Ali v Linksmart Pty Ltd
[2020] NSWWCCPD 56
•7 September 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Ali v Linksmart Pty Ltd [2020] NSWWCCPD 56 |
| APPELLANT: | Mirmujahed Ali |
| RESPONDENT: | Linksmart Pty Ltd |
| INSURER: | Icare Workers Insurance |
| FILE NUMBER: | A1-111/20 |
| SENIOR ARBITRATOR: | Ms J Bamber |
| DATE OF SENIOR ARBITRATOR’S DECISION: | 31 March 2020 |
| DATE OF APPEAL DECISION: | 7 September 2020 |
| SUBJECT MATTER OF DECISION: | Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998; r 16.2(5) of the Workers Compensation Commission Rules 2011 – Bryce v Department of Corrective Services [2009] NSWCA 188 applied; acceptance of and weight to be afforded to the evidence – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 discussed and applied; onus of proof – Nguyen v Cosmopolitan Homes (NSW) Limited [2008] NSWCA 246 discussed |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Counter, solicitor | |
| Gajic Lawyers | |
| Respondent: | |
| Mr F Doak, counsel | |
| Bartier Perry | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused. |
INTRODUCTION AND BACKGROUND
Mr Mirmujahed Ali (the appellant) was employed by Linksmart Pty Ltd (the respondent) as a machine operator. His duties required him to use a cutting and dicing machine to cut up vegetables. On 5 August 2018, the appellant was washing the machine towards the end of his shift when he cut his left index finger on the blade of the machine, amputating the tip of the finger. The appellant was taken to Auburn Hospital, where he underwent surgery. He was discharged two days later with his arm in a sling.
The respondent initially accepted liability for the injury.
The appellant subsequently also reported difficulties with his third, fourth and fifth fingers (diagnosed as a Complex Regional Pain Syndrome), gastrointestinal difficulties, and lumbar, cervicothoracic and cervical pain. On 24 October 2019, the appellant’s legal representatives made a lump sum claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on the appellant’s behalf in respect of a combined 20% whole person impairment (WPI). The 20% WPI was comprised of the following impairments:
(a) 15% WPI of the cervical spine;
(b) 4% WPI of the right [sic, left] upper extremity/Complex [referred to as Chronic] Regional Pain Syndrome;
(c) 1% WPI in respect of scarring, and
(d) 2% WPI of the gastrointestinal organs.[1]
[1] Application to Resolve a Dispute (ARD), pp 5–7.
On 27 November 2019, the respondent disputed liability for ongoing weekly payments on the basis that any incapacity from which the appellant may have been suffering was not attributable to the left index finger injury on 5 August 2018.[2]
[2] ARD, pp 8–11.
The appellant filed proceedings in the Commission claiming lump sum entitlements in accordance with the letter of claim dated 24 October 2019. Annexed to the ARD was a letter directed to the Commission advising of the typographical error in the letter of claim and confirming that the reference to the right upper extremity should have been to the left upper extremity.[3] The appellant pleaded the following injury description:
“On 5 August 2018, the Applicant suffered an amputation of the tip of his index finger whilst using washing a dicing machine.
…
The Applicant has subsequently suffered from symptoms of pain in his neck, back, left middle and ring finger and left hand.
As a result of the above accident, we are instructed that our client sustained the following injuries: Left Upper Extremity (index finger, middle finger, ring ringer), Cervical Spine (consequential), Chronic regional pain Syndrome, Surgical Scarring and Gastro-intestinal.”
[3] Letter dated 13 January 2020 (unpaginated).
The respondent filed its Reply to Application to Resolve a Dispute (Reply) in which it sought leave to raise issues not previously disputed pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent identified that it disputed that the appellant suffered any injury in the incident on 5 August 2018 other than the left index finger amputation. The respondent further disputed that the appellant suffered any conditions that were consequential to the injury on 5 August 2018. It appears that leave to dispute those matters was granted.
On 3 March 2020, the matter came to arbitration before Senior Arbitrator Bamber, who heard the parties’ submissions and reserved her decision. The Senior Arbitrator issued a Certificate of Determination dated 31 March 2020, in which she accepted that the appellant suffered consequential conditions of the upper gastric tract and Chronic Regional Pain Syndrome. However, she was not satisfied that the appellant suffered a consequential cervical spine condition as a result of the left index finger injury on 5 August 2018. The Senior Arbitrator declined to refer the claim pursuant to s 66 to an Approved Medical Specialist because the assessments of the appellant’s accepted conditions did not reach the necessary threshold of greater than 10% WPI required pursuant to s 66(1) of the 1987 Act.
This appeal is limited to a challenge by the appellant to the Senior Arbitrator’s finding that she was not satisfied that the appellant suffered a consequential condition in the cervical spine as a result of the left index finger injury.
ON THE PAPERS
Section 354(6) of 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.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the written submissions by the parties indicating that the appeal can 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 in accordance with s 352(3) of the 1998 Act have been met.
Time
Section 352(4) of the 1998 Act provides that an appeal from a decision of an arbitrator can only be made within 28 days after the date of the decision being appealed against.
The Senior Arbitrator issued a Certificate of Determination on 31 March 2020. The appellant lodged an Appeal Against Decision of Arbitrator (appeal) from the Senior Arbitrator’s decision on 27 April 2020. The appeal was rejected by a delegate of the Registrar pursuant to s 352(2) of the 1998 Act because the appeal failed to comply with r 16.2(7) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) and the Commission’s Practice Direction No 6.
The appellant re-lodged a substantially compliant appeal on 30 April 2020, which was outside of the time prescribed by s 352(4) of the 1998 Act. The appellant seeks an extension of the time for making the appeal in accordance with r 16.2(5) of the 2011 Rules. Rules 16.2(5) and 16.2(6) of the 2011 Rules provide as follows:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The appellant makes the following submissions in support of the application for extension of the time within which to file the appeal:
(a) the original appeal was filed within 28 days;
(b) the notification that the appeal was rejected was not received until 29 April 2020, which was after the time had expired;
(c) the appeal was rejected on procedural grounds, which were remedied as quickly as possible, and
(d) the appellant has a strongly arguable case and a substantial miscarriage of justice would result if time was not extended.
