Issue 6: June 2019

Ballina Shire Council v Knapp [2019] NSWCA 146

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the 1998 Act and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the 1987 Act – ground conceded by the appellant

WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone – “no evidence” ground does not apply – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed

Basten, Macfarlan, and Payne JJA

20 June 2019

Facts

The worker brought proceedings in the Commission for benefits flowing from a motor vehicle accident on 5 July 2014, whilst he was driving to work. He was exceeding the speed limit and talking on a mobile telephone at the time. Two passengers in the oncoming vehicle were killed and the worker was severely injured. The worker pleaded guilty to charges of dangerous driving causing death. Section 10(1A) of the 1987 Act was raised as a defence, on the basis the injury was attributable to the serious and wilful misconduct of the worker. The worker succeeded before the Arbitrator, on the basis that the injury occurred on a periodic journey within s 10(1) of the 1987 Act, and it was not attributable to the worker’s serious and wilful misconduct.

On a Presidential appeal, Deputy President Wood found that serious and wilful misconduct was established, and the worker was disentitled to benefits pursuant to s 10(1). The Deputy President then re-determined the matter, relying on Chubb Security Australia Pty Ltd v Trevarrow[2004] NSWCA 344; 5 DDCR 1 (Chubb). She concluded that the injury was one arising out of the employment, referring to Tarry v Warringah Shire Council (1974) WCR (NSW) 1 among other authorities.

The employer appealed to the NSW Court of Appeal.

The grounds of appeal were whether the Deputy President:

(1) erred in finding that the respondent’s injury arose out of his employment with the appellant within the meaning of s 4 of the 1987 Act, in circumstances where:

(a) the injury did not occur in the course of or as a result of anything that occurred in the course of, his employment;

(b) the circumstances that caused the injury constituted serious and wilful misconduct on the part of the respondent within the meaning of the 1987 Act, s 10 and s 14;

(c) the circumstances that caused the injury constituted gross misconduct on the part of the respondent, such as would have taken him out of the course of his employment had he been in it;

(d) it was not open to the Deputy President to reason that the respondent’s acts, of the character described, caused his injury to arise from his employment, having found that the appellant played no part in the respondent’s commission of those acts;

(e) it was not open to the Deputy President to find that the respondent’s injury arose from his employment, merely because:

(i)      the respondent was required to travel to work;

(ii)      the respondent had been issued with a mobile telephone; and

(iii)     the calls that caused the injury were made on that telephone to his supervisor;

(2) erred in failing to consider whether the respondent’s employment was a substantial contributing factor to his injury within the meaning of s 9A of the 1987 Act;

(3) erred in deciding the appeal on a basis that was outside the scope of the errors asserted in the grounds of appeal, and the submissions of the parties on appeal, in excess of the jurisdiction conferred by s 352(5) of the 1998 Act, and

(4) denied the appellant procedural fairness in finding that the respondent’s injury arose from his employment, when the respondent had made no submission to that effect on appeal and the Deputy President gave the appellant no notice that she might decide the appeal on that basis and invited no submissions on it.

The respondent also filed a notice of contention that contended that:

(1) if the appeal was successful on the ground that the Deputy President should have dealt with s 9A, the Deputy President would have resolved s 9A in favour of the respondent, and

(2) the Deputy President was entitled to find that the issue of “arising out of the course of employment”, pursuant to s 4 of the 1987 Act was an issue to be resolved on the appeal before her, given the terms of the s 74 Notice, the submissions before the Arbitrator, the submissions before the Arbitrator, and the submissions before her.

Held: The appeal was allowed, the Deputy President’s orders of 27 August 2018 were set aside, and in lieu thereof, the appeal was allowed from the determination of the Arbitrator (and the Certificate of Determination of 11 April 2018 was set aside and an award made in favour of the respondent to the application of the Commission). The respondent’s cross-appeal of 30 January 2019 (in the Court of Appeal) was dismissed.

Basten JA

1. Basten JA held that in addition to the Deputy President exceeding her function in identifying and upholding the claim on a basis that was not the subject of appeal, the conclusions reached were wrong in law. ([2])

2. His Honour held that the Arbitrator was correct in dealing with the matter as a “journey claim” under s 10. The worker “was not undertaking duties in the course of his employment, within working hours, and at a place of work. If an injury in the course of travelling from home to work was an injury arising out of or in the course of employment for the purposes of s 4 of the [1987] Act, s 10 would be otiose.” His Honour stated that this conclusion was not affected by the fact that the respondent was making a call to his supervisor, nor the fact that he was using a mobile phone supplied by his employer. His Honour said that even if the car had been supplied by the employer, the position would not be different. ([3])

3. Basten JA noted that the causal connection in the phrase “arising out of … employment” must be more than travelling from home to work. His Honour observed that this case was not an interval case, that is, a claim for injuries sustained between two intervals of employment while the employee was at a place required in order to continue or complete the employment duties at a future time. ([4])

(Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 and Comcare v PVYW [2013] HCA 41; 250 CLR 246 distinguished)

Payne JA (Macfarlan JA agreeing; Basten JA agreeing, with further reasons provided)

4. Payne JA held that there was no notice of contention before the Deputy President (formal or informal) or other notice given by the respondent seeking to claim compensation, other than in reliance on a journey claim under s 10 of the 1987 Act. ([18])

5. The Deputy President concluded that she was satisfied that the respondent’s actions constituted serious and wilful misconduct in accordance with s 10(1A) of the 1987 Act. His Honour held that that conclusion was determinative of the only question before the Deputy President. However, she went on to conduct a review of the evidence to determine whether the worker was entitled to compensation other than under s 10, relying on Chubb, as providing her with authority to determine the case, even after she had made dispositive findings about the only issue before her. ([20]–[22], [28], [30])

6. His Honour recorded that at the commencement of oral submissions before the Court of Appeal, the respondent conceded that ground 3 of the notice of appeal should be upheld and the notice of contention should be dismissed. Payne JA held that the respondent’s concession was correctly made. ([31]–[32])

7. His Honour held that the terms of s 352 at the time that Chubb was decided was significantly different. Payne JA said that the appeal before the Deputy President was limited to a determination of whether the Arbitrator’s decision “was or was not affected by any error of fact, law or discretion, and to the correction of any such error”. The section specifically provided that the “appeal is not a review or new hearing”. ([33])

8. Payne JA stated that the language of s 352(5) as it now appears, makes it clear that the dicta in Chubb relied upon by the Deputy President had no role to play in the appeal before her. The only question raised by the parties before the Deputy President was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the 1987 Act. Having dismissed that claim, in the circumstances of this case, the Deputy President had no jurisdiction to determine whether the respondent was entitled to compensation on some other basis. ([34])

(Chubb distinguished)

9. With respect to the cross-appeal, his Honour held that it should be dismissed. ([35]–[42])

WORKERS’ COMPENSATION – whether the worker was entitled to be paid the cost of hearing aids pursuant to s 60 of the 1987 Act – whether the Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly

WORKERS’ COMPENSATION – assessment and amount of compensation – whether the Deputy President failed to apply ss 122 and 326 of the 1998 Act – whether the Deputy President failed to apply s 122(6) as to the effect of the “conclusive evidence” of a medical panel certificate

Gleeson, White JJA, and Emmett AJA

13 June 2019

Facts

This case concerned a claim for the cost of digital hearing aids, which the respondent worker claimed to be $5,657.80. The worker was employed by the appellant, Bluescope, from 1965 until 31 October 2000. It was not disputed that the worker’s employment was noisy. However, the appellant disputed that hearing aids were reasonably necessary as a result of the worker’s compensable hearing loss. The worker had had a number of previous claims for lump sum compensation pursuant to s 16 of the 1987 Act.

On 21 August 2002, a Medical Panel of the Compensation Court issued a certificate under s 122(5) of the 1998 Act, stating that the worker suffered 1.9% binaural loss of hearing due to boilermaker’s deafness or deafness of a similar origin (the 2002 Certificate).

The worker relied on a medical report dated 6 July 2017 from Dr Tamhane, ear, nose and throat specialist, who supported the need for digital hearing aids. There was no evidence adduced to contradict Dr Tamhane’s evidence.

At first instance, Senior Arbitrator McDonald determined that the provision of hearing aids was reasonably necessary and as a result of his noise induced hearing loss. Bluescope appealed against the Senior Arbitrator’s determination.

On appeal, Deputy President Wood ultimately confirmed the Senior Arbitrator’s determination for different reasons.

Bluescope appealed against the Presidential determination to the NSW Court of Appeal.

The issues on appeal were whether the Deputy President:

(a) failed to apply s 60(1)(a) of the 1987 Act correctly;

(b) failed to consider and apply s 122(6) of the 1998 Act as to the “conclusive evidence” of the 2002 Certificate;

(c) made crucial findings that were not open on the evidence;

(d) made findings to the effect that the worker’s hearing loss, as assessed by Dr Tamhane, was in fact caused by his employment with Bluescope where the worker had not worked for Bluescope since 31 October 2000 and the Deputy President was not an expert;

(e) erred in finding that the whole of the worker’s hearing loss as at the time of the examination by Dr Tamhane was work related, in circumstances where the worker had ceased his employment on 31 October 2000 and there was no medical or other evidence to support such a finding and the Deputy President was not an expert;

(f) erred in finding that there were no other factors available, other than work related injury, that could or might explain the deterioration in the worker’s hearing between 31 October 2000 and the time of his examination by Dr Tamhane, and

(g) failed to set out adequate or lawful reasons for her decision.

Held: Leave to appeal refused with costs.

