Attorney General's Department v McNamara
[2005] NSWWCCPD 142
•25 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Attorney General’s Department v McNamara [2005] NSWWCCPD 142
APPELLANT: Attorney General’s Department
RESPONDENT: Tania McNamara
INSURER:GIO Treasury Managed Funds Workers Compensation
FILE NUMBER: WCC17684-2003
DATE OF ARBITRATOR’S DECISION: 4 May 2004
DATE OF APPEAL DECISION: 25 November 2005
SUBJECT MATTER OF DECISION: Workers Compensation Act 1987 sections 4(a) and 9A; substantial contributing factor to injury
PRESIDENTIAL MEMBER: Acting Deputy President Sassella
HEARING:On the papers
REPRESENTATION: Appellant: Turks Legal
Respondent: Everett Paull, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal as agreed or as assessed.
BACKGROUND TO THE APPEAL
On 31 May 2004 the Attorney General’s Department (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 May 2004.
The respondent to the Appeal is Tania McNamara (‘the Respondent Worker’).
In a written statement dated 2 September 2003 the Respondent Worker provided background information. She was born on 15 April 1971. She completed her Higher School Certificate in 1987, after which she worked for the Commonwealth Bank, a firm called Continuum, the University of Sydney, D&R Auctions and New State Auctions. She worked as a clerk or an accounts clerk in each of these jobs. In March 2000 she commenced work for the Appellant Employer at Penrith Courthouse as a Court Officer. This work required her to stand for long periods and walk up and down stairs on a frequent basis.
The Respondent Worker has a history of left knee problems. She had pain in her left knee following an injury when she was 13 years of age when she collided with another child and was diagnosed with fluid on the left knee. Later, in 1995, when she was aged 24, she had discomfort in the left knee. X rays were taken which indicated a normal appearance and no evidence of bone injury. A left knee ultrasound dated 15 August 1996 indicated a possible small flattened haematoma but no large haematomas or muscle ruptures. An arthroscopy was done in 1995 or 1996. The Respondent Worker said in her statement that she made a good recovery from that procedure and was able to run, walk long distances, walk up and down stairs and perform any activity without restriction and without pain. She had no knee pain when she joined the Attorney General’s Department and none between 2000 and 2003.
On 17 April 2003 the Respondent Worker was working when she went into what she described in her transcript evidence as a “semi-squat” to pick up an object. She felt immediate pain in her left knee and she had difficulty straightening up. There was a witness to the incident and the Respondent Worker immediately reported it to the Appellant Employer.
This occurred just prior to the Easter break. She returned to work on 24 April 2003 at the end of the Easter period. In her statement the Respondent Worker said that the left knee was painful when she recommenced work, especially when she went up or down stairs. She worked on until she had time off for the Anzac Day holiday. She recommenced work on 29 April 2003 but, during that day, the knee, which was painful, “gave way” at one point. She worked on in pain until 10 May 2003 when she first saw Dr David McLean, her general practitioner (‘GP’) about the injury. He referred her for physiotherapy and arranged for an ultrasound to be completed on the same day. The Respondent Worker was also placed on restricted duties until 23 May 2003. She was not to use stairs while on duty for one month.
Dr McLean referred the Respondent Worker to Dr Greg Bruce, an orthopaedic surgeon, who saw her on 30 May 2003. He arranged for x rays and MRI scans to be done. The Respondent Worker returned to work on that same day. She still had pain in the left knee and ceased work at 2.25 pm because of that pain. She saw Dr McLean who certified her as unfit for work from that day until 14 June 2003. She underwent an arthroscopy on 3 July 2003 and a lateral release of the left knee on 16 September 2003, both procedures undertaken by Dr Bruce.
The Respondent Worker has not worked since 30 May 2003. She received weekly compensation for a short time but has received no compensation since 1 July 2003. The Respondent Worker is a divorcee with two children.
On 29 August 2003 GIO Treasury Managed Funds Workers Compensation, the Appellant Employer’s insurer (‘the Insurer’), wrote to the Respondent Worker’s solicitor in response to a letter to the Insurer dated 29 July 2003. The Insurer wrote that it was relying on an opinion by Dr Bruce to deny liability as it had done already in a letter dated 1 July 2003. The Insurer stated that the Respondent Worker’s injury was a degenerative condition and was not work-related. The Insurer said it was relying also on a report dated 24 June 2003 to like effect by Dr Richard D’A Cowdery, a surgeon, who had seen the Respondent Worker on that day at the request of the Insurer.
