Anshaw v Woolstar Pty Ltd - [2020] NSWWCCPD 30

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Anshaw v Woolstar Pty Ltd [2020] NSWWCCPD 30
APPELLANT:	Cole Anshaw
RESPONDENT:	Woolstar Pty Ltd
INSURER:	Employers Mutual Ltd – as agent for NSW Self Insurance Corporation
FILE NUMBER:	A1-3874/19
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	25 October 2019
DATE OF APPEAL DECISION:	19 May 2020
SUBJECT MATTER OF DECISION:	The duty to give reasons; aggregation pursuant to s 322 of the Workplace Injury Management and Workers Compensation Act1998; application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms E Grotte, counsel
John Peisley & Associates
Respondent:
Mr T Grimes, counsel
BBW Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 25 October 2019 is revoked. 2. The matter is remitted to another Arbitrator for re-determination.

INTRODUCTION AND BACKGROUND

Cole Anshaw (the appellant) worked for Woolstar Pty Ltd (the respondent) from 7 November 2006 as a picker, at Woolworths Wyong Distribution Centre. He picked items for package and distribution to Woolworths stores in New South Wales. He initially carried out this function manually, which was heavy physical work. From 2008 to 2013, he worked on a high reach forklift. He stated that he commenced suffering from neck pain about 12 months after starting on the high reach forklift. He said this work involved looking upwards at racks that were at least five metres high and twisting his neck to look up and backwards, as he reversed withdrawing his load from racking.[1]
[1] Appellant’s statement 14/5/19 (appellant’s statement), Application to Resolve a Dispute (ARD), p 1, [3]–[7].
The appellant stated that he reported injury to his right shoulder and neck on about 24 April 2013 and was taken off the high reach forklift.[2] The appellant had arthroscopic surgery to his right shoulder performed by Dr Hutabarat on 24 April 2013, involving a SLAP repair, bursectomy and decompression.[3] When he resumed work after this surgery, the appellant was returned to manual picking, but of confectionary, which was less heavy than some of the other products. He stated it was repetitive and made his shoulder worse.[4] Claim documents confirm reports of injury on multiple occasions from 2011 to 2017 involving variously the right shoulder, the neck and the lower back.[5]
[2] Appellant’s statement, ARD, pp 1–2, [8]–[9].
[3] ARD, p 22.
[4] Appellant’s statement, ARD, p 2, [12].
[5] Reply to Application to Resolve a Dispute (Reply), pp 13–26, 100–102, 129–135, 149–151, 199–200, 250–252.
The appellant was assessed at the request of his solicitors by Dr Medhat Guirgis, an orthopaedic surgeon, who reported on 21 November 2018. Dr Guirgis assessed whole person impairment at 15 per cent (cervical spine), 5 per cent (lumbar spine) and 8 per cent (right upper extremity), a total of 26 per cent on the combined tables.
Following the most recent of the incidents on 4 November 2017, a slip and fall at work, the appellant came under the care of Dr Damodaran, a neurosurgeon, who in December 2018 recommended cervical discectomy and fusion at C5/6.[6]
[6] Reply, pp 95–98.
The appellant’s solicitors made a claim for lump sum compensation on his behalf in a letter dated 21 January 2019,[7] based on the assessment of Dr Guirgis. It was inherent in Dr Guirgis’s assessment, and in the resultant claim, that the doctor assessed permanent impairment on the basis that the various body systems the subject of assessment could be aggregated into a single lump sum claim. The appellant’s submissions at the arbitration hearing accepted that “the incident on 4 November 2017 stands apart because it was a very different mechanism of injury” (see [58] below).
[7] ARD, p 35.
The respondent had the appellant examined by Dr Bentivoglio, a neurosurgeon, who in February/March 2019 agreed surgery was appropriate and recommended decompression at C6 and C7 accompanied by a two level fusion.[8] The appellant stated that although the respondent accepted liability for the cost of surgery, he decided against it, having been advised there was only a 30 to 40 per cent chance of improvement, and a risk he could be worse off.[9]
[8] Reply, pp 27–36.
[9] Appellant’s statement, ARD, p 2, [18].
The respondent’s solicitors issued a s 78 notice on its behalf dated 13 June 2019.[10] The notice said that Dr Guirgis’s history was “broad” and incorrect. The history proceeded on the basis the various injuries “accumulated due to the nature and conditions of employment”. The notice listed the claimed injuries on 16 March 2011, 5 January 2013, 4 September 2014, 2015, 19 November 2015 and 4 November 2017. The notice referred to s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed that the impairments to the cervical spine, lumbar spine and right upper extremity resulting from various injurious events could be combined. It disputed the quantum of the assessments.
[10] Reply, pp 8–10.
The current proceedings were commenced by an ARD registered on 2 August 2019. The matter was listed for arbitration hearing on 11 September 2019. Ms Grotte appeared for the appellant and Mr Grimes for the respondent. Counsel addressed and the Arbitrator reserved his decision. The matter was listed on 24 October 2019 when the Arbitrator delivered oral reasons. He concluded that the injuries could not be aggregated and entered an award in favour of the respondent.[11] A Certificate of Determination to this effect was issued on 25 October 2019. This appeal is brought against that result.
[11] Transcript 24/10/19 (T2), 15.12–21.