Emmett AJA (Gleeson and White JJA agreeing)

1. An appeal on a point of law may be brought to the Court from a decision of the Commission constituted by a Presidential member. Leave was required because the amount claimed by the worker was less than $20,000 in accordance with s 353(4)(c) of the 1998 Act. ([4])

2. The thrust of the appellant’s contention in support of the grant of leave to appeal was that the appellant had received in excess of 25,000 hearing loss claims, most of which arose from workers whose employment had been at the Port Kembla steelworks, where the respondent worked. ([5])

3. At the hearing on 10 May 2019, the Court dismissed the appellant’s summons seeking leave to appeal and ordered the appellant pay the respondent’s costs. The Court reserved its reasons for dismissing the application for leave. These were those reasons. ([20])

4. The appellant complained that neither the Arbitrator nor the Deputy President applied s 122 or s 326 of the 1998 Act. Emmett AJA held that there had been no suggestion that there was any doubt as to the effect of s 122 or s 326, or that there was any misapprehension on the part of the Commission and its members as to their effect. The complaint was simply that both the Arbitrator and the Deputy President failed to apply s 122. ([23])

5. His Honour held that a fair reading of Deputy President Wood’s reasons made clear that she did not ignore s 122. Emmett AJA noted that the Deputy President, in the background to the appeal, referred to the number of claims and noted that the total binaural hearing loss for which the worker received lump sum entitlements was 8.38%. His Honour noted that Wood DP recorded the further claim under s 66 in 2001 and that the Medical Panel issued a Certificate assessing the worker’s binaural hearing loss as 1.9%. Emmett AJA observed that Wood DP noted that pursuant to s 122(6), that certificate was conclusive as to the matters certified. His Honour said:

[h]ad the Deputy President then made a finding that the Worker’s binaural hearing loss was something different from 1.9%, either the Worker or Bluescope may have had a basis for a complaint. However, notwithstanding the contentions advanced on behalf of Bluescope, the Deputy President did no such thing ([24]–[26])

6. In relation to Dr Tamhane’s Certificate, the appellant submitted that the assessment of 7.1% loss assessed by Dr Tamhane indicated that there must have been a significant portion of loss that was non-work related, in so far as it occurred after the date of the assessment by the Medical Panel. ([28])

7. Emmett AJA observed that Wood DP found that on the available evidence, the whole of the worker’s hearing loss was work related and that that hearing loss materially contributed to the need for hearing aids as recommended by Dr Tamhane, and was satisfied that the hearing aids were reasonably necessary. ([29])

8. His Honour concluded that the reasoning and findings “were not inconsistent with the 2002 Certificate.” Emmett AJA held that Wood DP expressly accepted that that Certificate was conclusive evidence as to the matters certified. His Honour held that the point, however, was that the evidence of Dr Tamhane supported the conclusion that, assuming the 2002 Certificate was correct, the need for hearing aids was the result of work related hearing loss. ([30])

Refusal of Leave

9. The Court concluded that there “was no error on the part of the Deputy President” of the nature asserted by the appellant. It further held “there is no reason to suggest that the Commission or its officers or members will, in the future, ignore the clear terms of s 122 and, if relevant, s 326 of the 1998 Act.” The appeal did not raise any question of law or principle. Accordingly, leave was refused with costs. ([31])

Yildiz v Fullview Plastics Pty Ltd [2019] NSWWCCPD 24

Claim for lump sum compensation for pain and suffering pursuant to repealed s 67 of the 1987 Act; whether entitlement to s 67 benefits is preserved by the savings and transitional provisions introduced by the 2012 amending Act; cll 3 and 15 of Pt 19H of Sch 6 to the 1987 Act; cll 10 and 11 of Sch 8 to the 2016 Regulation; Woolworths Ltd v Wagg [2017] NSWWCCPD 13 distinguished

Phillips P

30 May 2019

Facts

The issue in dispute on appeal primarily concerned whether the appellant worker was entitled to lump sum compensation under the repealed s 67 of the 1987 Act. In particular, it concerned the application of the Presidential decision in Woolworths Ltd v Wagg [2017] NSWWCCPD 13.

On 1 March 2004 the appellant sustained an injury to his right shoulder, hip and knee in the course of his employment. His right shoulder injury was subsequently aggravated in the course of his employment on 6 June 2005 whilst attempting to unblock a plastic grinder machine. The appellant underwent surgery on 31 May 2006 in respect of his right shoulder injury.

On 15 January 2007, the appellant made a lump sum compensation claim pursuant to s 66 of the 1987 Act in respect of the 2004 and 2005 injuries. This was subsequently resolved by complying agreement pursuant to s 66A of the 1987 Act on 17 April 2007 for lump sum compensation for 7% whole person impairment in respect of the right shoulder, pursuant to s 66 of the 1987 Act.

On 30 March 2017, the appellant made a further claim for lump sum compensation for 18% whole person impairment, pursuant to s 66 in respect of deterioration in his right shoulder and consequential condition to his left shoulder. He also made a claim for lump sum compensation for pain and suffering pursuant to the repealed s 67 of the 1987 Act. In a MAC dated 6 November 2018, the appellant was assessed as having 17% whole person impairment in respect of the 2004 and 2005 incidents.

In a Certificate of Determination dated 20 December 2018, the Arbitrator held the appellant had made a claim for lump sum compensation in relation to the injuries of 1 March 2004 and 6 June 2005 prior to 19 June 2012. She further found that the compensation paid pursuant to the complying agreement of 17 April 2007 was for permanent impairment resulting from both injuries. It followed that the appellant was entitled to bring one further claim for lump sum compensation in relation to both injuries. The Arbitrator ordered the respondent employer pay the appellant further lump sum compensation pursuant to s 66 of 1987 Act, in respect of 17% whole person impairment in line with the MAC.

The Arbitrator held that the appellant’s entitlements to s 67 benefits, however, were not preserved by the savings and transitional provisions introduced by the 2012 amending Act. This, and the application of Wagg in respect of the appellant’s case, was the main issue in dispute on appeal.

Held: The Certificate of Determination dated 20 December 2018 was confirmed, albeit on different grounds.  

Application of savings and transition provisions

1. Prior to the amendments introduced by Sch 2 to the 2012 amending Act, workers who received an injury that resulted in a degree of permanent impairment of 10% or more were entitled to receive, in addition to any other compensation, compensation for pain and suffering resulting from the permanent impairment pursuant to s 67 of the 1987 Act.

2. Subject to certain specific exceptions in the savings and transitional provisions the amendments introduced by Sch 2 to the 2012 amending Act abolished a worker’s rights to receive compensation for pain and suffering pursuant to s 67 of the 1987 Act. An exception to the repeal of s 67 of the 1987 Act is found in cl 10(1) (formerly cl 11) of Pt 1 of Sch 8 to the 2016 Regulation. Clause 10 provides that the amendments introduced by Sch 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under s 66 or 67 of the 1987 Act.

3. Clause 15 of Pt 19H of Sch 6 to the 1987 Act protects entitlements the subject of claims made before 19 June 2012 from the general application of cl 3 of Sch 6 of Pt 19H of the 1987 Act. The protection provided by cl 15 of Pt 19H is “liable to be affected by regulation.” In this regard, cl 15 of Pt 19H of Sch 6 to the 1987 Act is to be read subject to cl 10 of Sch 8 of Pt 1 to the 2016 Regulation as outlined above.

(ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel), [13] (per French CJ, Crennan, Kiefel and Keane JJ) applied)

4. In Goudappel, the High Court confirmed that the savings and transitional provisions only applied where a prior claim had been made that specifically sought compensation under s 66 or s 67 of the 1987 Act. The plurality identified the purpose of cl 11 (as it was then; now cl 10) as:

The purpose of cl 11 [now cl 10] … was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66.

Discussion

5. In the matter below, the Arbitrator determined the appellant’s entitlement to s 67 benefits based on the application of the savings and transitional provisions. The Arbitrator distinguished the decision in Wagg on the basis that in the present case, unlike the matter in Wagg, there was no claim made prior to June 2012 that was still on foot. It followed that the Arbitrator found that the appellant was entitled to one further claim for lump sum compensation pursuant to cl 11. However, cl 11 only refers to a claim that specifically seeks compensation under s 66 of the 1987 Act. Accordingly, the Arbitrator found the appellant had no entitlement to make a further lump sum compensation claim under s 67 of the 1987 Act. In other words, the Arbitrator held that the s 67 claim was attached to the further claim for lump sum compensation (under s 66) and because a “lump sum compensation claim” only extends to a claim for s 66 benefits under cl 11, the appellant’s entitlement to s 67 benefits was not preserved by the savings and transitional provisions.

6. On appeal, President Phillips agreed with the Arbitrator’s distinction between the present matter and the decision in Wagg. However, the President found the Arbitrator’s application of cl 11 to determine whether the appellant’s entitlement to s 67 benefits was preserved was the incorrect approach. That was because the s 67 claim was not a further claim for lump sum compensation. The claim for s 67 benefits was a new and separate claim, to the original claim for s 66 benefits and further claim for s 66 benefits. The claim for s 67 benefits materialised on 30 March 2017 when the appellant made a specific claim for lump sum compensation pursuant to s 67 of the 1987 Act. It was a claim made in respect of the same injury with the same pathology, as the original s 66 claim which was resolved by complying agreement in 2007. At the time the original claim was made the assessment of permanent impairment resulting from injury was 7% whole person impairment, and the degree of permanent impairment did not reach the threshold of more than 10%. The appellant could not seek to attach his current assessment of impairment of 17% to the original claim for s 66 benefits, which was resolved by complying agreement, in an attempt to preserve his entitlement to s 67 benefits. It follows that the s 67 claim was made, for the purposes of cl 15 of Sch 6 of the 1987 Act, after 19 June 2012. Therefore, the amendments made by Sch 2 to the 2012 amending Act extend to that claim for compensation, unless an exemption applies.

(Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 and Sukkar v Adonis Electrics Ptv Ltd [2013] NSWWCCPD 59 (Sukkar) applied)

7. The President further noted that if Parliament intended that entitlement to s 67 benefits extended to workers in the appellant’s position it would have expressly provided for this in the savings and transitional provisions.

8. The President found this construction of the savings and transitional provisions was consistent with the language and purpose of the provisions of the statute, namely the 2012 amending Act. The President noted is was also consistent with the Court of Appeal’s decision in Sukkar in respect of difference between a resolved claim and an unresolved claim.  Further, the President noted that in this case the repeal of s 67 of the 1987 Act was such a cost-saving intention.

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, [69] applied, Goudappel and Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 referred to)

9. The President found that to the extent that the Arbitrator considered the claim for s 67 benefits was a “further claim for lump sum compensation” and applied cl 11 to disentitle the appellant from the benefits of s 67 she erred. However, for the above reasons, the Arbitrator’s ultimate conclusion remained unchanged and the appeal did not succeed.

Elsamad v Belmadar Pty Ltd [2019] NSWWCCPD 22

Burden of proof – consideration of the phrase “comfortably satisfied” – Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 discussed; proof of an injury in the nature of an aggravation of a disease pursuant to s 4(b)(ii) of the 1987 Act – Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 applied; failure to evaluate relevant evidence – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied

Wood DP

28 May 2019

Facts

The appellant worker was employed by the respondent as a remote crane operator. The appellant suffered an injury in the course of that employment on 5 February 2015, when he was walking down a temporary stairway and a stair tread dislodged. The appellant alleged injury to his right shoulder, neck and back. The respondent accepted liability for the right shoulder, but denied liability for the neck and back.

The appellant sought lump sum compensation in respect of the whole person impairment of the cervical spine, lumbar spine and right upper extremity pursuant to s 66 of the 1987 Act, and treatment expenses pursuant to s 60, including the cost of a cervical fusion performed by Dr Pope, neurosurgeon on 6 June 2016.

The Arbitrator found in favour of the appellant in respect of the injury to the neck, but was not satisfied that the appellant suffered a back injury in the incident. The worker appealed against the determination in respect of tzhe alleged injury to the back.

The issues on appeal were whether the Arbitrator erred as follows:

(a) Ground one: error of law in failing to determine the question of injury on the balance of probabilities and instead applying a more onerous standard of proof (needing to be “comfortably satisfied”);

(b) Ground two: error of mixed fact and law by overlooking, and giving insufficient weight to, the contemporaneous evidence that the appellant injured his lumbar spine on 5 February 2015;

(c) Ground three: error of mixed fact and law by overlooking the evidence that the injury involved a high velocity impact of the appellant’s back against a brick wall, which should lead to a common sense conclusion that the kind of injury would cause injury to the lumbar spine;

(d) Ground four: error of mixed fact and law in basing her determination on the bald assertion by Dr Pope that the appellant’s low back symptoms were not related to the injury, without reconciling that opinion with the contemporaneous evidence, the opinions of Dr Ng, Dr New and Dr Chow, the history provided by the appellant to the medical practitioners, and the appellant’s own evidence;

(e) Ground five: error of mixed fact and law by failing to acknowledge the appellant’s own statement evidence that prior to the injury his back was “manageable”, that he injured his back in the incident on 5 February 2015, he had significant pain in his back when he arrived home, and his back pain “dramatically” and “considerably” increased, and

(f) Ground six: error of mixed fact and law by failing to provide proper reasons for preferring the unexplained opinion of Dr Pope over the contemporaneous evidence, the opinions of Dr Ng, Dr New and Dr Chow, the history given to the medical practitioners and the appellant’s statement.

Held: The Certificate of Determination dated 23 November 2018 was revoked in part and the matter was remitted to a different Arbitrator for re-determination of the outstanding issue.

Discussion and Consideration

1. In ground one of the appeal, the appellant contended that the Arbitrator misdirected herself by saying she was “not comfortably satisfied that there was a change in the pathology in the lumbar spine caused by the work incident”. It is trite to say that the relevant onus of proof in respect of a finding of injury is one of being satisfied on the balance of probabilities. The phrase “comfortable satisfaction”, which has been adopted by decision makers in various tribunals, found its origin in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw). ([130])

2. Put simply, while Briginshaw did not establish a third standard of proof, in circumstances where a serious allegation requires proof, a more careful approach must be taken in reaching the necessary conclusion that the allegation is made out. ([134])

3. The respondent asserted that the appellant was “cavilling with semantics,” and that there was no distinction between feeling “an actual persuasion” of a fact, in accordance with Nguyen v Cosmopolitan Homes [2008] NSWCA 246, and being “comfortably satisfied.” Deputy President Wood did not accept that it was a matter of semantics. ([135])

4. Had the Arbitrator decided she was comfortably satisfied of the occurrence of the injury, as the appellant submitted, that would not amount to error. Having found she was not “comfortably satisfied” was, however, a contrary consideration and indicated that the Arbitrator was applying a higher standard of proof than the circumstances required, which the appellant failed to meet. It followed that the Arbitrator erred in requiring herself to be so satisfied. ([137]–[138])

5. The second ground of appeal asserted that the Arbitrator either overlooked, or placed too little weight on, the contemporaneous evidence in relation to the appellant having injured his lumbar spine. The Arbitrator rejected the opinion of Dr New, and the initial opinion of Dr Rimmer, because the opinions were based on “retrospective reporting of symptoms”, and she was unable to reconcile them with the opinion expressed by Dr Pope, the treating specialist. ([139]–[142])

6. The difficulty with the above reasoning was that the appellant had consistently complained that he injured his back in the fall, firstly, to his employer, then within two days of the injury to his general practitioner. It could not be said that the symptoms reported to Dr New and Dr Rimmer, which were largely consistent with the appellant’s complaints throughout, were “retrospective”. The Arbitrator’s reason for rejecting Dr New’s opinion was erroneous. ([143]–[144])

7. As the appellant submitted, it was unclear from her reasons as to whether the Arbitrator rejected the appellant’s own evidence, or if she did, what the basis was for rejecting that evidence. The respondent’s defence of the matter was limited to an alleged inconsistency in the description of the injury, and a lack of evidence of a change in the lumbar pathology. It did not effectively impugn the appellant’s credit, which was corroborated by the employer’s report of injury and the consultation with Dr Chow two days after the injury. The Arbitrator’s reasons did not disclose any evaluation of the weight to be afforded to that evidence. ([147])

8. Where it is apparent from a decision that the decision maker made no analysis of the evidence competing with evidence apparently accepted, and gave no explanation for rejecting it, it is apparent that the process of fact-finding has miscarried. ([148])

(Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66] applied)

9. The Arbitrator’s reasoning process was overshadowed by an attempt to find corroborating pathology in circumstances where the appellant’s case was that there had been an aggravation of his lumbar condition. The appellant complained that his lumbar symptoms were made worse (more grievous) by the incident, and there was corroborating evidence to support that complaint. It was incumbent upon the Arbitrator to assess the weight of that evidence against the competing evidence. The rejection of, or lack of consideration of the probative value of, that evidence disclosed error on the part of the Arbitrator’s reasoning process. ([154])

(Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330; Military Rehabilitation and Compensation Commission v May [2016] HCA 19; Villar v Tubemakers of Australia Pty Ltd [2009] NSWWCCPD 57 applied)

10. By disregarding that evidence, it also suggested that the Arbitrator required evidence other than the appellant’s account of the effects of the injury, and the evidence that supported it, to satisfy herself on the question of injury. That is, the appellant’s evidence “could never suffice to establish injury.” By implication, the Arbitrator attached a higher standard than that required to determine the fact that the lumbar spine was injured. ([155])

11. It followed that grounds one and two of the appeal had been made out. It was therefore not necessary to deal with the remaining grounds of appeal. The only issue on the appeal was whether the appellant suffered an injury to his lumbar spine on 5 February 2015. The appellant had succeeded in establishing error, and the Arbitrator’s determination of that issue was revoked. It was appropriate, therefore, to remit the matter to a different arbitrator for re-determination of the outstanding issue. In the circumstances, it was further necessary to revoke the Arbitrator’s order that the matter be remitted to the Registrar for referral to an AMS. ([156]–[159])

Cathay Pacific Airways Pty Ltd v Ralph [2019] NSWWCCPD 21

Proof of injury pursuant to s 4(b)(ii) of the 1987 Act

Snell DP

24 May 2019

Facts

The worker was employed by the appellant as a commercial pilot.

On 23 January 1998, on a flight from Hong Kong to London, the worker was assaulted by a passenger. He suffered a contusion to the kidney, together with neck and back pain. He was admitted to hospital when he returned to Australia and was off work until 1 May 1998, when he resumed flying duties. This incident was not relied on in these proceedings, possibly because the worker’s contract of employment at that time was with a separate entity of the same name as the appellant, which was registered in Hong Kong. It was stated that the worker’s employment with the employer named in the proceedings did not commence until 17 January 2011.

The worker had ongoing difficulties with his lower back, and had surgery on 24 July 2006 decompressing the right S1 nerve root. On 28 July 2006, the worker underwent revisionary surgery to repair a dural tear. He resumed work as a pilot after this.

The worker suffered worsening back symptoms in 2011, and did not carry out duties with the employer after 9 September 2011.On 15 September 2011 the worker underwent surgery to his lumbar spine at L5/S1, and then further surgery to his back and knee resulting from complications.

The injury allegation in the current matter was of L5/S1 disc prolapse. It was alleged that on 9 September 2011 the worker “twisted around in the pilot seat with his left arm to retrieve a log book that weighed between 2 and 3 kg, which was located behind the Captain’s seat”. It was alleged the injury “manifested sufficiently” from that activity, or “was the final result of workplace activity over some time”. Those activities were described as sitting for prolonged periods, frequent twisting and rough landings.

