have been based on the written evidence of Dr Talley and Dr Sethi. How those witnesses expressed themselves must have been plain to the parties and their legal representatives, something the parties could see for themselves. (–)
(Kuhl v Zurich Financial Services Australia Ltd  HCA 11; 243 CLR 361; MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 1636, and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 63; 231 ALR 592; 81 ALJR 515 applied)
- The premise on which Ground Three was based was essentially misconceived. Ground Three failed. The appeal therefore failed. (–)
Rainbow Group Pty Limited v Carrabs  NSWWCCPD 58
Whether certain findings of fact made by the Senior Arbitrator were available on the evidence; Davis v Council of the City of Wagga Wagga  NSWCA 34; regarding contents of medical notes considered
19 November 2019
The respondent worker, Mr Carrabs, suffered an accepted injury in the course of his employment when a bucket on an excavator struck him in the back, resulting in him requiring surgery to his lumbar spine. This case concerned whether the worker’s post-operative use of crutches caused him to develop a consequential injury to his right shoulder. An assessment of this involves close consideration of the worker’s statements, the medical evidence and relevant case law regarding consequential conditions.
The issues on appeal were whether the Senior Arbitrator erred in:
(a) making a material error of fact in finding that the worker developed right shoulder pain during the period from 16 February 2015 to 8 June 2015 (Ground One);
(b) making a material error of fact in finding that the worker had told his treating doctor, Dr Kuzmanovski, that he was experiencing pain in his right shoulder prior to 19 April 2016 (Ground Two);
(c) failing to give sufficient weight to the lack of contemporaneous evidence indicating that the worker was experiencing right shoulder pain during the period from 10 February 2015 to 19 April 2016 (Ground Three); and
(d) making an error of legal principle in finding the worker had discharged his evidentiary burden in establishing a causal connection between the worker’s lumbar surgery on 10 February 2015 and the development of right shoulder supraspinatus tendinopathy (Ground Four).
Held: The Senior Arbitrator’s Certificate of Determination dated 31 May 2019 was confirmed.
- Importantly, the following matters were not in contention in this case:
(a) that the worker sustained an injury to his lumbar spine on 25 May 2012 in the course of his employment;
(b) that as a result of this injury, the worker underwent lumbar surgery on 10 February 2015;
(c) post-surgery, the worker used crutches for a period of approximately 16 weeks;
(d) the worker asserted that at some time after the lumbar surgery he experienced pain in his right shoulder;
(e) the first recorded complaint of right shoulder pain appears in Dr Kuzmanovski’s notes on 19 April 2016; and
(f) there was no challenge made by the employer with respect to the worker’s statement being inaccurate or wrong. In particular, no issue was taken that the worker used crutches for the period stated in the worker’s statement dated 24 January 2019.
- The appellant submitted the Senior Arbitrator erred in relying on the evidence of Dr Kuzmanovski to determine when the worker first developed right shoulder pain. The appellant submitted Dr Kuzmanovski’s evidence (both in the clinical material and in the specific report to address this issue) provided no definitive answer to the critical question of ‘when’, and the Senior Arbitrator therefore erred in her reliance on this evidence.
