AHG Services (NSW) Pty Ltd v Milojkovic - [2013] NSWWCCPD 25

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	AHG Services (NSW) Pty Ltd v Milojkovic [2013] NSWWCCPD 25
APPELLANT:	AHG Services (NSW) Pty Limited
RESPONDENT:	Nenad Milojkovic
INSURER:	Allianz Australia Workers' Compensation (NSW) Limited
FILE NUMBER:	A1-2144/12
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:	22 January 2013
DATE OF APPEAL DECISION:	9 May 2013
SUBJECT MATTER OF DECISION:	Section 4 of the Workers Compensation Act 1987; personal injury; disease which is contracted in the course of employment; obligation to state adequate/sufficient reasons for decision.
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	DLA Piper Australia
Respondent:	P K Simpson & Co
ORDERS MADE ON APPEAL:	1. The orders as found in the Certificate of Determination dated 22 January 2013 are revoked and the matter is remitted to a different Arbitrator for re-hearing. 2. No order as to costs of this appeal. 3. The costs of the first hearing are to follow the outcome of the re-hearing.

BACKGROUND

The appellant, AHG Services (NSW) Pty Ltd, was one of three employers of Mr Nenad Milojkovic (the worker) between 2002 and 2010. The worker commenced employment with a company, identified in the Commission’s documents as Automotive Training Group (ATG), as an apprentice motor mechanic in 2002. Upon completion of his apprenticeship in 2006 his services were transferred to an associated company, Kumar Motors (Bankstown) Pty t/as Peninsular Holden (Peninsular Holden). That employment ceased in 2008. The worker then discontinued his employment as a tradesman and, for a number of months in 2008, underwent training with the New South Wales Police at Goulburn. He resigned from that traineeship in September 2008. He was then unemployed until he returned to his trade and commenced employment with the appellant on 12 January 2009. He remained in that employment until March 2010. He has not worked since.
It must be stated at the outset that the worker’s claim before the Commission has been presented on his behalf by his solicitors with little care or skill. It is none the less clear that the worker alleged that, as a result of his employment duties with each of the three employers, he had received injury to his back. That the worker, a young man of 27 years of age, suffers a significant back disability is beyond doubt and was not the subject of dispute when this matter was heard before Arbitrator Faye Robinson. The proceedings were commenced by the worker following declinature of liability after a claim for compensation payments was made by him against each employer and its insurer. Each employer denied the occurrence of injury.
The worker’s claim against his former employers was in respect of weekly compensation from March 2010 to date and continuing together with lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) and medical expenses. The application filed with the Commission seeking awards with respect to that compensation particularised the date of injury as against each of the respondents as being “the period 2002 to 2006”. The injury was described as “back” and the description of how the injury occurred appears as “the worker suffered injury to his back as a result of the nature and conditions of his employment including lifting heavy objects eg bins, tyres, rubbish and some gear boxes”.
The claims against the employers were defended on their behalf by the one solicitor, DLA Piper Australia. It appears that the insurers, being the scheme managers, were of different identities and it seems that a “lead” insurer had been appointed by agreement to conduct the defence. Whilst the Commission has not been informed of the existence or detail of any particular agreement among the insurers, it appears that no thought has been given to the likelihood of conflict of interest given the circumstance that all three employers are represented by the one solicitor. It will be seen that, in the course of submissions on this appeal, reference is made to the question of “apportionment”. That subject, which necessarily raises conflict in the absence of agreement, was not touched upon during proceedings before the Arbitrator. Another difficulty appears to have arisen given that the first and third respondents to the worker’s application have, without explanation, not participated in this appeal. Nor has any submission been put on their behalf concerning the failure of the Arbitrator to enter an award in favour of each of those respondents given her ultimate finding that the appellant alone was to meet the terms of the award entered in favour of the worker.
The matter came before the Arbitrator on 15 August 2012 for conciliation/arbitration. As is recorded in the transcript, the employers declined to participate in conciliation. In the circumstances the Arbitrator declined to commence the hearing and adjourned the matter for further hearing before her on 24 August 2012. A direction was made by the Arbitrator that a representative of the “lead” insurer attend on the adjourned date for the purpose of participating in the conciliation process. It is recorded that the scheme manager insurer declined to attend on that day. No explanation was given for the insurer’s refusal to participate. In the circumstances, the Arbitrator proceeded to arbitration of the dispute. The hearing concluded on that day and the Arbitrator reserved her decision.
A Certificate of Determination accompanied by a Statement of Reasons was issued by the Arbitrator on 22 January 2013. The following orders are recorded in that Certificate:
“The determination of the Commission is:
1. The second respondent, AHG Services Pty Ltd, to pay to the applicant weekly benefits of compensation as follows:
(a)At the rate of $760 per week pursuant to section 36 of the 1987 for the period 29 April 2010 to 29 October 2010; and thereafter
(b)At the statutory rate, for a worker without dependents, pursuant to section 37 of the Workers Compensation Act 1987 from 30 October 2010; and thereafter
(c)Payment of benefits to continue, on the basis of total incapacity, in accordance with the workers compensation legislation
2. The second respondent, AHG Services Pty Ltd, to pay the medical and related expenses incurred by the applicant, pursuant to section 60 of the Workers Compensation Act 1987, upon production of accounts/receipts/valid HIC charge.
3. The claim pursuant to section 66 is remitted to the Registrar for referral to an Approved Medical Specialist for a whole person assessment of the lumbar spine due to injury arising out of or in the course of his employment with AHG Pty Ltd. The Approved Medical Specialist is to be provided with the Application to Resolve a Dispute, the Reply and the medical report of Associate Professor Sheridan dated 14 April 2011.
4. In the event of a dispute arising, between the applicant and the second respondent, in respect of payment of weekly benefits from 31 December 2012 and/or payment of section 60 expenses then either party has the right to restore these proceedings.
5. AHG Pty Ltd to pay the costs of the applicant as agreed or assessed and I grant to the applicant a complexity uplift of 25 per cent.”