In its Opposition to Appeal against Decision of Arbitrator (opposition) the respondent says that it does not make any submissions about the delay, other than to say that, for the reasons set out in its substantive submissions, the appellant does not have a strongly arguable case.
Rule 16.2(5) requires me to consider whether “exceptional circumstances” exist. In Yacoub v Pilkington (Australia) Ltd,[4] Campbell JA considered the expression and concluded (citations omitted):
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision, and
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.”
[4] [2007] NSWCA 290, [66].
The reasons put forward by the appellant in support of the application for an extension of time cannot be considered exceptional. It is the responsibility of the legal practitioner to ensure that the appeal complies with the procedural requirements and Practice Direction No 6 makes it clear that the appeal may be rejected for failure to comply with those requirements. Unfortunately, it is not entirely uncommon for appeals that do not comply with the procedural requirements to be filed on the eve of the expiration of the period within which an appeal must be filed. The fact that the appellant acted quickly to remedy the procedural flaws ignores the fact that the original appeal should have conformed in the first place.
In any event, whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[5]
[5] Bryce v Department of Corrective Services [2009] NSWCA 188 (per Allsop P (Beazley and Giles JJA agreeing)), [10].
I must therefore consider whether a refusal to extend the time to appeal would cause a substantial injustice. In order to determine whether substantial injustice would result from a refusal to extend the time, it is necessary for me to consider the merits of the appeal.
THE RELEVANT EVIDENCE
The appellant’s statement
The appellant provided a statement dated 3 April 2019.[6] The appellant said that he commenced work with the respondent in April 2018 as a machine operator. The respondent provided labour hire services to Select Fresh Providores Pty Ltd. The appellant’s duties involved feeding carrots and potatoes into a cutting and dicing machine and cleaning the machine between batches.
[6] ARD, pp 1–4.
The appellant stated that on 5 August 2018, he was washing the machine at the end of his shift when his left index finger made contact with the cutter and the tip of his left index finger was amputated. The appellant was taken by the respondent’s supervisor to Auburn Hospital.
The appellant said that as a result of the injury he suffered injury to his left index finger, his cervical spine, scarring and psychological injury. The appellant described his ongoing difficulties, which included pain and restriction of movement of the left hand and pain in the cervical spine. The appellant also provided details of the medication he received and the medical practitioners he attended.
The Auburn Hospital records
The Auburn Hospital clinical records indicated that the appellant underwent surgery involving terminalisation of the left finger on the evening of the day after the injury.[7] The Discharge Summary indicated that post operatively, supportive bandages were applied, the appellant’s hand was put in a sling and the appellant was advised to keep the hand elevated.[8]
[7] ARD, p 31.
[8] ARD, pp 32–34.
The general practitioners’ records
The clinical notes recorded between 23 August 2018 and 4 March 2019 by Dr Ijaz Khan, general practitioner and Dr Philip Tran, general practitioner of the same practice, were in evidence.[9] The notes are of no assistance to the issue to be determined other than the notation on the first consultation that the appellant’s left arm was in a sling.
[9] ARD, pp 45–52.
Several certificates of capacity produced by Dr Khan were also in evidence.[10] The initial certificate, dated 29 October 2019, noted the diagnosis of injury as “Left index finger Amputation at DIPJ.”[11] Following a review on 12 November 2018, Dr Khan issued a further certificate of capacity, in which he noted:
“Discomfort on palpation over left levator scap & cervicothoracic spine midline to T10 … Likely to be sling induced mechanical cervicothoracic discomfort …”.
[10] ARD, pp 53–89.
[11] ARD, p 53.
Dr Khan diagnosed the injury as:
“1. Left index finger Amputation at DIPJ
2. Cervicothoracic – mechanical pain secondary to sling use.”
In various other certificates of capacity, Dr Khan noted that:
(a) on 26 November 2018, the appellant complained of mild “neck pain and discomfort to the left trapezius;”[12]
(b) on 17 December 2018 and on 21 January 2018 [sic 2019], the rehabilitation provider was to be involved in future orthopaedic management of the appellant’s fingers and cervical spine,[13] and
(c) on 4 March 2019, the appellant complained of an inability to sleep because of neck pain and headaches and ongoing cervical spine mechanical discomfort.
[12] ARD, p 67.
[13] ARD, pp 72 and 77.
In the certificate of capacity dated 17 December 2018, Dr Khan listed the diagnoses as amputation of the left index finger DIPJ, reflex sympathetic conditions in the middle and ring fingers, and “Mechanical neck pain.”[14] Those diagnoses were repeated in the subsequent certificates of capacity.
[14] ARD, p 70.
Dr Jonathan Herald, orthopaedic surgeon
Dr Herald’s records were annexed to the ARD. Those documents included a hand-written referral of the appellant to a pain specialist, in which Dr Herald sought advice in relation to the management of the appellant’s “neurogenic pain to head and neck and left hand.”[15] Dr Herald arranged for the appellant to undergo an x-ray and MRI scan of the cervical spine on 13 February 2019. The report, which recorded clinical details of “? Whiplash type injury,” concluded that the findings were unremarkable.[16]
[15] ARD, p 106.
[16] ARD, p 107.
Dr Herald reported back to Dr Khan on 21 January 2019.[17] Dr Herald noted neck pain and intermittent back pain, but did not offer an opinion on any connection between the cervical symptoms and the injury. Dr Herald reported again to Dr Khan on 4 March 2019.[18] Dr Herald advised that the appellant continued to experience pain in his head, neck and left hand and said that:
“At the moment he does not have any organic causes for his pain based on the MRI scans that we have seen today.”
[17] ARD, p 111.
[18] ARD, p 209.