- The President held that the Senior Arbitrator’s finding as to when the worker’s shoulder pain manifested was plainly available on the evidence, was consistent with the authorities and involved no error. The President found the Senior Arbitrator meticulously undertook a review of the evidence and was satisfied on the civil standard that the right shoulder symptoms first occurred while the worker was using crutches. ()
(Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang) applied)
- The President found that the appellant’s submissions regarding the medical notes paid no or insufficient regard to the cautions about such material arising from the Court of Appeal decisions in Mason v Demasi and Davis v Council of the City of Wagga Wagga, which stand for the proposition that medical notes ought not be read as a verbatim account of all complaints made by a worker to a doctor. The President found the Senior Arbitrator, quite properly dealt with both the medical notes and the appellant’s submissions about them in a reasonable and dispassionate manner consistent with the authorities. Further, given that the appellant employer did not challenge the history given by the worker, the Senior Arbitrator’s factual finding was clearly available and the making of it involved no error. ()
- The President further noted that to make the contrary finding, as was urged by the appellant employer, would involve the decision maker rejecting the worker’s unchallenged statement which would constitute the type of error described in Raulston v Toll Pty Ltd. That is, the Senior Arbitrator’s finding of fact must be shown to be wrong to be disturbed on appeal. Ground One was not made out. ( and )
- The President held that Ground Two suffered from similar deficiencies to Ground One, namely that the appellant employer was advancing a case which was based on a literal reading of Dr Kuzmanovski’s notes, contrary to authority. Further, the President found Ground Two had little or no regard for the unchallenged evidence of the worker which was to the effect that he first suffered pain in the right shoulder whilst he was using crutches post-operatively. Ground Two was not made out ()
(Mason , Davis –and Koorangang – applied)
- The President found Ground Three to be similarly deficient in terms of how the medical records were dealt with by the appellant. The appellant in Ground Three asserted that the sole evidence regarding the commencement of right shoulder pain was the worker’s statement. The submission went on to say that the statement of 24 January 2019 was made many years after the alleged development of right shoulder symptoms and “the worker’s recollection had potentially been coloured by Dr Kuzmanovski’s view that it could be related to the use of crutches”. (–)
- The President noted the difficulty with the appellant’s submission was that at no stage below or on appeal, had the appellant taken issue with the veracity of the worker’s history of the onset of his right shoulder symptoms. No submission had been put that he was mistaken or lying, but that was the purport and effect of this submission. If this was the case that the appellant wanted to pursue, these allegations should have been put in terms and the worker given the opportunity to respond. Ground Three was dismissed ()
- The President further noted that the worker disputed the appellant’s submission that the sole evidence of the complaint of right shoulder pain was in the worker’s statement, pointing to various pieces of evidence in support. Given that no issue was taken with the veracity of the worker’s evidence in this regard, the fact that there was no “contemporaneous evidence” during the period referred to in this appeal ground was immaterial. Ground Three was not made out. ().
- The President noted that Ground Four did not accurately describe or reflect the worker’s case. The worker did not allege that his right shoulder condition was related to the lumbar surgery itself. Rather, his case was that his right shoulder problem was a consequential condition which arose as a result of his use of crutches after the lumbar surgery. The President therefore dealt with Ground Four on the basis that it was alleging that the worker did not discharge his evidentiary burden in establishing a causal connection between the use of crutches post-operatively and the consequential condition that he developed in his right shoulder. ()
- The President held the Senior Arbitrator satisfied the principles established in Nguyen in respect of the discharge of the burden of proof. The President held that the Senior Arbitrator, far from being in error in her approach, systematically and meticulously considered and weighed the evidence, consistent with authority, before reaching her ultimate finding in accepting the worker’s evidence. Ground Four was not made out. (–)
(Nguyen v Cosmopolitan Homes  NSWCA 246, –applied)
MPGTC Pty Limited v Jones  NSWWCCPD 57
Factual findings – whether material facts were overlooked or misconstrued; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 considered; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 considered
8 November 2019
On 23 May 2004, Mr Jones sustained an accepted injury to his left ankle during the course of his employment with the employer as a painter, after falling from atop a bench which collapsed. The worker returned to work shortly after the incident and consequent to that injury underwent several surgical procedures to his left ankle over several years. He began experiencing right hip pain, which resulted in hip surgery in 2009 and a total hip replacement in 2011.
The worker made a claim for lump sum compensation for 29% WPI in respect of the left ankle and right hip as a consequential condition, relying on an assessment by Dr Bodel.
The issues on appeal were whether the Arbitrator erred in:
(a) fact in proceeding on the basis that the operating surgeon had conceded that the cause of the worker’s right hip pain was inter alia degenerative change (Ground One);
(b) determining that the evidence before him satisfied him that the right hip aggravation resulted from the injury of 23 May 2004 (Ground Two);
(c) concluding that the worker had discharged the burden of establishing on the balance of probabilities that an altered gait made a material contribution to the need for hip surgery (Ground Three), and
(d) accepting that Dr Boyle’s reference to “the wear pattern in the hip itself” was a reference to the osteoarthritis condition. This was not a conclusion available to him on the evidence (Ground Four).
Held: The Arbitrator’s Certificate of Determination dated 16 April 2019 was confirmed.