THE ARBITRATOR’S REASONS

The Arbitrator said that the pleaded mechanism of injury was “the repetitive use of high reach forklift and lifting”.[12] He described the “accepted injuries” recited in the s 78 notice. These were on 16 March 2011 (right shoulder and neck), 5 January 2013 (right shoulder), 4 September 2014 (right shoulder and elbow), 2015 (right shoulder that led to surgery), 19 November 2015 (lumbar spine) and 4 November 2017 (a trip and fall with a diagnosis of right C6 radiculopathy). He said the parties agreed the issue was whether the impairments caused by the pleaded injuries could be aggregated.[13]
[12] T2 2.32–34.
[13] T2 3.24–4.8.
At the arbitration hearing the appellant, by consent, amended his pleadings dealing with injury.[14] The document handed up at the time[15] is not attached to the file. The Arbitrator recited the amendment in his reasons.[16] That description is not the subject of challenge on this appeal.
[14] Transcript 11/9/19 (T), T10.3–25.
[15] T 10.23–25.
[16] T2 5.14–6.29.
The first injury pleaded was on 4 November 2017 to the neck and right shoulder. It referred to injury pursuant to s 4(a) of the 1987 Act. It described the injury as a ‘frank incident’ and an ‘exacerbation’.
The second injury was described as to the neck, right shoulder and back, pleading ‘nature and conditions’ from about October 2006 and continuing. It repeated (with the exception of 4 November 2017) the various dates described in [9] above. The second injury was described as pursuant to s 4(a) or in the alternative s 4(b)(ii). The amended pleading referred to “Aggravation, acceleration of underlying degenerative process”.[17]
[17] T2 5.18–6.29.
The Arbitrator summarised the appellant’s statement[18] and the evidence from treating specialists.[19] He summarised the reports of Dr Guirgis at some length.[20] He summarised Dr Bentivoglio’s report dated 22 February 2019.[21]
[18] T2 7.3–8.31.
[19] T2 8.34–9.23.
[20] T2 9.25–12.11.
[21] T2 12.13–31.
The Arbitrator referred to the submissions of the appellant’s counsel. Applying s 322 of the 1998 Act and the decision in Department of Juvenile Justice v Edmed,[22] “similar pathologies can be aggregated if they are the same even if they arose in different events”. The appellant “was performing repetitive work for a considerable time which required constant extension of his neck which eventually resulted in injury to the neck”. “[T]he neck injuries and the various dates pleaded could be assessed” and the resulting impairments aggregated. The same applies to the lumbar spine and the right upper extremity. This was “established by the reports of Dr Guirgis”.[23]
[22] [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed).
[23] T2 13.9–20.
The Arbitrator noted the submission by the respondent that aggregation required the appellant to “show that either pathology arising out of the separate incidents was identical or that the aetiology was identical”.[24]
[24] T2 13.22–25.
The Arbitrator referred to the following passage from Edmed:
“… impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”[25]
[25] Edmed, [27].
The Arbitrator said the appellant’s claim that the impairments could be aggregated in the circumstances was based on “this interpretation”. The Arbitrator referred to a further passage in Edmed in which Roche DP referred to a dictionary definition and said that “the ‘same’ means ‘identical’”.[26] The Arbitrator asked “did the [appellant] suffer identical pathology in each injurious event?”. He said “it has not been shown that the pathology involved in the history of the development of [the appellant’s] injuries is the same”. He said “injuries to the neck and right shoulder are not the same pathology as injuries to the lumbar spine”.[27] He said:
“The evidence clearly demonstrates that the pathologies suffered in the many injurious events over the period from 2006 were not identical. Accordingly, that application fails.”[28]
[26] Edmed, [29].
[27] T2 14.11–15.7.
[28] T2 15.7–10.
The Arbitrator then referred to “the claim that the injuries could be lumped together on the date of claim, 21 January 2019”. He said he was “not satisfied that that has been made out”. He described Dr Guirgis’s report as “somewhat confusing and unclear” and “not of assistance”. He said:
“The different injuries and the different dates and their different nature have not convinced me that the alternative claim under section 4(b)(ii) succeeds.”[29]
[29] T2 15.12–20.
He entered an award for the respondent.