ISSUES IN DISPUTE

The appellant raises four grounds of appeal, each suggesting error on the part of the Arbitrator in the following respects:
(a)failure to provide adequate reasons for her finding that the worker suffered from an injury of the nature of a disease of gradual process;
(b) failure to provide a clear finding on the issue of injury generally;
(c)failure to provide adequate reasons for her finding that the respondent was effectively totally incapacitated as a result of his injury, and
(d)failure to provide adequate reasons linking the worker’s injury to his subsequent deterioration after ceasing employment.
It may be seen that grounds (a), (c) and (d) suggest error of law on the part of the Arbitrator, in failing to provide adequate reasons for her conclusions of fact. Ground (b) as expressed by the appellant is deficient in that there is no identification of the suggested error committed by the Arbitrator.
Notwithstanding the terms of the “grounds” it is clear, having regard to the submissions provided in support of the appeal, that the real argument advanced is a suggestion that, not only are the Arbitrator’s reasons “inadequate”, but further that the evidence did not support the conclusions which she reached in the course of that reasoning. The latter complaint constitutes an allegation of factual error. It also seems, having regard to those submissions, that the appellant suggests error of law in the manner in which the Arbitrator has construed and applied s 4 of the 1987 Act in its form relevant to the present facts, that is, as it appeared in the statute prior to amendment in 2012.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

FRESH OR ADDITIONAL EVIDENCE

On 12 March 2013, the appellant forwarded correspondence to the Registrar which purported to present on this appeal a “supplementary submission”. That “submission” concerned the question as to whether Panadeine Forte is a “prescription drug”. That question was raised before the Arbitrator and views were expressed by counsel. However, there was no evidence before the Commission, concerning the question, as to whether the relevant drug could be obtained only by way of prescription issued by a medical practitioner.
The Commission may, by leave, permit a party to tender evidence that is fresh or evidence that is in addition to or in substitution for the evidence received in relation to the decision appealed against: s 352(6) of the 1998 Act. The appellant has made no reference to that provision and no application seeking leave has been made. The correspondence forwarded by the appellant’s solicitors enclosed a “printout” from the Australian Register of Therapeutic Goods. A copy of the correspondence and the enclosure were forwarded to the worker’s solicitors. There has been no communication by the worker’s solicitors with the Commission since that correspondence was sent.
In the absence of an application seeking leave to adduce further evidence, the correspondence and the enclosed “printout” may not be adduced as further evidence on this appeal.