- There was no dispute about the injury to the worker’s left ankle on 23 May 2004. It was also accepted during the hearing before the Arbitrator that as a result of the accepted injury to the left ankle, the worker’s gait was altered. The question which was tried before the Arbitrator and which was contested on appeal was whether or not, having regard to the accepted injury to the left ankle, this created a consequential injury to the worker’s right hip. This involved the consideration of mixed questions of fact and expert medical testimony. (–)
(Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452, – per Kirby P considered and applied)
- Ground One alleged that the Arbitrator made a critical error of fact by proceeding on the basis that the operating surgeon, Dr Boyle, had conceded that the cause of the worker’s right hip pain was, amongst other things, degenerative change. In the President’s view, the Arbitrator’s reasons, when construed in their totality were that Dr Boyle was aware of the radiological findings of osteoarthritis in the right hip and said that he “could not argue against the fact that an alteration in gait pattern could indeed alter the wear pattern in the hip itself. Having said that [the worker’s] hip problem was indeed femoroacetabular impingement which is more likely an [anatomical] variant than a secondary problem”. The President noted that this acknowledgement by the doctor took place in circumstances where there was no dispute that the worker had in fact suffered an altered gait as a result of his accepted left ankle injury. ()
- The President found the Arbitrator’s finding that the wear pattern in the hip itself was more likely a reference to osteoarthritis rather than the anatomical variant was precisely the type of “common sense inference” within the Arbitrator’s discretion to make. The President held the findings made by the Arbitrator with respect to Dr Boyle’s views were not factually in error, rather they faithfully reproduced the doctor’s views and consistent with the authorities, the Arbitrator was entitled to act “on his own intuitive reasoning” based upon the medical science. No error was made out in respect of Ground One. (–)
(Bes , May v Military Rehabilitation and Compensation Commission  FCAFC 93; 233 FCR 397,  (Bes) per McColl JA applied, Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd  HCA 140; 140 ALR 227) distinguished)
- It was convenient for the President to deal with Ground Four next as it was similar to the complaint advanced in Ground One. Ground Four alleged that the Arbitrator’s conclusion regarding the wear pattern in the hip was not available on the evidence. This was because even though Dr Boyle’s report referred to the investigations revealing osteoarthritis in the right hip, he did not reference that specific diagnosis when making comment about an alteration in gait pattern altering the wear pattern in the hip.
- The impugned finding of the Arbitrator was that the wear pattern in the hip is more likely a reference to the osteoarthritis than the anatomical variant. The President noted that the appellant’s criticism proceeded on the basis that the Arbitrator must have this fact established by medical science and that absent this specific diagnosis, the finding made was not available. The President did not accept this was a fair reading of the Arbitrator’s reasons. Rather, he found the Arbitrator’s finding was a result of the studied application of the principles in Bes and Christensen as well as the application of a common-sense inference discussed in May. Ground Four was not made out. (–)
(Bes , Christensen – and May applied)
- Ground Two alleged the worker failed to discharge his onus of proof. The appellant submitted that it was not available to the Arbitrator to prefer the evidence of Dr Bodel to that of Dr Boyle.
- The President noted that it was clear that the Arbitrator carefully reviewed the medical reports of both doctors, and that it could not be said that Dr Boyle completely discounted the osteoarthritis in the right hip. Dr Boyle said he “could not argue against” that the altered gait could alter the wear pattern in the hip itself. However, he considered the hip problem was more likely to be the anatomical variant. Dr Bodel went further and considered that the altered gait had aggravated, accelerated or exacerbated the deterioration of the accepted and known osteoarthritis in the right hip. The Arbitrator carefully considered this medical evidence and then superimposed on it the unchallenged evidence from the worker of being asymptomatic in the region of the right hip at the time of the fall and for approximately three years afterwards. (–)
- The President held the Arbitrator undertook a process of intuitive reasoning based on available constructions of the scientific evidence and from the worker. The President accepted the worker’s submission that Ground Two essentially argues that the appellant’s interpretation of one piece of evidence should have been accepted in preference to another interpretation. Ground Two was not made out. (–).
(Bes , Christensen – and May applied)
- Ground Three continues the appellant’s complaint that the worker did not discharge his burden of proof. In support of this submission, the appellant asserted that the Arbitrator accepted Dr Bodel’s opinion regarding the relationship of the altered gait and the hip condition which led to the need for total hip replacement. The appellant alleged that the treating surgeon considered and rejected this proposition.
- The President found that this appeal ground misstated the views expressed by Dr Boyle. Dr Boyle’s report and opinion were carefully considered and construed by the Arbitrator consistently with the views expressed by that practitioner. No relevant error had been identified as it is quite clear that when Dr Boyle was considering the worker’s hip condition, he had before him two problems, the anatomical variant and the alteration in gait affecting the wear pattern in the hip itself. He said one was more likely than the other meaning that Dr Boyle accepted the proposition or the fact that the worker had two problems in his right hip but that it was more likely that only one of them was the cause of the need for hip surgery. The Arbitrator carefully reviewed this medical evidence and as the finder of fact, consistently with the authorities, reached a view which was available to him on the evidence. This did not involve any error in construction of the medical evidence and Ground Three was not made out.