On 24 October 2003 the Respondent Worker filed with the Commission an ‘Application to Resolve a Dispute’. She sought weekly compensation commencing on 1 July 2003 and medical, hospital or related expenses.
In a ‘Reply to Application to Resolve a Dispute’ filed on 23 January 2004 the Appellant Employer queried:
“Whether the [Respondent Worker]’s employment with the [Appellant Employer] was a substantial contributing factor to the injury.
Whether the [Respondent Worker] suffered injury arising out of or in the course of her employment with the [Appellant Employer].
The degree and extent of any incapacity for work suffered by the [Respondent Worker].
Whether the treatment and medical expenses claimed pursuant to s60 were reasonably necessary as a result of any injury suffered by the [Respondent Worker] arising out of or in the course of her employment with the [Appellant Employer].”
On 27 February 2004 submissions were filed with the Commission for the Respondent Worker. These were:
· That section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) did not apply because the injury occurred while the Respondent Worker was performing work duties on 17 April 2003.
· That, although the Respondent Worker had undergone an earlier arthroscopy of the left knee in 1995 or 1996 she had experienced a complete recovery at that time.
· That the Respondent Worker had tried to continue in her employment after she had been injured.
· That the Respondent Worker was seeking weekly compensation based on weekly earnings of $414.00. Wage records relating to the period 12 April 2001 to 3 July 2003 were provided in support of this submission.
· That the treatment expenses claimed were necessary and reasonable.
On 11 March 2003 the Appellant Employer filed detailed submissions. These, in summary, were:
· That no connection between the Respondent Worker’s injury and her employment had been demonstrated. There was “no indication of what the [Respondent Worker] was doing at the time of injury, the nature of the task being performed or her physical movements”. The Respondent Worker was said to bear an evidentiary onus that had not been met. It was emphasised that there was no evidence to support the Respondent Worker’s statement that she was performing work duties when the injury was sustained.
· The Respondent Worker had a history of previous knee complaints and previous knee surgery.
· Dr Cowdery diagnosed the Respondent Worker’s condition as early degeneration of the posterior horn of the medial meniscus which he considered a “wear and tear” condition. Dr Cowdery said he could not ascribe the Respondent Worker’s symptoms to her employment as her only action at the time was bending to pick up a bag. He said that it appeared that “a similar condition would have happened in any case at this stage of the claimant’s life”.
The Appellant Employer and the Respondent Worker were able to formulate a statement of agreed facts on 12 March 2004. The agreed facts were:
· That the Respondent Worker was employed by the Appellant Employer as a Court Officer on a casual basis.
· That the Respondent Worker suffered injury during work hours on 17 April 2003.
· That the Respondent Worker stopped work on 10 May 2005 and has not resumed her duties. (This seems at odds with the Respondent Worker’s statement dated 2 September 2003. See paragraphs 6 – 8 above.)
· That the Respondent Worker was paid weekly compensation up until 1 July 2003.
· That the Respondent Worker’s pre-injury wage was $414.00 a week (later reduced by agreement at the arbitration to $331.20 a week).
The matter was referred for conciliation which was unsuccessful. The matter was then heard by the Arbitrator on 19 March 2004. The Arbitrator delivered her decision on 4 May 2004.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 4 May 2004 records the Arbitrator’s orders as follows:
“1. Award to the [Respondent Worker] in relation to her claim for weekly compensation payments and section 60 expenses from 1 July 2003 and continuing.
2. The [Appellant Employer] is to pay weekly compensation to the [Respondent Worker] in the amount of $331.20 from 1 July 2003 until 30 November 2003 pursuant to section 36 of the Act.
3. The [Appellant Employer] is to pay weekly compensation to the [Respondent Worker] in the amount of $331.20 from 1 December 2003 to date and continuing pursuant to section 37 of the Act.
4. The [Appellant Employer] is to pay the [Respondent Worker]’s reasonable section 60 expenses from 1 July 2003 to date and continuing on the production of accounts and receipts.
5. The [Appellant Employer] is to pay the [Respondent Worker]’s costs as agreed or assessed.”
The following were the Arbitrator’s reasons for decision in summary form.