THE ARBITRAL PROCEEDINGS

The evidence

In his statement dated 22 February 2012, the worker confirmed his employment history as summarised at [1] above. The worker also stated that he did not suffer any injury whilst training for the police and further that all physical activity “was carefully controlled and we were not allowed to lift unsafe weights”.
In or about 2006, at the premises of Peninsular Holden, the worker first noticed problems with his back as a result of lifting heavy objects such as bins, tyres, engines and some gearboxes. His back continued to “bother” him until he left Peninsular Holden in 2008.
In 2006, the worker consulted his general practitioner about his back problem. That practitioner is not identified. He stated that he was concerned that Peninsular Holden would dismiss him if they “found out that [he] suffered a back injury”.
In 2009, his back began causing problems again, when he started working as a motor mechanic again. Those problems began soon after he started work for the appellant, “but deteriorated over time”. The worker further stated:
“The problems became really bad towards the end of 2009. The problems were worse than they had ever been. The pain was radiating into my right leg and I could no longer lift heavy weights. I tried to struggle on but eventually the pain became too much for me and in March 2010 I had to stop work.”
The worker stated that, at the date of making the statement of 22 February 2012, he was severely disabled and he “cannot lift or carry anything at all, has great restriction in terms of being unable to sit for more than a few minutes and can only walk about 20 minutes”.
A very large volume of documents relating to the worker’s medical treatment was tendered on his behalf. Little if any effort was expended by his solicitors to ensure that that material was presented before the Commission in an orderly fashion. Much of the material tendered in evidence appears to be documentation which had been produced by various medical practitioners concerning treatment of the worker both pre and post the cessation of his employment with the appellant. There is also a report from a medical practitioner qualified for the purposes of this litigation. It is convenient to set out a chronology concerning relevant attendances together with a brief summary of history recorded, where such is available, by the individual practitioner. A more detailed examination of the opinions of the medical practitioners, both treating doctors and those qualified on behalf of the parties, appears in the course of discussion below.
Date                            Identity of practitioner and history recorded
29 April 2010  Dr Talem Serhan, general practitioner, practising at Main Surgery Macquarie Street, Liverpool. Entry in clinical notes: “low back pain. O/E no deformity, minimal tenderness in sacrum, full range of movements. Reason for visit: muscular pain. Panadol.”
29 July 2010  Dr Karl Simpson’s, chiropractor, practice notes record four attendances up to 4 August 2010. No recorded history. Entry on 29 July 2010: “L4 ® PN T11 PN T5 PN L4 Bk pn.”
5 August 2010             Dr Assad Malek, general practitioner, practising at Restwell Street Medical Centre, Bankstown (records dating from April 2005 are in evidence). Clinical notes record: “low back pain, for more than a year. He used to work [as] a car mechanic, at Landsville Holding (sic) from early 2009 – early 2010, and quite (sic quit) three month ago. He used to complain of LBP, and saw other doctors, and he has to leave due to back pain.”
Dr Malek arranged for a CT of the lumbar spine to be conducted on this day which was reported as follows: “prominent broad based right paracentral disc protrusion at the L4/5 level resulting in mild asymmetric canal stenosis and abutting and displacing the right L5 nerve root within the lateral recess. There is a smaller broad based central posterior disc protrusion at the L5/S1 level.”
6 August 2010             Letter of referral of worker to Dr Geoffrey Rosenberg, orthopaedic surgeon, signed by Dr Malek. That referral states: “he suffers from mild back pain, he used to work as a car mechanic, and left work three months ago.”
17 August 2010           Letter of referral of the worker by Dr Zaffar Hussain, general practitioner, of Rickard Road, Bankstown to consult with Dr Geoffrey Rosenberg.
3 September 2010        Report of Dr Geoffrey Rosenberg to Dr Zaffar Hussain. History recorded in that report was: “for the last 18 months or so he has struggled with back pain but more recently has developed right leg pain.”
15 November 2010      Report of Dr Peter E Giblin, orthopaedic surgeon, qualified by the worker’s solicitors to provide a report for the purposes of this litigation. At that consultation the following history was recorded by Dr Giblin:
“During the course of his work in 2006 he first noticed the onset of right side low back pain.
In the course of his work he would have to (sic, to do) very heavy lifting. They did have a forklift but occasionally it did not work so four apprentices would have to lift an engine block off a truck.
He went to see his GP about his back problem but did not report the situation at work because he was anxious about his job. He had no active treatment but he managed to work his way around his back problems.
He left that employer in 2007 for work reasons.
He then went to join the police force and he passed the medical, and spent several months at Goulburn before deciding that it was not for him and he left in September 2008.
On 12 January 2009 he took up another job as a motor mechanic and stayed there until 12 March 2010. This time leaving for medical reasons because of the onset of pain down his right leg.”
6 December 2010        Dr James Powell, orthopaedic surgeon, qualified on behalf of the appellant to provide a report for the purposes of this litigation. Dr Powell provided a report dated 7 January 2011 following the December consultation. The history recorded by Dr Powell is as follows:
“Mr Milojkovic stated that he has had problems with his lower back dating back to 2004.
He commenced an apprenticeship as a motor mechanic in 2002 and his work involved a lot of bending and lifting of heavy weights and accessing difficult areas around motor cars.
Around 2004, he started to develop pain in the mid lower back. This was mainly sharp shooting pain which often came on when doing lifting, lasting several seconds and then going away.
These pains gradually became worse over the next three years, sometimes lasting up to half an hour.
He saw various doctors and was diagnosed with muscular troubles and advised that they would settle. However he continued to have symptoms.
He left his job as a mechanic in 2008 and went to join the police force but did not complete his training as he did not like the future prospects and difficulties associated with police work.
He then obtained certification for liquor and gambling but was unable to obtain work in this area and in 2009 went back to being a mechanic with a different company.
He gradually found there was an increase of pain in his back and then around March 2010 this became quite severe with radiation of pain down the right buttock and leg.
He saw his local doctor who organised some scans and he was found to have some disc bulges. He stopped work about this time due to his symptoms and has not been able to return.”
4 January 2011            Dr Kris Tomka, general practitioner, practising at Bathurst Street, Liverpool, issued a WorkCover NSW medical certificate on this date. That certificate includes an entry as to how the injury occurred being “after lifting heavy load sudden pain in the back” and date of injury is noted as 12 March 2010.
Dr Tomka referred the worker to Associate Professor Mark Sheridan, neurosurgeon.
14 April 2011              Associate Professor Mark Sheridan, report to Dr Tomka concerning examination conducted on 6 April 2011. The only reference to history is as follows: “As you know he injured his back during the course of his work as a motor mechanic. This culminated in him having to stop last year.”
9 June 2011Spectrum Medical Imaging (Dr Ramesh Cuganesan) MRI lumbar spine. Clinical history recorded: “low back pain and right leg pain”. Conclusion: “right paracentral disc extrusion at the L4/L5 level compressing the descending right L5 root. Small right paracentral disc protrusion at the L5/S1 without associated canal stenosis or neural impingement.”
18 July 2011                The worker is reviewed by Associate Professor Sheridan and a report is forwarded to Dr Tomka. No history is recorded in that report. Recommendations with respect to treatment were made.