(Bes , Christensen – and May applied)
Naidu v State of New South Wales  NSWWCCPD 59
22 November 2019
The appellant worker was employed at St George Private Hospital collecting blood samples for pathology testing. She injured her right ankle and foot on 5 November 2007, when she twisted the ankle while pushing a trolley. A compensation claim was accepted. The appellant was off work from 6 November 2007 to 31 March 2008, when she resumed on restricted hours. The appellant alleged there were incidents of bullying after she resumed work. The appellant went off work from 14 July 2008, following an alleged assault by her supervisor, and did not resume.
The appellant alleged a primary psychological injury resulting from her treatment when back at work after the ankle injury. The claim was for lump sum compensation in respect of 22 per cent permanent impairment for psychological injury. The respondent denied liability on the basis that the appellant had not suffered a primary psychological injury. It contended that any psychological injury was secondary to the ankle injury and therefore the recovery of lump sum compensation was precluded by s 65A of the 1987 Act.
The Arbitrator entered an award for the employer. The worker’s original appeal was rejected on 27 November 2014 due to procedural non-compliance. On 10 May 2019, the worker lodged the current appeal.
The issue on appeal was whether the appellant would be granted leave to appeal out of time.
Held: The application to extend time pursuant to r 16.2(5) of the 2011 Rules was refused.
- Rule 16.2(5) of the 2011 Rules requires that the appellant lodge and serve, with the Application to Appeal, an application for the extension of time, including full details of the arguments to be put in favour of granting the extension. The Application to Appeal and the Amended Application to Appeal, lodged on 10 May 2019 and 31 May 2019 respectively, included attached material that fell within this description. Those Applications also included much other material, on which the appellant no longer sought to rely. The appropriate course was to regard the documentary material from the Amended Application, on which the parties addressed in respect of the extension application, or which was plainly relevant to the explanation of delay, as before the Deputy President for the purpose of dealing with the application to extend time. This was generally consistent with s 354 of the 1998 Act, and with the approach which the parties had taken to such material. (–)
The explanation of delay
- The delay from 13 October 2014 (the date of the arbitral decision) to 19 December 2014 (the last conversation with the Presidential Unit Manager following the rejection of the original appeal) was adequately explained. This left a period from about December 2014 to 30 May 2018, about three and a half years, when the appellant was represented by three different firms of solicitors. This period was largely unexplained. Two medical reports were obtained. There was a misconceived application to restore the original appeal proceedings which were no longer on foot. One of the firms requested material from the insurer and formed the view the proceedings did not have reasonable prospects of success. This amounted to some explanation of the delay over this period but it was not, in Deputy President Snell’s view, adequate. There was little explanation of what instructions the appellant gave, or of what (if anything) she did to have her solicitors progress the matter. There was no meaningful evidence about what contact the solicitors had with the appellant, and why. ()
- This then left a further period from 30 May 2018 to 10 May 2019, about one year, when the appellant was unrepresented. The only explanation of delay over that time was the appellant’s statement that she saw the Registrar of the Supreme Court of NSW, to see if she could lodge her case in that jurisdiction. Viewing the lengthy period of delay in its entirety, it was in no way adequately explained. There was little explanation at all of the last year. (–)
An arguable case
Grounds 1, 5, 6, 11, 12, 13 and 14
- Whether there is an arguable case depended on a consideration of the grounds. The appellant relied on 14 grounds. Grounds Nos. 1, 5, 6, 11, 12, 13 and 14 relate to how the Arbitrator dealt with the medical evidence (, ). The Deputy President concluded the Arbitrator erred in how he dealt with evidence from the appellant’s general practitioner, in that he failed to consider the evidence of that doctor as a whole. He was required to consider the pieces of that evidence together, reports and clinical material. ()
- There was passing reference in the reasons to the reports of Dr Sringeri (the treating psychologist) and Dr Gertler (the psychiatrist qualified by the appellant’s former solicitors), but not to the opinion of those doctors relevant to the central issue of whether the appellant had suffered a ‘primary’ or ‘secondary’ psychological injury. That opinion evidence was contrary to the Arbitrator’s conclusion that the psychological injury was secondary. It was necessary that the Arbitrator deal with this opinion evidence, and he failed to do so. This involved error. ()