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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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 pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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.”
In Raulston v Toll Pty Ltd,[30] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[31] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[32]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    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 his [or her] conclusion was wrong’.
(b)     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.
(c)     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’.”[33]
[30] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[31] (1966) 39 ALJR 505 (Whitely Muir), 506.
[32] [1996] HCA 140; 140 ALR 227.
[33] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[34] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[35]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[36]
[34] [2017] NSWWCCPD 5, [67].
[35] [2001] FCA 1833, [28].
[36] Raulston, [20].
In Northern NSW Local Health Network v Heggie[37] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.[38]
[37] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[38] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[39] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[40]
[39] [2020] NSWCA 54 (Hill).
[40] Hill, [20].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) “Error of law in failing to exercise statutory duty to remit to AMS for assessment of degree WPI” (Ground No. 1);
(b) “Error of law in failing to provide adequate reasons for rejecting claim pursuant to s 4(b)(ii)” (Ground No. 2), and
(c) “Error of law in failing to determine whether injuries arose of same incident pursuant to s 322 [sic]” (Ground No. 3)
The primary case run by the appellant before the Arbitrator was that the effects of the various injurious events could be aggregated for the purpose of the assessment of permanent impairment (either pursuant to s 322 of the 1998 Act or by virtue of a finding of ‘disease’). The Arbitrator’s decision (and associated reasons) not to do so are challenged in Grounds Nos. 2 and 3. Ground No. 1 challenges the failure to remit the claim in respect of permanent impairment of the cervical spine, resulting from the injury on 4 November 2017, in any event. He submits this was a medical dispute in respect of which a claim had been made, and causation and injury were not disputed. It is relief to which the appellant submits he is entitled in any event, if the primary basis on which the case was presented fails. It is in the nature of a ‘fall back’ position. It is appropriate to deal with Grounds Nos. 2 and 3, before Ground No. 1.

LEGISLATION

Section 65 of the 1987 Act provides:
“65    Determination of degree of permanent impairment
(1)     For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2)     If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”
Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1)     The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)     An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”

THE DECISION IN EDMED

Edmed involved a worker who suffered injuries to his right wrist on 3 March 2004 and 25 August 2004. There was an issue regarding whether permanent impairments from the two injuries could be aggregated, to meet the ten per cent threshold for the awarding of compensation for ‘pain and suffering’ pursuant to the then provisions of s 67 of the 1987 Act. Deputy President Roche dealt with s 322 of the 1998 Act, saying:
“26. … In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”

The Deputy President referred to a dictionary definition of ‘same’ as the “normal meaning” of that word, and continued “[a]pplying this definition, the ‘same’ means ‘identical’.”
In Galluzzo v Little Barrett JA quoted from the passage of Edmed at [26] set out above and said:
“41. This, in my respectful opinion, is an accurate summary, subject to one modification. The provisions envisage that an ‘injury’ (or several ‘injuries’) will ‘arise from’ an ‘incident’ and that one or more ‘impairments’ will ‘result from’ the ‘injury (or ‘injuries’); and that it is ‘impairment’ or ‘impairments’ that must be assessed. The penultimate sentence in the quoted extract should therefore read:
‘The impairments resulting from those ‘injuries’ are to be assessed together.’”[41]
[41] [2013] NSWCA 116 (per Barrett JA, Ward JA and Tobias AJA agreeing), [41].
Their Honours expressed no disagreement with the balance of the reasoning in Edmed, including the passage at [27] of that decision, quoted above at [32].