The respondent tendered a handwritten notice of resignation, signed by the worker, dated 12 March 2010. That document nominates the worker’s last day of employment as being 26 March 2010.
There are two written statements in evidence made by employees of the appellant. The first is that of Mark Duncan, service manager with the appellant, dated 3 December 2010. Mr Duncan describes the training procedure undertaken by the worker and states that no injury had been reported by the worker during the period of his employment with the appellant. Mr Duncan further states that in March 2010 the worker asked for a pay rise which was refused, following which the worker provided a written resignation giving two weeks’s notice.
The second statement is that of Allan Tacon, workshop controller, employed by the appellant. The worker was supervised by Mr Tacon and he stated that the worker “went home a lot and complained of headache, but I don’t recall any other specific illnesses he may have had. I would say he was an average worker … [the worker] has never reported a workplace injury”. Mr Tacon was not aware of any injury the worker may have sustained at work.
The appellant also tendered a copy of report prepared by Dr Powell, dated 7 January 2011. The history recorded by Dr Powell is noted at [21] above. Dr Powell had access to the CT lumbar spine conducted on 5 August 2010. In response to a request that Dr Powell provide a diagnosis, the following was stated in that report:
“Mr Milojkovic’s history, signs, symptoms and investigations would suggest lumbar spondylosis and should be reflected as a L4/5 disc protrusion and early L5/S1 disc protrusion with right-sided radicular symptoms.
There has been no history of specific injury to the back and (sic) that has led to this condition but symptoms have been gradual in onset.
There is no clear indication to any underlying disease process which contributes to the early onset of this pathology and secondary symptoms.”
Dr Powell further stated in that report that “there is no clear reason as to why [the worker] has had such significant symptoms develop in the low back and right leg and why the changes on CT are as advanced.” He also stated “there is no indication of chronic disease and disease associated with musculoskeletal failure, nor connective tissue disorder. Further investigation may be required”. With respect to the relevance of work duties to his condition, Dr Powell stated:
“I believe that some of his symptoms were brought on by the mechanical aspects of his work but these are likely to have settled over three to four months. Following that time (around June 2010) he has revered to the natural history of his condition.”

