Australia and New Zealand Banking Group Limited v Khullar - [2020] NSWWCCPD 3

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Australia and New Zealand Banking Group Limited v Khullar [2020] NSWWCCPD 3
APPELLANT:	Australia and New Zealand Banking Group Limited
RESPONDENT:	Sonia Khullar
INSURER:	Self-insured
FILE NUMBER:	A1-124/19
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	1 July 2019
DATE OF APPEAL DECISION:	20 January 2020
SUBJECT MATTER OF DECISION:	Section 10(3)(c) of the Workers Compensation Act 1987; satisfaction of section 10(3A) of the 1987 Act; causation where there are two injuries; Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 – matters raised on appeal but not at first instance
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Ainsworth, solicitor
HWL Ebsworth
Respondent:
Mr B McManamey, counsel
Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 1 July 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Sonia Khullar (the worker) was employed by Australia and New Zealand Banking Group Ltd (the employer) from 2007. As at 2018 she was employed as a personal banker at the employer’s Sydney Airport branch, working 31 hours per week. On 21 May 2018, the worker was operating a note counting machine when a rubber band broke and flicked into her right eye. She also stated that she injured her neck and right shoulder due to hyperextending her neck as a reaction to the rubber band flicking into her eye. On 7 June 2018 at about 7 am, the worker attended the rooms of Dr Ogane, an ophthalmologist, for treatment of her right eye injury. At about 7.20 am she was driving home following that appointment when her car was struck in the rear at a roundabout, injuring her neck and right shoulder.[1]
[1] Worker’s statement 9/1/19, [3]–[11], Application to Resolve a Dispute (ARD) p 438, worker’s statement 16/5/19, AALD 17/5/19, [3]–[6].
The employer accepted liability for the eye injury on 21 May 2018. It paid compensation voluntarily to 29 October 2018. It disputed injury to the cervical spine and shoulders in that incident, on the basis that employment was not a substantial contributing factor to those injuries, and that ongoing incapacity did not result from employment injury.[2] It disputed liability in respect of the motor accident on 7 June 2018, on the basis the circumstances of the accident were such that the incident was not compensable as it was not “work related”.[3]
[2] Section 74 notices 11/10/18, ARD pp 469–475 and 27/12/18, ARD pp 443–449.
[3] Section 74 notices 9/8/18, ARD pp 478–483, 27/12/18, ARD pp 450–455.
In a decision dated 1 July 2019, a Commission Arbitrator made an award in the worker’s favour on a continuing basis for weekly compensation from 30 October 2018, and an award for expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).[4] This appeal is brought by the employer against that decision.
[4] Khullar v ANZ Banking Group Ltd [2019] NSWWCC 230 (reasons).

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 the 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 quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE ARBITRAL PROCEEDINGS AND REASONS

These proceedings were commenced by an Application to Resolve a Dispute registered on 11 January 2019. The matter was listed for arbitration hearing on 24 May 2019. Mr McManamey appeared for the worker and Mr Doak for the employer. There were no applications to adduce oral evidence or to cross-examine. Counsel addressed and the Arbitrator reserved his decision. The Arbitrator’s decision and accompanying reasons were delivered on 1 July 2019. The Certificate of Determination records:
“The Commission determines:
1. The injuries sustained in the motor vehicle accident of 7 June 2018 materially contributed to the need for weekly compensation and s 60 expenses caused by the injuries of 21 May 2018.
2. In any event the provisions of s 10(3)(c) and s 10(3A) the Workers Compensation Act 1987 apply to the circumstances of the motor vehicle accident of 7 June 2018.
3. I make the following orders:
(a)The respondent will pay the applicant’s s 60 expenses upon production of accounts receipts and/or HIC notice of charge.
(b)The respondent will pay the applicant $366.84 per week from 30 October 2018 to 29 January 2019.
(c)The respondent will pay the applicant $190.50 per week from 30 January 2019 to date and continuing.”
The Arbitrator summarised the evidence and submissions. Put briefly, the employer’s case was that the worker had recovered from the right eye injury, and she did not significantly injure her neck or shoulders in the incident on 21 May 2018. Any ongoing disability in the neck or shoulders resulted from the motor vehicle accident on 7 June 2018. Compensation was not payable in respect of the motor vehicle accident, as the worker could not establish that there was a real and substantial connection between her employment and the accident, to satisfy s 10(3A) of the 1987 Act. The employer submitted the worker’s claim should fail. The worker submitted s 10(3A) was satisfied. Even if it were not, the injuries to the worker’s neck and shoulder resulted from each of the pleaded injuries. The incident on 21 May 2018 materially contributed to the neck and shoulder injuries, which accordingly ‘resulted’ from that incident.
The Arbitrator identified contemporaneous medical evidence that was consistent with injury to the neck and shoulders in the incident on 21 May 2018. Such complaints, after 21 May 2018 and prior to the motor vehicle accident, were recorded in the clinical notes and certificates of Dr Venkatesan (the general practitioner). They were confirmed in the report of Ms Keegan (a physiotherapist).[5] The Arbitrator referred to the report of Dr Powell (qualified on the employer’s behalf) dated 21 September 2018. Dr Powell said the injury on 21 May 2018 caused minor soft tissue injury to the cervical spine, which was aggravated by the motor vehicle accident.[6] The Arbitrator did not accept the criticisms made of the opinion of Dr Bodel (qualified on the worker’s behalf) in the employer’s submissions. The Arbitrator accepted the opinion of Dr Bodel, that soft tissue injury to the neck and right shoulder “arose as a consequence of both incidents”.[7]
[5] Reasons, [58]–[60].
[6] Reasons, [62]–[63].
[7] Reasons, [64]–[67].
The Arbitrator referred to Presidential authorities dealing with s 10(3A) that had been raised in submissions, particularly Bina v ISS Property Services Pty Ltd[8] and State Super Financial Services Australia Ltd v McCoy.[9] The Arbitrator said the worker required treatment for the employment injury that occurred on 21 May 2018. This involved her driving to Camden, in the direction opposite to that which she would normally take if driving to work. The accident occurred at 7.20 am in peak hour, the worker would not normally have been on the road at that time if not for the above sequence of events. The Arbitrator concluded this sequence established “the necessary degree of association or relationship between the employment and the injury caused by the motor vehicle accident”.[10] The Arbitrator also added that it was “a reasonable assumption” that the medical appointment at 7 am was arranged so early “to facilitate her attendance at work on time”.[11]
[8] [2013] NSWWCCPD 72 (Bina).
[9] [2018] NSWWCCPD 26 (McCoy).
[10] Reasons, [77]–[78].
[11] Reasons, [79].
The Arbitrator referred to the evidence relevant to the worker’s residual ability to work. He concluded she was capable of performing work “similar to her pre-injury work as a personal banker but for more limited hours”. He considered she could work for five hours per day, five days per week, earning $30 per hour, being $750 per week. This finding yielded a weekly entitlement of $366.84 from 30 October 2018 to 29 January 2019 (during the first entitlement period), and $190.50 from 30 January 2019 to date and continuing (during the second entitlement period). There was a weekly award on this basis together with a general order pursuant to s 60 of the 1987 Act.[12]
[12] Reasons, [89]–[91].