GROUND NO. 2

Appellant’s submissions

The appellant submits the Arbitrator failed to provide adequate reasons, for his rejection of the claim that injury to the cervical spine, lumbar spine and right upper extremity was established on the basis of s 4(b)(ii) of the 1987 Act (the ‘disease’ provisions). If this argument was accepted, then there was potentially a single date of deemed injury (21 January 2019 – see [18] above), and the various impairments could arguably be assessed together on the basis of s 322(3).
The appellant refers to a decision of Keating P in NSW Police Force v Newby.[42] In that decision the President noted the statutory obligation of an arbitrator to provide adequate reasons, pursuant to s 294(2) of the 1998 Act and r 15.6 of the Workers Compensation Commission Rules 2006 (now r 15.6 of the Workers Compensation Commission Rules 2011).[43] The President reviewed a number of authorities on the topic, saying:
“149. To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).
150. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
151. When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443–444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
‘If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.’”
[42] [2009] NSWWCCPD 75 (Newby).
[43] Newby, [147].
The appellant quotes the Arbitrator’s reasons for rejecting the appellant’s argument based on the ‘disease’ provisions:
“With regard to the claim that the injuries could be lumped together on the date of claim, 21 January 2019, I’m not satisfied that that has been made out. I do not find Dr Guirguis’ [sic] report to be of assistance. In fact I found it somewhat confusing and unclear as to exactly what he was trying to establish. The different injuries and the different dates and their different nature have not convinced me that the alternative claim under section 4(b)(ii) succeeds.”[44]
[44] T2 15.12–21.
The appellant submits it is unclear whether the Arbitrator considered the evidence of the appellant himself or Dr Bentivoglio, relevant to this argument. He refers only to the evidence of Dr Guirgis. The appellant submits the reasons are inadequate, which constitutes an error of law.[45]
[45] Appellant’s submissions, [23.1]–[23.5].
The appellant, on 28 January 2020, filed submissions in reply. Relevant to Ground No. 2, he refers to the medical report of Dr Bentivoglio, submitting that the report provides a “valid assessment of the [appellant’s] injuries”.[46]
[46] Appellant’s submissions in reply, [2.1].

The respondent’s submissions

The respondent submits the above reasons for rejecting the claim based on s 4(b)(ii) were sufficient. It submits there were other passages in the Arbitrator’s reasons in which he dealt with the evidence of different dates of injury and the nature of the injuries. The respondent refers to specific references in the reasons to the onset of symptoms to the right shoulder, neck and lumbar spine, associated with specific incidents or activities over a period of time.[47] It submits the failure to refer to the evidence of Dr Bentivoglio was immaterial to determination of the issue. That doctor did not furnish an opinion on whether there was an aggravation, acceleration or exacerbation of disease to which the employment was the main contributing factor. It also submits the appellant’s counsel conceded Dr Guirgis’s evidence was that injury was due to the nature and conditions of employment.[48]
[47] Respondent’s submissions, [19]–[20].
[48] Respondent’s submissions, [21]–[22].

