Ausgrid v Parasiliti - [2020] NSWWCCPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ausgrid v Parasiliti [2020] NSWWCCPD 51
APPELLANT:	Ausgrid
RESPONDENT:	Gaetano Parasiliti
INSURER:	Self-insured
FILE NUMBER:	A1-4765/19
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	12 December 2019
DATE OF APPEAL DECISION:	6 August 2020
SUBJECT MATTER OF DECISION:	Alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; an arbitrator’s duty to provide adequate reasons: application of Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Hogan, counsel
BBW Lawyers
Respondent:
Mr C Tanner, counsel
Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1. To the extent to which it is necessary, leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Arbitrator’s decision dated 12 December 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Gaetano Parasiliti (the respondent) was employed by Ausgrid (the appellant) from 1986 to 9 January 2015, when he accepted a voluntary redundancy. He was employed as an electrical cable technician. Over the many years while he worked with the appellant, the respondent developed problems with his left shoulder and his back. His description of his duties is of arduous physical work. He also developed problems in his right shoulder, although the timing of these is more controversial. He said that by the time he left this employment “the job was becoming too much for me”.[1]
[1] Respondent’s statement 12/7/19, Application to Resolve a Dispute (ARD), pp 5–7, [5]–[15], [18]–[20].
The respondent was assessed at his then solicitors’ request by Dr Giblin, an orthopaedic surgeon, who in reports dated 16 May 2016 and 4 December 2018 assessed him as suffering 16 per cent whole person impairment (increased to 17 per cent in the later report) in respect of his lumbar spine and both upper extremities (shoulders). This was as a result of work injury with the appellant.[2] The respondent, through his solicitors, made claims for permanent impairment compensation on this basis.[3] The appellant had the respondent examined by Dr Machart, an orthopaedic surgeon, who reported on 28 November 2016. The appellant denied liability for the claim for lump sum compensation in a s 74 notice dated 15 December 2016.[4] It raised other issues in correspondence. The s 74 notice disputed, amongst other things, the allegations relating to the right shoulder.
[2] Dr Giblin’s reports dated 16/5/16 (x 2) and 4/12/18 (x 2), ARD, pp 27–34 and 35–39.
[3] ARD, pp 8–9, 18–20 and 26.
[4] ARD, pp 10–15.
These proceedings were commenced by way of an ARD dated 12 September 2019. The claim in respect of the right shoulder was pursued on alternative bases. It was alleged the right shoulder was injured due to the ‘nature and conditions’ of the respondent’s employment with a deemed date of injury of 1 May 2012. It was also alleged that the right shoulder condition was ‘consequential’ as a result of favouring the injured left shoulder. The proceedings were listed for arbitration hearing on 12 November 2019. Mr Tanner appeared for the respondent and Mr Grimes for the appellant. No oral evidence was called. Both counsel addressed and the Arbitrator reserved her decision.
The Commission issued a Certificate of Determination dated 12 December 2019. The Arbitrator found that the respondent had not discharged the onus of proving injury to the right shoulder as a result of the ’nature and conditions’ of employment. She found the respondent had sustained a consequential condition of the right shoulder as a result of the accepted left shoulder injury. She ordered that the matter be referred to an Approved Medical Specialist (AMS) to assess whole person impairment in respect of the lumbar spine and both upper extremities (shoulders). This appeal is brought against the decision that there was a consequential condition of the right shoulder and that the right upper extremity should be included in the referral.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act have been met.
The appellant submits, on the monetary threshold in s 352(3) of the 1998 Act, that the amount of compensation in dispute on the appeal is “potentially greater than $5,000, and 20 per cent of the amount awarded”. In support of this it is submitted inclusion of the right shoulder “may ultimately see the worker exceed the threshold of 15 per cent WPI”. The appellant submits that without knowing the ultimate conclusion of the AMS “it is not possible to definitively state the figure”.[5] The respondent’s submissions do not address the threshold in s 352(3).
[5] Appellant’s submissions, [3].
The appellant’s submissions do not adequately deal with the threshold in s 352(3) of the 1998 Act. The reference to 15 per cent would appear to be a reference to the threshold for the recovery of work injury damages in s 151H of the Workers Compensation Act 1987 (the 1987 Act). If that be the case, this is not a factor taken into account in dealing with the threshold in s 352(3). No compensation was awarded in the Arbitrator’s decision. In those circumstances it is settled practice in the Commission that whether the threshold in s 352(3) is satisfied is determined by reference to the claim as particularised by the worker.[6] The claim was particularised in the current matter at $25,781.25, in respect of 17 per cent whole person impairment. The assessment of 17 per cent in Dr Giblin’s most recent report (on which the claim is based) is impairment of 7 per cent, 6 per cent and 4 per cent in respect of the lumbar spine, left upper extremity and right upper extremity respectively.
[6] Grimson v Integral Energy [2003] NSWWCCPD 29, [30].
In Fletchers International Exports Pty Limited v Regan Fleming DP said:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCCPD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal …”.[7] (emphasis in original)
[7] [2004] NSWWCCPD 7, [27].
The monetary value of the particularised impairment in respect of the right upper extremity, which was the component of the claim in issue, exceeds $5,000. The appeal has the capacity to affect recovery of the whole of that amount, if the finding that the condition of the right upper extremity is secondary to the left upper limb injury is set aside. The requirements of s 352(3) of the 1998 Act are satisfied.