GROUNDS OF APPEAL

The following grounds of appeal are raised:
(a) The Arbitrator erred in deciding that “injuries sustained in the motor vehicle accident of 7 June 2018 materially contributed to the need for weekly compensation and s 60 expenses caused by the injuries of 21 May 2018 as it does not address or determine the dispute before the Commission”. (Ground No. 1)
(b) The Arbitrator erred in finding that s 10(3)(c) of the 1987 Act applied to the motor vehicle accident of 7 June 2019 (sic, 2018) and that the claim was not precluded by s 10(3A) of the 1987 Act. (Ground No. 2)
(c) The Arbitrator erred in entering the award for weekly payments as the period compensated “was not in the first entitlement period”. (Ground No. 3)

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,[13] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[14] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[15]) 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’.”[16]
[13] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[14] (1966) 39 ALJR 505, 506 (Kerr).
[15] [1996] HCA 140; 140 ALR 227.
[16] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[17] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[18]
“… 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.”[19]
[17] [2017] NSWWCCPD 5, [67].
[18] [2001] FCA 1833, [28].
[19] Raulston, [20].
In Northern NSW Local Health Network v Heggie[20] 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”.[21]
[20] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[21] Heggie, [72].

LEGISLATION

Section 10 of the 1987 Act relevantly provides:
“10    Journey claims
(1)    A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(3)     The journeys to which this section applies are as follows—
…
(c) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,
…
(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.”

GROUND NO. 1

Employer’s submissions

The employer submits the Arbitrator “was required to determine”:
(a)    whether the motor vehicle accident on 7 June 2018 was a compensable injury due to s 10 of the 1987 Act;
(b)    whether incapacity and the need for medical treatment resulted from the employment injury on 21 May 2018, and if so to what extent;
(c)    whether incapacity and the need for medical treatment resulted from the motor vehicle accident on 7 June 2018, and if so to what extent, and
(d)    the extent of any incapacity including its quantification.[22]
[22] Employer’s submissions, [20].
It submits (b) and (c) above involved determining whether there was a common sense causal chain between each of the incidents and the incapacity or need for medical treatment. It submits:
“… the Arbitrator was not required, and it was not an issue for determination, to determine whether the injuries the [worker] ‘sustained in the motor vehicle accident were an exacerbation of the injuries she sustained on 21 May 2018’. Nothing flows from the determination of that issue and the Arbitrator has failed to determine the matters in dispute before him.”
And:
“The Arbitrator, in proceeding in this manner, has also failed to determine [(b) and (c) above] by making an order as to whether incapacity or medical treatment was as a result of the injury of 21 May 2018, the motor vehicle accident on 7 June 2018 or both.”[23]
[23] Employer’s submissions, [21]–[23].
The Arbitrator referred to a passage from my decision in Megson v Staging Connections Group Ltd,[24] which adopted part of what was said by Roche DP in Murphy v Allity Management Services Pty Ltd.[25] The principle of causation applied in Murphy, which the Arbitrator in the current matter described as “appropriate to the current circumstances”, was the following:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”[26]
[24] [2019] NSWWCCPD 2 (Megson).
[25] [2015] NSWWCCPD 49 (Murphy).
[26] Murphy, [57]–[58].
After quoting from the above passage, the Arbitrator said:
“The approach is also appropriate to the current circumstances. The need for treatment has been materially contributed to by the motor vehicle accident. The inability of Ms Khullar to perform her pre-injury duties has also been materially contributed to by the motor vehicle accident. Accordingly the injuries sustained in the motor vehicle accident are causally connected to the injuries sustained on 21 May 2018.”[27]
[27] Reasons, [70].
The appellant refers to this passage, submitting it “does not explain how the incidents are related or explain why they are casually [sic, causally] connected to one another”.[28]
[28] Employer’s submissions, [27].