Submissions before the Arbitrator

Counsel appearing on behalf of the appellant argued that the evidence failed to establish the occurrence of injury as alleged by the worker. Reliance was placed upon the absence of any evidence of complaint or of the worker seeking treatment during the currency of his employment. It was put that the evidence established that the reason the worker left the appellant’s employ was a dispute concerning pay and that his evidence concerning his need to stop work by reason of back pain should not be accepted. Counsel accepted that the radiological studies established that there was a significant disability suffered by the worker but that the likelihood was that the pathology had been caused not by work but by a frank incident which post-dated his period of employment. It was argued that, given the apparent severity of the discal injury, the worker would not have been able to perform his duties in an apparently normal manner up until his departure in March 2010. It was further argued that Dr Giblin’s opinion as to causation should be rejected given that the history as recorded is wrong, there being an absence of contemporaneous complaint made during the period the worker was employed. The Commission, it was argued, would not be satisfied that the worker’s condition was “a progressive condition”. That last submission was put in response to the Arbitrator’s questioning of counsel as to the relevance of the concept of “disease”.
Counsel appearing on behalf of the worker argued that his client’s evidence should be accepted and that he was in all probability able to continue work for as long as he did with the back injury because of his youth and level of fitness otherwise. Reliance was placed upon the evidence of Dr Giblin and Associate Professor Sheridan as well as the views expressed by Dr Powell. It was put that the matter was “a disease case”. It was the worker’s case that as a result of injury he became totally incapacitated and has remained so to date.

The Arbitrator’s determination

Following a summary of the evidence and argument as advanced, the Arbitrator observed that the worker had enrolled as a trainee with the New South Wales Police in May 2008 at which time he underwent a medical assessment. A finding was made that “it is highly unlikely any acute, chronic or latent medical condition affecting the lower back would not have been revealed at the medical assessment, during the physical capacity test and/or in the course of the training” (at [34] of Reasons).
The Arbitrator stated in the course of her Reasons that the worker left his employment with the appellant in “January 2010”. That finding conflicts with the evidence which establishes that the worker ceased employment with the appellant in March 2010.
A finding was made by the Arbitrator that “the evidence of [the worker], and the history obtained by medical practitioners, indicate [the worker] first suffered back pain during the course of his employment with ATG”. A finding was also made by the Arbitrator that “there was clearly a gradual deterioration of the back condition from January 2009 to August 2010 at which time the pain was radiating down the right leg and into the ankle” (at [41] of Reasons).
The Arbitrator’s findings which led to her conclusion concerning the appellant’s liability were as follows:
“41.   The applicant’s duties involved consistent, and repetitive, bending twisting, lifting and stretching. His back was subjected to micro traumata from 2002 to May 2008 and from January 2009 to March 2010. The applicant ceased work in March 2010 and has not worked since. There was clearly a gradual deterioration of the back condition from January 2009 to August 2010 at which time the pain was radiating down the right leg and into the ankle.
42. Injury is defined by s 4 of the 1987 Act and includes a personal injury arising out of or in the course of employment; a disease that is contracted by a worker in the course of employment; and the aggravation, acceleration, exacerbation or deterioration of any disease, in the course of employment. The Act, at the relevant time, required employment to be a substantial contributing factor to the disease or the aggravation of a disease.

43.     I am of the view the report of Dr Powell supports a finding the applicant suffered a personal injury namely a disease of gradual onset.

44.     I find the applicant was last employed by AHG in employment to the nature of which the disease was due.

45.     In the alternative Dr Giblin and Associate Professor Sheridan unequivocally support the applicant’s claim the back condition is due to the nature and conditions of his employment and for the reasons expressed above I find the injury was due to the nature and conditions of employment with AHG
46.     No respondent has provided any evidence, which supports its denial of liability.