The Respondent Worker offered her oral evidence in an open and forthright manner, responding clearly to questions. Her evidence was consistent in all important respects with her earlier statement. The Respondent Worker was described as “a credible and convincing witness”.
The Respondent Worker suffered an injury to her left knee at her place of work on 17 April 2003.
The Respondent Worker’s injury arose out of or in the course of her employment with the Appellant Employer. It was said that the “relevant cases suggest that these terms, particularly the term ‘in the course of employment’, should be interpreted broadly” and the requisite causal connection existed between the happening of the injury and the period during which the Respondent Worker was engaged in her employment duties. “[A]t the time of the injury, the worker was involved in an action which she was reasonably required, expected, or authorised to do in order to carry out her usual duties”.
The decision of the NSW Court of Appeal in Mercer v ANZ Banking Group (2000) 20 NSW CCR 70 (‘Mercer CA’) was of more assistance to the Respondent Worker than the Appellant Employer on the facts of the present case.
The diagnosis of Dr Bruce, the treating specialist, was accepted. He had seen the Respondent Worker several times since the injury and had carried out the arthroscopy and lateral release. He described the Respondent Worker as suffering from an uncomfortable dysfunction of the patello-femoral joint and medial meniscus damage that required the arthroscopy and later lateral release of the left knee. The Arbitrator observed that Dr Bruce accepted the history of the incident as presented by the Respondent Worker and he at no point suggested that the Respondent Worker’s previous injury to her left knee could account for her present complaints, pain and incapacity. Dr Bruce’s several reports were said to support a conclusion that the Respondent Worker suffered an injury arising out of or in the course of her employment with the Appellant Employer.
In addition, it was said that these reports, taken as a whole, supported a conclusion that the Respondent Worker’s employment with the Appellant Employer was a substantial contributing factor to her injury as required by section 9A of the 1987 Act. This conclusion was supported also by medical certificates from Dr McLean, the GP. In preferring this evidence to the report of Dr Cowdery (see paragraph 13 above) the Arbitrator noted that Dr Cowdery saw the Respondent Worker only once and that Dr Cowdery did not have the benefit of the results of the arthroscopy when he saw the Respondent Worker.
The Appellant Employer’s submissions that different accounts of the incident on 17 April 2003 were proffered over time and so were unreliable were not accepted. There was no substantial difference between the Respondent Worker’s version of events as set out in the application to the Commission and the history given to Dr Cowdery. There was a minor difference between those accounts and Dr Bruce’s understanding that the Respondent Worker stooped to pick up a piece of paper. This was not regarded as a difference of consequence.
The Respondent Worker’s history of knee complaints as set out above in paragraph 4 was said not to be sufficient to explain the Respondent Worker’s current pain and limitations. The Arbitrator relied heavily on the absence of any clear connection between these earlier incidents and the Respondent Worker’s current injury in Dr Bruce’s reports.
The Arbitrator explained that, in concluding as she had, she had placed weight on the Respondent Worker’s own evidence in both her written statement and at the hearing. This evidence was that the Respondent Worker had made a good recovery from the problems that beset her in 1995 and 1996 and was able to carry out her work duties with the Appellant Employer from March 2000 until April 2003 without pain or restrictions. This was said to support the conclusion that the past knee problems were not causally connected with the serious pain and limitations she experienced after the injury in April 2003. The Arbitrator rejected Dr Cowdery’s opinion that the Respondent Worker was suffering from a wear and tear condition that would have occurred anyway at the Respondent Worker’s time of life. The Arbitrator noted that the Respondent Worker was only 32 years of age at the time of the injury in 2003. The Arbitrator also noted Dr Bruce’s observation that, when he performed the arthroscopy, he found the knee to be in good condition.
The Arbitrator accepted the Respondent Worker’s evidence that she had tried to return to work after the April 2003 injury but she had been unable to undertake her pre-injury duties or even restricted duties. Dr Cowdery accepted in his report dated 24 June 2003 that the Respondent Worker was unable to perform her pre-injury duties. Dr McLean had certified that the Respondent Worker was unfit for all work from 11 July 2003 to 12 December 2003. No further certificates were provided after that date because the Respondent Worker had ceased to receive weekly compensation. The Arbitrator concluded:
“On the basis of the [Respondent Worker]’s own evidence and the medical evidence before me taken as a whole, I am satisfied that there has been no material change in the [Respondent Worker]’s incapacity for work. I am therefore satisfied that the [Respondent Worker] was totally incapacitated for work from 1 July 2003 as claimed, and I am satisfied that her incapacity is continuing and on-going.”