Worker’s submissions

The worker submits that, before the Arbitrator, the employer submitted that the neck and shoulder symptoms were improving prior to the motor vehicle accident and then worsened after that accident.[29] The worker’s position before the Arbitrator was to the contrary, that she had not recovered from her neck and right shoulder injury prior to the motor vehicle accident, and continuing incapacity flowed from the original injury.[30] The worker submits the Arbitrator recognised the worker’s argument on this point.[31] The effect of the argument, if accepted, was that even if the motor vehicle accident was found not to be compensable due to s 10(3A) of the 1987 Act, liability would still be found in the worker’s favour, on the basis incapacity and the need for treatment resulted from the injury on 21 May 2018. The Arbitrator found that the neck and right shoulder were injured on 21 May 2018, and she continued to suffer such symptoms up to the time of the motor vehicle accident. The employer does not take issue with these findings. The initial issue decided by the Arbitrator was whether incapacity and the need for treatment resulted from the injury on 21 May 2018.[32]
[29] T 14.24–15.7, referred to in Worker’s submissions, [2].
[30] T20.23–28, referred to in Worker’s submissions, [2].
[31] Reasons, [52], referred to in Worker’s submissions, [3].
[32] Worker’s submissions, [3]–[5].
The worker submits the Arbitrator set out the relevant legal principle governing this causation question. He rejected Dr Powell’s opinion that the worker’s presentation was more likely caused by the motor vehicle accident. He accepted Dr Bodel’s opinion that the injury was a consequence of both incidents. The worker says that the employer does not complain about these findings. Once it is accepted that both incidents contribute to the worker’s condition, it follows that the worker’s injury results from the incident on 21 May 2018. The worker submits that whether the injury also results from the motor vehicle accident is immaterial to that conclusion.[33]
[33] Worker’s submissions, [6]–[8].
The worker submits there was no evidence that the effects of the injury on 21 May 2018 had ceased prior to the motor vehicle accident. Dr Bodel, whose opinion was accepted, opined that the clinical findings when he assessed the worker resulted from both the accident at work and the motor vehicle accident. This was supported by Dr Venkatesan, who saw the worker both before and after the motor vehicle accident. Dr Powell initially said that the injury involved the aggravation of previously asymptomatic cervical degenerative change in the incidents in May and June 2018. His later opinion that the effects of the incident on 21 May 2018 were minor and should have settled did not point to any clinical feature to establish the initial incident no longer contributed. The worker submits there is no challenge to the Arbitrator’s rejection of Dr Powell’s view on that issue.[34]
[34] Worker’s submissions, [9]–[10].

The worker submits the employer’s submissions “seem to suggest that the Arbitrator was required to separately identify whether the [worker’s] incapacity and need for medical treatment was a result of the car accident”. The worker refers to Murphy and Megson as supporting the proposition that incapacity and the need for medical treatment result from the incident on 21 May 2018, providing that incident “materially contributes”. Whether the incapacity and need for medical treatment also result from the motor vehicle accident is immaterial. The circumstances of the matter did not require apportionment between two insurers.[35]
[35] Worker’s submissions, [11].

