Armet v CFC Consolidated Pty Ltd
[2018] WADC 109
•31 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ARMET -v- CFC CONSOLIDATED PTY LTD [2018] WADC 109
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 8 MAY 2018
DELIVERED : 31 AUGUST 2018
FILE NO/S: APP 4 of 2018
BETWEEN: STEPHANE ARMET
Appellant
AND
CFC CONSOLIDATED PTY LTD
Respondent
FILE NO/S: APP 5 of 2018
BETWEEN: STEPHANE ARMET
Appellant
AND
CFC CONSOLIDATED PTY LTD
Respondent
Catchwords:
Application to strike out grounds of appeal - Question of law - Error of law - No reasonable prospect of success
Legislation:
Workers' Compensation and Injury Management Act, s 247
Result:
APP 4 of 2018 be struck out
APP 5 of 2018, grounds 1 to 6 be struck out
Representation:
APP 4 of 2018
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms S F Wise |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | SRB Legal |
APP 5 of 2018
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms S F Wise |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | SRB Legal |
Case(s) referred to in decision(s):
Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126, 138; (1940) 57 WN (NSW) 53
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Gipp v The Queen [1998] HCA 21
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Hope v Bathurst City Council (1980) 144 CLR 1
Marshall v Lockyer [2006] WASCA 58
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Samuels v The State of Western Australia [2005] WASCA 193
Walsh v Fortescue Metals Group Ltd [2016] WADC 140
PRINCIPAL REGISTRAR MELVILLE:
On 10 January 2018 Mr Armet filed these two appeal notices in respect of the decisions of an Arbitrator of the Workers' Compensation Arbitration Service (WCAS) in application A34042 and application A36114. The questions of law and the grounds of the appeal that are said to give rise to the two appeals are found as attachments to each of the appeal notices.
The right of appeal is conferred by s 247 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) which enables a party to appeal to the District Court with the leave of the District Court. Section 247 of the Act is as follows:
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
[(3)deleted]
(4)An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
The point which needs to be made at the outset is that, as much as an appellant may not like it, no appeal lies from an error of fact only.
On 6 April 2018 the respondent brought an application in APP 4 of 2018 for orders that:
1.The grounds of appeal be struck out and the appeal be dismissed; and
2.The appellant pay the respondent's costs of the appeal.
This application was heard with another strike-out application brought by the respondent in another appeal lodged by Mr Armet, being APP 5 of 2018, from the same arbitrator in respect of a claim for compensation for hair loss in application WCAS 36114 of 2018. On 27 April 2018 Mr Armet filed a document described as an affidavit. Whilst this document did not bear any appeal number, it appears that the material attached to it was intended by Mr Armet to be taken into consideration in respect of both APP 4 of 2018 and APP 5 of 2018. The affidavit attaches:
•'Attachment 1': Reasons for filing the affidavit.
•'Attachment 2 (in order)': Report of Dr Low and what I understand to be criticisms of that report with the objective being to cause an investigation to be conducted into Dr Low, followed by a warning to Dr Low, and Dr Low being removed from the Workers Compensation System.
•'Attachment 2 (no order)': An internet publication on 'Os trigonum', 'brain disorders', 'Foot Health Facts', a paper of unknown authenticity on 'Emotional and Behavioural Disorder (EBD)', internet publications 'Overview of Nervous System Disorders', 'Human Brain Facts', 'Psychosocial personality disorders', 'personality disorders', and related literature, and what appears to be a copy of a publication from the Journal of Orthopaedic and Sports Physical Therapy.
•Attachment 3(1), (2) and (3): These are three decisions of the arbitrator in WCAS applications A34042, A34818 and A36114.
•Attachment 4: Mr Armet's counter to the arbitrator's decision in respect of this appeal and the other appeals on foot, which I take to be his submissions and argument as to the errors the arbitrator made and why the respondent's application to strike out his appeal should be dismissed.
•Attachment 5: These appear to be Mr Armet's exposition of errors of law made by the arbitrator in respect of all of his appeals.
•Attachments 6 and 7: Whilst described as attachments, there is nothing attached. What Mr Armet has done is refer the court to documentation filed in separate proceedings in this court being CIV 625 of 2018 and the workers' compensation document provided by WCAS to this court as it was requested to do and required to do under the District Court Rules 2005, r 52. At this point it should be observed that it is not appropriate for a party to file only one set of documents for three separate appeals. One set should be filed in each. This has a number of benefits including the fact that material which, whilst relevant in one appeal but which is irrelevant in another, does not distract the court and the other party from the issue at hand in each.
What is a question of law?
What constitutes a 'question of law' has been comprehensively discussed by this court in BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6. It is clear that factual errors by the arbitrator and errors as to the finding of facts or complaints about the facts found by an arbitrator do not constitute a question of law. Accordingly, any ground of appeal that is a complaint in respect of a finding of fact is not appealable. In this regard, his Honour said at [52]:
By s 247(2) of the Act the court may only grant leave to appeal from a decision of an arbitrator if 'a question of law is involved'. To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]. A court or tribunal does not make an error of law merely because the court or tribunal finds facts wrongly or upon a doubtful basis: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21] (Buss JA (Wheeler and Pullin JJA agreeing)):
'If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision‑maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.'
His Honour had earlier referred to the New South Wales Court of Appeal decision in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. He referred in particular to the decision of Glass JA, who said [45] – [46]:
Before Bond was decided, the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 considered the issue of what constitutes a question of law in the context of worker's compensation legislation. Glass JA, with whom Samuels JA agreed, said (155 – 156):
It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.' (emphasis added)
A finding of fact in the commission may, nevertheless, reveal an error of law where it appears that the trial judge has misdirected himself, i.e., has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further, an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Hope v Bathurst City Council (1980) 144 CLR 1, 10; Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126, 138; (1940) 57 WN (NSW) 53, 55. The decision here assailed is not of that character.
His Honour went on later to say:
Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer‑General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found. (emphasis added)
Strike‑out application
The application to strike‑out is on the basis that the grounds of appeal:
(a)failed to state the question of law and the error made by the arbitrator;
(b)are frivolous and vexatious and;
(c)have no prospects of success.