Dr Paul Teychenne, neurologist
Dr Teychenne was qualified by the appellant’s legal representatives to examine and provide an opinion in respect of the appellant’s injury. In his report dated 4 June 2019, Dr Teychenne took a history of the injury to the left index finger and noted the development of Complex Regional Pain syndrome affecting the third to fifth fingers of the left hand. Dr Teychenne also noted the appellant complained of stabbing pain over the left paracervical region, which had been present for five months. He reported that the pain extended from that region to the right paracervical region and into the left and right occiput, resulting in decreased rotation of the neck. Dr Teychenne noted that the appellant attributed this pain to having to wear a sling to support his hand. Dr Teychenne also noted lumbar pain.[19]
[19] ARD, pp 12–14.
Dr Teychenne provided a further report to the appellant’s legal representatives dated 4 August 2019.[20] Relevantly, in a review of the documents provided to him, Dr Teychenne noted that Dr Khan had provided a medical certificate indicating that the appellant’s cervicothoracic mechanical pain was secondary to the use of a sling. Dr Teychenne added that on review on 12 November 2018, “[i]t was thought that he had sling induced mechanical cervicothoracic discomfort with levator scapulae symptoms.[21] Dr Teychenne further noted that Dr Herald also recorded complaints of neck pain and that the MRI scan of the cervical spine did not show any significant abnormality, apart from some minor spurring of the anterior endplates at levels C4–C6. Dr Teychenne took a history of the appellant’s employment duties, which included lifting weights of 5–10 kg per day and which caused the appellant to experience lumbar pain. In addition to the findings on examination of the cervical spine recorded in his earlier report, Dr Teychenne noted that there was heavy pain over the back of the appellant’s head. Dr Teychenne concluded that the injury arose out of or in the course of employment and that the appellant’s employment was a substantial contributing factor to the “injuries.” Dr Teychenne did not explain to which injuries he was referring. In a separate report of the same date, Dr Teychenne provided an assessment of the appellant’s WPI of the Complex Regional Pain Syndrome as 4% WPI of the left upper extremity and 15% WPI of the cervical spine.[22]
[20] ARD, pp 15–20.
[21] ARD, p 16.
[22] ARD, pp 21–23.
Dr Teychenne subsequently issued a further report dated 2 September 2019.[23] In that report, Dr Teychenne opined that:
“I found evidence consistent with a C7 radiculopathy and I noted rotation of his neck and head to the right caused pain over the left paracervical region. He had asymmetric loss of range of motion. He had two potential causes for the neck pain, one is consequential to the amputation injury on the 5th August 2018 that is whether he sustained a jerking whiplash type injury at the time of the amputation. The other potential possibility is that his neck pain and evidence of a left C7 radiculopathy is derived from the nature and condition of his employment that is the heavy lifting.”[24]
[23] Application to Admit Late Documents (AALD) dated 26 February 2020, pp 4–5.
[24] AALD, p 5.
Dr Neil A Berry, general surgeon
Dr Berry was retained by the appellant’s legal representatives to provide an opinion and assessment in respect of the appellant’s gastrointestinal symptoms. Although Dr Berry was not required to consider the cervical condition, in his report dated 11 September 2019, he recorded a history that the appellant left Auburn Hospital with a feeling of pain in the neck and down his left arm and a degree of back pain.[25]
[25] ARD, p 27.
Dr Stephen Rimmer, orthopaedic surgeon
At the request of the respondent, Dr Rimmer provided an opinion and report dated 7 November 2019 in respect of the appellant’s condition.[26] Dr Rimmer recorded that the appellant was vague about the history of the development of symptoms in the cervical region, so that Dr Rimmer was unable to establish a relationship between the cervical condition and the left finger injury. Dr Rimmer noted Dr Herald’s observation that, on the basis of the MRI scan results, at that time there was no organic cause for the cervical symptoms and recommended pain management. Dr Rimmer recorded that the appellant described intermittent pain and indicated this was in the left side of the neck.
[26] Reply, pp 1–6.
Dr Rimmer reported that an examination of the cervical spine was normal, and the only clinical finding was of a partial amputation of the left index finger. Dr Rimmer commented that he could not see any abnormal clinical finding in the cervical or lumbar spine and that he could not establish a relationship between either the lumbar spine or the cervical spine and the left finger amputation. Dr Rimmer said that his view accorded with that of Dr Herald.
Dr Rimmer provided a supplementary report dated 2 March 2020.[27] Dr Rimmer confirmed his opinion that the appellant did not suffer a consequential condition in the cervical spine, based on the same reasons expressed in the earlier report.
[27] Respondent’s AALD dated 2 March 2020.
Rehabilitation reports
An initial rehabilitation assessment report dated 27 November 2018 written by Ms Melisa Cvetkovska on behalf of Balance Rehab,[28] and an approval for service request made by Dynamic Rehab Group dated 10 March 2019[29] were in evidence. Neither document referred to cervical symptoms.
[28] Reply, pp 10–15.
[29] Reply, pp 19–20.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator reviewed the evidence before her. She noted that the appellant’s statement was extremely brief and provided her with no assistance in respect of whether there was a causal connection between the appellant’s consequential conditions and the injury to the left index finger. The Senior Arbitrator remarked that it was therefore necessary to thoroughly review the treating and medico-legal reports and proceeded to summarise the medical evidence.
The Senior Arbitrator noted the evidence in Dr Khan’s records that addressed the issues before her. The Senior Arbitrator made the following relevant comments about the clinical records:
(a) on 23 August 2018, the appellant’s left arm was in a sling;
(b) the clinical notes were very brief and of little use, other than the entry on 12 November 2018, in which reference was made to the cervical spine;
(c) the certificates of capacity contained more detail, including that:
(i)in the certificate dated 12 November 2018, Dr Khan referred to and described the cervicothoracic spine symptoms and recommended physiotherapy;
(ii)on 17 December 2018, Dr Khan added mechanical neck pain as a diagnosis of injury which required orthopaedic review and rehabilitation assistance in respect of the cervical symptoms;
(iii)reference to neck discomfort was again mentioned in the certificate dated 18 February 2019;
(iv)the certificate dated 4 March 2019 recorded sleep difficulties due to neck pain and cervical spine mechanical discomfort, and
(v)in his report dated 22 October 2019, Dr Khan repeated the diagnoses, including the diagnosis of mechanical back pain.