Consideration

The nature of the employer’s challenge in Ground No. 1 is not clearly articulated. The list of matters said to have required determination by the Arbitrator, set out in its submissions at [20] (see [18] above), involves an assumption that the Arbitrator was required to separately determine what part of the incapacity and need for medical treatment resulted from each of the two pleaded incidents.
In ACQ Pty Limited v Cook, the High Court described as “uncontroversial” the proposition that there can be multiple causes of damage suffered.[36] In Calman v Commissioner of Police,[37] the High Court applied a passage from Salisbury v Australian Iron and Steel Ltd[38] in which Jordan CJ said: “It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause.”[39] In Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd Brennan J (who delivered the leading judgment) said:
“Liability to make weekly payments or to pay a lump sum is imposed on any employer liable in respect of any injury which caused or materially contributed to the incapacity.”[40]
[36] [2009] HCA 28; 237 CLR 656, [27].
[37] [1999] HCA 60; 167 ALR 91; 73 ALJR 1609 (Calman).
[38] (1943) 44 SR (NSW) 157.
[39] Calman, [39].
[40] [1994] HCA 68; 121 ALR 417; 68 ALJR 526 (Accident Compensation Commission), [5].
His Honour referred with approval to Australian Eagle Insurance Co. Ltd v Federation Insurance Ltd in which King J, referring to the South Australian legislation, said:
“If the incapacity results in a true sense from more than one accident, a workman must be entitled to claim compensation in respect of all or any of the relevant accidents. If the accidents occur in the employment of different employers, he must be entitled to claim compensation against each employer. If the accidents occur in the employment of the same employer, he is nevertheless entitled to base his claim upon all or any of the accidents.”[41]
[41] (1976) 15 SASR 282, 289.
The discussion in the passage quoted immediately above is generally consistent with the decision of the Court of Appeal in Cluff v Dorahy Bros (Wholesale) Pty Ltd.[42] In Sutherland Shire Council v Baltica General Insurance Co Ltd Clarke JA, after reviewing authorities on causation that included Accident Compensation Commission and Kooragang Cement Pty Ltd v Bates,[43] said:
“… in the light of the judgment in Accident Compensation Commission v C E Heath, I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant inquiry directs attention to whether the injury caused or materially contributed to the incapacity.”[44]
[42] (1979) 53 WCR 167 (per Reynolds JA, Hope and Glass JJA agreeing), 176–177.
[43] (1994) 35 NSWLR 452.
[44] (1996) 39 NSWLR 87, 97G–98A.
In Secretary, New South Wales Department of Education v Johnson[45] it was said:
“In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is to say, the question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.”[46]
[45] [2019] NSWCA 321 (Johnson).
[46] Johnson, per Emmett AJA (Macfarlan JA agreeing), [53].
The above discussion of principles governing causation is generally consistent with that in Murphy and Megson, which the Arbitrator applied in his decision. The worker’s summation in her submissions of the Arbitrator’s fact finding on causation is essentially correct. Dr Powell’s initial view was that there had been “a minor soft tissue injury” of the cervical spine on 21 May 2018 and that this condition was “aggravated” in the motor vehicle accident.[47] In his supplementary report dated 9 October 2018, Dr Powell responded to a question regarding “whether the ongoing need for treatment as [sic, is] a result of the May 2018 incident or the June 2018 incident” (emphasis added). The question did not allow for the possibility that it resulted from both. The doctor said:
“… her ongoing need for treatment is more likely to be the result of injury sustained in the motor vehicle accident in June 2018 than the result of any injury sustained in the minor workplace incident in May 2018”.[48]
[47] Dr Powell’s report 21/9/18, Reply p 22.
[48] Reply, p 25.
Dr Bodel in the worker’s case expressed a contrary view:
“Based on the history and the clinical findings seen here today this lady’s injuries arise as a consequence of both the accident at work on 21 May 2018 and the injury in the motor vehicle accident on 7 June 2018 when she was returning back to her home following an early morning ophthalmology assessment.”[49]
[49] ARD, p 8.
The Arbitrator correctly noted that neck and shoulder symptoms from the incident on 21 May 2018 continued to be present up to the time of the motor vehicle accident. This was confirmed by various entries in the treating material. On 28 May 2018 Dr Venkatesan noted bilateral rotator cuff tendinitis right greater than left, and “wry neck”.[50] A certificate of 31 May 2018 from that doctor included a diagnosis of “secondary musculo-ligamentous strain of cervical spine/shoulders”.[51] On 4 June 2018 (three days before the motor vehicle accident) Dr Venkatesan noted neck symptoms were improving, but further time off work was advised and the worker was to “still see physiotherapist”.[52] A certificate of that date included a diagnosis of “secondary musculo-ligamentous strain of cervical spine/shoulders” and treatment was to include “Physiotherapy – 2 sessions per week for 2 weeks”.[53]
[50] ARD, p 36.
[51] ARD, pp 339–340.
[52] ARD, p 101.
[53] AALD 15/3/19, pp 30–32.
The Arbitrator rejected the opinion of Dr Powell on causation contained in his supplementary report. He gave reasons for doing so.[54] He preferred the opinion of Dr Bodel.[55] The worker correctly submits that this preference for the opinion of Dr Bodel over that of Dr Powell is not the subject of specific challenge on appeal. The Arbitrator’s factual finding, based on an acceptance of Dr Bodel, was inconsistent with the proposition that there had been a novus actus interveniens that broke the chain of causation. Dr Bodel’s accepted view was that the injuries resulted from both of the pleaded incidents.[56]
[54] Reasons, [63].
[55] Reasons, [64]–[67].
[56] Reasons, [67].
The employer submits the reasons at [70] do not explain why the incapacity due to the motor vehicle accident is causally connected to the incident on 21 May 2018. It is necessary that the reasons be read as a whole.[57] When the Arbitrator’s reasons are read as a whole, it was open to him to accept, as he did, Dr Bodel’s opinion that the worker’s “injuries arose as a consequence of both incidents”.[58] The consequence of this finding was that the relevant incapacity and need for treatment resulted from each of the pleaded incidents. Relevant compensation could be recovered in respect of either or both of the incidents, if they occurred in compensable circumstances. Contrary to the employer’s submission,[59] the Arbitrator did determine that the relevant incapacity and need for medical treatment resulted from each of the pleaded incidents.
[57] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[58] Reasons, [67].
[59] See employer’s submissions, [23].
Ground No. 1 fails.

GROUND NO. 2

Employer’s submissions

The employer refers to the Arbitrator’s findings at [77] of the reasons. It submits the findings were sufficient to establish that s 10 of the 1987 Act applied on the basis of s 10(3)(c). However, it was also necessary that the worker establish a real and substantial connection between the worker’s employment and the accident, otherwise s 10(3A) has no work to do.
The employer additionally submits there was a factual error. In concluding that s 10(3A) was satisfied, the Arbitrator said that it was a “reasonable assumption” that the worker’s appointment with Dr Ogane (from which she was travelling at the time of the motor accident) was arranged for 7 am “because she was still at work and needed an early appointment to facilitate her attendance at work on time”.[60] The employer submits the medical certificates provided that the worker was unfit for work up until 12 June 2018, that is, she had not returned to work at the time of the motor vehicle accident. This undermined the Arbitrator’s reasoning.[61]
[60] Reasons, [79].
[61] Employer’s submissions, [33].
The Arbitrator also said that he accepted the worker’s submission that the accident occurred at 7.20 am, when it could be inferred “any point in Sydney would be peak hour”.[62] The employer submits there was no evidence dealing with whether the roads were busy or it was rush hour traffic at the time of the accident, and the Arbitrator’s finding on this point was not available. The employer submits this error undermined the reasoning.[63]
[62] Reasons, [77]–[78].
[63] Employer’s submissions, [34].

Worker’s submissions

The worker submits there was no dispute that the circumstances of the motor vehicle accident fell within the provisions of s 10(3)(c). The worker was on a journey between her place of abode and a place where she was to receive treatment for her earlier compensable injury. The issue was that pursuant to s 10(3A), which the Arbitrator addressed.[64]
[64] Reasons, [73]–[81].
The worker seeks to differentiate the current circumstances from those where a worker might be travelling on the road and drop into her doctor to pick up a medical certificate. This would be “a journey on which she would have engaged in any event and in which she has freely chosen the time and circumstances of its occurrence”. By contrast, the current matter involves a journey the sole purpose of which was to attend the appointment with an ophthalmologist. It can be assumed the time of 7 am was given to the worker by the doctor, as the worker said that if not for the appointment she would not have been on the road at that time. The evidence does not suggest there was any purpose for the journey other than to attend the medical appointment. The worker submits the journey was in a different direction to her place of employment. She submits the Arbitrator’s inference that the roads would have been “busier at 7.20 am” was available, and within the general knowledge of “anyone within the Sydney Metropolitan Area”.[65]
[65] Worker’s submissions, [13]–[15].
The worker submits the connection with employment does not have to be causal. She submits the circumstances are similar to those in Singh and Singh t/as Krambach Service Station v Wickenden,[66] where it was sufficient that a worker’s employment put her on a country road in the middle of the night. In the current matter the worker was put onto the road in rush hour traffic in the path of a driver who was running late, something to which she would not otherwise have been exposed. The worker submits the Arbitrator was correct in accepting that s 10(3A) was satisfied.[67]

Consideration

[66] [2014] NSWWCCPD 13 (Wickenden).

[67] Worker’s submissions, [16]–[18].

Presidential decisions dealing with section 10(3A) of the 1987 Act

It is common ground that the journey on which the worker was injured was one that fell within s 10(3)(c) of the 1987 Act, the issue is whether the journey satisfies s 10(3A). There have been a number of Presidential decisions dealing with s 10(3A), but none in the context of a journey on the basis of s 10(3)(c). The earliest was Mitchell v Newcastle Permanent Building Society Ltd.[68] That matter was conducted in part based on an allegation that the injury (which occurred on a journey) was one arising out of employment. Issues were also raised in that matter regarding the presence of ‘special risk’, which is no longer part of the test in respect of ‘injury arising out of’.[69] The reasoning in Mitchell also proceeded on an assumption that s 10(3A) included a causal requirement,[70] which is inconsistent with the later Presidential decision in Bina and other decisions which have followed Bina.[71] Neither of the parties in the current matter has addressed on the basis that Mitchell should be applied.
[68] [2013] NSWWCCPD 55 (Mitchell).
[69] Wickenden, [76].
[70] Mitchell, [63]–[64], [68].
[71] Bina, [101]–[102].
Bina was a decision of the President Keating DCJ. The worker in that matter was a school cleaner who worked split shifts on school days, in the mornings and afternoons. She was injured in a motor vehicle accident driving home from her morning shift, in circumstances where she would then have been required to return to the school later to clean at the end of the school day. His Honour rejected an argument by Ms Bina that she suffered an injury arising out of employment.[72]
[72] Bina, [69].
His Honour drew the following from a discussion of the construction of s 10(3A):
(a)    a substantial connection is one “of substance”;
(b) “employment” in s 10(3A) is the same as in s 9A of the 1987 Act, that is, it is the activities of, or incidental to the employment, as opposed to the (mere) fact of being employed;
(c)    the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident;[73]
(d)    it is appropriate to consider the meaning of “substantial connection” and “employment” by reference to the interpretation of those words in s 9A and s 4 of the 1987 Act, respectively this may involve a causal relationship between the employment and the accident, but that is not necessarily so;[74]
(e)    the act of driving to or from work, without more, does not provide a real and substantial connection between employment and an accident;[75]
(f)    the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose,[76] and
(g) whether, and in what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision, in a commonsense and practical manner in each case.
[73] Bina, [112].
[74] Bina, [114].
[75] Bina, [115].
[76] Bina, [117].
His Honour confirmed an arbitral decision that s 10(3A) was not satisfied in the circumstances of that case.[77]
[77] Bina, [119]–[121].
Wickenden concerned an employee at a service station. She normally worked until 2.30 pm and rode her motorcycle home in daylight. The employer asked her to work longer hours, until 5.30 pm, whilst training to do additional duties opening and closing the service station. This involved her working until 5.30 pm. The worker was riding home at about 5.45 pm in July in darkness, when an oncoming vehicle swerved to avoid hitting cows on the road and struck her motorcycle. An Arbitrator found the worker was on a ‘journey’ and that s 10(3A) was satisfied, a decision which Roche DP confirmed.
The Deputy President said that the test in s 10(3A) was not necessarily a causal test, and certainly did not require that employment be the sole cause of the accident.[78] The Deputy President said that because of her employment the worker was riding in darkness, on a narrow country road of fairly poor quality. Cattle were difficult to see clearly. The “compelling conclusion” was that this was because of the darkness, which affected both the worker and the driver of the vehicle that hit her. It was a “compelling inference” that the time of the journey was a factor that contributed to the accident.[79] The worker rode home in darkness because she was required to work later than normal, there was a real and substantial connection between the employment and the accident.[80] The Deputy President also noted that the mere fact of travelling to and from work will not provide the necessary real and substantial connection.[81]
[78] Wickenden, [29].
[79] Wickenden, [32].
[80] Wickenden, [36].
[81] Wickenden, [91].
Field v Department of Education and Communities[82] concerned a casual teacher who tripped on a cracked paver while hurrying to get to the school where he was to work that day. He had received notice of the engagement for the day later than usual, at 7.30 am, where his experience was that the school was strict and expected staff to be at the school by 8.30 am. His evidence was that he was hurrying on foot, three times quicker than his usual pace, when he tripped. The Arbitrator concluded that s 10(3A) was not satisfied, the link was “far too tenuous to meet the causal requirement”.[83] On appeal, the worker argued the word “connection” in s 10(3A) involved “a wider concept than causation”,[84] which Roche DP accepted, referring to Bina and Wickenden.[85]
[82] [2014] NSWWCCPD 16 (Field).
[83] Field, [14].
[84] Field, [29].
[85] Field, [34].
The Deputy President dealt with various challenges by the employer to the adequacy of the evidence to satisfy s 10(3A). Roche DP made a factual conclusion:
“Mr Field’s unchallenged evidence that he tripped and fell ‘because [he] was hurrying’ (to get to the school on time), and was therefore ‘looking straight ahead’ and did not notice the crack in the footpath that caused him to trip, comfortably establishes a real and substantial connection between his employment and the accident. That is, the connection between the accident and the employment was real and of substance.”[86]
[86] Field, [51].
Alexander and Alexander as legal personal representatives of the Estate of Hugh Alexander v Secretary, Department of Education and Communities[87] also raised issues under s 10(3A). The claim was one in respect of the death of a teacher in a motor vehicle accident whilst travelling for the purpose of attending his university graduation. It failed both before an Arbitrator and on appeal before Roche DP. It failed essentially because the journey, on which the worker was killed, was held not to be a periodic journey within the meaning of s 10(3) of the 1987 Act.[88] In the course of discussion regarding s 10(3A), the Deputy President said:
“The test in s 10(3A) is whether there is a real and substantial connection between the employment and the accident or incident out of which the personal injury (or death) arose. That test is always fact sensitive.”[89] (emphasis in original)
[87] [2015] NSWWCCPD 41 (Alexander).
[88] Alexander, [40].
[89] Alexander, [56].
State Super Financial Services Australia Limited v McCoy[90] was a matter in which a worker, on a Friday night at the end of her working week, stayed on in the township of Port Macquarie, so she could attend the employer’s staff Christmas function. The worker was injured when she tripped on a paver whilst walking from the room where she was staying, to a pick-up point from where she was to be taken to the function venue. The worker said she was tired at the end of her day’s work and a busy year. She said she was hurrying to be on time for the start of the function.
[90] [2018] NSWWCCPD 26 (McCoy).