Applications to strike out appeals for these reasons are not new to the law. There is often some overlap between grounds that are frivolous and vexatious on the one hand and which, on the other hand, do not disclose any reasonable prospect of success. In Samuels v The State of Western Australia [2005] WASCA 193, the Court of Appeal was required to consider whether the appeal had any reasonable prospect of succeeding when deciding whether or not to grant leave to appeal. Whilst I am not dealing with an application for leave to appeal, considerations relevant to the granting of leave to appeal, namely whether there are reasonable prospects of success, apply equally to an application to strike out an appeal on this basis. The court concluded [56]:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success …
The court said [58]:
… Also, where a ground so suffers from a lack of clarity that the Court or Judge is unable to understand it, there would be no reasonable prospect that the ground could succeed in that form.
The court observed, [60], that in deciding whether there was any reasonable prospect of success on the application for leave, such an exercise would not require a detailed consideration of all the evidence and all the issues.
Hence, when considering whether the grounds disclose a reasonable prospect of success, the enquiry is not to decide whether the appeal will ultimately be successful, but to see if the grounds have, as stated in Samuels [56], a rational and logical 'prospect' of succeeding. Further, this does not require me to undertake a detailed analysis of all the evidence and the issues of the type that would be necessary if the merits of the appeal were being determined. To paraphrase the proposition in its most simplest form, the process for striking out an appeal or for granting leave to appeal is designed to screen from the appeal process those appeals that obviously are untenable and allow through those appeals that are arguable but which may ultimately be unsuccessful.
I am also required to be mindful that Mr Armet is an unrepresented litigant. Again, the Court of Appeal said in Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]:
Due allowance must, of course, be made for the fact that Mr Glew is unrepresented. A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148, 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.
Having regard to these comments, it is to be emphasised that, although I need to be considerate of the fact that Mr Armet is unrepresented and suffers from a lack of legal sophistication when it comes to drafting legal documents and presenting his case, a problem exacerbated by the fact that English is not his first language, and that I should, accordingly, allow some relaxation in the application of the rules where appropriate, the fact remains that the requirement to provide sufficient grounds of appeal is fundamental to this court having jurisdiction to deal with the matter and the requirement to demonstrate an error of law is not a matter for the rules but a requirement of legislation enacted by Parliament.
The arbitrator's jurisdiction
The arbitrator's jurisdiction under the Act is found in s 176 of the Act which provides that an arbitrator has exclusive jurisdiction to resolve 'disputes'. Section 176 provides:
(1)In this Part —
dispute means —
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;
(b)a dispute in connection with an obligation imposed under Part IX;
(c)any other dispute or matter for which provision is made under this Act for determination by an arbitrator;
(d)any other matter of a kind prescribed by the regulations.
(2)A proceeding for the determination of a dispute is not capable of being brought other than under this Part.
(3)Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
The Act, by s 182ZT, provides that if a dispute has not been resolved by conciliation, an application may be made to the registrar of arbitration for determination. Section 182ZU provides that an application cannot be accepted for arbitration unless it is accompanied by, in this case, a certificate issued by a conciliation officer identifying the matters in dispute that have not been resolved by conciliation. The Act, by s 189(1), provides that the granting of relief or redress under the Act is not necessarily to be restricted to the specific claim made or the subject matter of the claim. However, by s 189(2), the arbitrator is not prevented from determining the matter is beyond the scope of the application for arbitration and that it should be the subject of another application for conciliation.
Those three sections reveal the legislative intent that a dispute should, first, have been conciliated before an arbitrator's jurisdiction to resolve the dispute is invoked and demonstrates the need to clearly identify the dispute that was conciliated and is to be arbitrated. However, given that a dispute might be confined to the nature of the relief sought and the arbitrator is not confined to those issues, I am of the view the combined effect of those provisions is that the failure to first conciliate an issue in dispute results in the conclusion that an application for arbitration which raises an issue that has not been conciliated should be treated as an irregularity rather than a nullity.
The point, however, is that there is a need to clearly identify the dispute that is to be conciliated, then arbitrated and ultimately appealed. In each case this identifies the issue that must be decided which in turn will determine what law is to be applied, what facts are in dispute, what evidence is relevant and what errors, if any, were made.
In my view, this is constant with the comments of Herron J in Walsh v Fortescue Metals Group Ltd [2016] WADC 140 [90] - [92], where he said:
Given the informal nature of the WorkCover jurisdiction and, while it is necessary to clearly identify what relief is sought and under which provision of the Act, there is, in my view, no need for a particular form of application. Providing the issues in dispute between the parties are clearly identified and each of the parties are on notice as to what the issues for determination are and have the opportunity to present evidence in the case addressing those issues, the issues can be determined. It is difficult to understand why in this case it is necessary for yet a further hearing, which is likely to involve much of the same evidence being adduced, to determine whether Mr Walsh has an entitlement to worker's compensation payments in relation to a left shoulder injury.
This approach allows the arbitrator to decide the issue between the parties, consistently with s 177 of the Act, according to the substantial merits with as little formality and technicality as possible.
In both APP 4 of 2018 and APP 5 of 2018 the arbitrator correctly identified that the issue he had to first decide was whether Mr Armet had suffered an injury as defined in the Act. The arbitrator referred to the relevant provisions of the Act which provided that if an injury to a worker occurred, the employer was liable to pay specified expenses including treatment expenses, otherwise known as statutory allowances, (s 18 and sch 1 of the Act) and s 5 of the Act which defined 'injury' to relevantly include:
…
(b)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or ...
APP 4 of 2018
This appeal is in respect of the arbitrator's decision in WorkCover application A34042. The dispute between Mr Armet and the respondent was referred for conciliation following which a certificate of outcome was issued pursuant to s 182O of the Act. The certificate reveals that the issue that had been referred to conciliation by Mr Armet was the question of payment of medical and other expenses and a determination in respect of liability with respect to those expenses. The certificate identifies the outcome of the conciliation as being, to the effect, liability for the worker's 'tinnitus' claim is disputed with the employer submitting Mr Armet had not sustained an injury arising out of the course of his employment with the employer.
Mr Armet then lodged an application for arbitration of the dispute in which he described the issues in dispute as being the failure of the employer to accept liability for his tinnitus and a determination of liability of the employer with respect to payment of his statutory allowances.
The decision of the arbitrator was to dismiss Mr Armet's application for a determination of liability that the respondent, his employer, was liable to pay him compensation under the Act for the development and/or aggravation or exacerbation of tinnitus, being a condition from which the arbitrator found Mr Armet suffered.