GROUNDS OF APPEAL
The Appellant Employer has appealed against the Arbitrator’s decision on the following grounds:
1. The Arbitrator erred by finding that the Respondent Worker suffered injury arising out of her employment with the Appellant Employer.
2. The Arbitrator erred by finding that the Respondent Worker’s employment with the Appellant Employer was a substantial contributing factor to the injury.
3. The Arbitrator erred by finding that, because the Respondent Worker’s injury occurred in the course of her employment, the employment was a substantial contributing factor.
4. The Arbitrator failed to provide any or any adequate reasons as to why the Respondent Worker’s employment was considered to be a substantial contributing factor to her injury.
5. The Arbitrator erred by finding that the Respondent Worker’s employment was a substantial contributing factor to the injury as there is insufficient evidence to satisfy the evidentiary onus in this regard.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides that, if the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing. The Appellant Employer in its submissions considered a review on the papers to be satisfactory. The Respondent Worker’s submissions on the issue were not entirely clear. However, as they referred to such matters as the desirability of transparency in the administration of justice, the inequality of power as between the Appellant Employer and the Respondent Worker and the need for due process, it seems that the Respondent Worker was seeking a hearing.
I consider that the principles of transparency, due process and the need to do justice as between the two parties have been observed in the Commission’s proceedings to this point. The Commission in its current review can continue to apply these precepts without the need for a hearing. Both parties have filed cogent submissions with the Commission which I have taken into account in reviewing the Arbitrator’s decision. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
The appeal satisfies the criteria for leave to appeal in section 352(2) and (4) of the 1998 Act in that the Appellant Employer appealed against the Arbitrator’s decision within 28 days of the date of that decision, and the amount of compensation at issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision under appeal.
The Respondent Worker argued in submissions that, despite the application satisfying the above requirements, leave should be refused because the appeal raises no substantial legal point and is a challenge to the Arbitrator’s findings of fact. I considered but decided to reject these submissions as the grounds of appeal actually do raise points of law. I note also that in a review such as this, as was explained by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 (‘Ross’), a decision can be revoked or changed where there has been an error of fact, law or discretion affecting the decision. Therefore, even if the Appellant Employer was challenging the Arbitrator’s factual findings, that would be a course open to it in this proceeding.
Leave to appeal is granted.
SUBMISSIONS
In support of the grounds of appeal (paragraph 28 above) the Appellant Employer submitted in writing that there was no evidence to support the Arbitrator’s finding that the Respondent Worker was actually doing something at the time of her injury that was incidental to her employment duties as a Court Officer so that it could then be said that the injury arose out of her employment or that the employment was a substantial contributing factor to the injury. The Appellant Employer stated that “there was simply no evidence by which the arbitrator could determine just where the worker was at the time, why she was there, what her purpose was or how this formed part of or was incidental to her employment duties”. This was said to mean that the Arbitrator could not then undertake the type of analysis that she was required to undertake under section 9A of the 1987 Act or, if she did so, then she did not give any, or any sufficient, reasons for her decision in this regard.
The Appellant Employer argued also that Dr Bruce in his reports did not give any specific opinion as to the relationship between the incident at work and the Respondent Worker’s subsequent complaints, or the significance of the Respondent Worker’s previous knee surgery.
The Respondent Worker’s written submissions in response to those of the Appellant Employer argued that the Arbitrator had acted correctly in accepting the written and oral evidence of the Respondent Worker. It was submitted that the Arbitrator is best placed to assess the credibility of the Respondent Worker as a witness and that the Arbitrator’s assessment can be disturbed only if there is “incontrovertible evidence that points decisively and not merely persuasively to error on the part of the trial judge acting on his or her impression of the witnesses”.
These submissions and the grounds of appeal do not refer to each of the elements of the Arbitrator’s decision. There is no explicit challenge to the Arbitrator’s decisions concerning weekly compensation, compensation for medical and related expenses or costs. The issues in contention relate to the question of the Appellant Employer liability, if any, under the legislation, to pay compensation. It would follow, if the Appellant Employer were to succeed on the question of liability, that no compensation would be payable and the Arbitrator’s specific determinations in the Certificate of Determination would have to be revoked.