The Arbitrator rejected the allegation of a frank injury on 9 September 2011. There were various historical inconsistencies surrounding this allegation, and that aspect was not challenged on appeal. However, the Arbitrator found there had been a ‘disease’ injury, with a deemed date of 9 September 2011, the date of incapacity. The Arbitrator rejected defences based on the ‘notice’ and ‘claim’ provisions, and that was not challenged on appeal.

The employer appealed against the Arbitrator’s finding of a ‘disease’ injury (and satisfaction pursuant to s 9A of the 1987 Act) based on the ‘nature and conditions’ of the worker’s employment, from 7 January 2011 to 9 September 2011.

The issues on appeal were whether the Arbitrator erred in:

(a) fact and law finding that the worker suffered injury to his back/lumbar spine as a result of the nature and conditions of employment with the employer between 7 January 2011 and 9 September 2011 (Ground No 1);

(b) fact and law in relying on the opinion of Dr Donald Dingsdag, who was not medically qualified, when finding that the worker suffered injury to his back/lumbar spine as a result of the nature and conditions of employment with the employer (Ground No 2);

(c) fact and law in failing to properly consider whether employment was a ‘substantial contributing factor’ pursuant to s 9A and/or s 16 of the 1987 Act (Ground No 3), and

(d) law in failing to give adequate reasons as to what aspect of the ‘nature’ and the ‘conditions’ of the worker’s duties gave rise to injury (Ground No 4).

Held: The Certificate of Determination dated 27 November 2018 was revoked, and in substitution an award was entered in favour of the respondent employer.

Worker’s submissions on Grounds 1 and 2

1. The worker submitted that the Arbitrator correctly referred to Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) – it is unnecessary to show a change in pathology, it is sufficient if there is a worsening of symptoms. As the alleged ‘disease’ injury predated commencement of the 2012 amending Act, employment only had to be a ‘contributing factor’ to the ‘disease’ injury, not the ‘main contributing factor’. The Arbitrator, in his reasons at [97], accepted the opinion of Dr Machart. Dr Machart accepted that employment after January 2011 could have caused further injury or aggravation: “Possibly could have, but not a great deal, one tenth maximal.” The worker submitted it was permissible to rely on this opinion, to support the finding that an aggravation had occurred. ([28])

Consideration of Grounds 1 and 2

2. It was necessary to read Dr Machart’s report as a whole. His views did not assist the worker. Dr Machart recorded a history of back injury in 1998 in the assault, followed by deterioration over subsequent months and years, and the development of sciatica. ([33])

3. The passage referred to at [1] above referred to “one tenth maximal”. When read in the context of the report as a whole, it was apparent the doctor was referring to the small proportion of the overall impairment which the doctor regarded as resulting from the incident on 9 September 2011, of which he was given a history. ([35])

4. The worker referred to Semlitch, correctly identifying that a worsening of symptoms is consistent with an injury involving the aggravation, etcetera of a disease, and that proof of such an injury does not necessarily involve a change of pathology. The Arbitrator approached proof of the alleged ‘disease’ injury, on the basis that the deemed date of injury was prior to commencement of the 2012 amending Act. This approach was available, consistent with the reasoning in Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31; 10 DDCR 174 and the authorities cited therein, and was one Deputy President Snell agreed with. However, acceptance of worsening symptoms did not, without more, establish the occurrence of the alleged ‘disease’ injury. Dr Machart did not approach the matter on the basis that worsening symptoms were associated with the duties of a pilot. ([36])

5. It remained necessary that the worker establish that “the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”. ([38]–[40])

(Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 referred to)

6. The question of whether the worker’s duties as a pilot constituted a contributing factor, to the aggravation, etcetera of the disease in his lumbar spine, was not one that was “within the realm of common knowledge or experience”. ([41])

(Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720, at 724 and  [2011] HCA 36; 244 CLR 352; 281 ALR 223; 85 ALJR 1130, at [66] applied)

7. On the evidence in the current matter, there were various potential explanations of the increase in the worker’s symptoms in 2011. One was that this simply represented the natural progression of the disease process, the basis on which Dr Machart had explained the increase in symptoms in 2006 which led to the earlier surgical procedures (over a time when the worker had also been working as a pilot). There were other potentially causative factors raised on the basis of the clinical notes of Dr Golder. In the circumstances of the case, proof of the ‘disease’ injury required acceptable medical evidence on the issue of whether the worker’s employment was a contributing factor to the increase in symptoms in 2011 (which the Arbitrator accepted occurred). There was an absence of such evidence. ([42])

8. The worker needed to prove that the work duties were a contributing factor to the alleged aggravation of lumbar spinal disease. This was an issue, at least in part, of medical causation. Dr Dingsdag was not a medical practitioner, he had a PhD in industrial relations and occupational health and safety. The issue did not fall within Dr Dingsdag’s expertise. The attempt to rely on Dr Machart’s opinion could not succeed, as it involved a misreading of the doctor’s opinion when his report was read as a whole. This was not, like EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; WCR 114, a matter where medical experts found a possibility reasonably acceptable, and a court or tribunal could then look to the whole of the facts to consider whether the possibility was established on the probabilities. Accepting, as the Arbitrator did, that there was an increase in lumbar symptoms during 2011, the worker could not succeed in establishing the alleged ‘disease’ injury. The medical evidence did not deal with the issue of whether the worker’s duties as a pilot contributed to that symptomatic change. The worker could not, on the evidence, establish that the employment was a contributing factor to the aggravation. The Arbitrator’s finding on this issue was not available on the evidence, and involved error. ([45])

9. The Arbitrator referred to the Presidential decision of Kara v Australian Integrated Suppliers t/as Guven Kebab Factory [2011] NSWWCCPD 11. It appeared to be stated by the Arbitrator as authority that an increase in symptoms, in the presence of significant degenerative changes, must of itself be consistent with a finding of injury. The Deputy President held that this proposition could not be correct. ([47])

10. Grounds Nos 1 and 2 were upheld. ([48])

Conclusion

11. The only basis on which the worker succeeded before the Arbitrator, on the question of ‘injury’, was on his allegation of injury based on the ‘disease’ provisions of the legislation. That finding in the worker’s favour could not stand, and there must be an award in the employer’s favour. It was unnecessary to deal with the remaining grounds. ([49])

AS v The State of New South Wales [2019] NSWWCCPD 18

Section 11A(1) of the 1987 Act – whether the injury was wholly or predominantly caused by the respondent’s actions

Wood DP

8 May 2019

Facts

AS, the appellant, was employed by the respondent as a Special Constable and, ultimately, as a Senior Special Constable. He was attached to the Counter Terrorism & Special Operations Group of the NSW Police Force. His employment was terminated on 4 January 2016.

On 10 February 2015 at 1.10 am, the appellant was handed a letter dated 9 February 2015 from the Professional Standards Command (the PSC). A copy of that letter was not in evidence, but the Arbitrator recorded that the parties agreed that the letter alleged that the appellant may have engaged in misconduct.

At an unspecified time between the date of that letter and 9 August 2015, the PSC sent the appellant a further letter, amending the allegations of misconduct. A clear and complete copy of that letter was not in evidence, but it was agreed that the amended version “gave further detail of, and scope to” the allegations made in the first letter.

The appellant ceased work on 16 February 2015, and consulted his general practitioner, Dr Fabian, who diagnosed the appellant as suffering from an adjustment disorder, and certified that the appellant had no capacity for work.

The appellant lodged a NSW Police incident notification form on 25 May 2015 claiming bullying, harassment, victimisation, discrimination, and being accused of something he did not do. The date of injury was recorded as 10 February 2015 at 1.10 am.

Liability for the injury was initially accepted, however, the workers compensation insurer conducted an investigation into the claim which included obtaining statements from various witnesses, and by letter dated 15 June 2017, notified that the claim was declined.

The appellant commenced proceedings in the Commission, alleging psychological injury resulting from the “[n]ature and conditions of employment from 1990 to August 2015.”  He claimed weekly payments pursuant to ss 36 and 37 of the 1987 Act, the treatment expenses associated with the injury, as well as lump sum entitlements in respect of 19% whole person impairment pursuant to s 66 of the 1987 Act.

The matter proceeded to arbitration on 11 October 2018. The issues that remained to be determined were:

(a)     whether the appellant’s psychological injury was wholly or predominantly caused by reasonable action taken by the respondent, and

(b)     if the injury was compensable, whether it was caused by the appellant’s serious and wilful misconduct within the meaning of s 14(2) of the 1987 Act.

The Arbitrator issued a Certificate of Determination on 13 November 2018, entering an award in favour of the respondent. The appellant appealed.

The issues on appeal were whether the Arbitrator erred on the following grounds:

(a) Ground one: The Arbitrator erred by accepting the opinion of Dr Allan (consultant psychiatrist qualified by the respondent) and determining that the predominant cause of the appellant’s injury related to the allegations contained in the letter dated 9 February 2015 and the management of the disciplinary process that followed;

(b) Ground two: The Arbitrator erred in finding that the “allegations” by a co-worker, AT, which came to light before the letter dated 9 February 2015, formed part of the s 11A actions of the employer, or that those allegations were predominantly causative, and

(c) Ground three: The Arbitrator erred in finding that the respondent had proved its actions reasonable in requiring the appellant to work with officers with whom he was in dispute.

Held: The Certificate of Determination dated 13 November 2018 was confirmed.