In his reasons, the arbitrator recorded that Mr Armet's case was that his tinnitus had developed as a result of his employment with the respondent, more particularly, exposure to noisy or excessively noisy machinery at work principally by operating a ride-on pallet jack, without hearing protection, and/or that, alternatively, the tinnitus was made worse by pain and/or pain medication and/or stress associated with prior back injuries suffered on 18 March 2015 and 4 September 2015 for which liability had been accepted by the employer and compensation paid.
The arbitrator observed that for entitlement to recover expenses to arise, there needed to be a connection or relationship with the injury, citing the Court of Appeal decision in Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230 and Hawker Pacific Pty Ltd v Lang [2015] WASCA 256.
The arbitrator preferred the evidence of other witnesses over the evidence of Mr Armet, taking the view that Mr Armet had a tendency to exaggerate his evidence. He had regard to the expert evidence produced by Mr Armet constituted by the opinions and observations of Ms Listyowati, Dr A Deraniyagala, Dr P Imani and Dr I R Wallace. He also had regard to the expert evidence produced by the respondent constituted by the report of Professor T C McManus.
The arbitrator preferred the expert opinion of Professor McManus and giving reasons for doing so, namely that the opinions of those experts engaged by Mr Armet were based on a history of exposure to noise provided to them by Mr Armet that was not supported by the arbitrator's own findings of fact. The arbitrator's findings of fact were based in the evidence of the witnesses he preferred to the evidence of Mr Armet. The arbitrator also considered whether the tinnitus might have been caused by chronic pain and stress arising from the prior back, neck or foot complaints and also considered whether the tinnitus may have been caused by, or exacerbated as a result of, the consumption of pain medication and/or stress arising from the prior injuries and complaints. In each case, on the evidence before him, the arbitrator found these factors were not the cause of the tinnitus and did not aggravate or exacerbate the tinnitus. As a consequence, the arbitrator found that Mr Armet had not suffered an injury as that term was defined in the Act.
Grounds of appeal
Mr Armet advances seven grounds of appeal supported by particulars. At this point, I would observe that the purpose of particulars of a ground of appeal is to support the ground by demonstrating in more detail the error complained of in the ground.
Ground 1
Ground 1 states:
The arbitrator fails in his introduction of the decision, by recalling incorrect facts, unknown situations, mixed chronologies which upset the truth and plunges the interpretations of each, into obscurity.
Attempt to give meaning to this ground has been made by adding particulars to the ground. The particulars are summarised to the following effect:
(a)that the arbitrator made an error as to the dates and period of Mr Armet's employment with the respondent, which is a complaint that the arbitrator made an error of fact.
(b)that Mr Armet only lodged one first medical certificate of incapacity. The relevance of this complaint, having regard to the issues the arbitrator was required to decide, which was whether Mr Armet suffered an injury as defined in s 5 of the Act and whether the claimed expenses were connected to that or those injuries, is not shown.
(c)that Mr Armet is convinced the tinnitus 'symptom' is caused by the initial two injuries and their serious aggravation following the second accident. Whether they were or were not is a question of fact. There is no allegation the arbitrator misunderstood the law or misapplied it to the facts. It was for the arbitrator to decide this question and Mr Armet's contrary opinion as to the correct factual situation is, in appeals of this nature, simply not relevant.
(d)that the arbitrator incorrectly considered the tinnitus as a disease rather than a symptom. Presumably, this ground is intended to demonstrate either the recording of incorrect facts or the recording of an unknown situation referred to in the first ground. In the context of having to decide whether Mr Armet suffered an injury as defined in s 5 of the Act, whether it be a personal injury by accident or the contraction or aggravation or exacerbation of a disease, there is no material distinction. In this regard, the observations of McTiernan J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, 631 are instructive. He said:
But even in relation to purely somatic disorders, identifiable as resulting from the derangement or degeneration of some organ, the assumed absolute distinction between the pathological condition, the disease, and its regularly occurring signs and symptoms may, it seems to me, be in some cases of doubtful validity. To regard bodily symptoms as always the product of an ailment, rather than of its essence, may be to treat concomitance as consequence. Some physicians might see the matter in one way; some in another. A rigid separation of a disease from its symptoms is difficult in the field of psychosomatic and neurological ailments.
In any event, the question of whether tinnitus is a disease or a symptom of a disease is a question of fact. Further, as stated above, there is no complaint that the arbitrator misunderstood the definition of 'disease' in the Act or the definition of 'injury' in the Act and therefore made an error of law. In the circumstances of the application Mr Armet brought, which was to obtain a determination of the respondent's liability for his tinnitus, the arbitrator task was to make a finding as to whether Mr Armet suffered an injury as defined in the Act, or whether the expenses were connected to the two earlier injuries for which liability had been accepted. The arbitrator correctly stated the law and then applied the law to the facts as he found them. Having found on the facts the tinnitus was not caused by Mr Armet's employment and did not arise in the course of his employment, and that the employment did not contribute to a significant degree to either the contraction of the tinnitus or to an aggravation or exacerbation on the tinnitus, it was open to the arbitrator to find that Mr Armet had not suffered an injury as defined and that the expenses were not connected to the compensable injuries. Mr Armet's complaint is that the arbitrator made an error of fact in characterising the tinnitus as a symptom. Even if Mr Armet is correct, no error of law is disclosed and this finding, even if it is wrong, is not appealable.
In my view, this ground should be struck out on the basis it does not disclose any error of law and that it has no reasonable prospect of success.
Ground 2
Ground 2 states:
The arbitrator erred in law in 'turning a blind eye' about the importance and the contents of all legal or official documents related to the events and situations leading to this final outcome (Mr Stefane Armet's partial permanent incapacity to work).
I am unable to understand what error of law is disclosed in this ground and my failure to understand is not ameliorated by the particulars. The ground does not allege the arbitrator failed to have regard to the facts specified in the particulars. Rather, the complaint is that the arbitrator did not give them the importance they deserved. This is a complaint as to the weight the arbitrator gave the evidence, a complaint which is not appealable: Atanososka [21].