DISCUSSION AND FINDINGS
The power of a Presidential Member of the Commission on Appeal to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).
At the same time, however, not every factual, legal or discretionary error will necessarily result in a change to, or revocation of, the decision of the arbitrator. As Deputy President Fleming said in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 (‘Mayne’) it is not accepted that an appeal will be successful where there is an error of law, error of fact or error in the exercise of a discretion unless that error ultimately affects the fairness and lawfulness of the decision and the proper exercise of the Arbitrator’s powers.
The crucial issue here is whether the Arbitrator’s findings, that (i) the Respondent Worker’s injury arose out of and in the course of her employment and (ii) the Respondent Worker’s employment was a substantial contributing factor to the injury, involved an error of fact, law or discretion such that the Arbitrator’s decision should be revoked.
It is the Appellant Employer’s view that the Respondent Worker bears an evidentiary onus to establish a causal connection between her employment and her injury and that this onus has not been met. Decided cases such as Mercer v ANZ Banking Group (1998) 17 NSW CCR 264 (‘Mercer CC’) support the contention that a worker bears an evidentiary onus. This is to be expected. It is in the worker’s own interests to ensure that relevant material is before a decision-maker such as will support a favourable determination.
What was the evidence before the Arbitrator in respect of the causal connection between the Respondent Worker’s employment and her injury?
The histories recorded by the medical experts were:
· “[S]he stooped to pick up a piece of paper and she felt something give-way in her left knee followed by acute pain …” (Dr Bruce, 30 May 2003).
· “[S]he bent down to pick up a bag and sustained a sudden pain in the left knee.” (Dr Cowdery, 24 June 2003).
· Dr McLean signed a series of medical certificates stating that in his opinion the Respondent Worker’s employment was a substantial contributing factor to the injury.
The Respondent Worker’s own evidence was:
· In her statement written dated 2 September 2003 she wrote, “On the 17th April, 2003, whilst at work I semi-squatted and felt immediate pain in my left knee.”
· At the arbitration hearing on 19 March 2004, according to the transcript, the Respondent Worker said the following in response to questions from the Arbitrator. She said at pages 10 and 11 that she “bent or squatted down to pick up my bag going to court”. It was a plastic bag belonging to the Respondent Worker. She could not recall what it contained. Asked to describe how she squatted the Respondent Worker said she did a “bend-squat”. She said that she had bent at both her knees and hips to pick up the bag.
From this, the Arbitrator reached the conclusion set out above in paragraph 20 finding the necessary elements of a causal connection between the Respondent Worker’s employment and her injury.
As a matter of law was this evidence sufficient to support the Arbitrator’s finding as regards the required causal connection?
Provisions of relevance in the 1987 Act are sections 4 and 9A. The relevant parts of those sections are:
“Definition of “injury”
4. In this Act:
"injury":
(a) means personal injury arising out of or in the course of employment, …
No compensation payable unless employment substantial contributing factor to injury
9A. (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The parties referred the Commission to several decided cases. The first of these was Mercer CC (paragraph 41 above). In that decision Bishop CCJ concentrated mainly on the interpretation of section 9A(1) of the 1987 Act. In that case the worker was on duty in a bank serving a customer when she went to her supervisor’s desk to obtain some adhesive tape. She reached out to the left and suddenly felt extreme pain in her left knee. She fell to the ground. It was found that the worker had a constitutional abnormality in her left knee which predisposed the knee to dislocation. His Honour found that the worker’s movement in reaching over the supervisor’s desk to pick up the tape was a routine type of movement which did not have any specific traumatic or atypical features. His Honour held that the injury occurred in the course of the worker’s employment. Section 4(a) of the 1987 Act was therefore satisfied. He proceeded to consider section 9A. He discussed such cases as the High Court decision in Federal Broom Co v Semlitch (1964) 110 CLR 626 (‘Semlitch’) in which Windeyer J explained at page 641 that, when the relevant workers compensation legislation he was considering spoke of “employment” as a contributing factor to an injury, the legislation was referring not to the act of being employed but to “what the worker in fact does in his [or her] employment”.