The Senior Arbitrator noted that the rehabilitation reports did not refer to cervical symptoms.
The Senior Arbitrator reviewed the reports from Dr Herald, and referred to Dr Herald’s conclusion that, based on the MRI scan, there were no organic causes for the appellant’s pain. The Senior Arbitrator inferred that Dr Herald was referring to the MRI scan of the appellant’s cervical spine.
In relation to the reports of Dr Teychenne, the Senior Arbitrator noted the history provided in respect of the neck pain was that it was of five months’ duration, the onset of which would have been approximately January 2019, and that the appellant related that pain to wearing a sling to support the left hand. The Senior Arbitrator further noted that Dr Teychenne:
(a) reported that the appellant did not specifically mention neck pain, but that mechanical neck pain was recorded in the certificate of capacity dated 29 October 2018;
(b) presumed the reference to “whiplash” in the referral for the MRI scan was thought to have occurred in the incident on 5 August 2018;
(c) opined that there were two potential causes for the neck pain, namely that:
(i)in the incident on 5 August 2018, the appellant suffered a whiplash type injury at the time of the amputation, or
(ii)the neck pain resulted from the heavy lifting required by the nature and conditions of the appellant’s employment.
The Senor Arbitrator reviewed the evidence from Dr Rimmer and noted that Dr Rimmer found the appellant’s history in relation to the onset of the consequential conditions was extremely vague and that Dr Rimmer could not establish a relationship between those conditions and the injury to the left index finger. The Senior Arbitrator also noted that Dr Rimmer reported the examination of the cervical spine as normal and for those reasons, Dr Rimmer concluded that he did not consider that the appellant suffered from the consequential conditions claimed.
The Senior Arbitrator quoted from the judgment of Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates,[30] in which his Honour observed that causation is not always direct or immediate, that notions of a proximate cause are not relevant and that mere proof that certain events occurred which pre-disposed a worker to injury will not, of itself, be sufficient to establish that incapacity or death results from the injury. Further, whether a death or incapacity results from an injury is a question of fact. The Senior Arbitrator noted that Roche DP in Kumar v Royal Comfort Bedding Pty Ltd[31] confirmed that the test of whether a consequential condition results from the injury is a common sense test, as observed by Kirby P in Kooragang.
[30] (1994) 35 NSWLR 452; 10 NSWCCR 796, 461[G] (Kooragang).
[31] [2012] NSWWCCPD 8 (Kumar).
The Senior Arbitrator acknowledged that the appellant’s claim was that the cervical condition was consequent upon the left finger injury but that his statement did nothing more than refer to the fact that he had an injury to his cervical spine. The Senior Arbitrator noted that the appellant had submitted that Dr Teychenne recorded that the appellant attributed his neck pain to wearing the sling, and that assertion was supported by the certificate dated 12 November 2018. In that certificate, Dr Khan diagnosed cervicothoracic mechanical pain secondary to sling usage. The Senior Arbitrator pointed out, however, that Dr Teychenne put forward two alternate causes of the condition, and neither of those was the case brought by the appellant. The Senior Arbitrator also noted that Dr Teychenne took into account the reference to “? whiplash injury” in the MRI scan referral from Dr Herald.
The Senior Arbitrator considered the appellant’s submission that Dr Rimmer’s opinion should be rejected because the opinion was arrived at solely on the basis of a vague history and a single physical assessment and because Dr Rimmer did not take into account Dr Teychenne’s evidence. The Senior Arbitrator said that, given Dr Teychenne did not find a causal connection between the neck condition and the left index finger injury, she did not consider Dr Rimmer’s failure to consider Dr Teychenne’s findings to be significant.
The Senior Arbitrator further considered the appellant’s submission that Dr Rimmer failed to take into account the references made by Dr Herald to the appellant’s cervical symptoms. The Senior Arbitrator pointed out that Dr Herald did not offer a view as to the cause of the appellant’s cervical symptoms and in fact was of the view that there was no organic basis for the complaints. The Senior Arbitrator considered that Dr Herald’s finding was consistent with that of Dr Rimmer.
The Senior Arbitrator said that, in any event, even if she were to discount Dr Rimmer’s opinion, she was not satisfied that the appellant had discharged the onus of proving that he suffered a consequential condition in the cervical spine as a result of the injury to the left index finger. She observed that there was no expert opinion to support that proposition. The Senior Arbitrator indicated that, in the context of the two contrary mechanisms of injury proffered by Dr Teychenne, the appellant’s case needed a considered medical opinion that took into account all of the possible explanations and an explanation as to how the wearing of the sling caused the condition.
The Senior Arbitrator reiterated that the appellant’s statement did not mention how the cervical symptoms evolved, say how long the appellant wore the sling, or in fact refer at all to the appellant wearing the sling.
The Senior Arbitrator referred to Dr Khan’s notes in which reference to the sling was made on 23 August 2018, but not thereafter, and reference to the onset of neck symptoms was not recorded until 29 November 2018.
The Senior Arbitrator concluded that she could not accept the evidence of Dr Khan that the neck pain resulted from wearing a sling without Dr Khan having considered the other causes put forward by Dr Teychenne. The Senior Arbitrator described Dr Khan’s evidence as a “bald assertion”[32] made in the absence of relevant facts, such as for how long the appellant wore the sling.
[32] Ali v Linksmart Pty Limited [2020] NSWWCC 100 (reasons), [59].