Grounds 3 and 4
- The Arbitrator made an adverse credit finding based on the appellant’s Facebook account and surveillance material. In Grounds 3 and 4 the appellant raised issues going to whether this finding involved error. Deputy President Snell held that the arguments raised in these grounds would not succeed. (–)
Grounds 2, 7 and 10
- The Arbitrator found that he could not accept the evidence of the appellant unless it was independently corroborated. Grounds 2, 7 and 10 sought to identify aspects of the evidence where the appellant was allegedly corroborated, such that her evidence should have been accepted in any event. Deputy President Snell concluded that Grounds 2, 7 and 10 would not succeed. (–)
- The appellant submitted that the Arbitrator erroneously concluded, because the meeting on 11 March 2008 was not referred to in the appellant’s statement, that it was not of significance. Deputy President Snell held the appellant’s submission that there was no reason to conclude the symptoms were other than a result of events at work tended to invert the onus. The appellant carried the onus of establishing there was a primary psychological injury, which was disputed. The Arbitrator’s remarking on this deficiency in the appellant’s case was available. (–)
- The appellant submitted the Arbitrator did not indicate he had considered the principles in State Transit Authority of New South Wales v Chemler  NSWCA 249; 5 DDCR 286 (Chemler). ()
- Deputy President Snell held that whether the appellant suffered a ‘psychological injury’ was not the issue. What was in issue was whether the appellant suffered a ‘primary psychological injury’. The Arbitrator’s credit finding was that he would only accept the appellant’s evidence if independently corroborated. The evidence the appellant sought to rely on as corroborative would not independently corroborate something that the appellant allegedly perceived to have happened. The respondent’s submission on this point was correct. Having been raised in the appellant’s submissions before the Arbitrator, and potentially being relevant to the case the appellant presented, the Arbitrator should have referred to the argument based on Chemler. However, given the credit finding, that argument would not succeed. The appellant’s perception of events was not, in the circumstances, something that could be independently corroborated. ()
- It followed that the various arguments raised by the appellant dealing with ‘injury’ would not have succeeded. ()
The presence of ‘exceptional circumstances’
- A Presidential member, dealing with an application to extend time pursuant to r 16.2(5) of the 2011 Rules, is required to consider the presence of ‘exceptional circumstances’. (–)
- The appellant carried the onus on the extension of time application, which included the issue of ‘exceptional circumstances’. The evidence dealing with the very lengthy period during which the matter was out of time, whether the events were viewed individually or in combination, did not establish the existence of ‘exceptional circumstances’. ()
(Bryce v Department of Corrective Services NSWCA 188; Yacoub v Pilkington (Australia) Ltd  NSWCA 290; Vaughan v Secretary, Department of Education  NSWWCCPD 1, and Webb v Penrith Rugby Leagues Club Ltd  NSWWCCPD 16 applied)
Other matters described in Gallo v Dawson
- The history of the proceedings, the conduct of the parties and the nature of the litigation did not much assist the appellant. The respondent did not assert prejudice. There was no indication that the respondent did anything to hinder the appellant or to act in a way that was obstructive. The consequence to the appellant, if her application to extend time failed, was that she would not be able to bring the appeal. The respondent has a vested right to retain the award in its favour, unless the application to extend time is granted. ()
- Deputy President Snell held the appeal was a long way out of time, a period of approximately four and a half years. The extensive period of delay was not adequately explained. The Deputy President was not satisfied that ‘exceptional circumstances’ ware present. He was not satisfied that the appeal was fairly arguable. The various relevant factors did not support the extension of time. The lack of forensic diligence, on the part of the appellant and two of the solicitors that she instructed, also militated against the extension of time. The Deputy President was not satisfied that loss of the right to appeal would work demonstrable and substantial injustice to the appellant. The appropriate order was that the appellant’s application to extend time be refused. (–)
(Gallo v Dawson  HCA 30; 64 ALJR 458; Iovanescu v McDermott  NSWCA 106; Salido v Nominal Defendant (1993) 32 NSWLR 524; Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409; Trazivuk v Motor Accidents Authority of New South Wales  NSWCA 287, and Gerlach v Clifton Bricks Pty Ltd  HCA 22; 209 CLR 478; 76 ALJR 828 applied)