Bishop CCJ then discussed what implications flowed from the requirement that the “contributing factor” in section 9A, constituted by the worker’s employment, be “substantial”. At paragraph 29 Bishop CCJ held that the employment contribution must be “more than minimal, large or great”. He described it as a “relative concept”. He quoted another authority to explain the relative element. He said that there may be causes other than employment for a disease. It may be possible to say that in any given circumstance there are a number of “substantial factors” causing a particular condition. The accent is on the contribution. The legislation does not require that the employment must be “the” substantial cause of the disease.
Bishop CCJ concluded by finding against the worker in Mercer CC (paragraph 41 above). He said at paragraph 32 that “the precise activity she was carrying out, viz. picking something up from a table, was a type of activity that could have occurred elsewhere, for example at home, in a department store or while out at dinner with friends. It was not an activity with any employment characteristics about it. … The mere fact that the [worker] did what she did when she did it is not sufficient of itself to make the employment a substantial contributing factor to the injury.”
Without more, this authority would appear to count strongly against the Respondent Worker. It is arguable that, on the available evidence, the Respondent Worker could have engaged in a semi-squat or bend-squat at home or elsewhere unless the movement was what she in fact had to do in her employment and, arguably, not generally in other places and activities.
Mercer CC (paragraph 41 above) was overturned, however, in Mercer v ANZ Banking Group (2000) 20 NSW CCR 70 (‘Mercer CA’) by the NSW Court of Appeal. In a unanimous judgment written by Mason P the Court endorsed the comments of Windeyer J in Semlitch (paragraph 46 above). The Court referred also to the decision of Neilson J in the NSW Compensation Court in Stanton-Cook v NSW TAFE Commission (1999) 17 NSW CCR 632 (‘Stanton-Cook’) where, in paragraph 41, he stated that a worker must be injured while doing something which he or she is “required, expected or authorised to do to carry out his [or her] work duties”.
The Court of Appeal made a number of comments about section 9A. It noted (paragraph 16) that the employment must be “a” substantial contributing factor. That meant that there could be more than one substantial contributing factor. At paragraph 27 the Court stated that section 9A “does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition”. The Court held (paragraph 31) that, while it was relevant for Bishop CCJ in Mercer CC (paragraph 41 above) to have recorded that the precise activity that led to the worker’s workplace injury was a type of activity that could have occurred elsewhere, for example at home, given section 9A(2)(d), there is nothing in section 9A that makes this determinative. “The continuing presence of the words ‘arising out of or in the course of employment’ in the definition of ‘injury’ means that it is not essential that the worker prove that employment created any ‘special danger’, ‘employment risk’ or ‘added peril’” (Court’s emphasis). In paragraph 32 the Court said:
“In the present case Bishop CCJ held (at [31]) that the addition of the word ‘substantial’ to ‘contributing factor’ in s9A, combined with the provisions in subs (3), led to the conclusion that ‘a substantial contributing factor’ is as stringent a concept as that of ‘arising out of’ employment, if not more so. I do not agree. The requirement that employment be a contributing factor to the ‘injury’ is not equivalent to the expression ‘arising out of the employment’. It is not easy to apply a causation requirement to a provision which continues to define ‘injury’ as including injury arising in the course of employment. However, work has to be found for all of the words used, unless this proves an impossible task. Section 9A(3)(a) does not preclude this, because it goes no further than deeming employment not to be a substantial contributing factor to an injury ‘merely because’ the injury arose in the course of the worker’s employment etc.”
Mason P quoted another authority which stated that the requirement that injury arise out of employment remains more stringent than the requirement that employment be a “significant contributing factor” (the term under consideration in the cited authority). It was said that it is possible to envisage a situation where injury might not satisfy the “arising out of” test yet would satisfy the significant contributing factor test. The example offered was that of a worker struck by lightning at his or her workplace. This would not be an injury arising out of the worker’s employment but the employment, regardless that the worker’s duties did not require him or her to be at the critical place at the critical time, would be a significant contributing factor to the worker’s injury.
Mason P decided that Bishop CCJ erred in holding that the absence of “employment characteristics” in the precise activity that led to the injury was to be treated as determinative. The matter was remitted for reconsideration.
It appears from the decision of the Court of Appeal in that case, that it is not fatal for the Respondent Worker’s case that she could have injured her knee in places other than the workplace and when engaged in activities other than her employment. It is still possible that her employment may be a substantial contributing factor to the injury as a matter of law.