The Senior Arbitrator further concluded that, applying the test in Kooragang, she could not assess the requisite causal chain and observed that the appellant bore the onus of proof. The Senior Arbitrator referred to Nguyen v Cosmopolitan Homes (NSW) Limited,[33] in which McDougall J observed that a tribunal of fact must feel an actual persuasion of the existence of the fact.
[33] [2008] NSWCA 246 (Nguyen).
The Senior Arbitrator finally concluded that, applying Nguyen, the appellant had not discharged the onus of proof. She was not satisfied on the balance of probabilities that the appellant had established that the cervical symptoms were caused by wearing the sling after the injury to the left index finger on 5 August 2018. The Senior Arbitrator entered an award in favour of the respondent in respect of the allegation of a consequential cervical spine condition.
The Certificate of Determination issued on 31 March 2020 records:
“The Commission determines:
1. The applicant has sustained a consequential condition to his upper digestive tract as a result of injury to his left index finger on 5 August 2018 in the course of his employment with the respondent.
2. The applicant has sustained some symptoms of chronic regional pain syndrome as a result of injury to his left index finger on 5 August 2018 in the course of his employment with the respondent.
3. Award for the respondent in relation to the allegation of the development of a consequential cervical spine condition as a result of the injury to his left index finger on 5 August 2018 in the course of his employment with the respondent.
4. Pursuant to section 66(1) of the Workers Compensation Act 1987 the applicant is not entitled to have his permanent impairment claim in relation to the left upper extremity/chronic regional pain syndrome, scarring, and upper digestive tract referred to an Approved Medical Specialist for assessment.”
GROUNDS OF APPEAL
The appellant brings one ground of appeal, alleging that:
“The [Senior] Arbitrator erred in finding that there was no expert opinion to support the Cervical Spine condition being consequent on the admitted injury to the left index finger of 5 August 2018.”
The appellant’s submissions also indicate that he contends that the Senior Arbitrator erred by:
(a) failing to find that the cervical spine was a consequential condition which resulted from the accepted left finger injury;
(b) finding that there was no expert evidence to support the causal connection;
(c) failing to make a finding in respect of whether she accepted the opinion of Dr Rimmer, and
(d) applying the wrong standard of proof.
The respondent has identified those issues and addressed them. The appellant should have pleaded each of the issues as separate grounds of appeal, however, in the interests of ensuring a timely resolution of the appeal, all of the allegations of error are discussed below.
SUBMISSIONS
The appellant’s submissions
The appellant submits that the Senior Arbitrator erred in finding that the appellant had not discharged the onus of proving that there was a causal link between the accepted injury and the condition in the appellant’s cervical spine, because there was no expert medical opinion to support that allegation.
The appellant refers to the Senior Arbitrator’s reasons, in which she noted that Dr Khan reported that the appellant’s arm was in a sling and that Dr Khan’s evidence was that the appellant’s arm being in a sling caused mechanical neck pain. The appellant further refers to the evidence of Dr Rimmer, which was dependent upon the lack of pathological change in an MRI scan and the Senior Arbitrator’s observation that Dr Herald’s comments on the MRI scan supported Dr Rimmer’s view. The appellant submits that Dr Herald’s comment about the MRI scan results was made in the context of considering the treatment options to be prescribed for the appellant’s neck pain and was not an opinion on causation.
The appellant contends that the Senior Arbitrator erred by finding that Dr Herald supported the opinion of Dr Rimmer in relation to the question of the causal connection between the injury and the cervical condition.
The appellant asserts that, in her reasons, the Senior Arbitrator did not make a finding as to whether or not she accepted Dr Rimmer’s opinion. Consequently, the appellant asserts error on the part of the Senior Arbitrator in finding that the appellant had not discharged the onus of proving the causal connection between the neck condition and the injury to the left index finger.
The appellant contends that the correct finding should have been that Dr Khan gave evidence of the claimed consequential condition. Further, Dr Rimmer’s opinion should not have been accepted because he did not take into account the appellant’s evidence that the restrictions in the appellant’s neck resulted from the use of the sling to support the hand following the injury.
The appellant submits that the Senior Arbitrator’s reliance on Nguyen was misplaced. The appellant says that the burden of proof is that of on the balance of probabilities, in accordance with Kooragang, and not “some further gloss on the normal civil standard of proof.”[34]
[34] Appellant’s submissions, [9].
The respondent’s submissions
The respondent submits that, while the appellant asserts only one ground of appeal, the appellant’s submissions indicate that there are two grounds, namely that the Senior Arbitrator erred in finding that:
(a) there was no expert opinion to support the causal connection between the injury and the consequential condition in the cervical spine, and
(b) the appellant had not established that the cervical condition resulted from the left index finger injury.
The respondent contends that the Senior Arbitrator’s reasoning and findings disclose no error, the appeal should be rejected, and the Senior Arbitrator’s COD confirmed.
The respondent submits that, on a proper reading of the Senior Arbitrator’s reasons, the Senior Arbitrator’s conclusion was that the expert evidence did not support a finding that the claimed consequential loss resulted from the injury to the left index finger.
The respondent refers to the Senior Arbitrator’s summary of the evidence and asserts that the Senior Arbitrator correctly found that the appellant had not given any evidence, either orally or in statement form, in support of the connection between his neck symptoms and the injury. The respondent says that there was no evidence, other than that recorded in the medical histories, upon which it could be concluded that the use of the arm sling resulted in the appellant’s cervical symptoms.
The respondent submits that the Senior Arbitrator also gave proper regard to the appellant’s medical evidence and correctly identified that, apart from a comment by Dr Khan in a medical certificate, none of the medical experts relied upon by the appellant provided an opinion supporting the necessary connection. The respondent points out that Dr Teychenne, the appellant’s forensic expert, attributed the neck symptoms to the “nature and conditions” of the appellant’s employment or, in the alternative, to a specific injury to the cervical spine in the incident on 5 August 2018. The respondent says that Dr Teychenne’s opinion was entirely inconsistent with the case relied upon by the appellant. The respondent adds that the Senior Arbitrator noted that Dr Teychenne referred to a history of a connection between the use of the sling and the onset of neck symptoms, but that the Senior Arbitrator inferred that Dr Teychenne had rejected the notion as a causal mechanism. The respondent submits that the inference was clearly open to the Senior Arbitrator.
The respondent maintains that the only connection between the appellant’s neck symptoms and the left finger injury was the comment by Dr Khan in the medical certificate dated 29 November 2018, which was an entry made under the heading of “Diagnosis of work related injury.” The respondent submits that the Senior Arbitrator afforded Dr Khan’s comment little weight and correctly rejected it on the basis that it was a “bald assertion” of the type referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles.[35]
[35] [2001] NSWCA 305, 52 NSWLR 705; 25 NSWCCR 218 (Makita).
The respondent refers to the requirements set out by Heydon JA in Makita about the admissibility of expert opinion and the observations of Beazley JA (with Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd.[36] The respondent submits that the Senior Arbitrator’s task was to assess the weight of the evidence from Dr Khan, and she correctly determined that Dr Khan’s opinion did not sufficiently meet the criteria to be afforded any weight. The respondent submits that it did not identify any factual assumptions, or the clinical history upon which it was based, and nor did it disclose a reasoning process by which the doctor formed his opinion. The respondent further refers to Rolleston v Insurance Australia Ltd,[37] in which Emmett JA observed that an expert’s reasons for the opinion should show that the opinion is based upon expert knowledge.
[36] [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43.
[37] [2017] NSWCA 168, [32].
The respondent asserts that a further problem arises for the appellant in that Dr Khan’s comment is not supported in any factual way by evidence from the appellant and was directly contradicted by Dr Teychenne’s evidence.
The respondent submits that the appellant’s complaint that the Senior Arbitrator erred in accepting the opinion of Dr Rimmer discloses that the appellant misunderstands the Senior Arbitrator’s finding. The respondent points to the Senior Arbitrator’s reasoning that, even if she ignored Dr Rimmer’s opinion, she was not satisfied that the appellant overcame the burden of proving the cervical symptoms were consequent upon the left index finger injury. The respondent maintains that there was no error in the Senior Arbitrator’s finding.
The respondent refers to the appellant’s submission that the Senior Arbitrator applied the wrong test by relying on Nguyen, which the respondent says is a separate ground of appeal. The respondent submits that the appellant does not articulate the basis upon which the asserted error affected the Senior Arbitrator’s finding, and nor has the appellant identified how the absence of reliance on the authority of Nguyen would have led to a different result. The respondent submits that, in any event, the Senior Arbitrator correctly referred to and applied the common sense principle of causation discussed by Kirby P in Kooragang. The respondent submits that the Senior Arbitrator engaged that principle in her analysis of the factual and expert evidence.
The respondent contends that the common sense evaluation of the connection required by Kooragang is a different task to the evaluation of the acceptance of, and weight to be afforded to, the evidence.
The respondent concludes that the Senior Arbitrator made no error in approaching the issue in the manner she did.
CONSIDERATION
Basically, the appellant’s appeal ground asserts error on the part of the Senior Arbitrator in her failure to accept that there was a causal connection between the appellant’s asserted neck condition and the left index finger injury. A decision as to causation is a factual decision requiring consideration of the evidence and the inferences that can be drawn from that evidence. Findings of fact will not necessarily be disturbed if they have rational support in the evidence.[38]
[38] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
The alleged factual errors
The appellant complains in part that the Senior Arbitrator erred in concluding that:
(a) Dr Rimmer’s view was supported by the evidence from Dr Herald;
(b) she could not accept that Dr Khan’s evidence, together with the history taken by Dr Herald, was sufficient to discharge the appellant’s onus, and
(c) there was no expert evidence that supported the causal connection.
In determining whether an arbitrator erred in making a factual finding, the Commission has consistently applied the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[39] Deputy President Roche provided the following summary of those principles in Raulston v Toll Pty Ltd:[40]
“An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that [the] conclusion was wrong’.
Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[41]
[39] (1966) 39 ALJR 505 (Whiteley Muir), at 506.
[40] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[41] Raulston, [19].
Was Dr Rimmer’s view supported by the evidence from Dr Herald?
The appellant also alleges that the Senior Arbitrator erred in her finding that Dr Herald’s opinion supported that of Dr Rimmer. The reason put forward by the appellant was that Dr Herald’s comment about the MRI scan results was made in the context of considering the treatment options to be prescribed for the appellant’s neck pain and was not an opinion on causation.
Dr Herald may have been considering the alleged condition in the cervical spine in the context of advice in relation to treatment options. However, I do not consider that to be any reason to discount his clearly enunciated opinion that, based on the MRI scan, “at the moment [the appellant] does not have any organic causes for his pain.”[42]
[42] ARD, p 209.
Dr Rimmer made the following observations as to the causal connection between the cervical complaints and the left finger injury:
(a) the appellant’s history in relation to the onset of cervical symptoms was very vague;
(b) there was an absence of clinical findings on examination of the cervical spine, and
(c) his findings were consistent with those of Dr Herald who concluded that there was no organic pathology to explain the appellant’s symptoms.
Whatever the context was in which Dr Herald offered his opinion, it is clear that both he and Dr Rimmer found no pathological explanation for the appellant’s cervical complaints. The Senior Arbitrator noted that Dr Herald did not provide an opinion on causation. The relevant finding made by the Senior Arbitrator was that, although Dr Herald did not offer a view on causation, he “seems dismissive of the same having considered the MRI scan, he says there is no organic cause for the pain.”[43] It was this finding that the Senior Arbitrator considered was supportive of the view taken by Dr Rimmer. I do not accept the appellant’s submission that this finding was not available to the Senior Arbitrator. The doctors were ad idem in respect of there being an absence of any pathological explanation for the cervical symptoms. It was therefore open for the Senior Arbitrator to conclude that Dr Herald’s opinion supported that of Dr Rimmer. Accordingly, the appellant’s submission is rejected.