Discussion

1. What is required in determining whether s 11A of the 1987 Act applies is firstly, to determine the causal factors to the injury, secondly to identify whether all or any of those events constituted actions by the employer in respect of discipline, transfer or any other actions identified in s 11A, and thirdly to determine whether the actions of the employer were the whole or predominant cause of the injury. If those actions were either the whole or predominant cause of the injury, then an assessment must be made as to whether those actions were reasonable. ([237])

2. In the circumstances of this case, there was no dispute that the process adopted by the respondent of handing the appellant the letter dated 9 February 2015, the subsequent investigations and ultimate termination were reasonable actions that fell within the actions specified by s 11A. The appellant’s case was that a number of causative events were not actions by the employer (including the making of the allegations by AT) and that the action in respect of transfer of the appellant was not reasonable. Although in his statement evidence the appellant complained that he was transferred without notice and against policy, the appeal did not challenge the manner in which the Arbitrator dealt with that transfer. The appellant’s ground of appeal in respect of “transfer” was limited to the assertion that the respondent ought to have transferred the appellant because of conflict between him and his co-workers. ([238])

3. The Arbitrator arrived at his ultimate determination by assessing the matter on a step by step basis. A pivotal part of that process was a consideration of the lay witness evidence and Dr Fabian’s (the appellant’s general practitioner) clinical notes, that led the Arbitrator to the conclusion that he did not accept the evidence of the appellant to be truthful. The failure to accept the appellant’s evidence, which was arrived at by a careful consideration of the inconsistencies between that evidence and the balance of the evidence before him, was not challenged by the appellant in this appeal. ([239])

Ground 1

4. Although the appellant made brief reference to the rejection of the opinion of Dr Rastogi (consultant psychiatrist qualified by the appellant), no submission was made that the Arbitrator ought to have accepted that opinion and why, or why he fell into error by not doing so. The Arbitrator rejected the opinion of Dr Rastogi on the basis that it was founded on a history that the Arbitrator did not accept because it was reliant upon the reliability of the appellant’s evidence. Deputy President Wood held that it was open to the Arbitrator to do so. ([240])

5. As part of ground 1, the appellant alleged that the Arbitrator adopted an “either/or” approach in dealing with the medical evidence from Dr Rastogi and Dr Allan. The Arbitrator appropriately analysed the report of Dr Rastogi and the basis upon which she arrived at her conclusions. The Arbitrator provided sound reasons for rejecting her opinion, and properly analysed the evidence before forming the view that Dr Allan’s reasoning and conclusions were of sufficient evidentiary value to provide a proper foundation for his decision. ([241])

6. The appellant submitted that Dr Allan changed his opinion on causation in each of his three reports, without explanation of the basis for the change. Deputy President Wood rejected this submission. ([249]–[250])

7. The Arbitrator noted that, implicitly at least, the appellant conceded that there was a basis for a change of opinion from the first report, namely the extensive factual investigation material and Industrial Relations Commission of New South Wales decision that were provided to Dr Allan after the first report. Secondly, the third report dealt with which events “predominantly” caused the injury, which is a different concept to that considered by Dr Allan in his earlier reports. Although the proper approach would have been to ask the doctor to provide an opinion on whether the actions of the respondent constituted the predominant cause of the injury, rather than to identify which events were the predominant cause, in the circumstances of this case, the outcome would not change. Dr Allan was firmly of the view that the actions of the employer predominated in causing the injury. ([251])

(Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 applied)

8. The appellant submitted that the Arbitrator erred in his construction of the second report, and that because the report was difficult to understand, the Arbitrator ought to have rejected it. The Arbitrator noted the lack of clarity in the report resulted from there being no distinction between what was “wholly” or “predominantly” the cause of the injury. That was a fair observation, but it did not extend to mean that the Arbitrator did not understand Dr Allan’s opinion. The Arbitrator considered and summarised an extract from the second report, noting the report was prepared in the light of the further material that had been sent to Dr Allan. ([252]–[253])

9. It was clear that Dr Allan had formed the view that overall, the psychological injury was caused by being handed the letter dated 9 February 2015 containing the allegations, and the consequent actions taken by the employer. Dr Allan provided a reasoned basis for arriving at that view, which was not inconsistent with his ultimate view. It was open to the Arbitrator to accept that opinion in the context of his consideration of the whole of the evidence from Dr Allan. However, the Arbitrator ultimately determined the matter on the basis of the third report of Dr Allan, which provided an opinion as to the predominant cause of the injury. ([254])

10. The appellant asserted that of the four established events, two or possibly three of those events were not actions by the employer. While those events were relevant, in Dr Allan’s view, to the causation issue, that was not sufficient to say that the respondent’s actions could not be the predominant cause. An assessment of whether certain events constituted the predominant cause of injury is not a mathematical calculation. ([256])

(ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27 applied)

11. The appellant’s criticisms of the Arbitrator’s acceptance of Dr Allan’s opinion and the Arbitrator’s ultimate findings were not made out and ground one failed. ([258])

Ground 2

12. The appellant submitted that the Arbitrator erred in considering that the allegations of sexual harassment was action taken by the respondent. That assertion was made by the appellant at the arbitration, and was dealt with by the Arbitrator in his reasons. The Arbitrator found that Dr Allan’s reference to the allegations of sexual harassment was a reference to the receipt by the appellant of the letter dated 9 February 2015 containing the allegations. The Deputy President observed that Dr Allan was of the view that the injury was attributable to the sexual harassment allegations and the ensuing ramifications, that is the reasonable actions taken by the respondent. ([259])

13. The appellant provided no reasons on the appeal as to why the Arbitrator’s conclusion was wrong. The appellant simply submitted that the Arbitrator ought to have found otherwise. The Arbitrator’s conclusion was a finding of fact for which he provided reasons. A finding of fact will not be disturbed on appeal unless it can be established that the Arbitrator took into account irrelevant material, overlooked material evidence or gave insufficient weight to the evidence. The appellant pointed to no evidence to support its assertion that the Arbitrator erred. It followed that this ground of appeal failed. ([260]–[261])

(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

Ground 3

14. The appellant submitted that the respondent was “well aware” before 9 February 2015 of the allegations made, the dispute between the co-workers and Operational Supervisor Mallia’s investigations, so that the respondent ought to have arranged for the appellant to be relocated. The Arbitrator found that the respondent had no reason to know there were factors distressing the appellant before 23 February 2015, when the appellant produced a medical certificate. ([262])

15. In relation to the respondent’s knowledge of the accusations made by AT, while it was clear the respondent was aware of those allegations before 9 February 2015, there was nothing that would indicate those allegations affected any other person other than the appellant and AT, who was transferred on 20 January 2015 and about whom the appellant made no complaint of ill will. There was no corroborative evidence that the respondent was aware of difficulties between the appellant and Operations Supervisor Pennington, Operations Supervisor Majcug or David Sherman. There was no evidence to indicate that the respondent was aware that the interpersonal conflict between Senior Special Constable Craven and the appellant was having or would have an adverse effect on the appellant. As the Arbitrator observed, when the appellant returned to work after informing the respondent he was having difficulties, the appellant was transferred to Government House. ([263])

16. The appellant asserted that the reason he broke down on 16 February 2015 was because he was required to work with Operations Supervisor Pennington, Operations Supervisor Majcug, David Sherman and Senior Special Constable Craven. This assertion was made in his statement evidence. The Arbitrator found that the appellant’s evidence could not be accepted without corroboration or where it conflicted with other evidence. The Arbitrator’s rejection of the appellant’s uncorroborated evidence was not challenged in this appeal. ([264])

17. It followed that the ground of appeal also failed. ([265])

Bennett v Qantas Airways Ltd [2019] NSWWCCPD 23

An arbitrator’s duty to give adequate reasons

Snell DP

29 May 2019

Facts

The appellant worker was employed by the respondent as a long haul flight attendant. On 16 May 2015, the appellant injured her left shoulder on a flight between Sydney and Los Angeles, lifting a bag of headsets from an overhead locker. She underwent an arthroscopic rotator cuff repair and acromioplasty on 20 October 2015. The respondent voluntarily accepted liability for the claim.

On her return to work on selected duties, the appellant performed clerical work at the Mascot long haul base, on a part-time basis.

On 9 June 2016, the appellant was involved in a further incident, while performing clerical work. Some boxes of archived documents were stacked on each other, to about waist height. As she was filing documents into one of the archive boxes it began to slide, and she twisted quickly to try to catch it to stop it from falling. She injured her lumbar spine. A claim on the respondent in respect of this injury was accepted. The appellant resumed selected duties following this injury until the cessation of her employment on 18 May 2017.

The appellant was assessed by Dr Bodel, orthopaedic surgeon, at the request of her solicitors. Dr Bodel assessed whole person impairment at eight per cent in respect of the left upper extremity (shoulder), and at seven per cent in respect of the lumbar spine. These impairments, if combined, yielded 14 per cent whole person impairment. Neither of the impairments, taken alone, was greater than 10 per cent, and accordingly, because of the operation of s 66(1) of the 1987 Act, neither was sufficient to yield an entitlement to lump sum compensation, taken on its own. The appellant made a claim based on the 14 per cent combined figure. The respondent rejected this claim, on the basis that neither individual impairment exceeded 10 per cent and the impairments could not be aggregated.

The Arbitrator was not persuaded that the appellant “suffered more than one pathology (‘injury’) as a result of the one incident or injurious event”, so as for the two impairments to be assessed together. She concluded that neither of the permanent impairments reached the threshold in s 66(1) of the 1987 Act. The worker appealed.

The single issue on appeal was whether the Arbitrator failed to provide adequate reasons.

Held: The Certificate of Determination dated 14 December 2018 was confirmed.