INTERLOCUTORY APPEAL

Neither party has addressed whether the decision appealed is interlocutory. The appeal is against orders referring the matter to an AMS for assessment of permanent impairment. Such appeals have frequently been held to be of an interlocutory nature, as the orders at first instance do not finally dispose of the rights of the parties. A common approach is that leave is granted in such circumstances so that issues regarding the referral can be dealt with before an examination by an AMS occurs. To the extent to which it is necessary, I grant leave to appeal pursuant to s 352(3A) of the 1998 Act.[8]
[8] Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439, [11], Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37, [27] (and the cases cited therein).

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

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[9] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[10] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[11]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[12]
[9] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[10] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[11] [1996] HCA 140; 140 ALR 227.
[12] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[13] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[14]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[15]
[13] [2017] NSWWCCPD 5, [67].
[14] [2001] FCA 1833, [28].
[15] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[16] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[17]
[16] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[17] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[18] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[19]
[18] [2020] NSWCA 54 (Hill).
[19] Hill, [20].

THE ARBITRATOR’S REASONS

The Arbitrator noted the issues before her:
“The parties agree that the following issues remain in dispute:
(a)    whether the [respondent] sustained injury to his right shoulder as a result of the nature and conditions of his employment with the respondent on 1 May 2012 (deemed); and/or
(b)    whether the [respondent] sustained a consequential condition at his right shoulder as a result of the injury to his left shoulder arising from the nature and conditions of his employment with the respondent on 1 May 2012 (deemed); and
(c)    the degree of permanent impairment resulting from injury deemed to have occurred on 1 May 2012 and entitlement to lump sum compensation under s 66 of the 1987 Act.”[20]
[20] Parasiliti v Ausgrid [2020] NSWWCC 5 (Reasons), [5].
The Arbitrator noted that she had refused an application by the appellant pursuant to s 289A(4) of the 1998 Act to add a further issue, that there were separate frank injuries, to the left shoulder in 1998 and to the lumbar spine in 2011, and these could not be assessed together with the pleaded ‘nature and conditions’ injury.[21]
[21] Reasons, [7].
The Arbitrator summarised the evidence in the respondent’s statements.[22] The Arbitrator referred to evidence from the respondent’s general practitioner, Dr Kumaran. This included detailed references to entries dating back to 2013, regarding the respondent’s left shoulder and lumbar complaints. It included references to material from other practitioners, radiologists and physiotherapists, who had reported back to Dr Kumaran’s practice.[23] The Arbitrator quoted from reports of Dr Popoff, orthopaedic surgeon, that referred to his treatment of the respondent in 2013.[24] She referred to a medicolegal report of Dr Popoff dated 17 May 2019 that included the following:
“Regarding his right shoulder, it is common after having a significant shoulder injury on one side, that over-use of the nonaffected side can result in significant problems. It appears to have happened in Gaetano’s case.”[25]
[22] Reasons, [11]–[26].
[23] Reasons, [27]–[37].
[24] Reasons, [39]–[42].
[25] Reasons, [41].