The particulars in support of the ground simply refer to a First Incident Notification and Investigation and CFC statement relating to the injury suffered in March 2015, Mr Armet being on sick leave between 20 March 2015 and 17 July 2015, what he described as disciplinary action in the form of a meeting manifesting the respondent's 'non‑recognition' of its responsibilities for these injuries, WorkCover advice to lodge a worker's compensation claim form and Mr Armet's official lodgement of a first medical certificate of incapacity for tinnitus symptoms on 19 November 2015 'once true realisation and investigations have been completed'. Particular (e) simply asserts:
The second incident period, seriously aggravated the 'manageable' initial chronic pain, and created/exacerbated 2 new ones (tinnitus and neck).
The arbitrator was required to determine whether Mr Armet had suffered an injury as defined in s 5 of the Act which Mr Armet, in his application to the WCAS, described as tinnitus. The arbitrator found that the tinnitus developed a few days after the 4 September 2018 injury. The arbitrator also dealt with a contention that the tinnitus was caused by stress. If that were the case, the stress would need to pre‑exist the tinnitus in order to be able to cause it. However, the stress was found by the arbitrator to be due to the tinnitus rather than the other way round: [172]. This is a finding of fact.
The particulars, whilst identifying some documents to which the ground of appeal alludes, do not demonstrate how and why the documents are important to this finding or how and why it is said the arbitrator failed to give the documents the importance Mr Armet felt they deserved.
This ground, on the basis it does not demonstrate any arguable error of law and has no reasonable prospect of success, should be struck out.
Ground 3
Ground 3 states:
The arbitrator erred in law in refusing to identify and understand the ride‑on electric pallet trolley's manufacture information (CFC documents) leading to significant errors, false interpretations and wrongness.
The arbitrator's reasons for decision reveal he did consider the information brochure, which appears in exhibits A1-15, tendered by Mr Armet. As the arbitrator says, there is no limitations on the use of the pallet trolley described in the brochure. Clearly, the arbitrator did identify the information and did understand it. In dealing with Mr Armet's contention that the use of the pallet jack over rough ground resulted in excessive noise and Mr Armet's reference to the pallets trolley's brochure to support his contention the pallet trolley was not designed for use on a surface that is not a smooth surface, the arbitrator refers to the pallet jack's brochure at [154] and [155] of his decision. The arbitrator described the brochure as a sales/marketing document. The arbitrator is not obliged, when giving his reasons for decision, to refer to all the evidence given in the case: s 213(4)(c) of the Act. Accordingly, a failure to refer to this evidence cannot, without more, be an error of law. Having read that publication, it can be seen that there is no information in it that would have advanced Mr Armet's case insofar as he was required to prove he had suffered an injury as defined in s 5 of the Act. In that context, the exhibit was irrelevant. There is nothing in that publication that suggests operation of the pallet trolley was a risk of causing hearing loss or tinnitus. The particulars do not clarify what Mr Armet means when he states in this ground that the refusal to identify and understand this material lead to significant errors, false interpretations and wrongness. To that extent, the ground suffers from the fate described in Samuels [58].
The ground should be struck out on the basis that there is no reasonable prospect of success and does not demonstrate any error of law.
Ground 4
Ground 4 states:
The arbitrator erred in law in stating fraudulent suggestions, disrespectful words, low dialectic, defamatory remarks, slander actions, red herring attempts, in order to belittle, discredit and dirty Mr Stephane Armet's education, personality and integrity.
This, in essence, is a complaint as to the arbitrator's finding as to the credibility of Mr Armet and the weight given to his evidence. It is the arbitrator's job to make the necessary findings of fact. To do this it is necessary that he have regard to the evidence and assess its weight. In assessing its weight it is inevitable and imperative that he have regard to the credibility of the witness giving evidence as to those facts. Despite Mr Armet describing this as an error of law, it is really a complaint as to the weight the arbitrator gave Mr Armet's evidence and, as stated in Atanososka [21], it is not an error of law. This particular should be struck out.
Ground 5
Ground 5 states:
The arbitrator erred in law by giving full credit, full support, full blessing and full praise to Ian Kitching (ex‑employee CFC division manager), Sam Uren (ex‑employee CFC OH/S) and Fran Flockton (downgraded CFC supervisor). The same ones, accountable and coloured by illegal actions, twisted behaviour, stained personality and low human's care at the workplace towards the employee.
Mr Armet's particulars go on to allege a number of alleged behavioural failings of these three witnesses whose evidence was relied upon by the respondent. It is sufficiently clear that Mr Armet contends, at the very least by implication, that the evidence of these witnesses should therefore have been disregarded by the arbitrator and certainly not accepted in preference to Mr Armet's evidence. However, for the reasons stated above, it was the role of the arbitrator to assess the credibility of not only Mr Armet but all witnesses. He did so as he was obliged to do and made findings of fact based on weighing their evidence. As much as Mr Armet may find this unsatisfactory, as stated in Atanososka [21], no error of law is disclosed and this ground of appeal should be struck out.
Ground 6
Ground 6 states:
The arbitrator erred in law in showing frequent inconsistency, falsifying documents, making demonstrable errors, producing abnormal mathematics results.
The particulars allege that the arbitrator falsified certificates and then goes on to complain about the arbitrator's findings as to the hours per day that Mr Armet travelled on the ride‑on pallet. The allegation that the arbitrator falsified medical certificates is not supported by any evidence filed in the appeal or in opposition to the application to strike out this ground.
Mr Armet appears to refer to [108] of the arbitrator's reasons for decision as being in support of this contention. At [107] and [108], the arbitrator appears to be dealing with apparent inconsistences in the information contained on the medical certification issued by Dr Deraniyagala. More particularly, the arbitrator refers to a first medical certificate dated 19 November 2015 which identifies the date of onset of the tinnitus as 19 November 2015 and then refers to an earlier progress certificate, apparently signed by the same doctor, dated 15 September 2015 (two months earlier) in which Dr Deraniyagala is said to diagnose back pain and tinnitus and in which it is stated, 'Tinnitus-states he was exposed to loud sounds at work without ear plugs and now developed tinnitus'. I am unable to locate such a medical certificate in the exhibits forwarded by the WCAS. Mr Armet did not direct me to it.
There is a copy of a certificate bearing the date 15 September 2015, but it does not contain such a diagnosis or history. However, there is a copy of a certificate dated 27 October 2015 which makes that diagnosis and recites that history.