Consideration

The Presidential decision in Newby, to which the appellant refers in his submissions, refers to Sourlos v Luv a Coffee Lismore Pty Ltd, in which Ipp JA referred to the need for a trial judge to address disputed issues “on a rational and reasoned basis”. This “required rational examination and analysis”.[49]
[49] [2007] NSWCA 203 (per Ipp JA, McColl JA and Hoeben J agreeing), [25], [31].
There is a helpful summary of many of the principles governing the duty to give reasons in Pollard v RRR Corporation Pty Ltd.[50] The reasons of McColl JA include the following:
“58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59 The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted…it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another.”[51] (references omitted)
[50] [2009] NSWCA 110 (per McColl JA, Ipp JA and Bryson AJA agreeing), (Pollard), [56]–[66].
[51] Pollard, [58]–[59].
The Arbitrator’s reasons, for rejecting the appellant’s argument that injury could be made out pursuant to s 4(b)(ii), are essentially contained in the short passage quoted at [38] above. The s 78 notice issued by the respondent’s solicitors specifically referred to fact that the ARD pleaded various injuries on specified dates, and stated these could only be combined pursuant to s 322 of the 1998 Act if they resulted from the same injury, or arose out of the same incident. The ‘injury’ pleading was amended at the arbitration hearing. It then consisted of an allegation based on the ‘nature and conditions’ of employment subsequent to October 2006, which included many specific dates (but not the fall on 4 November 2017) pursuant to either s 4(a) or s 4(b)(ii). It additionally nominated the injury in a fall on 4 November 2017, pursuant to s 4(a) (see [10] to [12] above).
It should be noted that findings of ‘injury’, on the basis of ‘injury simpliciter’ and the ‘disease’ provisions, are not mutually exclusive.[52]
[52] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310, 347; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298, [35] and [36]; Yum Restaurants Australia Pty Ltd v Watters [2010] NSWWCCPD 31, [65].
In Perry v Tanine Pty Ltd Burke CCJ said:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”[53]
[53] [1998] NSWCC 14; 16 NSWCCR 253 (Perry), [57].
In Fletcher International Exports Pty Ltd v Barrow[54] an insurer argued that an arbitrator’s finding of injury on the basis of ‘disease’, on the whole of the evidence, was not available because there was no specific evidence that the worker was suffering from a ‘disease’ or the aggravation of a ‘disease’.[55] On an insurer’s appeal from a Presidential member, Mason P said the finding of disease was open to the Arbitrator. His Honour approved and applied Perry, saying:
“The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd [1992] NSWCC 16; (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker’s condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work.”[56]
[54] [2007] NSWCA 244 (Barrow).
[55] Barrow, [59].
[56] Barrow, [60]–[61].
It is apparent from the above that a finding on the basis of the ‘disease’ provisions can be made, on the whole of the evidence. It is not dependent on whether the medical evidence specifically employs the term ‘disease’. Such a finding is not prevented because the injury may also be regarded as resulting from the ‘nature and conditions’ of employment.
The appellant’s counsel addressed the Arbitrator on matters relevant to the proof of ‘disease’. She referred to Dr Bentivoglio’s report[57] in which he said:
“Undoubtedly the sort of work that he has done, which is a forklift driver with chronically looking up had been a substantial contributing factor to his compensable condition. A slip and slide on a floor has just exacerbated the pre-existing degenerative condition, which is now causing significant cervical brachialgia.”[58]
And:
“The sort of work he has been doing for 12 years would put increased stresses and strains on his neck and cause premature degenerative changes. A slip and fall would easily exacerbate and cause disc protrusions and neurological compression and compromise. I do not believe that a similar injury would have happened if he was doing a sedentary type job. I do believe that his employment has been as I have said a substantial contributing factor to the development of the degenerative disease in his neck and also the acute exacerbation with the acute attack of cervical brachialgia after the slip and fall.
The worker’s life away from the workplace certainly would have been a contributing factor to his degenerative disease but I feel that his work has been the most substantial factor contributing to his degenerative disease and the acute exacerbation caused by the slip and fall.”[59]
[57] T 12.16–13.3, T 14.12–15.1.
[58] ARD, p 31.
[59] ARD, p 32.
The appellant’s counsel also addressed the Arbitrator on the opinion of Dr Guirgis,[60] referring to passages which included the following diagnosis:
“Chronic cumulative micro-sprain/strain of the musculoligamentous structures of his cervical area of the spine with C5-6 and C6-7 intervertebral disc involvement. This had also accelerated the course of and aggravated the effects of the underlying evolving age appropriate degenerative changes. This injury has caused the onset of symptoms and signs right C6 and 7 radiculopathy.”[61]
[60] T 35.18–33.
[61] ARD, p 59.
The appellant’s counsel submitted “… that injury, whether you classify it as nature and conditions, micro traumata or a disease is what caused the onset of symptoms and signs of the right C6 and 7 radiculopathy”. She addressed on a similar passage from Dr Guirgis relating to the lumbar spine,[62] in which the doctor gave a diagnosis:
“Chronic cumulative micro-sprain/strain of the musculoligamentous structures of his lumbar area of the spine with L3-4 and L4-5 intervertebral disc involvement. This had triggered and aggravated the effects of underlying asymptomatic age appropriate degenerative changes.”[63]
[62] T 36.5–15.
[63] ARD, p 59.
The appellant’s counsel also submitted on the doctor’s opinion regarding the right shoulder,[64] where Dr Guirgis diagnosed:
“Overuse changes in the right shoulder as demonstrated in the pre-operative MRI studies on 8-2-2013 showing evidence of SLAP tear associated with subscapularis tendonitis, supraspinatus tendonitis, and subacromial/subdeltoid bursitis.”[65]
[64] T 36.16–22.
[65] ARD, p 59.
The point was also made, in respect of the lumbar spine and the right shoulder, that apart from Dr Guirgis “there’s no other medico-legal – competing medico-legal opinion, about the back or the right shoulder, you’ve only got the treating medical reports”.[66] She noted that “Dr Bentivoglio only deals with the neck and the right should[er] following the fall.” She submitted Dr Bentivoglio supported an acceleration of the degenerative process, which was sufficient to constitute injury if there was a finding of “disease under 4(b)(ii)”.[67]
[66] T 36.14–16.
[67] T 37.25–33.
The Arbitrator’s reasons did not engage in a “rational examination and analysis” of the case run by the appellant, on whether injury was established on the basis of the ‘disease’ provisions. The Arbitrator did not enter in an appropriate way into the issues canvassed on this topic, he did not explain why the respondent’s case was preferred over that of the appellant. The Arbitrator indicated that he found the report evidence of Dr Guirgis confusing and unclear, and not of assistance. The appellant’s case consisted not only of the views of Dr Guirgis. The argument made on the appellant’s part was additionally based on the opinion of Dr Bentivoglio, the neurosurgeon qualified on the respondent’s behalf, and by reference to material from treating specialists. Although the appellant’s duties varied from time to time, there was no real issue regarding the fact that he had, for over a decade, carried out duties with the respondent which were physically arduous.
The appellant’s submission that it is unclear what consideration was given to the evidence of the appellant and Dr Bentivoglio is correct. The respondent’s submission that Dr Bentivoglio’s opinion could not have affected the result, as it did not specifically address the aggravation of a ‘disease’ and ‘main contributing factor’, is inconsistent with the reasoning in Barrow referred to above. It was necessary to consider whether the ‘disease’ allegation was made out on the whole of the evidence, including the evidence of Dr Bentivoglio. Whether the term ‘disease’ was used in Dr Bentivoglio’s report was not determinative. The respondent’s submissions[68] refer to passages in the reasons, where the Arbitrator described the appellant as suffering from different symptoms at different times.[69] These are drawn from the appellant’s statement and set out, in short form, complaints from time to time over many years. They do not engage with the argument run, on the basis of the medical evidence and the appellant’s statement, that the ‘disease’ provisions applied. That various complaints of symptoms were made over the years, sometimes in association with identified events, is not necessarily inconsistent with a finding of injury within the meaning of s 4(b)(ii).
[68] Respondent’s submissions, [20].
[69] T2 7.10–9.1.
It follows from the above that the reasons given for rejecting the appellant’s case based on the ‘disease’ provisions were inadequate. They failed to appropriately engage with the evidence overall, and the case run by the appellant on this issue. Ground No. 2 is upheld.