Rejection of the case run before the Arbitrator

1. The case run before the Arbitrator was that, when the appellant was on selected duties, a box began to slide. The lumbar injury was alleged to have occurred when the appellant twisted quickly so as to catch the box with her right arm, as she lacked the appropriate strength in her injured left arm. Deputy President Snell accepted the appellant’s submission, relying on Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), that conditions can have multiple causes. He accepted that establishment of causation involves, applying the common sense test of causation, that the injury to the left shoulder made a material contribution to the condition of the appellant’s lumbar spine. The appellant carried the onus in this regard. The Arbitrator did not accept the appellant’s case on this issue. ([37])

(Murphy and Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 applied)

Some specific attacks on the decision

2. The appellant correctly observed that the Arbitrator was not satisfied that the left shoulder injury “had any influence on the mechanics of the movement of the [appellant’s] back” in the second injury. The appellant submitted this did not explain why the second injury was not a consequence of the first. Putting the question in this way had a tendency to invert the onus. The operation of s 65(2) of the 1987 Act and s 322(3) of the 1998 Act was dealt with in Galluzzo v Little [2013] NSWCA 116. ([42])

3. Assessment of the two impairments, resulting from the two pathologies, together, required that the two pathologies result from the one incident or injurious event. The only injurious event ultimately pleaded by the appellant was that on 16 May 2015. The appellant’s argument required that the lumbar condition have resulted from that event. It was not suggested that the appellant injured her lumbar region in the injurious event on 16 May 2015. The appellant’s argument therefore depended on a factual finding that the lumbar condition resulted from the event on 16 May 2015. The Arbitrator did not accept that argument. That the Arbitrator was engaging in such an enquiry, which was consistent with how the matter was pleaded and conducted before her, was apparent from her reasons, particularly her reference to Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed) and her ultimate findings of fact. The Arbitrator adequately explained her reasoning process and why her findings of fact on causation led to the conclusion that the two impairments could not be aggregated or combined. The appellant’s attack on this aspect of the reasons was without merit. ([43])

4. The appellant’s submissions also criticised the Arbitrator on the basis that she placed “unnecessary emphasis on the fact that liability was accepted by the [r]espondent for two injuries”. The overall thrust of the Arbitrator’s reasoning did not turn on the fact that two claims were made, a matter that was only referred to on the one occasion in her reasons. Rather, her reasoning relied essentially on her analysis of the recorded histories, and the fact that the history of the appellant twisting her back, in guarding her left arm, featured nowhere in the recorded medical histories. The Arbitrator additionally relied on the fact that neither of the orthopaedic surgeons, qualified by the parties, identified a causal relationship between the two incidents and one of them, Dr Powell, rejected that proposition. The Arbitrator’s observation that two claims were made was factually accurate. There was no indication that she placed inappropriate emphasis on this evidence, which was a minor part of her analysis, and did not appear to have been in any way central to the conclusion that she reached. Error, on the basis of inadequacy of reasons, was not established by reference to how the Arbitrator dealt with the fact that there were individual claims for each of the injuries. ([44])

5. The Arbitrator gave clear reasons for why she did not accept the case as it was conducted before her. The specific case run at the arbitration hearing, consistent with the appellant’s statement, was that the lumbar condition resulted from twisting when a box moved, as the appellant sought to use her right arm and guard her injured left arm. This proposition had no medical support, and its acceptance depended on acceptance of the appellant’s evidence on this issue, and drawing a lay inference regarding the lumbar condition, on the basis of common knowledge or experience. When the reasons were read as a whole, it was apparent that the Arbitrator did not accept the version of the incident in the appellant’s statement, given its inconsistency with other evidence. The effect of this was that the appellant’s argument, that the lumbar condition resulted from the injury on 16 May 2015, failed. ([51])

(Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720, at 724 applied)

6. The Arbitrator’s reasons, which led to her rejection of the appellant’s case on aggregation, based on the incident on 9 June 2016, complied adequately with her obligations. To the extent that the submissions on appeal raised some more general allegation, that the selected duties were unsuitable and resulted in the lumbar condition, on a basis other than by way of favouring the left arm in that incident, such a case was not run before the Arbitrator, and was not dealt with by the Arbitrator. As such an allegation was not raised before the Arbitrator, she “could not commit an error of law in failing to deal with it”. ([53])

(Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, at [30] applied)

7. The simple fact that the left shoulder injury caused the appellant to be placed on selected duties, in which the incident involving the lumbar spine occurred, did not establish a causal relationship between the injury on 16 May 2015 and the events of 9 June 2016. ([55]–[56])

(Faulkner v Keffalinos [1971] 45 ALJR 80 and Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92 applied)

8. The Arbitrator’s reasons dealt appropriately with the issues, as they were presented for her determination. The balance of the appellant’s submissions on appeal sought to raise various issues, some of which were not run before the Arbitrator, some of which tended to invert the onus of proof, and some of which raised factual assertions that were not established on the evidence. The appellant had not established appealable error on the basis that there was inadequacy in the Arbitrator’s reasons. ([58])

Conclusion

9. The basis on which the Arbitrator rejected the appellant’s case, as it appeared in the appellant’s statement and as it was run at the arbitration hearing, was clear, from her discussion of the evidence, her reliance on the decision of Edmed, and her factual findings. It complied with her duty, both statutory and at common law. ([59])

Inverell Shire Council v Cowdery [2019] NSWWCCPD 19

Evaluation of medical evidence; validity of factual finding as to continuation of psychological injury; correctness of finding of fact as to reduced capacity to earn; adequacy of reasons

King SC ADP

10 May 2019

Facts

This appeal concerned a claim that the worker sustained psychological injury, namely a major depressive disorder, as a result of being ostracised, bullied and harassed at work with the appellant employer in his employment up until 28 June 2017.

The Arbitrator determined the claim in the worker’s favour on 25 October 2018, awarding him weekly compensation pursuant to s 36 of the 1987 Act from 28 June 2017 until 24 July 2017 (which was not disputed on appeal). The Arbitrator then awarded the worker weekly compensation pursuant to s 36 of the 1987 Act from 9 October 2017 to 13 December 2017, after finding that the worker could earn in respect of that period $20 per hour for 10 hours a week. Both the award of any weekly compensation at all and, if an award be supportable, the finding in respect of reduced capacity were challenged on appeal.

Finally, pursuant to s 37 of the 1987 Act the Arbitrator made an award in the sum of $466.24 per week from 14 December 2017 to date and continuing. That was challenged on the same two bases as the award in respect of the period from 9 October to 13 December 2017. The Arbitrator also made an award in favour of the worker for medical expenses pursuant to s 60 of the 1987 Act. The employer appealed.

The issues on appeal were whether the Arbitrator erred:

(a) in effect in rejecting the evidence of Dr John Roberts in his report of 24 July 2017, by failing to give “proper weight” to the doctor’s opinion (Ground 1);

(b) in what the Acting Deputy President took to be in fact and/or law and/or discretion in arriving at his finding that the worker continued to suffer from the effects of his psychological injury, and failed to give proper reasons for his findings which underpinned his conclusion that the condition (an incapacitating one) continued (Ground 2), and

(c) in law, and/or fact, and/or discretion in arriving at his finding as to the worker’s current work capacity, that the worker is capable of working on the open labour market for 10 or 12 hours per week earning $20 per hour, and failed to give proper reasons for his findings in coming to this conclusion (Ground 3).

Held: Liberty granted to the appellant employer to apply for leave to amend Ground 3 of the grounds of appeal within 21 days. Liberty granted to the respondent to reply in the event the appellant seeks to amend Ground 3. In the absence of any application for leave to amend Ground 3, the Certificate of Determination of 25 October 2018 was confirmed.

Submissions and consideration

1. Acting Deputy President King SC identified each of the grounds as involving findings or conclusions of fact. Ground 1 said that the Arbitrator did not accord proper weight to the evidence of Dr Roberts. The Acting Deputy President regarded the Arbitrator as having rejected the doctor’s opinion for factual reasons revolving around the history and lack of radiological findings, and thus he regarded himself as being asked to evaluate whether that decision of fact displayed error. As to Ground 2, the Acting Deputy President was of the view that a finding that a medical condition and/or incapacity is continuing after its being caused is factual. As to Ground 3, a finding as to capacity is factual. ([37])

2. Failure to give adequate reasons is an error of law, although the Acting Deputy President would not characterise it, at least not in this case, assuming the reasons were inadequate, as one informing the actual decision of fact or finding of fact arrived at. Rather, inadequate reasons by definition fail to give the aggrieved party and an appellate court a sufficient understanding of why a conclusion obviously arrived at was in all the circumstances so arrived at. If there were a paucity of reasons as asserted in Grounds 2 and 3 error of law would be demonstrated. ([39])

3. There could be no doubt that the Arbitrator’s findings as to residual earning capacity squarely attacked in Ground 3 involved the purported exercise of a discretion. ([40])

4. The employer’s task in showing error in respect of a discretionary decision involves discharging an onus of a difficult kind. ([41])

(Australian Coal and Shale Employees’ Federation v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621, at 627 (per Kitto J) applied)

5. In determining appeals in relation to decisions of fact upon competing or conflicting bodies of evidence, the Acting Deputy President followed and adopted unreservedly the decision of Roche DP in Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston). Not only has it been consistently followed in the Commission, as the decision in Raulston itself shows, it is soundly based upon High Court authority. ([42])

(Andersen v J and M Predl Pty Limited [2018] NSWWCCPD 40 referred to)

6. Where the Arbitrator in the present case reached factual conclusions or findings upon his view of and inferences from evidence which was in contest, that is, where there was a contrary body of evidence, it is not for the Presidential Member to consider what they would have found upon the evidence before him. Rather it is for the Presidential Member to consider whether the employer has shown that his or her factual findings were wrong and that in order to do justice they must be set aside. ([43])