Should the Senior Arbitrator have been satisfied on the basis of Dr Khan’s evidence, together with the history taken by Dr Herald, that the evidence together was sufficient to discharge the appellant’s onus of proof?
[43] Reasons, [56].
The evidence that can be gleaned from the documents produced by Dr Khan indicates that the appellant’s left arm was in a sling on presentation to Dr Khan on 23 August 2018 and Dr Khan noted cervical complaints on 12 November 20118. On that date, Dr Khan recorded that the pain was likely to have been sling induced. Dr Khan began treating the appellant for neck symptoms from that time. Dr Herald noted that the appellant attributed his neck complaints to having to wear the sling.
There was no direct evidence from the appellant on point, particularly indicating an approximate time of onset of the symptoms or any evidence that he continued to wear the sling after August 2018. The Senior Arbitrator referred to that lack of contemporaneity. As the Senior Arbitrator noted, Dr Khan’s brief statement of opinion did not involve any reasoning process or explanation for his conclusion. Further, the Senior Arbitrator noted that there were two competing causes put forward by Dr Teychenne, Dr Rimmer could not determine any pathology or causal link, and Dr Herald concluded that there was no organic explanation for those symptoms.
The view expressed by Dr Khan that the cause of the neck symptoms was “likely” to have been the wearing of the sling sat in the face of the various different opinions expressed by those other experts. It was the task of the Senior Arbitrator to assess the weight to be afforded to each of the opinions expressed. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[44]
[44] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
The appellant’s submission is that the Senior Arbitrator “ought” to have accepted that the evidence from Dr Khan, supported by the history provided to Dr Herald, was sufficient to establish his case. An assertion that the Senior Arbitrator should, or ought to have arrived at a different conclusion is not sufficient to disturb the decision. As was observed by Barwick CJ in Whiteley Muir, what is required is that material facts were overlooked, or given undue or too little weight, or the available inference in the opposite sense to that chosen by the Senior Arbitrator is so preponderant that the Senior Arbitrator’s decision was wrong.
The Senior Arbitrator considered that Dr Khan’s evidence was a “bald assertion” and his opinion was expressed in the absence of a reasoned pathway. That assessment of the evidence was consistent with the principles enunciated by Heydon JA in Makita, and by Beazley JA (as her Honour then was) in Hancock. In Makita, Heydon JA said:
“In short, if evidence tendered as expert opinion evidence is to be admissible … it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration of the scientific or other intellectual basis of the conclusions reached …”.[45]
[45] Makita, [85].
In Hancock, Beazley JA observed that in the Commission, which is a non-evidence-based jurisdiction, the question of the acceptability of expert evidence is a question of weight, as observed by Hodgson JA in Brambles Industries Pty Ltd v Bell.[46]
[46] [2010] NSWCA 162, [19].
In the face of:
(a) the lack of anything from the appellant other than a history provided to Dr Herald that he attributed his issues to the wearing of the sling;
(b) the two competing causes proffered by Dr Teychenne;
(c) the lack of evidence that the appellant was wearing the sling when the symptoms arose, and
(d) the evidence of both Dr Rimmer and Dr Herald that there was no organic explanation for the cervical symptoms,
for the opinion of Dr Khan to carry any weight, in accordance with Makita, it required a reasoned explanation.
The Senior Arbitrator considered the evidence of Dr Khan in conjunction with the history provided to Dr Herald and reached a conclusion about that evidence. The appellant has not identified any material that the Senior Arbitrator overlooked, or any persuasive reason to establish that the Senior Arbitrator afforded the evidence of Dr Khan too little weight, or that an opposite inference could be drawn that is so preponderant that it shows that the Senior Arbitrator was wrong.
The respondent’s submissions do not point to any such error. The allegation that the Senior Arbitrator erred in reaching such a conclusion is rejected.
Was there expert evidence to support the causal connection?
Applying the principles enunciated in Makita, the evidence of Dr Khan falls well short of evidence sufficient to be considered “expert evidence”, even in the context of the history taken by Dr Herald. It is devoid of any intellectual reasoning and the facts upon which the opinion was reached are not apparent. The Senior Arbitrator’s reasoning process was:
“… I find to be satisfied about the sling thesis a doctor needed to consider all of these possible explanations and advise why the wearing of a sling, as opposed to the other scenarios, caused the cervical spine to become symptomatic. We do not even know from Mr Ali’s statement how the cervical pain came on or even how long he wore the sling. He does not mention the sling at all.
In Dr Khan’s notes there is reference on 23 August 2018 that Mr Ali had his arm in a sling but thereafter there is no further reference to a sling, although his clinical progress notes are very brief. In the progress clinical notes there is reference to a digit splint. It is not until the medical certificate of 29 November 2018 does Dr Khan add to the diagnosis mechanical pain secondary to sling usage in the cervicothoracic region. He does not include this diagnosis on the next certificate and thereafter he diagnoses mechanical neck pain.
Dr Teychenne knew that the medical certificate had referred to mechanical neck pain because he refers to the same, and yet in his final conclusion he does not put forward the opinion that the neck pain was caused by the wearing of the sling. I find that I cannot accept Dr Khan’s reference to the same without, as I have said, him considering the other theses put forward by Dr Teychenne. Also, in my view, Dr Khan’s diagnosis is just a bald assertion as he does not provide details of relevant facts, such as how long the sling was worn.”[47]
[47] Reasons, [57]–[59].
The Senior Arbitrator discounted Dr Khan’s evidence for all of those reasons. Having done so, there was no expert evidence to support the causal chain of connection between the appellant’s cervical complaints and the left index finger injury. Dr Khan was the only medical doctor who expressed that view, and the Senior Arbitrator, on a valid and proper basis, did not accept that evidence.
I reject the appellant’s submission that the Senior Arbitrator erred in her determination that there was no expert evidence before her.