GROUND NO. 3

Appellant’s submissions

The appellant submits his allegation was that every day at work his duties caused injury to his lumbar spine, cervical spine and right shoulder. This could be considered as “cumulative micro-traumata damage or, in the alternative, an aggravation/exacerbation of a pre-existing disease in each body part”. He submits this is supported by Dr Guirgis’s opinion, and also by the respondent’s characterisation of some of the injuries as ‘recurrences’.[70]
[70] Appellant’s submissions, [24.1]–[24.3].
The appellant refers to s 322(3) of the 1998 Act (set out at [31] above). The appellant says he accepts that “the incident on 4 November 2017 stands apart because it was a very different mechanism of injury”. The appellant submits the Arbitrator failed to deal with his argument based on s 322(3), and instead only focussed on aggregation pursuant to s 322(2) of the 1998 Act. It is submitted that this involved a failure to deal with a substantial articulated argument, referring to Dranichnikov v Minister for Immigration and Multicultural Affairs, in which it was said:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”[71]
[71] [2003] HCA 26; 214 CLR 496; 197 ALR 389; 77 ALJR 1088 (Dranichnikov) (per Gummow and Callinan JJ, Hayne J agreeing), [24].
The appellant submits the Arbitrator’s failure to afford him procedural fairness, in failing to deal with his reliance on s 322(3), was an error of law.[72]
[72] Appellant’s submissions, [24.4]–[24.7].