The Arbitrator referred to a report of Dr Richards, a treating rheumatologist, dated 29 June 2017, that set out the complaints in both the left and right shoulders.[26]
[26] Reasons, [38].
The Arbitrator referred to the medicolegal reports of Dr Giblin, qualified by the respondent’s solicitors. She quoted the following passage from the longer of the reports dated 4 December 2018,[27] dealing with causation of the right shoulder symptoms:
“It is my opinion that his left shoulder injury commenced on 17 July 1998 and that the subsequent recurrent low grade symptoms in his right shoulder were due to favouring the left shoulder injury as well as the nature and conditions of his work environment. This is a common, reasonable, and probable clinical explanation for his current right shoulder symptoms. His low back injury has been related to the nature of his job in 2011.”[28]
[27] ARD, pp 35–38.
[28] Reasons, [49].
The Arbitrator summarised medical and claims evidence dealing with various workers compensation claims made by the respondent over his years with the appellant, largely involving the back and left shoulder.[29]
[29] Reasons, [51]–[62].
The Arbitrator summarised the report of Dr Machart, an orthopaedic surgeon qualified by the appellant, dated 28 November 2016. She referred to Dr Machart’s history that the respondent developed back pain “about 10–12 years earlier”, and that he “continued to work until 1 May 2012 when he sustained injury to the left shoulder pulling heavy cables”. She referred to the further history that the respondent “developed pain in the right shoulder about two or three months after he stopped working on 1 May 2012”.[30] The Arbitrator noted Dr Machart’s opinion on the right shoulder:
“There was no evidence of injury to the right shoulder. While overuse was claimed, there is no substantive evidence to validate such claim medically. Pain did not develop until 2 or 3 months after he stopped working, and he had never resumed full duties. The notion of ‘overuse’ does not bear validity. At the time that symptoms developed, he was doing less, and was subjected to underuse.”[31]
[30] Reasons, [63]–[66].
[31] Reasons, [67].
The Arbitrator summarised the submissions made by counsel.[32] She set out some relevant legal principles.
[32] Reasons, [69]–[98].
The Arbitrator set out the definition of ‘injury’ in s 4 of the 1987 Act. She quoted from a decision of Roche DP in Bouchmouni v Bakhos Matta t/as Western Red Services,[33] dealing with the difference between proof of ‘injury’, as opposed to proof of a secondary or consequential condition. She referred[34] to the Court of Appeal decision in Kooragang Cement Pty Ltd v Bates[35] from which she quoted the following well known passage:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[36]
[33] [2013] NSWWCCPD 4; 14 DDCR 223.
[34] Reasons, [101].
[35] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[36] Kooragang, 463–464.
The Arbitrator referred to the decision in Nguyen v Cosmopolitan Homes,[37] and the need for a finder of fact to feel actual persuasion of the fact to be proved, on the probabilities.[38]
[37] [2008] NSWCA 246.
[38] Reasons, [102].
The Arbitrator noted there was no dispute that the respondent suffered injury to his left shoulder and lumbar spine “as a result of the nature and conditions of his employment”. She noted the allegations regarding the right shoulder, that there was injury due to the nature and conditions of employment, and additionally that there was a consequential or secondary condition of the right shoulder as a result of the left shoulder injury. The Arbitrator referred to the uncontradicted evidence of the respondent’s duties, which were heavy. It was accepted the duties were causative of the left shoulder injury, and as “a matter of common sense” she accepted the duties were also capable of injuring the right shoulder. She said there was little contemporaneous medical evidence to support that claim.[39]
[39] Reasons, [103]–[104].