The remaining allegations of error
The appellant also asserts that the Senior Arbitrator failed to make a finding as to whether or not she accepted the opinion of Dr Rimmer and that the Senior Arbitrator applied the wrong onus of proof. Neither of these assertions fall under the umbrella of the sole ground of appeal pleaded. Again, these allegations of error did not form part of the pleadings and ought to have been identified as separate grounds of appeal. Nonetheless, the respondent has responded to the allegations and I am required to consider whether time to appeal the Senior Arbitrator’s decision should be extended. I will therefore consider the merits of those allegations in the context of whether a failure to extend the time would work a substantial injustice on the appellant.
Did the Senior Arbitrator accept the opinion of Dr Rimmer?
The Senior Arbitrator considered the appellant’s submissions as to why Dr Rimmer’s opinion should not be accepted and rejected each of those submissions. It is implicit in that context that the Senior Arbitrator accepted Dr Rimmer’s evidence that he could not determine that there was a causal connection on the basis of the information available to him. The Senior Arbitrator considered that evidence in the context of the other medical evidence available to her. She reasoned as follows:
“Even if I were to discount Dr Rimmer’s opinion, I am not convinced that Mr Ali has discharged his onus of proving a consequential condition in the cervical spine as a result of the left index finger injury by virtue of wearing a sling on his left arm. There is no expert opinion to support such a thesis. Given Dr Teychenne, a neurologist specialist, puts forward two other explanations for the cervical complaints, I find to be satisfied about the sling thesis a doctor needed to consider all of these possible explanations and advise why the wearing of a sling, as opposed to the other scenarios, caused the cervical spine to become symptomatic. We do not even know from Mr Ali’s statement how the cervical pain came on or even how long he wore the sling. He does not mention the sling at all.”[48]
[48] Reasons, [57].
The Senior Arbitrator further considered the medical evidence and the absence of direct evidence from the appellant and, for those reasons, afforded the evidence of Dr Khan little weight. There is no error in that approach. In any event, as the respondent submits and for the reasons set out below, the Senior Arbitrator’s ultimate conclusion would not have been affected by any such error. Section 352(5) of the 1998 Act limits an appeal to where an arbitrator’s decision is affected by error. As Moffitt P said in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd:[49]
“... it is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error ... It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.”
[49] (1981) 48 LGRA 409, 419.
It follows that the appellant’s complaint in respect of the Senior Arbitrator’s consideration of the evidence of Dr Rimmer has no foundation and is rejected.
Did the Senior Arbitrator apply the wrong standard of proof?
The appellant asserts error on the part of the Senior Arbitrator in respect of her reference to Nguyen, which she said required her to feel an actual persuasion of the fact that the appellant’s cervical symptoms arose as a consequence of the left finger injury. The error is said to be that the Senior Arbitrator applied the wrong standard of proof.
The Senior Arbitrator identified the legal principles that apply to the test of causation. She quoted from the judgment of Kirby P in Kooragang and noted that Roche DP observed in Kumar that those principles applied in the Commission.[50]
[50] Reasons, [47]–[49].
In relation the issue of the causal connection between the cervical complaints and the left index finger injury, the Senior Arbitrator said:
“I find that I cannot assess the causal chain as discussed in Kooragang on the basis of the evidence before the Commission. Mr Ali has the onus of proof. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited McDougall J stated at [44]:
‘A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.’
I find on the state of the evidence and the issues with the same, discussed above, applying Nguyen, Mr Ali has not discharged his onus of proof. I am not satisfied on the balance of probabilities that he has established that the symptoms he complained of in the cervical spine were caused by the wearing of the sling after the injury to his left index finger on 5 August 2018.
I find an award for the respondent in relation to the allegation of a consequential cervical spine condition.”[51]
[51] Reasons, [60]–[62].
The appellant appears to be submitting that the decision in Nguyen requires the tribunal of fact to apply a higher standard of proof than that of “on the balance pf probabilities”, a standard which is not consistent with Kooragang. The passage cited by the Senior Arbitrator was not an observation or conclusion made by McDougall J, but was a comment by his Honour in relation to other, older cases of high authority. It is relevant to consider further passages from McDougall J’s judgment in the context of the whole of the judgment. His Honour proceeded to observe that:
“In the later article, Hodgson J suggested that the two approaches could be combined. He did so in a way that, I think, is consistent with what I have said above as to Malec. He said at 732 that ‘if, on the basis of adequate material concerning circumstances of a particular case, the tribunal [of fact] believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.
In my view, that is the approach that should be adopted in the resolution of disputed questions of fact. It is something of particular significance where a resolution of the disputed question depends upon the drawing of inferences from entirely circumstantial evidence. It also accommodates the requirement that attention be paid to the seriousness of the fact in issue, or the consequences of finding that it has occurred.”[52]
[52] Nguyen, [51]–[52].
It is apparent from a consideration of that passage that Nguyen does not operate to apply any other standard of proof other than that of “on the balance of probabilities.” The Senior Arbitrator concluded that she was “not satisfied on the balance of probabilities that [the appellant] ha[d] established that the symptoms he complained of in the cervical spine were caused by the wearing of the sling … .” It is apparent that the Senior Arbitrator did nothing more than apply the civil standard of proof. As McDougall J explained and, as the respondent submits, the requirement of an actual persuasion is in respect of a fact relied upon in the chain of causation, upon which an inference can be drawn and an ultimate conclusion reached that, on the balance of probabilities, the causal chain is established.
It cannot be said that the Senior Arbitrator applied the wrong standard of proof and the respondent’s submission is accordingly rejected.
CONCLUSION
The appeal from the decision of the Senior Arbitrator has no merit. Consequently, a failure to extend the time to appeal the Senior Arbitrator’s decision cannot result in substantial injustice to the appellant as required by s 352(4) of the 1998 Act. In accordance with r 16.2(5) of the 2011 Rules, I decline to extend the time to lodge an appeal.
DECISION
The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
7 September 2020
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