47. For the reasons above I find the applicant suffered a personal injury arising out of or in the course of his employment with the second respondent, AHG Services Pty Limited, namely a disease of gradual onset or, in the alternative, a personal injury due to the nature and conditions of employment with AHG. I find the employment with AHG was not only a substantial contributing factor but also the main contributing factor to the injury.”

The Arbitrator proceeded to address the question of incapacity. The finding relevant to this question is to be found at [48] of Reasons where it was stated:
“The applicant claims benefits on the basis of total incapacity. Taking an overall view of the medical evidence it is abundantly clear the applicant was incapacitated for his normal duties from, at least, 29 April 2010. The severity of his symptoms increased and ultimately the incapacity was total. It is unlikely he could engage, during any period of partial incapacity, in any other employment, without substantial risk of further injury.”
The Arbitrator proceeded to state that the worker was “entitled to weekly benefits of compensation pursuant to s 36 of the 1987 Act and thereafter s 37”.
Before proceeding to make those orders which appear in the Certificate of Determination the Arbitrator summarised her findings as follows:
“51. I confirm the findings, in respect of injury and incapacity, as follows:

(a)Mr Milojkovic sustained a personal injury arising out of and in the course of his employment with AHG Services Pty Limited;

(b)AHG last employed Mr Milojkovic in employment to the nature of which the injury/disease was due.

(c)Employment was not only a substantial contributing factor but also the main contributing factor to the injury/ disease.

(d)On consideration of the medical evidence, and s47 of the 1987 Act the applicant is totally incapacitated from 29 April 2010.

(e)Mr Milojkovic is entitled to the payment of weekly benefits from 29 April 2010 pursuant to s 36 of the Act to the 29 October 2010 and thereafter pursuant to s 37.”

SUBMISSIONS, DISCUSSION AND FINDINGS

Nature and scope of this appeal

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

The Arbitrator’s findings as to “disease”