On one hand, if Mr Armet's allegation of falsification of records is intended to mean the arbitrator has forged or altered a certificate, there is no evidence of such. On the other hand, and mindful that English is not Mr Armet's first language, it may be that he meant by the expression 'falsification' that the arbitrator's description of the certificate is erroneous thereby creating a false impression and by doing so the arbitrator attributed to the certificate a character of falseness, i.e., falsified the certificate.
However, in this case the inconsistency in the medical certification was used by the arbitrator to reject the accuracy of the date of onset of the tinnitus as recorded in the first medical certificate. Given that there is reference in the progress certificate of 27 October 2015 of tinnitus, it is inevitable that the arbitrator would still have rejected the accuracy of the date of onset provided in the first medical certificate as being 19 November 2018, even if there is or was a certificate dated 15 September 2015 referring to the onset of tinnitus.
The error does not undermine the arbitrator's finding at [148] of his reasons that Mr Armet developed tinnitus in early September 2015, approximately one week after the September 2015 injury.
The ground of appeal should be struck out on the basis it does not reveal any error of law and that there is no reasonable prospect of success.
Ground 7
Ground 7 states:
The arbitrator erred in law in hindering the establishment of the truth, and abnormally discredits the many medical exam results, converging expert opinions, actual facts and situations, related to the tinnitus symptoms.
When considered together with the particulars, this is a complaint that the arbitrator accepted the expert opinion of Professor McManus over the experts relied upon by Mr Armet. This is a complaint as to the weight the arbitrator gave to the evidence of the various witnesses, an obligation he was required to perform. It does not demonstrate any arguable error of law. This ground of appeal should be struck out.
Conclusion
As all the grounds of appeal have been struck out, it follows that the appeal notice is now unsupported by any grounds. As an appeal unsupported by grounds, it is invalid: Gipp v The Queen [1998] HCA 21 [58]. Accordingly, the appeal notice should be struck out.
APP 5 of 2018
This appeal is from the arbitrator's decision in the application A36114. This dispute was conciliated with the certificate of outcome stating that the applicant was asking the respondent to accept liability for hair loss suffered between 24 November 2014 to 14 September 2015 caused by two injuries sustained in the course of his employment with the respondent along with 'numerous intimidation and pressure from management' and treatment costs thereof. For the reasons that follow, I would strike out grounds 1 to 6. I am not persuaded that ground 7, which contends that the arbitrator failed to give adequate reasons for decision, should be struck out.
Mr Armet's application for arbitration described the issues remaining in dispute as acceptance of liability for hair loss causally related to various injuries non-treated (case number C36114), acceptance of liability for lipoma and neck injuries arising from the 'second injury at work (4/09/2015)' and acceptance of liability for foot pain and/or plantar fasciitis as a consequence of the initial injury (18/03/2015) (case number C36116).
The application went on, and in the box headed 'Additional issues not included for conciliation are …', Mr Armet stated:
Acceptance of liability for tinnitus related to operation of ride on electric pallet jack producing excessive noise and underlying health condition (backache with sciatica- foot pain, and/or plantar fasciitis)+ lipoma and neck injury arising after 2nd incident at work (14/19/2015).
The claim in respect of the tinnitus was dealt with in application A34042, the subject of APP 4 of 2018. In his reasons for decision in application A36114, the subject of this appeal, the arbitrator noted that there was no dispute in relation to the respondent's liability to pay compensation for the backache/sciatica, and that the claim in respect of the lipoma was withdrawn. He was left having to decide whether Mr Armet had suffered an injury as defined in s 5 of the Act, more particularly:
(a)foot injury;
(b)a neck injury;
(c)hair loss.
At [91], the arbitrator observed that the MRI clearly established Mr Armet suffered from plantar fasciitis, but found that he was not satisfied the evidence established that Mr Armet's plantar fasciitis is compensable in that he was not satisfied it arose out of, or in the course of, the employment, or that it constituted the contraction or recurrence, aggravation or acceleration of a disease to which the employment contributed to a significant degree: [100] – [103]. The arbitrator was not persuaded by Mr Armet's evidence as to the nature and extent of the work duties he was doing which might have caused the condition to develop, holding the view that Mr Armet's evidence was exaggerated. In the circumstances, Mr Armet's credibility on this issue was crucial to the proving of his case and was found lacking. The arbitrator's approach in deciding this issue does not constitute an error of law.
In respect of the claim regarding the neck, the arbitrator was not satisfied on the evidence before him the neck pain was caused by the 18 March 2015 injury or the September 2015 injury. The arbitrator did not find Mr Armet's uncorroborated evidence sufficiently convincing. He found that the delay between the September 2015 injury and the earliest mention of neck pain in the material before him in February 2016 was not satisfactorily explained. The delay in a record of neck pain in the medical literature clearly caused the arbitrator concern and left him with a doubt as to whether it was caused by his work. The arbitrator was not prepared to accept Mr Armet's evidence of its earlier onset and, accordingly, Mr Armet was unable to prove his case to the arbitrator's satisfaction. This approach to deciding the issue, dependant as it was on the credibility of Mr Armet, is not an error of law.
In respect of the hair loss, the arbitrator found that Mr Armet suffered from hair loss and that it was as a result of alopecia, which the arbitrator found was a disease. However, the arbitrator was not satisfied to the required standard that the disease was caused by, or aggravated or exacerbated by, the employment.
It is clear from the reasons for decision that the arbitrator was dealing with a case presented by Mr Armet that his hair loss was caused by his employment, more particularly that:
(a)The use of medications he took as a consequence of his alleged injuries, including the admitted injuries, was the cause of, or a contributing factor to, the hair loss;
(b)The stress associated with various aspects of his employment being the pain from the admitted injuries suffered on 18 March 2015 and 4 September 2015 and/or his relationship with his employer was either the cause of, or a contributing factor to, the hair loss.
The arbitrator found that the first mention of hair loss in the medical literature was in October 2016, although Dr Gebauer, the expert dermatologist relied upon by Mr Armet, in his report of 16 September 2016, following referral by Mr Armet's general practitioner, stated he saw Mr Armet on 25 August 2016 and that he took a biopsy. If that evidence was accepted, and no explanation has been given for not doing so, it would appear the hair loss manifested itself before 25 August 2016.
Dr Gebauer was of the view the hair loss commenced in May 2015 when Mr Armet was in severe pain he was experiencing at the time. This opinion was based on the history he had taken from Mr Armet. Dr Gebauer excluded lupus as a cause of the alopecia and, accordingly, postulated that Mr Armet developed lichen planus post‑injury and as a result of the injury. More particularly, Dr Gebauer stated that the commonest cause of lichen planus 'is drugs and medication'. He went on to say in that particular painkilling drugs are a common triggering cause. Implicit in this opinion is that Mr Armet was in severe pain and was taking drugs, medication and painkilling drugs prior to May 2015.
The arbitrator was satisfied Mr Armet suffered hair loss between 2015 and 2016 described as alopecia. At [172], the arbitrator concluded that if the hair loss occurred, Mr Armet would have reported it to his medical practitioners and as such it was more likely the hair loss would have occurred in 2016. The arbitrator found the first report corroborating hair loss was October 2016: [167]. He also noted that it was possible that the hair loss was caused by the consumption of painkilling medication and noted that Mr Armet had been prescribed painkillers but that there was no evidence of what painkillers Mr Armet actually consumed at any particular time. The arbitrator found that there was no evidence the hair loss commenced on or before May 2015, took the view that the validity of Dr Gebauer's opinion was based on this assumed fact and consequently took the view that, because the opinion was not based on proven facts, little or no weight was to be given to it. In my view, it is arguable that the arbitrator has not given sufficient reasons for this conclusion given that it is not necessarily the case that every fact must be proven in order for an expert's opinion to be accepted. The unproven fact must be essential to the validity of the opinion before the validity of the opinion is undermined. Arguably, the arbitrator needed to explain in more detail why Dr Gebauer's erroneous assumption of hair loss in May 2015 which, on the arbitrator's observations and findings was after May 2015 and which clearly post‑dated the consumption of 'drugs, medications and in particular pain killing medications' that were prescribed to treat at least in part Mr Armet's symptoms from the admitted injuries, was fatal to the acceptance of Dr Gebauer's opinion as to the cause of the hair loss and the link to Mr Armet's employment.
It is open to Mr Armet to argue that an inference was available that he actually consumed that medication, given the fact liability had been accepted for a back injury in March 2015 and September 2015 with associated neuralgic pain. Dr Narula reported on 6 November 2015 that there were complaints of referred pain into the right leg and that 'no other neural impingements were reported'. The arbitrator accepted as evidence Mr Armet's assertion that he suffered sciatica ([37]) following the injury in March 2015.
The arbitrator appears to have found that Mr Armet purchased 'Duloxetine' between May 2016 and September 2016 which, according to the arbitrator, is prescribed for depression and to treat 'neuropathic pain', albeit as a result of diabetic neuropathy according to Mosby's Medical Dictionary. It is not clear whether the arbitrator was of the view that because Mosby's Medical Dictionary says Duloxetine is prescribed to treat neuropathic pain as a result of diabetic neuropathy, it was not relevant as a common cause of alopecia, or whether he was of the view it raised an issue as to whether Mr Armet had diabetes and that it was the diabetes for which the medication was prescribed rather than the work‑related injuries. He also appears to have found Mr Armet purchased Lorazepam said to be a tranquiliser, Cymalta which is the same as Duloxetine, and Valium being a sedative and anti‑anxiety agent. It is not clear why a tranquiliser, a sedative and an anti-anxiety agent should not also be regarded as a painkiller. It may be that sedatives relax muscular tension and ease pain. Arguably, the arbitrator needed to explain this in his reasons for decision. Arguably, the arbitrator also needed to explain in his reasons why the drugs and medication that were prescribed, but which might not otherwise be regarded as painkilling medication, should not also be considered a cause of lichen planus given Dr Gebauer's evidence that they are a common cause of this disease.
The arbitrator quoted the respondent's submission that Dr Gebauer 'merely postulates' a causal link between the drugs and the hair loss. To characterise Dr Gebauer's link in this way arguably misunderstands Dr Gebauer's report. Dr Gebauer arrived at that position by excluding other causes of the hair loss and it is open to conclude that what he expresses as his postulation in fact represents his expert opinion as to the cause.
The arbitrator referred to the report of Dr Low, a medical practitioner whose report dated 4 February 2017 was relied upon by the respondent. Dr Low stated that, after going through his previous reports, it did not appear that Mr Armet was taking any significant medication and that there was no mention in the dermatologist's report of the type or duration of medication alleged to have been taken by Mr Armet. As such, he said, the alleged cause postulated by the dermatologist for the hair loss was not present. However, Dr Low does not explain why the postulated cause cannot exist merely because the dermatologist has not stated the type and duration of the medication, or merely because he can find nothing in his own records of significant medication (whatever that term may mean). On one view of the dermatologist's evidence, it is simply enough that drugs and medication were taken. Dr Low does not challenge the proposition that drugs and medications including, in particular, painkilling medications are a common cause of lichen planus.
It is open to further argument as to whether Dr Low's assertion is correct given the arbitrator's findings as to the medication taken by Mr Armet leading up to August 2016. In any event, it seems the arbitrator has taken a view that there was a conflict in opinion between the medical practitioners of some significance to his decision, in which case, arguably, he needed to resolve the conflict and provide reason for the resolution.
It is clear the arbitrator was not satisfied that the hair loss started in May 2015. However, why this is fatal to the acceptance of Dr Gebauer's postulation and Mr Armet's case is, arguably, not explained. It is not necessary that every fact relied upon to form an expert opinion be proven to exist if the facts that are not proven do not materially affect the substance of the opinion (see Beer vDuracraft Pty Ltd [2004] WASCA 192 [80]). Arguably, it was open to the arbitrator to form the view that, although the hair loss did not commence in May 2015, that it occurred after the consumption of drugs and medication including painkilling medication prescribed for treatment for the two work‑related injuries and therefore was caused by those injuries. If the time between the consumption of medication and onset of hair loss was relevant to the question of whether the consumption of medication was the cause of the hair loss, then arguably that needed to be explained and the appropriate findings made by reference to the evidence relevant to it.