Ground 1

7. The Arbitrator clearly set out his reasons for rejecting the opinion of Dr Roberts. The Arbitrator found that Dr Roberts did not explain how he diagnosed the worker with “poor impulse control”. He preferred the evidence of Dr Parsonage, Dr McIntyre and Ms Lloyd that the worker sustained a psychological injury in the nature of major depression and anxiety in the course of his employment. These findings were open on the evidence. ([47])

8. Acting Deputy President King SC was not persuaded that the employer had shown error in the Arbitrator’s treatment of Dr Roberts’ evidence. The Arbitrator accepted the worker’s medical case. His reasons indicated that he took into account the whole of the evidence in doing so, but he dealt specifically with the evidence of Dr Roberts.  The Acting Deputy President could detect no error or failure to take account of a significant matter nor an error of the kind discussed in Raulston.  Moreover, he was of the view that it was a realistic reading of the report of Dr Roberts to say that he was propounding brain damage as the worker’s problem. The passage from the doctor’s report set out by the employer in its submission could appropriately be so read. This ground had not been made out. ([48]–[49])

Ground 2

9. The employer contended that the Arbitrator made a relevant error in holding that the worker’s psychological injury was continuing to affect him, upon the basis that his condition was caused by the events leading up to 28 July 2017. ([50])

10. The Acting Deputy President was unpersuaded by the employer’s arguments. He was of the view that the medical evidence relied upon by the worker justified the Arbitrator’s approach, and in particular, he believed, that the passage of Dr Parsonage’s report specifically adverted to by the employer in paragraph [37], read fairly and appropriately, assisted the worker and not the employer. Moreover, he thought it was correct to say that there was no evidentiary basis for a conclusion that the worker fully recovered from his psychological condition after June 2017. ([55])

11. When considering a challenge to the adequacy of reasons it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate”. The reasons given by the Arbitrator for this part of his decision-making process were unexceptionable. The Arbitrator gave consideration to the available medical evidence and he explained his reasons for accepting the evidence of Dr Parsonage, Dr McIntyre and Ms Lloyd. Having regard to the statutory requirements to give reasons, the Acting Deputy President was satisfied that the Arbitrator discharged his obligation to give reasons. The Arbitrator’s reasons well passed the test of letting the losing party know with sufficient clarity the basis upon which it lost and of informing anybody conducting an appellate review of his decision of its basis. ([58])

(Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 443 applied)

Ground 3

12. This ground asserted that the Arbitrator fell into relevant error in finding that the worker could earn $20 per hour for ten or twelve hours per week (the difference in the number of hours per week relating to differing periods) and also asserted failure to give proper reasons “… for his findings in coming to this conclusion”. ([59])

13. Strictly read according to its terms, this ground would, in the Acting Deputy President’s view, be construed as extending no further than an attack upon the finding of the number of hours per week for each of the two periods and the monetary amount of remuneration in respect of an hour’s work, rather than as an overall attack on the monetary weekly award made by the Arbitrator. The attack on his reasons should also be so confined on a strict reading. ([60])

14. The Acting Deputy President was troubled by the way it was expressed, that is, by the fact that it called for such a strict or limited reading. No criticism was advanced of the Arbitrator’s purported exercise of a discretion in making his awards pursuant to ss 36 and 37 of the 1987 Act. ([61])

15. Acting Deputy President King SC thought the criticism of the Arbitrator’s finding of residual capacity based upon hours per week the worker could work and the rate of hourly remuneration to be attracted to his work was without substance. In the first place, the Arbitrator said that he specifically had regard to the provisions of s 32A of the 1987 Act in coming to his decision and there was nothing in the Acting Deputy President’s opinion upon a reading of the relevant paragraphs of his reasons to show that that was not so. The duty to provide reasons depends on the circumstances of the individual case. True it was that his reasons were brief, but the Acting Deputy President was of the view that they were adequate and clear enough, and comply with his statutory obligations to give reasons. Secondly, it is well established that specialist workers compensation decision-makers are to be taken to have specialist judicial knowledge of such matters as are mentioned by the Arbitrator and to be found at least in large part in s 32A. These considerations, individually or in combination, in the Acting Deputy President’s opinion, meant that as framed this ground of appeal must fail. ([65])

(Section 294(2) of the 1998 Act; r 15.6 of the 2011 Rules, and Mifsud v Campbell (1991) 21 NSWLR 725, at 728 applied)

16. However, the Arbitrator said he exercised a discretion and it did not appear that he was given any discretion by the statute. Hence leave was given to the parties if the appellant chose first to take it up, to deal with this troublesome aspect of his decision.

Cross v Secretary, Department of Education [2019] NSWWCCPD 20

Sections 48 and 48A of the 1998 Act

Snell DP

14 May 2019

Facts

The appellant worker suffered injuries in the course of her employment as an administrative officer at Orange High School in incidents on 13 August 2014 and 2 February 2015. The appellant was off work for various times, for which compensation was paid voluntarily. She underwent surgery to the left shoulder at the hands of Dr Kwa, an orthopaedic surgeon, on 30 July 2015. She did not resume work thereafter. On 16 August 2015, the appellant moved to live in Melbourne with her fiancé, who she married on 21 November 2015. She sold her home in Orange. The appellant developed adhesive capsulitis of the shoulder.

The appellant stated that, from before she moved to Melbourne, it was common knowledge at Orange High School that she intended doing so. On about 10 November 2015, a claims manager with Allianz (the relevant insurer at that time) contacted the appellant and informed her that she should commence suitable duties at Orange High School from 16 November 2015. The respondent issued a Return to Work Plan which provided that the appellant was to perform suitable duties for 6 hours and 15 minutes per day, 5 days per week at Orange High School. On 3 March 2016, the insurer wrote to the appellant stating that she had failed to comply with the obligations in her Injury Management Plan. On 27 April 2016, the insurer gave the appellant notice that it had terminated her weekly payments, stating that the reason was her failure to return to suitable duties in accordance with the Return to Work Plan.

On 9 November 2018, the Arbitrator issued a Certificate of Determination entering an award in favour of the respondent employer. The worker appealed.

The issues on appeal were whether the Arbitrator:

(a) erred in failing to apply a correct statutory construction of ss 48 and 48A of the 1998 Act (Ground No 1);

(b) erred in his assessment as to whether the appellant had made ‘reasonable’ attempts to return to suitable duties (Ground No 2);

(c) failed to consider the discretionary requirements of a decision of an insurer under s 48A (Ground No 3);

(d) failed to consider the consequences of the assurances given by five of the insurer’s claims officers of continuing entitlement to compensation upon the appellant’s move to Melbourne, prior to the suspension of weekly payments by the insurer (Ground No 4);

(e) erred in the discretionary elements of his judgment (Ground No 5), and

(f) failed to give adequate reasons for his decision (Ground No 6).

Held: The Arbitrator’s decision dated 9 November 2018 was revoked in part. In substitution, there was a finding that the respondent’s defence pursuant to ss 48 and 48A of the 1998 Act failed, and that the appellant was entitled to weekly payments. The matter was remitted to the same Arbitrator to make orders for the payment of weekly compensation and any associated necessary orders for the payment of expenses pursuant to s 60 of the 1987 Act.

The applications to admit further evidence

1. Ultimately, applications were made by both parties for the admission of further evidence pursuant to s 352(6) of the 1998 Act. It was necessary that one of the threshold questions in s 352(6) be satisfied, before the discretion to admit further evidence is enlivened. Neither party had asserted, nor was there evidence, that any of the documents sought to be admitted were not available to be used at the arbitration hearing. The first threshold question could not be satisfied. Neither party had submitted that the result in the matter will be a different one, depending on whether one or more of these documents is admitted as further evidence. It was not apparent how the further evidence would change the result. In the circumstances, neither of the threshold questions was satisfied, and the discretion to admit the material was not enlivened. The applications by both parties were rejected. ([27]–[31])

(CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied)

Ground No 2 – Reasonableness, Ground No 4 – The assurance of claims officers, Ground No 6 – Failure to give adequate reasons

Was ‘reasonableness’ raised at first instance?

2. It was necessary to first deal with the respondent’s argument that ‘reasonableness’ was not raised at first instance. Deputy President Snell found that the issue of the reasonableness of the appellant’s relevant actions, was sufficiently raised at first instance. ([51]–[52])

The operation of s 48(2) of the 1998 Act

3. The respondent submitted that a worker’s “statutory obligation to ‘make reasonable efforts to return to work in suitable employment’ are clearly defined in s 48(2) and the [A]rbitrator was correct in finding that the appellant did not satisfy any of the definitions of ‘reasonable efforts’ as set out in s 48(2)(a) to (c).” The appellant submitted that s 48(2) does not limit what constitutes ‘reasonable efforts’ for the purposes of s 48(1). Rather, s 48(2) deems that reasonable efforts are being made while a worker is waiting for implementation of a rehabilitation plan. ([53])

4. Deputy President Snell held that the appellant’s submission on this point was correct. Each of the subcll of s 48(2) applies while a worker is “waiting” for something to happen. A worker is treated as making a ‘reasonable effort’ when “waiting for the commencement of a workplace rehabilitation service” (subcl (a)), “waiting for a response to a request for suitable employment” (subcl (b)), or “waiting for suitable employment or pre-injury employment to commence” (subcl (c)). If compliance with subs (1) was restricted to matters described in subs (2), then a worker who was actually engaging in carrying out ‘suitable employment’, or undergoing rehabilitation pursuant to a plan, would not satisfy subs (1), as s/he would not be “waiting”. The words of s 48 do not restrict ‘reasonable effort’ to only the activities described in subs (2) of the section. ([54]–[55])

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, at [69] applied)

5. The construction for which the respondent argued would be inconsistent with the ‘System objectives’ in s 3 of the 1998 Act, particularly subcl (c) which nominates an objective that “necessary medical and vocational rehabilitation” be provided “to assist injured workers and to promote their return to work as soon as possible”. Such a construction would also be inconsistent with the object of Ch 3 of the 1998 Act. It would also be inconsistent with the overall scheme of Pt 2 of Ch 3 of the 1998 Act, of which s 48 formed part. ([56]–[57])

(Section 33 of the Interpretation Act 1987 and IW v City of Perth [1997] HCA 30; 191 CLR 1; 94 LGERA 224; 146 ALR 696; 71 ALJR 943, at 11–12 applied)

6. Reading the Arbitrator’s reasons as a whole, the Arbitrator did not restrict his enquiry to whether s 48(2) was satisfied, he dealt with s 48(2) in addition to other matters. ([58])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 444 applied)

Onus

7. The potential operation of s 48A of the 1998 Act is triggered by a failure by a worker to comply with an obligation imposed under s 48. The application of s 48(1) requires that a worker have ‘current work capacity’. The obligation is that the worker, “in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker’s place of employment or at another place of employment”. Section 48A provides that if a worker does not comply with an obligation under s 48, the insurer may “suspend”, “terminate” or “cease and determine” weekly payments. Deputy President Snell accepted that the respondent carried the onus of proof in its reliance on ss 48 and 48A of the 1998 Act. ([59]–[61])

(Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 (B)  and Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; 70 CLR 635 applied)

Application of the earlier authorities

8. Deputy President Snell accepted the appellant’s submission that the principles in earlier authorities dealing with the reasonableness of a worker’s actions, being Fazlic v Milingimbi Community Inc [1982] HCA 3; 150 CLR 345 (Fazlic), Freightcorp v Duncan [2000] NSWCA 309 (Duncan), O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224, McDonald v North Coast Area Health Service [2009] NSWWCCPD 50, and B, remain relevant in dealing with ss 48 and 48A. ([66])

Was there error in the approach taken?

9. The appellant’s submission was correct, that the Arbitrator determined the issue by reference to whether there was failure to comply with the injury management plan, rather than by reference to the broader issue of whether there was a failure by the appellant to make “reasonable efforts” to return to work. ([85])

10. The Arbitrator’s analysis did not extend beyond the identification of ‘suitable employment’, to whether the appellant had complied with her statutory obligation in s 48(1). That question was not answered simply by identifying ‘suitable employment’. The Arbitrator was required to consider the reasonableness of the appellant’s actions, in dealing with whether the appellant failed to make reasonable efforts to return to work. This he did not do, save for finding that the move to Melbourne should be ignored, in considering the appellant’s fitness for ‘suitable employment’. This did not mean that the appellant’s personal circumstances, including those associated with the relocation and changed family circumstances, were not relevant to whether the appellant’s obligations pursuant to s 48 of the 1998 Act were complied with. There was error of the type referred to in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816. ([86]–[88])

11. It followed that the error in Ground 2 was made out. Ground 4 raised a failure by the Arbitrator to deal with the consequences of the assurances given by claims officers of the insurer, about the effect that the appellant’s move to Melbourne would have on her compensation rights. Those assurances were relevant to the state of knowledge of the appellant, which was directly relevant to whether the appellant’s efforts were reasonable, having regard to the decision in Fazlic. The failure of the Arbitrator to deal with such assurances, in this context, constituted error, and to that extent the error alleged in Ground No 4 was made out. It was not necessary to further deal with the balance of the grounds. It was appropriate that Deputy President Snell re-determine, pursuant to s 352(7) of the 1998 Act, the issue of whether the respondent was entitled to rely on s 48A of the 1998 Act by way of defence to the appellant’s claim for weekly compensation. ([89])

Re-determination

12. The essential issue revolved around the reasonableness of the appellant’s failure to take up suitable duties at Orange High School, when these were made available. Issues of reasonableness depend on the facts and circumstances of each individual case. ([104])

Did the appellant fail to comply with her obligation to make ‘reasonable efforts’?

13. The appellant’s decision to sell her house in Orange and move to Melbourne, in circumstances where she was moving to be with the man who was to become her husband, and where she accepted assurances from multiple claims officers that such a move would not cause any complications to her workers compensation claim, could not be regarded as other than reasonable. It is appropriate to consider the reasonableness of her actions in the context of the information given to her by the claims officers, which she accepted. ([108])

(Fazlic, at [12] and Duncan, at [19] applied)

14. In determining whether the appellant’s failure to comply with the Return to Work Plan and the Injury Management Plan dated 19 February 2016 was reasonable, it was appropriate to have regard to the objects of Ch 3 of the 1998 Act, set out in s 41(1) of the 1998 Act. ([112])

15. Compliance with the Return to Work Plan and the relevant Injury Management Plan would, at the least, have been highly disruptive of the appellant’s domestic and personal arrangements. The level of disruption involved, in implementation of the Return to Work Plan and the Injury Management Plan, would have militated against a durable return to work. Having regard to the facts and circumstances of the current matter, Deputy President Snell found that the respondent could not establish, on the probabilities, that the appellant failed to comply with an obligation to make reasonable efforts to return to work, within the meaning of ss 48 and 48A of the 1998 Act. The consequence was that the respondent’s defence, to the appellant’s pleaded claim for weekly payments, failed. ([113]–[114], [116])

Lambropoulos v Qantas Airways Limited [2019] NSWWCCPD 17

Admission of additional documents – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied; monetary threshold required by s 352(3) of the 1998 Act; application of Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, Anderson v Secretary, Department of Education [2018] NSWWCCPD 32

Wood DP

3 May 2019

Facts

The appellant worker was employed by the respondent as a Ramp Officer, and was required to load cargo and luggage onto and off planes. On 3 July 2010, the appellant was injured when he was pulling trailers with a “tug” vehicle, which was struck from behind by another larger vehicle.

Liability for injury to the cervical and thoracic spines was ultimately accepted by the respondent, as well as liability for gastrointestinal symptoms that arose as a consequence of the ingestion of medication taken in respect of the accepted injuries.

In these proceedings, the appellant applied for an assessment by an AMS in order to be assessed for the purposes of ascertaining whether he suffered from a whole person impairment of greater than 20%, which would entitle him to claim continuing weekly payments beyond the first 260 weeks of weekly compensation pursuant to s 39 of the 1987 Act. The respondent disputed liability for the left and right shoulders and any consequential condition in respect of the appellant’s reproductive organs.

The Arbitrator determined that he was not satisfied the appellant had suffered injury to either shoulder, and remitted the cervical spine, thoracic spine, digestive system and reproductive system to the Registrar for referral to an AMS for assessment. The worker appealed.

The initial issue on appeal was whether the monetary thresholds in s 352(3) of the 1998 Act were satisfied and whether there was a right of appeal.

Held: The monetary thresholds in s 352(3) of the 1998 Act were not satisfied, and there was no right of appeal.

Threshold matters

Admission of the additional documents

1. The appellant sought to rely on additional evidence pursuant to s 352(6) of the 1998 Act. Amongst the documents sought to be tendered were schedules of estimated future treatment expenses and other documents, including an extract from an Application to Resolve a Dispute filed in 2017 that was previously discontinued in the Commission, an “Enhanced Primary Care Program” completed by the appellant’s general practitioner and a statement by an exercise physiologist. After the time for lodging submissions had expired, the appellant also filed an addendum to his submissions, claiming an additional $1,360 in respect of past treatment expenses for the cost of “gel rub” for his shoulders. ([30]–[37])

2. The extracted pages from the Application to Resolve a Dispute filed in the 2017 claim did not constitute “evidence”, but were an attempt by the appellant to place an amount in issue between the parties for the purpose of satisfying the monetary threshold. If by filing the documents, the appellant was seeking to amend his claim to include a monetary amount, then such an amendment was not permissible on appeal. The amount of compensation at issue on the appeal must be determined by reference to the amount at issue in the proceedings at first instance. ([41]–[42])

(Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, at [16] applied)

3. The general purpose and policy of s 352(6) is to require a certain monetary threshold to be met, that is, there is “an amount in issue”. The provision restricts the right of appeal in a number of circumstances. The requirement is not a simple formality or technicality and its application does not offend the principles and objectives of the Commission set out in subss 354(1) and 354(3) of the 1998 Act. ([43])

(Anderson v Secretary, Department of Education [2018] NSWWCCPD 32 (Anderson) applied)

4. Admission of the documents was clearly not for the purposes of establishing that the Arbitrator’s decision was erroneous. The appellant’s submissions as to why those documents should be admitted pointed to the alleged substantial injustice that would arise if his appeal did not satisfy the monetary threshold to appeal. Even if those documents were sought to be relied on in order to establish liability on the part of the respondent, they were of no probative value and would not change the outcome. ([44]–[45])

5. The documents that the appellant sought to tender on the appeal could not possibly change the outcome of these proceedings and no substantial injustice arose by excluding them. On that basis, the documents were not admitted. ([47]–[49])

(New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, at [66] and CHEP Australia v Strickland [2013] NSWCA 351; 12 DDCR 501 applied)

The monetary threshold

6. The claim before the Commission concerned a request for determination of a dispute in respect of the thresholds required in order to be entitled to make a claim pursuant to s 39 of the 1987 Act. The appellant’s case was on all fours with the decisions in Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25 (Abu-Ali), and Anderson. The appellant had not asserted that these two authorities could be distinguished and Deputy President Wood could not see how they were any different to this case. ([50]–[54])

(Abu-Ali and Anderson applied)

7. No amount of monetary compensation was claimed in these proceedings. Deputy President Wood was not satisfied that the appellant had met the monetary threshold pursuant to s 352(3)(a) of the 1998 Act, and consequently, the appeal could not be brought. ([55])