Respondent’s submissions

The respondent states it disputes the allegation that the appellant was injured by one process, his work on a daily basis. It disputes this is supported by the opinion of Dr Guirgis. It refers to the Arbitrator’s finding that there were “many injurious events”.[73]
[73] Respondent’s submissions, [23]–[25].
The respondent submits it was held in Edmed that the ‘same’ in s 322(2) means identical. The respondent refers to an arbitral decision of Magliarachi v Club Marconi of Bossley Park Social Recreation and Sporting Centre Ltd.[74] The respondent submits that in that decision Arbitrator Dalley held that the word ‘same’ in s 322(3) had the same meaning as in s 322(2), being ‘identical’.[75]
[74] WCC, 2494/18, Arbitrator Dalley, 31/07/18, unreported.
[75] Respondent’s submissions, [26]–[27].
The respondent disputes the impairments involving the cervical spine, lumbar spine and right upper extremity can be aggregated pursuant to s 322(3), as they have different aetiology, these being:
(a)    the cervical spine and right shoulder injuries arose due to the nature and conditions of driving a forklift from 2011 to 2013;
(b)    the right shoulder injury using a turnstile on 4 October 2013 was a separate frank incident;
(c)    the lumbar spine injury was due to the nature and conditions of picking from 2013 to date;
(d)    the lumbar spine injury on 19 November 2015 was a frank incident, and
(e)    the cervical spine and right shoulder injuries on 4 November 2017 resulted from a separate frank incident, as the appellant conceded.

The respondent submits Dr Guirgis’s opinion contains “numerous inaccuracies in relation to the history”, which contributed to the finding that his report was confusing and unclear.

Appellant’s submissions in reply

The appellant to some extent repeats its original submissions on this ground. It submits its argument on the meaning of s 322(3) is based on the clear and natural meaning of the section. The appellant refers to the decision of Secretary, New South Wales Department of Education v Johnson.[76] The appellant refers to the reasons of Emmett AJA dealing with issues of causation and the impact of a subsequent injury. He refers specifically to Johnson at [126], which is part of the reasons of Simpson AJA in which her Honour deals with the authority of State Government Insurance Commission v Oakley.[77]
[76] [2019] NSWCA 321 (Johnson).
[77] (1990) 10 MVR 570; Aust Torts Reports 81–003 (Oakley).