The Arbitrator referred to a failure by the respondent to complain about his right shoulder to Dr Joshua (to whom he had been referred) in July 2013, which she said “generally weighs against a finding of right shoulder injury”. She said she was not satisfied that the respondent complained to Dr Popoff about right shoulder problems in July 2013. Dr Popoff, in a more recent report, referred to the right shoulder symptoms developing “subsequently”. The Arbitrator said the “first clear record of any medical investigation” of the right shoulder was in Dr Kumaran’s notes on 16 February 2015. This was almost two years after the first incapacity resulting from the present injury, and after the respondent had ceased work for the appellant altogether.[40]
[40] Reasons, [106]–[108].
The Arbitrator said that Dr Giblin (who supported injury to the right shoulder due to the nature and conditions of work) did “not engage with the absence of clear contemporaneous medical evidence of right shoulder symptoms until well after the [respondent] was incapacitated by the injury to his left shoulder and lumbar spine”. She said “[t]he value of contemporaneous evidence has been repeatedly endorsed by the courts”, referring to Onassis v Vergottis[41] and Watson v Foxman.[42] The Arbitrator concluded she was not satisfied that the [respondent] injured his right shoulder as a result of the nature and conditions of his employment.[43]
[41] (1968) 2 Lloyds Reports 403.
[42] (1995) 49 NSWLR 315.
[43] Reasons, [110]–[112].
The Arbitrator then turned to consider whether there had been “a consequential or secondary condition at [the respondent’s] right shoulder as a result of the [respondent’s] left shoulder”. She said there was “a progressive history of left shoulder pain over the course of his employment with the [appellant]”. The pain became incapacitating in July 1998. The respondent was able to return to pre-injury duties, but continued to experience worsening left shoulder pain, and was “incapacitated as a result of the present injury in May 2012”.[44]
[44] Reasons, [113].
The Arbitrator said that the appellant’s submissions “placed considerable weight on the minimal reference to left shoulder symptoms after the cessation of work”. She quoted from the decision in Mason v Demasi, which refers to the need for caution in considering clinical notes.[45] She said that although Dr Kumaran’s notes did not “reveal regular or frequent complaints of left shoulder symptoms”, she was satisfied on other medical evidence that the respondent continued to experience left shoulder symptoms after the first period of incapacity. She referred to contemporaneous reports to Dr Popoff in 2013, and left shoulder investigations in the same year with corticosteroid injection and physiotherapy. Dr Popoff considered the complaints sufficient that he recommended surgery, although the respondent declined this. Dr Richards’ history in his 2017 report was of improvement in the left shoulder after injections, but with “ongoing issues”.[46]
[45] [2009] NSWCA 227, [2].
[46] Reasons, [114]–[115].
The Arbitrator said that Dr Kumaran’s notes and Dr Richards’ report indicated the right shoulder difficulties became more severe in 2017. She said that a reference in Dr Kumaran’s notes to a possible connection to the respondent’s diabetes would not preclude the causal connection between the left shoulder injury and the right shoulder condition. Dr Giblin described this as a “common, reasonable and probable clinical explanation” for the right shoulder condition. The Arbitrator said she also gave weight to Dr Popoff’s opinion that “it is common after having a significant shoulder injury on one side that overuse of the non-affected side can result in significant problems”.[47]
[47] Reasons, [116]–[118].
The Arbitrator said it was not necessary, for the respondent’s argument to succeed, that any overuse of the right shoulder have occurred in the course of employment. She said that Dr Machart did not appear to have entertained that possibility.[48] The Arbitrator made an ultimate finding of fact:
“Having carefully weighed the evidence before me, I am satisfied that the [respondent] has sustained a condition in his right shoulder as a result of the injury to his left shoulder deemed to have occurred on 1 May 2012.”[49]
[48] Reasons, [119].
[49] Reasons, [120].

GROUND OF APPEAL

The appellant raises a single ground of appeal:
“Arbitrator Homan erred in finding that the worker sustained a consequential condition at his right shoulder as a result of the injury to the left shoulder, and in doing so failed to provide adequate reasons.”

APPELLANT’S SUBMISSIONS

The appellant refers to a passage in Raulston in which Roche DP said that the reasons for preferring one conclusion to another need to be given. The appellant refers to the following passage from the decision of Acting Deputy President King SC in NSW Police Force v Hahn:
“To my mind the essential propositions are uncontroversial and the important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.”[50]
[50] [2017] NSWWCCPD 51, [61].
The appellant submits there are “several inconsistencies” in the reasons, and “consequently there was a specific and real need for an explanation” as to why the Arbitrator reached the conclusion which she did.[51]
[51] Appellant’s submissions, [9]–[11].
The appellant states the case on the right shoulder was advanced on two bases. In rejecting the first of these, the Arbitrator noted there were “no contemporaneous complaints in relation to the right shoulder”, and the first reference to the right shoulder was after the worker was incapacitated due to the left shoulder. The appellant refers to the reasons at [108]:
“The first clear record of any medical investigation of the [respondent’s] right shoulder appears in Dr Kumaran’s clinical notes on 16 February 2015. That is, almost two years after the first incapacity resulting from the present injury and at a time after the [respondent] had ceased work for the [appellant] altogether.”
The appellant submits that Dr Giblin’s report was criticised in the reasons at [15], but then relied upon to make the findings that are appealed against (the appellant refers to the reasons at [16]).[52] The appellant submits the path of reasoning becomes “unclear”. The appellant submits the Arbitrator needed to explain why she accepted “there was an overuse of the right shoulder at a time when the worker was not working”. The appellant states it accepts that, for a finding of a consequential condition, it was not necessary that “any ‘overuse’ occurred in the course of employment”. The appellant submits it was unexplained why the Arbitrator accepted “there was overuse which occurred after employment”.[53]
[52] Appellant’s submissions, [13].
[53] Appellant’s submissions, [13]–[15].
The appellant submits it was not explained sufficiently why weight was given to the opinion of Dr Giblin, after his opinion was previously criticised. It is submitted it was not explained why weight was given to Dr Popoff. It is submitted Dr Machart received only “a very brief mention”.[54]
[54] Appellant’s submissions, [16].
The appellant submits there were “internal inconsistencies” and a “failure to disclose the path of reasoning”. The appellant submits that, as a consequence, it was “not possible to determine how the conclusion was reached”. “[M]ore elaborate reasons” were required.

RESPONDENT’S SUBMISSIONS

The respondent submits the appellant’s submissions are essentially an attempt “to reargue the merits of the issue”, contrary to s 352(3) of the 1998 Act, and that the appellant has not identified any error of fact, law or discretion.[55]
[55] Respondent’s submissions, [1]–[3].
The respondent submits there was a “proper evidentiary basis” for the Arbitrator’s conclusion. There was no issue regarding injury to the left shoulder. Dr Popoff’s reports in 2013 confirmed worsening left shoulder pain such that surgery was warranted, although declined. Dr Richards confirmed ongoing issues in the left shoulder. The evidence of continuing left shoulder symptoms was not challenged by the appellant. The respondent submits this evidence was referred to by the Arbitrator in the reasons at [103], [113] and [115]. It is submitted this “would explain the worker’s need to place increasing reliance on the contralateral limb”.[56]
[56] Respondent’s submissions, [6]–[10].
The respondent submits the Arbitrator, in the reasons at [26], noted the respondent’s evidence that he placed “constant reliance on the right arm in order to protect his left shoulder after it was injured in 2012”. She noted the respondent’s evidence that he “would rely on the right arm to perform housework”.[57] The respondent submits the Arbitrator, in the reasons at [117] to [118], referred to the opinions of Dr Giblin and Dr Popoff in support of the respondent’s argument, regarding the existence of a consequential condition affecting the right shoulder. He submits this unchallenged evidence provided a proper foundation for the finding of a consequential condition. He submits the existence of this causal relationship was not addressed by Dr Machart.[58]
[57] Respondent’s submissions, [11].
[58] Respondent’s submissions, [12]–[15].
The respondent submits there was no countervailing evidence. The respondent’s evidence that he placed greater reliance on his right shoulder was not challenged. The opinions of Dr Giblin and Dr Popoff supported the causal relationship. The respondent submits the Arbitrator noted Dr Machart’s opinion (in the reasons at [67]) and correctly questioned its logic (in the reasons at [119]).[59]
[59] Respondent’s submissions, [16]–[21].
The respondent submits the Arbitrator referred to relevant caselaw, referring particularly to the Arbitrator’s reliance on Kooragang.[60] He submits the decision was open to the Arbitrator, and there was no basis to come to any different conclusion.[61]
[60] Respondent’s submissions, [22]–[23].
[61] Respondent’s submissions, [24]–[26].
Dealing with points made by the appellant in its submissions, the respondent submits:[62]
(a)    The Arbitrator’s findings were open on the evidence and the caselaw.
(b)    It was open to find the necessary causal connection, notwithstanding the relatively late onset of right shoulder symptoms. Reference is made to Kooragang.
(c)    The Arbitrator’s rejection of Dr Giblin’s opinion on the question of whether the respondent suffered injury due to the ‘nature and conditions’ of employment did not bear on the separate question of whether there was a consequential condition.
(d)    There is nothing unclear about the reasoning. There was a clear causal chain which the Arbitrator accepted.
(e)    There was clear evidence of overuse of the right shoulder in a general sense. The opinions of Dr Giblin and Dr Popoff were not confined to overuse during the respondent’s employment. Dr Machart did not address the case of whether overuse after the respondent’s employment ceased caused the right shoulder pathology. The appellant did not, before the Arbitrator, mount a case that the right shoulder pathology resulted from factors unrelated to overuse subsequent to his employment.
(f)    An attack on the weight given to evidence does not give rise to appealable error under s 352. Weight is within the province of the decision maker. The decision is consistent with “established jurisprudence” in such cases.
(g)    The submission regarding “internal inconsistencies” is unfounded, and in any event would not give rise to appealable error under s 352.
[62] Respondent’s submissions, [28]–[40].
The respondent describes the appeal as “wholly unfounded” and submits it should be rejected.[63]
[63] Respondent’s submissions, [41].

CONSIDERATION

The single ground potentially raises two alleged errors. The first is that there was error in making a finding of a consequential condition in the right shoulder as a result of the conceded left shoulder injury. The second is that the Arbitrator failed to provide adequate reasons. If the intention was to frame two separate alleged errors, this should have been made clear in two separate grounds. Notwithstanding the way in which the ground is framed, the respondent has sought to deal with the merits of the various matters raised in the submissions. I will do the same.
The appellant notes the Arbitrator, in rejecting the allegation of injury to the right shoulder due to ‘nature and conditions’, referred to a lack of right shoulder complaints in treating records until 2015. The appellant submits the Arbitrator failed to deal with why she accepted there was an overuse injury to the right shoulder after the respondent ceased work (see [38] to [39] above).
The Arbitrator, in her reasons at [26], referred to the respondent’s evidence of increased reliance on his right arm following the left arm injury. This was not restricted to work activities, it extended to use of the right arm at home. The Arbitrator referred to histories of increasing left shoulder symptoms and treatment in 2013.[64] As the respondent correctly submits, this evidence was not challenged and would explain “increasing reliance on the contralateral limb”.[65] The Arbitrator accepted that the respondent continued to experience left shoulder symptoms. She noted these were sufficiently serious that Dr Popoff recommended surgery to the left shoulder in 2013, although this was declined. The Arbitrator noted Dr Richards’ reference to “ongoing issues” in the left shoulder in his 2017 report. The Arbitrator noted Dr Kumaran’s notes and Dr Richards’ report indicated right shoulder symptoms became more severe in early 2017.[66]
[64] Reasons, [29]–[31].
[65] Respondent’s submissions, [10].
[66] Reasons, [115]–[116].
The appellant is critical of the weight given to Dr Giblin’s opinion on the presence of a consequential condition, given the Arbitrator’s rejection of the doctor’s opinion on whether there was right shoulder injury as a result of the ‘nature and conditions’ of employment. The Arbitrator gave a specific reason for rejecting Dr Giblin’s opinion on the ‘nature and conditions’ injury. She said the doctor had not engaged with the absence of contemporaneous evidence of right shoulder symptoms, until well after the respondent was incapacitated by his other injuries.[67] This factor was not relevant to the finding of a consequential injury, which could result from overuse of the right shoulder that post-dated the employment with the appellant. It is open to a judge (or an arbitrator) to accept the evidence of a witness on one issue but not on another.[68]
[67] Reasons, [110].
[68] Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167, [30].
The Arbitrator specifically referred to the specialist medical evidence from Dr Giblin and Dr Popoff, which supported her conclusion. The appellant’s criticism of the Arbitrator’s treatment of Dr Giblin’s evidence on this issue is dealt with above. The appellant also criticises the Arbitrator for failing to explain why weight was given to the opinion of Dr Popoff. The Arbitrator said that she gave weight to Dr Popoff’s opinion “as a qualified orthopaedic surgeon”.[69] The topic on which the doctor was expressing an opinion fell, of course, within the expertise of an orthopaedic surgeon. Otherwise, the weight to be given to the doctor’s opinion was largely a matter for the Arbitrator, unless there was a finding that was so against the weight of evidence that some error must have been involved.[70] A submission to that effect is not made.
[69] Reasons, [118].
[70] Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
The appellant submits “Dr Machart, for the [a]ppellant, gets a very brief mention”.[71] The Arbitrator stated why she was not assisted by Dr Machart’s opinion on this issue. She said Dr Machart did not consider the question of whether overuse, other than in the course of employment, gave rise to a consequential condition of the right shoulder.[72] That is, the doctor did not deal with the specific issue which the Arbitrator was considering, causation of the alleged consequential condition, manifested after the respondent left the appellant’s employ. There is no specific challenge made to the basis on which the Arbitrator dealt with Dr Machart’s opinion.
[71] Appellant’s submissions, [16].
[72] Reasons, [117]–[119].
The Arbitrator proceeded to make the ultimate finding of fact set out at [34] above. The respondent also refers[73] to the Arbitrator’s reliance on Kooragang (see [26] above). The passage the Arbitrator quoted specifically includes reference to the proposition that “the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation”.
[73] Respondent’s submissions, [23].
To the extent to which the appeal seeks to establish error in the Arbitrator’s fact finding on this issue, such a challenge is subject to the principles discussed at [13] to [17] above. The Arbitrator’s findings were clearly open to her on the evidence, and error on that basis is not made out.
It is necessary that the Arbitrator’s reasons be read as a whole.[74] The submission that the Arbitrator did not explain why she found the right shoulder condition resulted from overuse, subsequent to the respondent’s employment with the appellant, is without merit. The Arbitrator made clear findings which were referenced to evidence and for which she gave reasons.
[74] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443–444.
In Pollard v RRR Corporation Pty Ltd[75] McColl JA (Ipp JA and Bryson AJA agreeing) summarised a number of the authorities governing the duty to provide adequate reasons. Her Honour observed that the “extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[76] Her Honour said:
“The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.”[77]
[75] [2009] NSWCA 110 (Pollard).
[76] Pollard, [58].
[77] Pollard, [59].
The Arbitrator’s reasons complied with her duty to give reasons and with her statutory obligation in this regard: NSW Police Force v Newby.[78]
[78] [2009] NSWWCCPD 75, [147]–[151].

CONCLUSION

The appellant’s ground of appeal fails for the reasons given above. It follows that the appeal fails.

DECISION

The Arbitrator’s decision dated 12 December 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

6 August 2020