The appellant’s first complaint is that the Arbitrator failed to provide adequate reasons for her finding that the worker suffered injury “being of the nature of a disease of gradual process”. That finding is recorded at [43] of Reasons and is stated by the Arbitrator to be founded upon the evidence of Dr Powell. The evidence of Dr Powell had earlier been summarised in brief terms by the Arbitrator (at [38] of Reasons) where it was said:
“Dr Powell opines there is an underlying medical condition, this condition is aggravated by [the worker’s] employment and these aggravations become more severe and more prolonged. Dr Powell also opines ‘the condition is chronic and unlikely to be alleviated. In fact, it most probably will deteriorate over time and so full recovery cannot be expected.’ This ‘fits’ with the evidence of [the worker].”
It is beyond doubt that there is a statutory obligation: s 294 of the 1998 Act, and an obligation at law, upon an Arbitrator to give reasons for her decision and such reasons should be sufficient to enable a party to exercise its right of appeal. As was stated by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 following his Honour’s reference to earlier authority:
“Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement.”
It may be seen that the Reasons given by the Arbitrator for her finding concerning the occurrence of a “personal injury namely a disease of gradual onset” have been stated briefly and, as will be seen, without reference to other aspects of Dr Powell’s evidence which, the appellant argues, required consideration by the Arbitrator and an expression by her of her evaluation of Dr Powell’s evidence as a whole.
Having regard to the manner in which this first “ground” is argued by the appellant it seems to be suggested that the Arbitrator’s conclusion of fact concerning “disease of gradual onset” constitutes an error of fact in that such conclusion cannot be supported by the evidence. Intermingled with that argument is, as earlier stated, an attack on the Arbitrator’s reasoning as being “inadequate”. Having regard to all the circumstances, I am of the view that the arguments advanced concerning the deficiencies found in the Arbitrator’s reasoning constitute an attack upon the sufficiency of those Reasons, a concept which was addressed by Santow JA in Haris v Bulldog’s Rugby League Club [2006] NSWCA 53 where his Honour stated (at [121]):
“Decisions on appellate review, such as Fox v Percy (2003) 214 CLR 118, bear more on the adequacy of reasons than their sufficiency. Sufficiency of reasons is concerned with whether there is a process of reasoning sufficiently revealed to permit appellate review and detect appellable error; rather like the invocation to show one’s workings in answering a problem in maths so the source of any error is apparent. Reasons are likely to be sufficient precisely because they are explicit enough to permit the actual appellable error to be revealed…”
It is asserted by the worker in submissions on this appeal that the Arbitrator “did provide adequate reasons for her finding that the worker suffered from an injury of the nature of a disease of gradual process”. The worker seeks to support the Arbitrator’s finding upon the basis that such conclusion was open to her on the evidence. It may be seen that that argument advanced by the worker tends to focus upon the question raised concerning error of fact rather than matters raised concerning the sufficiency of the Arbitrator’s reasoning. The following submissions are put by the worker in support of the Arbitrator’s reliance upon the evidence of Dr Powell:
“12.S4 of the 1987 Act defines injury. The Arbitrator was entitled to make a finding of personal injury or disease.
13.The relevant consideration is the worker’s pathology.
14.Dr James Powell, Orthopaedic Surgeon, notes that there has been no specific injury to the back but symptoms have been gradual in onset (para 26 of Arbitrator’s reasons) and goes on to note that it would appear that the worker’s condition is gradually progressive (para 26).
15.Dr Powell’s opinion was that workplace events most likely aggravated the worker’s underlying condition (para 26).
16.Dr Powell comments that there does not appear to be any lifestyle factors or undiagnosed conditions responsible for the workers [sic] pathology (para 26).
17.The Appellant states that Dr Powell rejected that the worker suffered from a disease process (Appellant’s submissions para 12). This is not correct.”
Following consideration of the Reasons as expressed by the Arbitrator and the arguments raised on this appeal, I have formed the view that the manner in which the Arbitrator has expressed her reasoning is, to an extent, confusing and in some respects misleading. It is proposed to consider the sufficiency of those reasons concerning her finding of injury.
The Arbitrator has found that the worker “suffered a personal injury namely a disease of gradual onset”. The defence raised, on behalf of the appellant and the other employers, constituted a denial of the occurrence of injury. The definition of injury appears in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
(cf former s 6(1))
In this Act:
‘injury’:
(a)     means personal injury arising out of or in the course of employment
(b)     includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The finding that the worker suffered “a personal injury namely a disease of gradual onset” suggests the occurrence of a frank or discrete injury which has given rise to a disease which has gradually progressed. That suggests that the Arbitrator’s conclusion has been reached by reference to s 4(a) and (b)(i). The “personal injury” is not identified by the Arbitrator other than, as stated by her at [33] of Reasons after describing the worker’s relevant duties:
“There was no frank injury but the back would have been subjected to micro traumata.”
No relevant disease that is said to be causally related to the “micro traumata” is identified by the Arbitrator. Whilst reference is made by her to Dr Powell’s opinion that “there is an underlying medical condition”, the evidence of that practitioner is that relevant matters “suggest lumbar spondylosis and should be reflected as a L4/5 disc protrusion and early L5/S1 disc protrusion with right sided radicular symptoms”. Dr Powell expressly states:
“There is no clear indication to any underlying disease process which contributes to the early onset of this pathology and secondary symptoms.”
It appears that the Arbitrator has found as a fact that employment related disease exists in circumstances where Dr Powell expressly eschews existence of any relevant disease. His evidence does suggest a relationship between work duties and the appearance of symptoms where it is stated:
“I believe that some of his symptoms were brought on by the mechanical aspects of his work but these are likely to have settled over 3-4 months. Following that time (around June 2010) he has revered to the natural history of his condition.”
The Arbitrator has failed to make reference to those parts of Dr Powell’s evidence noted at [46] and [47] immediately above. Such failure tends, in my view, to mislead concerning the general tenor of Dr Powell’s evidence and its relevance to the Arbitrator’s conclusion as to injury. Whilst the Arbitrator is not bound to accept all of the evidence of a witness, but may accept part and reject other aspects of such evidence (Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at 178-179), the present circumstances present two difficulties. First, the opinion of Dr Powell concerning the limited relevance of work activity to the manifestation of symptoms is not addressed by the Arbitrator. Secondly, a clear opinion expressed by Dr Powell is that existence of the discal damage may not be explained by any relevant disease process. It is thus clear that nothing stated in evidence by Dr Powell supports either the existence of work caused disease (as found) nor any relevant aggravation other than that concerning temporary provocation of symptoms as noted above.
For the reasons stated above, the Arbitrator has, in my view, failed to sufficiently state her Reasons for the finding noted at [38] above.