Arguably, to justify the rejection of Dr Gebauer's opinion there would need to be an explanation why:
(a)The duration over which the painkilling medication was taken is relevant;
(b)The nature of the painkilling medication is relevant;
(c)The time at which the painkilling medication was taken is relevant;
(d)The quantity of the painkilling medication is relevant;
(e)Why consideration of any medication that was not painkilling medication was not relevant;
(f)The date at which the hair loss first manifested is relevant;
(g)The arbitrator did not regard the medication he characterised as prescribed for anxiety and depression as:
(i)painkilling medication;
(ii)in any event, within the term 'drugs and medication', as used by Dr Gebauer as being a common cause of lichen planus.
The notes of the Rockingham-Kwinana Hospital Department of Emergency Medicine dated 6 April 2016 show Mr Armet was given lorazepam and temazepam. Among the exhibits are copies of receipts showing purchase of medications in the following months.
In respect of Mr Armet's case that the hair loss was caused by work‑related stress, the arbitrator concluded the major stressor was the tinnitus which was not related to work. However, arguably, the finding that this was the 'major' stressor implies there were other stressors involved and, if so, it was necessary to consider if these stressors were work‑related. Provided those stressors were a material contributor, even though they are not the sole contributor, the causal connection is established: Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [52]. The arbitrator, arguably, has not addressed this issue in his reasons.
Grounds of appeal
This appeal notice also has seven grounds of appeal.
Ground 1
The arbitrator fails in all his introductions of decisions, by recording incorrect facts, unknown situations, mixed chronologies, which upset the truth and plunges the interpretations of each into obscurity.
There are a number of particulars attached to this ground. In essence, the grounds constitute a complaint that the arbitrator erred in taking the chronology of events constituted by the lodgement of a workers' compensation claim form in respect of the first accident on 18 March 2015 and when Mr Armet first reported the neck injury. In particular, Mr Armet proposes in one of the particulars that the first investigation of neck pain was on 20 October 2015 when he was referred by his general practitioner for ultrasound. However, the ultrasound report, which shows it was requested on 20 October 2015, performed and collected on 29 October 2015, is an ultrasound with a view to investigating what appears to be the lipoma, rather than neck pain. The lipoma is not the subject of a claim for compensation or of this appeal. The report to which Mr Armet refers does not support a report of neck pain in October 2015.
This complaint is made against a background in which he alleges at particular (f) the arbitrator argued that Mr Armet later reported the neck injury on 31 May 2016 through a workers' compensation progress certificate of capacities. However, I can find no reference to the alleged argument in the arbitrator's reasons for decision. To the contrary, it is clear that the arbitrator found that the report of neck pain in early February 2016 when examined by Dr Imani on 5 February 2016. The MRI was undertaken on 19 February 2016.
The arbitrator also found that the report of Dr Watson established only the possibility that an injury to the cervical injury may have been sustained in September 2015. This, taken together with the arbitrator's finding that the first report by Mr Armet of neck pain was in February 2016, resulted in the conclusion that he was not satisfied on the balance of probabilities that the neck pain resulted from the injury of September 2015. He found the delay between the alleged cause of the injury and the onset of symptoms was not satisfactorily explained.
In my view, this ground of appeal and the particulars thereof should properly be characterised as an appeal of the arbitrator's adverse finding on the question of whether there was a neck injury on 4 September 2015 or whether there was a causal connection between the accident or incident on 4 September 2015 and the subsequent neck pain. This is a question of fact from which no appeal lies. No error of law is demonstrated by this ground and the particulars thereof.
Ground 2
The arbitrator erred in law, making defamatory remarks and wrong statements discrediting Mr Stephane Armet's word (both written and spoken), personality, character and integrity.
Again, this is a complaint as to the arbitrator's finding as to the credibility of Mr Armet and the weight given to his evidence. Again, as stated in Atanososka [21], this is not an error of law. This ground should be struck out.
Ground 3
The arbitrator did not consider the official Rockingham Medical Centre's patient history statement (physiotherapy) and Absolute Balance (hydrotherapy/gym) regarding the hours of treatment.
As stated above, by s 231(4)(c) of the Act, the arbitrator is not required to refer to all the evidence and to fail to do so, assuming the alleged evidence did exist, cannot without more be an error of law. Mr Armet, in his particulars, does not identify where in the arbitration this evidence is found and does not explain how the alleged hours of physiotherapy and hydrotherapy/gym he undertook and the date upon which it commenced and finished could arguably have affected the arbitrator's decision. To simply allege that treatment started on 30 September 2016 to 30 March 2016, and to allege that there was a maximum of 10 hours of physiotherapy and nine hours of hydrotherapy over six months and five months respectively, leaves neither the court or the respondent any the wiser as to what the ground of appeal means. To make this allegation or observation does not assist in supporting the allegation found in the ground of appeal that the arbitrator did not consider such evidence. To refer to Samuels [58] again, the ground of appeal and the particulars thereof suffer from such lack of clarity it must be said there is no reasonable prospect of success.
Ground 4
The arbitrator failed to take into account relevant GPs' actions and referrals relating to the neck injury's realisation and investigation.
The arbitrator was required to find as a fact whether Mr Armet had a neck injury as defined by s 5 of the Act. This required the arbitrator to find as a fact that any neck injury was caused by Mr Armet's employment. The arbitrator found as a fact it was not and the reason for doing so was due to his finding that the first report of neck pain was in February 2016, many months after the injuries of 18 March 2015 and 4 September 2015. It is clear that the only evidence to support the proposition that the neck injury was due to the September 2015 injury was Mr Armet's own evidence, which the arbitrator was not prepared to accept without cogent corroborating medical evidence explaining the delay between the alleged neck injury in September 2015 and the delay in any written note of it appearing in the medical records. This finding is also made in the context of the arbitrator finding that Mr Armet was prone to embellishment and exaggeration in his testimony. These are findings of fact.
The particulars of this ground do not support the ground of appeal. Mr Armet complains at particulars (a) and (b) the arbitrator seemed to be unaware of the pre‑existing back ache and sciatica, foot/heel complaints were already present, and seriously aggravated following the injury in September 2015 and Mr Armet emphasises the importance to mention the mental disorder caused by the tinnitus symptoms. How these particulars support the ground of appeal, namely that the arbitrator failed to take into account the relevant general practitioner's actions and referrals, is not demonstrated, particularly when it is clear that the arbitrator was aware of the pre-existing complaints.
At particular (c) Mr Armet refers to the first general practitioner's referral for 'neck investigation' dated 20 October 2015 and collected on 29 October 2015. However, this document was a report of an ultrasound taken with a view to investigating what appears to be the lipoma, rather than neck pain. The report to which Mr Armet refers does not support a report of neck pain in October 2015.