The final decided case of interest is Farrelly v Qantas Airways Ltd (2001) 22 NSW CCR 331 in which Bishop CCJ considered another section 9A matter after the decision of the Court of Appeal in Mercer CA (paragraph 50 above). His Honour addressed the principles laid down by the Court of Appeal in Mercer CA and summarised them in paragraph 11 as:
“1. To establish that the employment concerned was a substantial contributing factor to the subject injury, it is sufficient to establish that the injury arose in the course of the worker’s employment and that there was some causal connection with the employment of a lesser degree than what is required to establish that the injury arose out of it. …
2. If the relevant injury is found to arise out of the worker’s employment then the employment concerned must be a substantial contributing factor to such injury. …
3. These first two principles may seem to fit uncomfortably with s 9A(3). However, it is now established that s 9A(2) and s 9A(3) are provisions which are non determinative. …”
Bishop CCJ in paragraph 17 addressed what is required for a finding that an injury arose out of a worker’s employment. He cited with approval a case, Lancashire and Yorkshire Railway Co v Highley (1917) 10 BWCC 241, 263 in which it was said that the test is, “Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment.”
In applying these principles to the situation in the present appeal it is clear from paragraphs 42 and 43 above that the best of the available evidence regarding the incident is that from the Respondent Worker. It was legitimate for the Arbitrator to accept the credibility of the Respondent Worker. She explained why she was doing this in her reasons for decision (see paragraphs 18 and 24 above). I am also conscious of the remarks of Deputy President Fleming in Mayne (paragraph 39 above) in paragraphs 27, 29 and 40 of that decision. The principles enunciated there were that restraint should be exercised by an appellate “court” (Presidential Member) in interfering with findings of a “trial judge” (arbitrator) that are based on the acceptance of a witness’ credit. The key issue was said to be that the Arbitrator has had the benefit of seeing and hearing the witness and coming to a view as to his or her credibility and truthfulness. The Arbitrator has also had the opportunity to reflect upon the evidence prior to coming to a decision. This may give the Arbitrator a considerable advantage.
As noted above in paragraph 43 the Respondent Worker’s oral evidence was that she “bent or squatted down to pick up my bag going to court”. The inference was that she was engaged in an activity that was necessary or customarily undertaken by the Respondent Worker in performing her Court Officer duties. This, with the agreed statement of facts in paragraph 14 above leads to several propositions:
· It was open to the Arbitrator to find that the injury occurred in the course of the Respondent Worker’s employment in accordance with section 4(a) of the 1987 Act.
· It was open to the Arbitrator to find that the injury arose out of the Respondent Worker’s employment because the test in paragraph 56 above and in Stanton-Cook (paragraph 50 above) was satisfied. The Arbitrator conveyed this finding in stating that the worker was involved in an action which she was reasonably required, expected, or authorised to do in order to carry out her usual duties.
· It was open to the Arbitrator to find that the Respondent Worker’s employment was a substantial contributing factor to her injury, also because she was reasonably required, expected, or authorised to do it in order to carry out her usual duties. As was clarified in Mercer CA (paragraph 50 above), there can be more than one substantial contributing factor. It is therefore not fatal to the Respondent Worker’s claim that she may have had a predisposition to suffer such an injury.
I am therefore satisfied that there was no error of fact, law or discretion in the Arbitrator’s reasons for her decision. That disposes of all of the grounds of appeal in paragraph 28 above.
The Appellant Employer’s submissions
The Appellant Employer’s submissions in paragraphs 34 and 35 above were, first, that there was no evidence to support the Arbitrator’s finding that the Respondent Worker was actually doing something at the time of her injury that was incidental to her employment duties as a Court Officer so that it could then be said that the injury arose out of her employment or that the employment was a substantial contributing factor to the injury. I have dealt with this matter in paragraph 58 above.
The Appellant Employer’s second submission was that Dr Bruce, in his reports, did not give any specific opinion as to the relationship between the incident at work and the Respondent Worker’s subsequent complaints, or the significance of the Respondent Worker’s previous knee surgery. While this is accurate, and while it would have been relevant to receive Dr Bruce’s opinion on these issues, there was other evidence sufficient for the Arbitrator to make her decision, applying in effect the principles I discussed above in paragraphs 53 – 56 above.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal as agreed or as assessed.
Michael Sassella
Acting Deputy President
25 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SASSELLA, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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