The President Keating DCJ restated a number of the principles regarding the test under s 10(3A) that were referred to in Bina. Section 10(3A) imposes a “different and less demanding test” than that applying to injury arising out of or in the course of employment. It requires an “association or relationship between the employment and the accident or incident”. It may involve a causal relationship, but employment does not have to be the only or even the main cause.[91] The Arbitrator identified the raised paver, and the fact that the worker was tired and hurrying, as the only factors contributing to the fall. His Honour said that whether these factors established a real and substantial connection between the employment and the injury required the drawing of an inference, “an exercise of the ordinary powers of human reason in the light of human experience”.[92] The Arbitrator drew an inference that fatigue reduces awareness and reaction time and therefore was a contributing factor to the worker tripping. His Honour described this inference as reasonably open. Error of the sort referred to in Kerr was not identified. The employer’s appeal failed.[93]
[91] McCoy, [69].
[92] McCoy, [71]–[73].
[93] McCoy, [82], [85]–[86].

Application of s 10(3A) in the current appeal

The Arbitrator set out passages of the worker’s supplementary statement which dealt with the circumstances of the motor vehicle accident:
“23. Ms Khullar lodged a further statement dated 16 May 2019, in which she expanded further on the circumstances of the motor vehicle accident. She said that she was at the intersection of Welling Drive and Veness Circuit, Narellan Vale at about 7:20 AM. She confirmed that she was stationary and that as she stopped to give way to a motor vehicle entering the roundabout from her right she was ‘suddenly hit from behind’ and the force of the collision caused her to hit her head on the steering wheel. She said:
‘The woman driving the [car] apologised for having collided into me and told me that she was in a rush to get to work after dropping her kids to childcare. She gave me her details.’
24. Ms Khullar said that her appointment with her ophthalmologist had been scheduled for 7 AM.”[94]
[94] Reasons, [23]–[24].
The Arbitrator referred to the worker’s submissions:
“77. It follows the determination as to whether there is a real and substantial connection between the injury and the employment depends on the facts in any particular case. Mr McManamey submitted that the following facts were relevant:
·Ms Khullar was injured at work
·having become injured, required treatment
·that treatment was reasonably necessary from an ophthalmologist situated in Camden
·Ms Khullar lived in Mount Annan
·Ms Khullar works at the airport
·Thus, in order to seek treatment from her ophthalmologist it was necessary for her to go into [sic] the opposite direction to that which she would normally take to go to work as Camden is a little to the west of Mount Annan and the airport is to the north east
·the accident occurred at 7:20am which I could infer in any point in Sydney would be peak hour
·that in any event, if not for all of the above facts, Ms Khullar would never have been on that road at the time of her accident.
78. I accept that summary of relevant facts as establishing the necessary degree of association or relationship between the employment and the injury caused by the motor vehicle accident.
79. I would also add that, although Ms Khullar failed to mention it in her statement, it is a reasonable assumption that her appointment with Dr Ogane was at 7 AM because she was still at work and needed an early appointment to facilitate her attendance at work on time.
80. Whilst Ms Khullar’s journey was made for the purpose of receiving medical treatment in connection with her compensable eye injury and accordingly was on a journey that was permissible pursuant to s 10(3)(c), the real and substantial connection between the employment and the injury caused by the motor vehicle accident was because treatment for her injured eye required Ms Khullar to travel from her home to the rooms of Dr Ogane on a journey that she would not otherwise have made, at an hour when she would not otherwise have been at the intersection where the collision occurred.”[95]
[95] Reasons, [77]–[80].
The point made in the reasons at [79] did not form part of the worker’s submissions to the Arbitrator. It is challenged in the employer’s submissions as being inconsistent with the evidence, as the medical certificates indicate the worker was still certified as being unfit for work at the time of the motor vehicle accident.[96] The worker’s submissions on appeal do not challenge or in any way take issue with this submission by the employer. The medical certificate to which the employer refers[97] is a certificate of Dr Ogane dated 2 July 2018 (about four weeks after the motor vehicle accident), which refers to there being no current work capacity from 22 May 2018 to 12 June 2018. There is a certificate of Dr Venkatesan dated 4 June 2018 that certifies the worker to have “no current work capacity for any employment” from 4 June 2018 to 9 June 2018, that is, encompassing the date of the motor vehicle accident on 7 June 2018.[98] This is consistent with the employer’s submission on this point. In the absence of any submission to the contrary from the worker, this submission by the employer should be accepted. The employer’s submission that the Arbitrator’s inference in the reasons at [79] was erroneous should be accepted. This does not necessarily amount to appealable error. In Walshe v Prest it was said:
“The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless ‘some substantial wrong or miscarriage has been thereby occasioned’ is now to be found in Part 51, r 23 of the Supreme Court Rules. As noted in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in New South Wales.”[99]
[96] Employer’s submissions, [33].
[97] ARD, p 299.
[98] ARD, p 336.
[99] [2005] NSWCA 333 (per Basten JA, Giles JA and Campbell AJA agreeing), [27].
It is necessary to have regard to whether the result was affected by the error. For reasons that follow, the same result follows if no regard is had to the erroneous finding regarding whether the early appointment was to accommodate the worker attending work after the consultation.
The worker attended an appointment with Dr Ogane, an ophthalmologist and ophthalmic surgeon, on 7 June 2018, for treatment of the accepted injury to her right eye that occurred in the course of her employment on 21 May 2018. The appointment was arranged for 7 am at the doctor’s rooms at Camden. Following the appointment, at about 7.20 am, the worker was driving home and was stationary waiting to enter a roundabout at Narellan Vale, a south-western suburb of Sydney. She stated that another car collided with the rear of hers. The woman driving the other car “apologised for having collided into me and told me that she was in a rush to get to work after dropping her kids to childcare.” The worker said that she would not have been on the road at that time except for the medical appointment.[100] This evidence was uncontroverted.
[100] Worker’s statement 15/5/19, [3]–[5], AALD 17/5/19.
I accept that the reference to ‘employment’ in s 10(3A) is to “not just the particular tasks performed, but also the nature, conditions, obligations or incidents of the employment”.[101] Having sustained a work-related injury on 21 May 2018, the worker’s participation and co‑operation with the employer, in the management and treatment of the injury, is properly regarded as part of the incidents of her employment.
[101] Wickenden, [103].
The worker gave notification of that injury on 21 May 2018. On 31 May 2018 she lodged with the employer a certificate of capacity providing she was unfit for work until 4 June 2018. On 5 June 2018 the employer reviewed its liability. On 5 June 2018 it asked Dr Ogane to confirm treatment requirements and recovery timeframes. The employer devised a return to work plan with the intention of returning the worker to suitable duties and then pre-injury duties. [102]
[102] Injury Management Plan 21/6/18, ARD pp 312–314.
The employer submits there was no evidence that the roads the worker was travelling on were busy or that there was “rush hour” traffic at the time of the accident. The Arbitrator inferred that at 7.20 am at any point in Sydney it would be peak hour.[103] The issue on this point is whether the drawing of this inference was properly available. In G v H it was said:
“An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience.” [104]
[103] Reasons, [77].
[104] [1994] HCA 48; 181 CLR 387; 124 ALR 353 (per Brennan and McHugh JJ), [4].
It is, in my view, consistent with human experience that in a Sydney suburb on a week day in June, traffic will be heavier around 7.20 am than at most other times of the day. This is consistent with the Arbitrator’s description of it as “peak hour”. It follows that I regard that inference as being available to the Arbitrator in the circumstances. Additionally, on an appeal pursuant to s 352 of the 1987 Act “[i]t is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.” (see Raulston quoted at [14] above). The employer’s submission on this point is rejected.
The worker’s supplementary statement refers to what was said by the other driver after the accident (see [59] above). Even if that evidence is regarded as hearsay, it is admissible in the context of the Commission’s procedures, and the weight it is given is a matter for the Commission.[105] As an explanation given by the other driver following a road accident, in which it was not self-exculpatory, it is entitled to weight. In a general sense, it is consistent with traffic on the road at that time reflecting people travelling to work and dropping children off. This is what one would expect in the morning peak hour. It tends to be supportive of the inference the Arbitrator drew.
[105] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 (per Basten JA), [83].
The mere act of driving on one of the journeys falling within s 10(3)(c) does not of itself provide the necessary connection. Consideration of whether s 10(3A) is satisfied depends on whether there was a real and substantial connection between the worker’s employment and the motor vehicle accident on 7 June 2018. There is no issue that the attendance on Dr Ogane on that morning was reasonably necessary treatment for the employment injury suffered on 21 May 2018. Although the attendance was for the purpose of treatment, it also by its very nature would be relevant to management of the worker’s time off and return to work. The appointment put the worker on the road at a time and place where she would not otherwise have been. This included driving in peak hour traffic at about 7.20 am. There are similarities, as the worker submits on appeal, between this factual situation and that in Wickenden. In that matter Roche DP described Ms Wickenden “confronting cattle on a country road in the dark” as “a circumstance to which Ms Wickenden was exposed because of her employment”.[106]
[106] Wickenden, [72].
Whether the test in s 10(3A) is satisfied involves “a question of fact, applying the words of the provision, in a commonsense and practical manner in each case”.[107] Satisfaction of the test does not necessarily involve proof that the accident was caused by the employment.[108] The test in a 10(3A) is satisfied, there was a real and substantial connection between the employment and the accident.
[107] Bina, [120].
[108] Bina, [101].
Ground No. 2 fails.

GROUND NO. 3

Appellant’s submissions

The Arbitrator entered a weekly award from 30 October 2018. It was calculated pursuant to s 36 of the 1987 Act, from 30 October 2018 to 29 January 2019, on the basis this represented the first 13 weeks of entitlement (the first entitlement period). It was calculated pursuant to s 37 of the 1987 Act from 30 January 2019, on the basis that this was during the second entitlement period.[109]
[109] Reasons, [90]–[91].
The employer submits the worker received “weekly compensation for around 20 weeks after 7 June 2018 (until 30 October 2018)”. It submits the Arbitrator gave “no reasoning” for why he applied the first entitlement period.[110]
[110] Employer’s submissions, [36].
The employer also submits the Arbitrator calculated the worker’s ability to earn during the period of the award at $30 per hour. It submits the worker would be able to return to her current role in the bank, on the basis of the specialists’ recommendations, and in doing so she would earn more than $30 per hour. It submits the Arbitrator failed to address the requirements of s 32A of the 1987 Act and failed to provide reasons for “how he reached his determination”.[111]
[111] Employer’s submissions, [37]–[38].

Worker’s submissions

The worker accepts that she received “weekly compensation for around 20 weeks as a result of the injury on 21 May 2018”.[112] She did not receive any weekly compensation in respect of the injury on 7 June 2018 because the employer had denied liability for that injury. The Arbitrator’s finding was that the worker’s incapacity resulted from both incidents. She had not been paid her entitlement pursuant to s 36 in respect of the injury on 7 June 2018. It was not in error that the Arbitrator ordered 13 weeks of compensation pursuant to s 36 in respect of the injury on 7 June 2018.
[112] Worker’s submissions, [19].
Regarding quantification of the weekly entitlement, this depended on ability to earn. The Arbitrator assessed the worker could work five hours per day, five days per week. This was based on the employer’s doctor, Dr Powell, and was the opinion most favourable to the employer. The employer did not put on any evidence going to what the worker could earn in suitable duties. Dr Bodel and Dr Powell both thought the worker was unfit for her pre-injury duties. The worker’s likely hourly rate would be less than her pre-injury earnings due to those restrictions. The Arbitrator’s assessment that the worker could earn $750 per week, based on $30 per hour, was “an unexceptional exercise of the Arbitrator’s discretion”.[113] The employer has not been able to point to any competing evidence other than the worker’s pre-injury duties, which the employer’s own doctor, Dr Powell, says she cannot do.
[113] Worker’s submissions, [24].

Consideration

The employer’s submissions before the Arbitrator did not deal with the quantum of any weekly entitlement the worker may have. They did not deal with the extent to which the worker may be entitled to a period of weekly payments pursuant to s 36 of the 1987 Act, on the basis that compensation in respect of the first entitlement period had not been exhausted in respect of the motor vehicle accident. The worker did make submissions dealing with the quantum of any weekly entitlement, referring to the evidence of Dr Bodel and Dr Powell, and what employment the worker may be fit for post-injury.[114] The worker’s submissions did not deal with the extent to which payments pursuant to s 36 may be available on the basis that the first entitlement period had not expired in respect of the motor vehicle accident.
[114] T 57.19–59.25.
Against that background the Arbitrator made an award for weekly compensation that was calculated, in part, on the basis the first entitlement period had not expired in respect of the motor vehicle accident. The Arbitrator could not err in failing to deal with an argument from the employer that the first entitlement period had expired in respect of the motor vehicle accident, that argument not having been made before him. The employer submits the Arbitrator “has given no reasoning for why he has applied the first entitlement period in those circumstances”.[115] In Brambles Industries Limited v Bell[116] Hodgson JA said:
“… the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties.”[117]
[115] Employer’s submissions, [36].
[116] [2010] NSWCA 162; 8 DDCR 111 (Bell).
[117] Bell, [22].
In the same case McColl JA said:
“… a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88].”[118]
[118] Bell, [30].
The Arbitrator did not err in failing to address an argument about the first entitlement period, that was raised by it for the first time on appeal. The employer’s argument on that point fails.
The other argument raised by the employer, regarding the weekly award, is that the worker’s ability to earn post-injury should have been assessed at a rate higher than that of $30 per hour, which the Arbitrator applied.[119] The worker correctly submits that the employer did not adduce any evidence regarding what the likely earnings would be of a part-time worker performing suitable duties.[120] Nor did it make submissions on this specific topic. The worker did not submit to the Arbitrator on any figure which it asserted would represent post-injury ability to earn in suitable employment. I accept the worker’s submission that the Arbitrator’s fact finding on this issue was “unexceptional”. There is no developed argument demonstrating error in the Arbitrator’s approach to assessing the ability to earn in suitable employment.
[119] Employer’s submissions, [37].
[120] Worker’s submissions, [24].
Ground No. 3 fails.

CONCLUSION

The appeal is unsuccessful.

DECISION

The Arbitrator’s decision dated 1 July 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

20 January 2020