By particulars (d) and (e), Mr Armet refers to referrals for neck investigation in early 2016. The arbitrator was aware of the referral for the MRI. I am unable to locate any evidence that was before the arbitrator to suggest Mr Armet was referred to Dr Imani, in mid‑January 2016 for neck investigation. Given his specialty as an ENT specialist, it seems likely the referral was only in respect of tinnitus (whenever the referral was).
At particular (f) Mr Armet complains or makes reference to a progress certificate of capacity dated 31 March 2016 which he contends made mention of the neck injury and which he contends was evidence that the arbitrator overlooked. I am only able to locate page 3 and what appears to be page 2 of that medical certificate in the exhibits. Page 1, being the page on which one would expect to find the description of the injury and any reference to a neck injury, cannot be located. However, this does not matter because, in any event, the arbitrator found Mr Armet reported problems with his neck in early February 2016, not March 2016, a date which works for the benefit of Mr Armet when the arbitrator is engaged in an exercise of reconciling when and why there was no early complaint of neck injury following the alleged injury to the neck in September 2015.
At particular (g) of this ground of appeal, Mr Armet states:
The arbitrator mentioned this WCWA progress certificate of capacity, relating to the neck injury dated 31 May 2016 which does not exist. (10 month gap)
However, I can find no reference by the arbitrator to such a medical certificate in his reasons for decision. Further, no evidence has been presented to indicate that such a document exists and no such document appears in the exhibits sent up to this court from WCAS. Further, the particulars do not demonstrate how the decision reached by the arbitrator could be different.
In my opinion, this ground does not disclose any error of law and has no reasonable prospect of success and should be struck out.
Ground 5
The arbitrator erred in law by choosing, preferring, Dr John Low's opinions (foot/heel and/or plantar fasciitis) on Dr Sonny Narula, Dr A Fairhurst and Mr Ben Trewben (podiatrist), have convergent views on the real and true causes of the foot pain.
The particulars do not support the ground of appeal. Again, that was the job of the arbitrator to weigh the evidence given by the various witnesses, including the doctors, and assess the weight to be given by their opinions. This is a complaint about the weight the arbitrator gave to the opinions of the various witnesses, an obligation he is required to perform. Particulars (b) and (c) allege that errors were made as to Mr Armet's height, weight, BMI and SBMI and that defamatory statements were made of Mr Armet's descendant. These are errors of fact and Mr Armet does not explain how these alleged errors arguably caused the arbitrator to wrongly arrive at the decision he did and translate into an error of law.
The ground and the particulars thereof attack the arbitrator's findings of fact and do not demonstrate any arguable error of law. This ground of appeal should be struck out.
Ground 6
The arbitrator erred in law, in considering, supporting, crediting, any statements or opinions made by the supervisor Fran Flocton for CFC. The arbitrator's decision contained an unmistakeable lack of assessment for negligence.
For reasons given above, the arbitrator was obliged to assess the weight of the evidence given by the witnesses. This does not demonstrate any arguable error of law. Insofar as the ground of appeal complains the arbitrator did not assess for negligence, it was to be observed that a claim for worker's compensation does not involve an investigation and finding of negligence. Compensation is payable with or without negligence and the arbitrator has no jurisdiction to determine the question of whether the employer was negligent. The question of negligence is decided by a court. Again, the ground and the particulars attack the arbitrator's finding of fact and do not disclose any arguable error of law. This ground should be struck out.
Ground 7
The arbitrator failed to give any reasonable and legitimate reasons for his decision regarding Mr Stephane Armet's hair loss.
It can be an error of law to fail to give adequate reasons for decision. In Marshall v Lockyer [2006] WASCA 58 [247], [248], it was said:
The trial Judge was under a duty to give reasons. In determining the adequacy or sufficiency of the reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 per Owen J. The function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error and to provide procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful. It is sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson at 248.
However, reasons need not be lengthy and elaborate nor do they require reference to all of the evidence led in the proceedings or every submission advanced by the parties: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [28]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
The particulars Mr Armet relies on to support the ground of appeal are, as so often is the case with unrepresented litigants, drafted in such a way that it is difficult to see the connections between them and the error of law that the litigant is trying to demonstrate. I am required to be mindful of Mr Armet's limitations and consider whether beneath inadequately expressed and often irrelevant material there may lurk an arguable case.
Particulars (a) to (c) pose a series of questions being:
a)Does untreated back ache with sciatica and foot/heel pain could cause stress?
b)Does unchanged physical duties and work location for over 6 Months with these injuries cause stress?
c)Does official threat and intimidation cause stress?
Implicit in these particulars is the proposition that Mr Armet was presenting a case that his hair loss was caused by those three pre‑existing stressors. The arbitrator found that the tinnitus, unrelated to his employment, was the major stressor: [138], [147]. However, arguably, the arbitrator does not explain why the minor contributors are not a material cause of the tinnitus, which is the real issue he had to determine.
By particular (d), Mr Armet states:
Mr Stephane Armet can provide sufficient proof of the medication Naproxyn 750 mg purchase which was added to further biopsy results.
By particular (e), it is said:
Dermatologist Dr Hannes Gebauer has issued two medical reports dated 22/03/2017 (post-arbitration).
a.Confirmation of hair losses causes.
b.Permanent impairment report.
If these particulars are to be taken literally, they do not demonstrate that the arbitrator failed to give adequate reasons for decision. What they do is seemingly constitute an acknowledgement that this evidence was not before the arbitrator when he made his decision. The arbitrator does not make an error of law in making a decision on the evidence that is before him. In fact, it is a requirement that he does so.
However, by these particulars, Mr Armet demonstrates he is alert to the fact that the arbitrator, in his reasons for decision, found against him because of the arbitrator's analysis of the evidence on the causal link between the consumption of medication prescribed in respect of the admitted physical injuries and the hair loss.
For the reasons discussed at [65] – [77] above, I am not satisfied that this ground of appeal is inarguable, notwithstanding the irrelevancy of the particulars thereof if they are to be taken literally.
Accordingly, in respect of APP 5 of 2018, I would strike out grounds 1 to 6, but otherwise dismiss the respondent's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
COURT OFFICER30 AUGUST 2018
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