The Arbitrator’s “alternative finding”

The Arbitrator has expressed an “alternative finding” that “the injury was due to the nature and conditions of employment with [the appellant]” (at [45] of Reasons). That finding was said by the Arbitrator to be founded upon the evidence of Dr Giblin and Associate Professor Sheridan. No further reasons are stated for reaching that “alternative” finding.

The worker submits that the Arbitrator was entitled to accept the evidence of Dr Giblin, Associate Professor Sheridan and Dr Powell. No analysis of that evidence is provided. Nor does the worker acknowledge that the Arbitrator’s reliance on Dr Giblin and Associate Professor Sheridan had led her to reach an “alternative” finding.
The Arbitrator has, at [20] of Reasons, recited the evidence of Associate Professor Sheridan as found in his first report dated 14 April 2011 addressed to Dr Tomka. The only observations found in that evidence concerning causation of injury are the statement “as you know [the worker] injured his back during the course of his work as a motor mechanic”, and later, where it was stated that the CT scan findings were “entirely consistent with his symptoms and his work injury”. As earlier observed, no detailed history is recorded in that report, nor does the evidence reveal what, if any, history concerning the worker’s back pain was given to Associate Professor Sheridan by the referring general practitioner, Dr Tomka. All that is known is that Dr Tomka issued a WorkCover certificate which recorded a frank or discrete injury having occurred on 12 March 2010 (refer [21] above). In such circumstances, the Arbitrator’s statement that Associate Professor Sheridan’s evidence “unequivocally” supports the worker’s claim that the “back condition is due to the nature and conditions of his employment” plainly misstates the evidence.
The Arbitrator placed reliance upon the evidence of Dr Giblin in circumstances where the appellant had argued that the worker’s evidence concerning his experience of pain in the course of his employment between 2006 and 2010 would not be accepted. The Arbitrator, at [33] of Reasons, accepted that the worker experienced pain as alleged in his statement. That acceptance was expressed without any reasons being given for the rejection of the appellant’s arguments concerning the variable histories as recorded, the absence of any contemporaneous medical evidence, the absence of any report of injury or loss of time by reason of incapacity and the unexplained delay in seeking treatment following cessation of employment. In short, the appellant’s argument that Dr Giblin’s evidence should not be accepted because the history relied upon was wrong was rejected by the Arbitrator without there being any reasons stated.
The Arbitrator’s failure to address the matters raised by the appellant concerning the probable inaccuracy in Dr Giblin’s history and those matters raised above concerning Associate Professor Sheridan’s evidence, lead me to conclude that insufficient reasons have been expressed by her concerning the “alternative” finding that “the back condition is due to the nature and conditions of [the worker’s] employment”. That failure and the failure noted at [48] above constitute relevant errors of law and the Arbitrator’s determination should be revoked. The relief sought by the appellant is that the matter should be “remitted to a different arbitrator for fresh consideration of the issues of injury and incapacity”. The worker has not, in his submissions, addressed that proposed order.

Conclusion

The appellant is, in my opinion, entitled to the relief sought. In the circumstances it is unnecessary to consider the other matters of complaint raised in the “grounds”. The matter should be remitted to an arbitrator other than Arbitrator Robinson for hearing afresh. The appellant’s solicitors are to notify ATG and Peninsular Holden of the orders made on this appeal. Appropriate orders appear below.

Other matters

I note that, as earlier mentioned, a suggestion was made by the appellant in submissions that the Arbitrator, given a particular finding that was the subject of challenge, should have “considered apportionment”. That was clearly a reference to the Commission’s power to order apportionment of liability in circumstances addressed by s 22 of the 1987 Act. Whilst there is nothing before the Commission which indicates the existence or otherwise of agreement among the employers concerning liability, it is clear that there exists a real prospect that the terms of Rule 9 of the Revised Professional Conduct and Practice Rules 1995 made by the Council of the Law Society of NSW may require that the solicitors cease to act for all parties.

DECISION

The orders as found in the Certificate of Determination dated 22 January 2013 are revoked and the matter is remitted to a different Arbitrator for re-hearing.

COSTS

No order as to costs of this appeal.
The costs of the first hearing are to follow the outcome of the re-hearing.

Kevin O'Grady
Deputy President

9 May 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE