Atanasoska v Inghams Enterprises Pty Ltd
[2009] WASCA 17
•16 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATANASOSKA -v- INGHAMS ENTERPRISES PTY LTD [2009] WASCA 17
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 18 NOVEMBER 2008
DELIVERED : 16 JANUARY 2009
FILE NO/S: CACV 138 of 2007
BETWEEN: CVETANKA ATANASOSKA
Appellant
AND
INGHAMS ENTERPRISES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram :COMMISSIONER NISBET
File No :C 38 of 2007
Catchwords:
Workers compensation - Assessment of relevant degree of disability - Arbitrator found the appellant/worker and her husband were not credible witnesses - Arbitrator found that, as a result, the factual foundation in the medical reports relied on by the appellant was flawed - Arbitrator dismissed appellant's application claiming degree of disability of not less than 30% - Whether appeal from Arbitrator 'involved' any question of law - Whether appeal from Commissioner was 'on' a question of law
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 93D(10), s 93E(1), s 93E(3), s 247, s 254
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K J Bradford
Respondent: Mr M D Sonter
Solicitors:
Appellant: Bradford & Co
Respondent: Pynt & Partners
Case(s) referred to in judgment(s):
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
WHEELER JA: I agree with Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: At all material times, the appellant was employed by the respondent as a process worker. On 9 August 2000, she allegedly suffered an injury in the course of her employment.
On 5 July 2006, the appellant filed a Form 22 application under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), seeking a referral of the question of her 'degree of disability' (as defined in s 93E(1) of the Act) to the Dispute Resolution Directorate. In the application the appellant described her alleged injuries as 'injuries to the neck, left shoulder, psychiatric impairment and sexual dysfunction'. She claimed to have sustained a degree of disability of not less than 30%. This was contested by the respondent. The dispute was referred to arbitration pursuant to s 93D(10) of the Act.
The appellant's application was heard by Arbitrator Whitford‑Harvey on 26, 27 and 28 March 2007. The Arbitrator delivered his decision on 13 July 2007 and published reasons on 2 August 2007. He found the appellant had not made out her case, and dismissed the application.
On 16 August 2007, the appellant applied for leave to appeal to the Commissioner, pursuant to s 247(1) of the Act, against the Arbitrator's decision. On 21 September 2007, the Commissioner granted leave to appeal, but dismissed the appeal.
The appellant has now applied to this court under s 254(1) of the Act for leave to appeal from the Commissioner's decision.
The proceedings before the Arbitrator
The appellant, in a written statement that was tendered in the arbitration proceedings, asserted, relevantly:
In October 2001, I was certified as being totally unfit for work. I have been unable to return to work since.
I have attended various specialists including an Orthopaedic Surgeon, a Psychiatrist and a practitioner specialising in sexual health.
I continue to suffer from pain to my left shoulder and neck.
I suffer from depression and feel sad and emotional all the time. I am moody and have poor concentration. I have also become forgetful and my
children often have to remind me of the simplest of tasks. I often have negative thoughts.
I now consume Zoloft, which is an anti‑depressant.
I have lost interest in sex. My husband and I have sex less frequently now.
I am no longer able to do much housework. My mother‑in‑law and daughters now do most of the housework. They wash the dishes, hang the washing on the clothes line, vacuum and mop and various other housework.
I no longer have a social life. I have no interest in going out or socialising. I have lost my social circle and only go out to the shops. I no longer go out for coffee with friends.
The appellant, in sworn evidence before the Arbitrator, confirmed that her written statement was true and correct. The appellant's husband also provided a written statement and gave sworn evidence which, in essence, corroborated the appellant.
However, a number of witnesses called by the respondent provided written statements and gave sworn evidence to the effect that at material times the appellant had been working as a cleaner, and had been performing work which, on her evidence, she had been unable to carry out in her own home. The evidence of these witnesses was recounted in detail in the Arbitrator's reasons. It is conveniently summarised in the Commissioner's reasons, as follows:
•Yvonne Challenor testified that she ran the Family Affair Employment Agency which engaged domestic staff for cleaning duties at residential premises. She testified that both the applicant and her husband attended an interview with her and that she had engaged the pair of them as cleaners. She further testified that if the applicant's husband was working alone and that the applicant was, in effect, simply accompanying him for their mutual comfort then he was cleaning his houses in half the time that she considered was necessary to properly clean them.
•Mr Anthony Copp testified that he saw the applicant cleaning the bathroom and toilet areas of his home.
•Ms Lesley Bone testified that both the applicant and her husband attended her home to undertake cleaning duties and that she saw the applicant cleaning including mopping floors in her bathroom, toilet and laundry.
•Ms Kerry Bruehwiler testified that both the applicant and her husband attended her home in which she observed the applicant cleaning her laundry, bathroom and kitchen area.
•Surveillance operatives testified to the effect that they saw the applicant and her husband coming and going from various residences but at no time did they observe the applicant working [5].
Numerous reports from medical practitioners were placed before the Arbitrator. The respondent relied on reports from Dr Michael Bowles (an occupational physician), Mr Soni Narula (a neurosurgeon), Dr Paul Graziotti (a pain medicine specialist), Dr Alan Home (an occupational physician), Dr Gemma Edwards‑Smith (a consultant psychiatrist) and Professor Alex Cohen AO (a clinical professor of medicine). None of these medical practitioners materially assisted the appellant's case. In particular, none of them expressed the opinion that the appellant had a degree of disability of not less than 30% or even a degree of disability of not less than 16%. Some of the medical practitioners whose reports were relied on by the respondent expressed the view that there was a substantial and unexplained discrepancy between the appellant's account of her symptoms, disabilities and general history, on the one hand, and her condition as revealed by clinical examination and other investigatory procedures, on the other.
The appellant relied on reports from Mr Tony Robinson (an orthopaedic and knee surgeon), Dr Frederick Ng (a consultant psychiatrist) and Dr Stephen Adams (a specialist in sexual health). There was a report dated 7 December 2005 (qualified by a report dated 7 June 2006) from Mr Robinson, a report dated 2 February 2006 from Dr Ng and a report dated 8 April 2006 from Dr Adams.
According to Mr Robinson:
(a)The appellant was unfit to carry out all forms of work. She would be fit to carry out 'below shoulder level' work in an office environment, but her level of education would not be sufficient for this type of employment.
(b)The appellant had a permanent residual disability of the left shoulder at and above the level of the elbow of 13.5% and a permanent residual disability of the neck, affecting the whole of the spinal column, of 3%. These percentages were arrived at after reduction in accordance with Sch 2 of the Act.
Dr Ng said the appellant had sustained a permanent psychiatric impairment of 10% pursuant to the Social Security Act Psychiatric Impairment Rating Scale. He arrived at the 10% assessment 'acknowledging that she will have permanent and chronic physical symptoms also for the foreseeable future which will perpetuate increased stress which will perpetuate residual psychiatric symptoms'. He also noted that he had made the 10% assessment 'acknowledging that her current psychiatric impairment is greater than 10%' (emphasis in original). Dr Ng expressed this opinion:
Once the further expected psychiatric improvement has occurred given further psychiatric treatment, she will arrive at a permanent figure of 10% leaving her with chronic mild depressive symptoms, increased levels of tension, worry about her physical problems, leading to some degree of tiredness, lowered libido, occasional fragile moods with tearfulness, sleep disturbance, occasional memory and concentration disturbance and a diminution in the capacity to enjoy her life.
According to Dr Adams, the appellant was suffering from sexual dysfunction, but only a relatively small part of that dysfunction could be directly attributed to her accident. Nevertheless, he said the appellant had a '12% permanent loss of the efficient use of genitals pursuant to item 37 of Sch 2 of the [Act]'.
The Arbitrator reviewed extensively the non‑expert evidence. He also considered the submissions made on behalf of the parties. His findings of fact in relation to the non‑expert evidence were, relevantly, as follows:
I find the independent evidence of the three householders, Mr Copp, Ms Bone and Ms Bruehwiler, to be compelling. They had nothing to gain from their evidence. Each gave their evidence independently of each other. Each separately observed the Applicant undertaking cleaning duties in their homes. The evidence of each collaborating [sic] the evidence of the others i.e. the fact that Ms Atanasoska was cleaning homes together with her husband.
I find the Applicant has undertaken the duties of a cleaner in the houses of Mr A Copp, Ms L Bone and Ms K Bruehwiler. This finding is supported by the evidence of Ms Challenor who was of the opinion the Applicant attended an interview for employment. Her evidence was also that the time taken to clean each house was far short of that required to be done by one person.
As a consequence of the above and considering the evidence in its totality I do not consider the Applicant and her husband to be credible witnesses and make that finding [41] ‑ [43].
The Arbitrator then examined the opinions expressed by Mr Robinson, Dr Ng and Dr Adams. He concluded:
At no time has the Applicant provided history to a practitioner that she is working as a cleaner cleaning residential homes. Whilst it may be argued that at the time of examination of a particular practitioner the Applicant may well have not been undertaking the duties of a cleaner, the Applicant has continued with that position up to and including the hearing before me.
Having found that the Applicant has indeed undertaken cleaning duties I find that the factual foundation of the medical reports upon which the applicant relies to be flawed. I therefore find the Applicant has failed to prove her case and the application is dismissed [57] ‑ [58].
The proceedings before the Commissioner
Section 247 of the Act contains provisions with respect to an appeal against a decision of an arbitrator under Pt XI.
By s 247(1):
A party to a dispute may, with the leave of the Commissioner, appeal to the Commissioner against a decision in respect of the dispute by an arbitrator under Pt XI.
Section 247(1) confers on a party to a dispute a conditional right to appeal to the Commissioner against the decision of the Arbitrator. The right of appeal is conditional on the Commissioner granting leave.
Section 247(3) applied to the appellant's application to the Commissioner for leave. It provides:
The Commissioner may grant leave to appeal from a decision of an arbitrator on a matter referred under s 93D(10) if the appeal involves a question of law.
Compare s 247(2). The power to grant leave under s 247(3) is conferred in general terms. It is qualified only by the requirement that the appeal 'involves' a question of law.
An appeal will 'involve' a question of law if the court, tribunal or statutory decision‑maker whose decision is under appeal has made an error of law or an error of mixed law and fact. See Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [34]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
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.
The appellant asserted before the Commissioner that the Arbitrator had determined the principal issue, namely whether she had established a degree of disability of not less than 30%, solely on the basis that he could not rely on any of the medical evidence which suggested that she did have such a degree of disability.
The Commissioner granted the appellant leave to appeal on these grounds:
1.The learned arbitrator erred in law by holding that the finding of fact invoked the principle of law observed in Pollock v Wellington that the foundation of all medical expert opinion was thereby undermined.
2.The learned arbitrator erred in law by failing to conduct a systematic analysis of the probative value of the expert medical opinions notwithstanding the finding of fact.
3.The learned arbitrator erred in law by giving excessive weight to the finding of fact.
4.The learned arbitrator erred in law by failing to consider the central issue before him, namely the degree of the Appellant's disability.
5.The learned arbitrator erred in law by either:
(a)giving any weight at all to the finding of fact; and/or
(b)failing to find out from the medical experts whether, by virtue of the finding of fact, their ultimate conclusions on the degree of disability were likely to change.
6.The learned arbitrator failed to give any or any sufficient reasons for the conclusion that all the factual foundations in the medical opinions were flawed resulting in the finding that the Appellant had failed to prove her case.
The Commissioner referred to the percentage assessments of degree of disability set out in the reports of Mr Robinson and Dr Ng (see [12] ‑ [13] above), and observed:
I shall assume, without deciding, for the present, that what Mr Robinson means is that the figures of 13.5% and 3% respectively are arrived at in conformity with the assessment process described in s93D of the Act. However, I hasten to add, this is by no means clear. Dr Ng's assessment contained in his report of 2 February 2006 is that the applicant sustained a permanent psychiatric impairment of 10%. The problem with this assessment however is that he says that he has made the assessment pursuant to the 'Social Security Act Psychiatric Impairment Rating Scale'. In other words, as clear an indication as can be found that the assessment has not been carried out in accordance with the methodology prescribed by s93D of the Act [21].
Next, the Commissioner noted Dr Adams' assessment that the appellant had a '12% permanent loss of the efficient use of genitals pursuant to item 37 of the second schedule of the [Act]'. He then noted that item 37 of the second schedule refers to 'Loss of genitals' and allows 50% as the ratio which the sum payable bears to the prescribed amount. Using the formula set out in s 93D of the Act, the degree of disability attributable to the appellant's alleged sexual dysfunction, as described by Dr Adams, was therefore 6%.
The conclusion reached by the Commissioner from his examination of the medical evidence relied on by the appellant was this:
According [sic], it can be seen that the applicant's own medical evidence failed to satisfy the 30% level of disability in that if, as 93D provides, Mr Robinson's 13.5% and 3% (total 16.5%) is added to Dr Adams' 6% the total level of disability established by the applicant's own evidence is, at its highest, 22.5%. This is because the evidence of Dr Ng would have to be completely disregarded as failing to comply with s93D of the Act [24].
It was common cause before this court that the Commissioner's decision in relation to the efficacy of Dr Ng's assessment was not raised by either party before the Commissioner and that he did not give either party an opportunity to deal with the point (appeal ts 25).
The Commissioner distilled two issues from the grounds of appeal. First, whether the Arbitrator erred in his application of the principle enunciated in Pollock v Wellington (1996) 15 WAR 1. Secondly, whether the Arbitrator failed to give any or sufficient reasons for rejecting the medical opinions in question as being flawed because of his findings of fact in relation to the appellant and her credibility.
The Commissioner decided the Arbitrator had correctly applied the principle in Pollock. He explained:
The arbitrator was well aware that his principle [sic] task was to assess the applicant's claim that she had sustained a level of disability of not less than 30% and that that was the primary task upon which he was engaged. He had strong submissions from the parties to this effect before him which he recited in his judgment. He clearly looked at all the medical reports that were before him in order to see whether or not they assisted the applicant and having regard to his rejection of the evidence of the applicant and her witnesses about her capacity for employment the arbitrator was more than justified in finding that the applicant had in effect misled her medical practitioners who in consequence provided opinions which were rendered unreliable. He was right to reject them. They were, after all, largely based upon a false premise, namely the applicant's capacity or incapacity for employment. In my opinion the arbitrator's reasons disclosed that he did conduct a systematic analysis of the value of the expert medical opinions sufficient for the purposes of the Act. He did not err by giving excessive weight to his findings of fact and he did not err by failing to consider the degree of the applicant's disability [34].
The Commissioner also rejected the ground of appeal which alleged the Arbitrator failed to give any or sufficient reasons for his conclusion that the factual foundation in the medical reports relied on by the appellant was flawed. He said the Arbitrator's reasons were adequate [35].
I note the Commissioner granted leave to appeal even though he expressed misgivings as to whether some of the alleged questions of law raised by the appellant were, in truth, questions of fact [16]. In my opinion, there was a sound basis for the Commissioner's misgivings. See, for example, grounds 2, 3 and 5(a) which, in essence, allege errors of fact. Later in his reasons, the Commissioner dismissed the appeal. After setting out the Arbitrator's findings of fact, the Commissioner said it was 'somewhat surprising' that the appellant had sought to appeal and that her claim 'failed at the threshold' [32]. It is apparent that the Commissioner considered, on analysis, the appellant was in substance challenging the Arbitrator's findings of fact without raising a seriously arguable case that the Arbitrator had made any error of law or mixed law and fact.
The approach of the Commissioner in the present case to the grant of leave was similar to his approach in another case considered recently by this court. See BHP Billiton, where Pullin JA (Wheeler and Buss JJA agreeing) said:
In plain cases it might be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal, but experience is likely to show that in most cases the application for leave to appeal, and the appeal should be heard together and the question of leave dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, the commissioner will then be in a position at the end of the hearing to either:
(a)grant leave and uphold or dismiss the appeal, or
(b)refuse leave to appeal [14].
The application for leave to appeal to this court
Section 254(1) of the Act provides:
A party to a proceeding before the Commissioner may by leave of the Court of Appeal appeal to the Court of Appeal from a decision of the Commissioner in the proceeding on a question of law.
An appeal 'on' a question of law is narrower than an appeal that merely 'involves' a question of law. Where an appeal lies 'on' a question of law, the subject‑matter of the appeal is the question or questions of law. A question of mixed law and fact is not a question of law within s 254(1) of the Act. See Paridis [53].
On 20 November 2007, Pullin JA ordered that the appellant's application for leave to appeal to this court be heard together with the appeal.
The appellant's grounds of appeal read:
1.The Learned Commissioner erred in law by finding that the central issue before the Arbitrator was whether the Appellant worked sporadically during her injury as a domestic cleaner and that if so:
(a)the nature and extent of her injuries would be seriously in question;
(b)the degree of disability would be seriously in question.
Rather the central issue was the Appellant's degree of disability after comparing 2 sets of conflicting medical opinion on the degree of disability.
2.The Learned Commissioner erred in law by finding that the Arbitrator correctly applied the law as stated in Pollock v Wellington, and failed to give reasons for the finding.
3.The Learned Commissioner erred in law by misdirecting himself on the findings of the Arbitrator in coming to the conclusion that the Arbitrator had indeed conducted a systematic analysis of the medical opinions.
4.The Learned Commissioner erred in law by failing to find that the Arbitrator had given insufficient reasons for rejecting the Appellant's medical evidence.
5.The Learned Commissioner erred in law by finding that the psychiatric evaluation by Dr Frederick Ng did not meet the criteria of s 93D of the Act. In doing so the Learned Commissioner denied procedural fairness to the Appellant.
Ground 1 of the appeal
The appellant was required to establish, in accordance with s 93E(3) of the Act, that she had a degree of disability of not less than 30%.
The Act contemplates that a person's degree of disability is to be determined by reference to expert evidence from medical practitioners.
The opinion of a medical practitioner as to a person's degree of disability will usually be based upon several factors, including:
(a)the history obtained from the person;
(b)the medical practitioner's examination and observations of the person;
(c)the results of any diagnostic investigations; and
(d)the application of the medical practitioner's skill and experience.
If a medical practitioner's opinion as to a person's degree of disability is based, at least in part, on the history obtained from the person, the opinion may be unreliable if material aspects of the history are inaccurate or misleading.
It is apparent from the substance and context of the reports obtained from Mr Robinson, Dr Ng and Dr Adams that they relied, at least in part, on the accuracy of the history obtained from the appellant in assessing her degree of disability.
The Arbitrator made findings of fact that were adverse to the appellant. He found, in substance, that the appellant and her husband were not honest or reliable witnesses. By contrast, he considered the evidence of Mr Copp, Ms Bone and Ms Bruehwiler to be compelling. The Arbitrator found, in substance, that the appellant had undertaken work as a cleaner of residential premises and that the work she had performed was inconsistent with the factual foundation relied on by Mr Robinson, Dr Ng and Dr Adams in their reports. All of these findings were findings of fact. They were reasonably open to the Arbitrator.
In the circumstances, the Arbitrator was correct in deciding that the central issue before him was whether the appellant had worked sporadically as a domestic cleaner after she was injured and, if so, whether the assessment by Mr Robinson, Dr Ng and Dr Adams of the nature and extent of her injuries and degree of disability was reliable.
The Commissioner's function was not confined merely to comparing and choosing between the conflicting medical opinions obtained by the appellant, on the one hand, and the respondent, on the other. He was entitled and, in the circumstances, obliged to examine the non‑expert evidence and make findings of fact relevant to the dispute between the parties before addressing the ultimate issue, namely, whether the appellant's degree of disability was not less than 30%.
Ground 1 is without merit.
Ground 2 of the appeal
In general, the admissibility of expert opinion and the weight to be accorded to it depend on proof, in accordance with the law of evidence, of the facts on which the opinion is based. Also, the expert opinion will carry no weight unless the process of inference by which the opinion is arrived at is revealed in a manner which enables the expert's conclusions to be analysed and a judgment made as to their reliability. See Pollock, where Anderson J said:
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsay v Watson (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 845‑846.
As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264 (3).
Also see Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 390; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [80].
In the present case, the Arbitrator made findings of fact as to the credibility of the appellant and her husband; the factual foundation of the opinions expressed in the reports of Mr Robinson, Dr Ng and Dr Adams; and the reliability of the opinions expressed by those experts as to the appellant's degree of disability. As I have mentioned, in the context of ground 1, the Arbitrator's findings were reasonably open to him.
The Arbitrator's findings of fact that:
(a)the appellant had not informed Mr Robinson, Dr Ng or Dr Adams that she was working as a cleaner and that the worked involved cleaning residential premises;
(b)the appellant and her husband were not credible witnesses; and
(c)the factual foundation of the medical reports in question was flawed,
formed a proper and sufficient basis for the Arbitrator's reliance on the principle in Pollock.
It was plain throughout the proceedings before the Arbitrator that the credibility of the appellant and her husband was under challenge. The appellant did not apply to the Arbitrator at any stage for an adjournment to adduce additional evidence from Mr Robinson, Dr Ng and Dr Adams as to the extent to which their opinions on her degree of disability would be diminished or adversely affected if they had been informed that she was working as a cleaner of residential premises.
The Commissioner did not err in law in finding the Arbitrator had correctly applied the law as stated in Pollock. The reasons of the Commissioner in this respect are set out at [29] above. Before setting out his reasons, the Commissioner reproduced relevant passages from the judgment of Anderson J in Pollock.
Ground 2 is without merit.
Ground 3 of the appeal
Ground 3 in form alleges an error of law. No such error is revealed, however, from a perusal of the Commissioner's reasons.
It is apparent, on a fair reading of the Arbitrator's reasons, that he conducted a systematic analysis of the medical reports.
The Commissioner decided the Arbitrator had carried out such an analysis, in that the Arbitrator had regard to:
(a)the medical reports before him in order to ascertain whether they assisted the appellant's case or not; and
(b)the appellant's evidence and the evidence of other witnesses bearing on the nature and extent of her alleged injuries and her capacity for employment.
The Commissioner's decision was plainly correct.
Ground 3 is without merit.
Ground 4 of the appeal
The learned Commissioner noted the Arbitrator had:
(a)considered the evidence of the appellant and her husband and the evidence of the respondent's witnesses, and had found the evidence of the appellant and her husband was unreliable;
(b)examined the medical evidence in some detail;
(c)found that the appellant had informed several medical practitioners she was unfit for work and had not informed any of the medical practitioners she had been working as a domestic cleaner; and
(d)determined that the Arbitrator had given adequate reasons for his conclusion that the factual foundation in the medical reports relied on by the appellant was flawed.
After reviewing the reasons of the Arbitrator and the Commissioner, I am satisfied the Commissioner's conclusion that the Arbitrator had given sufficient reasons for rejecting the appellant's medical evidence was not vitiated by any error of law. See my reasons in the context of grounds 1 and 2 where I explain the nature of the Arbitrator's function and describe his approach in the present case to the non‑expert evidence and the medical evidence.
Ground 4 is without merit.
Ground 5 of the appeal
Before this court, counsel for the appellant conceded (properly, in my opinion) that if none of grounds 1 ‑ 4 of the appeal had any merit, then ground 5 would not advance the appellant's case (appeal ts 24).
In view of my conclusion that grounds 1 ‑ 4 fail, it is unnecessary to address ground 5.
I should record, however, for the future guidance of the Commissioner, that the Commissioner should, as a matter of procedural fairness, give the parties to a proceeding before him an opportunity to make submissions where he proposes to decide an appeal adversely to one of the parties on a point that has not, in substance, been raised in the course of proceedings and which the parties have not, in substance, had a reasonable opportunity to address.
Conclusion
I would refuse leave to appeal.
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