Consideration

The Commission is required to afford parties procedural fairness.[78] The respondent’s submissions on this ground largely seek to challenge the merits of the appellant’s reliance on s 322(3), rather responding to the procedural fairness argument raised on appeal. The Arbitrator’s reasons summarised the appellant’s statement and parts of the medical evidence.[79] The Arbitrator referred to Edmed and to a submission based on that decision that injuries could be aggregated. He described the submissions:
“The premise of the argument was that similar pathologies can be aggregated if they are the same even if they arose in different events. [The appellant’s counsel] submitted that the evidence showed that [the appellant] was performing repetitive work for a considerable time which required constant extension of his neck which eventually resulted in injury to the neck. She said the neck injuries and the various dates pleaded could be assessed by an AMS, I understood her to say, and the resulting impairments are aggregated. The same approach could be taken to the injuries of the lumbar spine and the right extremity. She argued that this was established by the reports of Dr Guirgis.
Counsel for the respondent submitted that the [appellant] was required to show that either pathology arising out of the separate incidents was identical or that the aetiology was identical.”[80]
[78] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (per McColl JA, Giles and Tobias JJA agreeing), [90]–[91].
[79] T2 6.33–12.31.
[80] T2 13.1–25.
The Arbitrator briefly summarised the effect of Edmed.[81] He described the appellant’s case on aggregation and its resolution:
“[Roche DP] concluded that:
‘Impairments that result from the same injury must mean impairments that resulted from the same pathology no matter how many injurious events they arose from.’
As I understood counsel for the [appellant], it was this interpretation upon which she based her claim that [the appellant’s] injuries could be aggregated.
However, the learned Deputy President then considered the words ‘the same’ and came to the conclusion at 29 in his decision that ‘the same’ meant ‘identical’.
The question then arises, did the [appellant] suffer identical pathology in each injurious event? It can be seen from the fact that counsel found that she had to redraw the pleadings at the start of the case that there was some confusion as to exactly what was being advanced as justification for the claim for aggregation. Neither the original pleadings nor those, with respect, that were amended were of assistance in deciding the matter.
Now I’m not sure that I follow the second part of counsel for the respondent’s submission, but I agree with him that it has not been shown that the pathology involved in the history of the development of Mr Anshaw’s injuries is the same. Obviously injuries to the neck and right shoulder are not the same pathology as injuries to the lumbar spine. The evidence clearly demonstrates that the pathologies suffered in the many injurious events over the period from 2006 were not identical. Accordingly, that application fails.”[82]
[81] T2 13.27–14.9.
[82] T2 14.11–15.10.
The appellant’s counsel submitted to the Arbitrator that the medical evidence supported the proposition that the same mechanism of injury, “the picking and the forklift driving”, caused the injuries to all of the body parts alleged. The appellant submitted “it’s the same injurious event even though it’s happening over and over again”. The appellant submitted that accordingly “they should all be considered together”.[83] This submission raised s 322(3) of the 1998 Act.
[83] T 16.22–31.
The appellant’s counsel also raised s 322(2). She submitted that, on the basis of “the pathology being the same”, “the neck can all be aggregated, the right shoulder can all be aggregated, the back can all be aggregated”.[84] This submission draws a distinction between separately aggregating the impairments that relate to each of the three relevant body parts (on the basis of the same pathology – s 322(2)) and aggregating all of the impairments that result from the work duties (on the basis of the same injurious event – (s 322(3)).[85]
[84] T 20.25–28.
[85] T 20.28–21.3.
It is apparent, from the passage of the reasons quoted at [66] above, that aggregation was there being dealt with on the basis of s 322(2) of the 1998 Act. The reference to it being obvious that “injuries to the neck and right shoulder are not the same pathology as injuries to the lumbar spine” suggests the Arbitrator missed the distinction drawn in the appellant’s case, between s 322(2) and s 322(3). It was not the appellant’s argument that injuries to the neck, right shoulder and lumbar spine all involved the same pathology. The appellant’s submission that the reasons failed to deal with the articulated argument he made, on the basis of s 322(3), is correct. This constitutes error.

RESOLUTION OF THE APPEAL

Grounds Nos. 2 and 3 having been upheld, it is unnecessary to deal with Ground No. 1. Depending on what view is ultimately taken of the arguments the subject of Grounds Nos. 2 and 3, a consideration of the matters raised in Ground No. 1 may be unnecessary. Even if the appellant was entitled at this point to a referral for assessment of permanent impairment in respect of the cervical spine, on the basis of the frank injury on 4 November 2017, it is desirable that assessment in that regard be dealt with when the outcomes of the other allegations of injury are known, as part of a single referral.
The appellant sought costs on this appeal. The appellant is not an ‘exempt’ worker, and the Commission has no power to make such an order. The application should not have been made.
The appropriate course, in my view, is that the matter be remitted to another Arbitrator for re-determination. The pleading of injury in this matter is not without complexity, and it is desirable, before a further arbitration, that consideration be given to the allegations to be made, and the precise nature of the aggregation that is being sought, including the extent to which allegations are made in the alternative. The topic of aggregation pursuant to s 322 of the 1998 Act, in the context of ‘disease’ allegations, was dealt with by Roche DP in Department of Ageing, Disability and Home Care v Findlay.[86] To the extent to which aggregation is sought in the context of different injurious events, it also may be helpful to have regard to the decision in Warwar v Speedy Courier (Australia) Pty Ltd.[87]
[86] [2011] NSWWCCPD 65.
[87] [2010] NSWWCCPD 92.

DECISION

The Certificate of Determination dated 25 October 2019 is revoked.
The matter is remitted to another Arbitrator for re-determination.

Michael Snell

DEPUTY PRESIDENT

19 May 2020