| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BEHME -v- ROYAL PERTH HOSPITAL [2014] WADC 53 CORAM : WAGER DCJ HEARD : 5 MARCH 2014 DELIVERED : 23 APRIL 2014 FILE NO/S : APP 90 of 2013 BETWEEN : ROSEMARIE ELISABETH BEHME Appellant
AND
ROYAL PERTH HOSPITAL
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA) Coram : ARBITRATOR EVANS Citation : A3228 of 2013 Catchwords: Workers' compensation appeal - Incorrect test of incapacity - Deemed incapacity and partial incapacity Legislation: Workers' Compensation and Injury Management Act 1981 (WA) Result: Leave to appeal granted in part
Appeal allowed in part
Leave to cross-appeal is granted
Cross-appeal granted
The decision of the arbitrator is quashed
The matter is to be re-heard before another arbitrator to be appointed by the registrar
Representation: Counsel:
Appellant : Mr M J Lourey
Respondent : Mr A Vucak
Solicitors:
Appellant : Chapmans
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Board of Management of Sir Charles Gardiner Hospital v Coleman (Unreported, WASCA, Library No 960241, 8 May 1996)
Commonwealth v Butler (1958) 102 CLR 465
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Pollock v Wellington (1996) 15 WAR 1
Rosmini v Chrysler (1973) 6 SASR 212
Sotico Pty Ltd v Wilson [2007] WASCA 112
Steffen v Ruban (1966) 84 WN (Pt1) (NSW) 264
Valez Pty Ltd v Tudor [2011] WASCA 218
Wilson v Metaxas [1989] WAR 285
1 WAGER DCJ: Ms Behme is a 44yearold registered nurse employed by Royal Perth Hospital. 2 On 25 July 2011 she injured her back as a result of transferring a heavy patient onto a commode chair and then pushing him. She did not have any back injury prior to this date. The injury was a compensable injury that occurred in the course of her employment. The respondent's indemnity insurer RiskCover accepted liability on 4 November 2011. 3 On 9 October 2012 Ms Behme was involved in a motor vehicle accident that did not arise in the course of her employment. Ms Behme submitted the workplace injury was a material contributing cause to the incapacity she experienced after the motor vehicle accident because her existing back symptoms flared. The respondent argued Ms Behme's incapacity after the motor vehicle accident did not result from the injury of 25 July 2011. It was not a material contributing cause to her incapacity after the accident. 4 Ms Behme made an interlocutory application for arbitration to the arbitration service claiming weekly payments and statutory payments. 5 On 25 September 2013 Arbitrator Evans allowed Ms Behme's claim in part finding the incapacity resulted from the 25 July 2011 injury, however weekly payments for deemed total incapacity, partial incapacity and statutory expenses were disallowed. Ms Behme seeks leave to appeal from the arbitrator's decision claiming that, because the arbitrator found it would not be reasonable to expect her to sell her labour elsewhere for the period of incapacity, the arbitrator erred in law in that he failed to provide adequate reasons in respect of his decision not to order weekly payments or partial payments after 15 November 2012. The respondent submits the arbitrator's decision in respect of weekly payments or partial payments is not wrong in law. 6 The respondent crossappeals arguing the arbitrator erred in law in finding Ms Behme's incapacity from 9 October 2012 resulted from the injury/accident on 25 July 2010 [sic] and in finding the motor vehicle accident on 9 October 2012 was not a supervening factor which caused her incapacity from that date. The respondent also crossappeals on the ground that the arbitrator erred in law in implying an incorrect legal test, that is, he considered whether there had been a 'material significant new injury' when determining the cause of the incapacity, rather than considering whether the injury/accident on 25 July 2011 was a material contributory cause to the appellant's incapacity from 9 October 2012.
The legal framework 7 The arbitrator dealt with the application under the Workers Compensation and Injury Management Act 1981 (the Act). Relevantly, under pt XI of the Act, an appeal lies from the arbitrator's decision in the following circumstances: 247. Appeal against arbitrator's decision made under Part XI (1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision. (2) Subject to subsection (3), the District Court is not to grant leave to appeal unless – … (7) On hearing an appeal made under this section, the District Court may – (a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and (b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit. 8 The sum relevant to s 247(2)(1) is approximately $11,500. 9 Given the appeal is an interlocutory appeal, the appellant must show the original decision was wrong, or at least attended by sufficient doubt to justify the grant of leave, and that substantial misjustice will be done if the decision is not reversed. However the availability of an avenue of appeal should not be seen as providing an unrestricted opportunity for lengthy reventilation of arguments that failed at first instance: Wilson v Metaxas [1989] WAR 285, 294.
Grounds of appeal 10 The appellant's grounds of appeal are: 1. The learned Arbitrator erred in law, having found at paragraph 53 of his Reasons for Decision that the applicant's motor vehicle accident on 9 October 2012 did not break the causal link between her incapacity for work from that date and the compensable injury of 25 July 2011, and finding at paragraph 56 that the applicant was totally incapacitated from 9 October until 15 November 2012, by: 1.1 failing to order weekly payments for deemed total incapacity from 15 November 2012, when it was the applicant's unchallenged evidence that the respondent would not allow her to commence return-to-work activity until 12 December 2012. 1.2 By failing to order weekly payments for partial incapacity between 12 December 2012, when the applicant returned to work on restricted hours and duties up until 7 January 2013, when the applicant made a full return to work; and 1.3 Alternatively, the learned Arbitrator erred by failing to provide adequate reasons in respect of any decision he made to not order weekly payments beyond 15 November 2012. 2. The learned Arbitrator erred in law, having found that the applicant's motor vehicle accident on 9 October 2012 did not break the causal link between her incapacity from that date and the compensable injury of 25 July 2011, by failing to order that the respondent pay the appellant's clause 17 and clause 19 statutory expenses for the period correlating to the period of incapacity claimed for. Decision sought 1. That the decision of the learned Arbitrator dated 25 September 2013 be varied. 2. The appellant seeks orders that she be paid weekly payments for partial incapacity: 3. The appellant seeks orders that the respondent pay her clause 17 and clause 19 statutory entitlements incurred from 9 October 2012. 4. In the alternative, the application be remitted to the Arbitration Service for further hearing. 5. The respondent pay the appellant's costs of the Arbitration application and/or the appeal. 11 The respondent's grounds of crossappeal are: 1. The primary court erred in law in applying an incorrect legal test.
Particulars
(a) The primary court considered whether there had been a 'materially significant new injury' when determining the cause of the incapacity, rather than considering whether the injury/accident on 25 July 2011 as a material contributing cause of the appellant's incapacity from 9 October 2012. 2. The primary court erred in law by erroneously applying the principles of Pollock v Wellington(1995) 15 WAR 1 and finding that the evidence of Dr Thompson did not satisfy those principles. 3. The primary court erred in law by failing to take into consideration relevant evidence.
Particulars
(a) Failed to take into consideration the report of Dr Thompson dated 19 June 2013. 4. The primary court erred in law by failing to provide, any or any adequate reasons for concluding that the motor vehicle accident on 9 October 2012 did not displace the original injury as the cause of the incapacity.
Particulars
(a) The primary court failed to address the evidence in the reasons for decision which identified that prior to the MVA the appellant may have been symptomatic, however was undertaking full duties and it was only after the MVA that the appellant was certified totally unfit. The respondent also seeks orders that: 1. The appellant's leave to appeal be refused. 2. The appellant's appeal be dismissed. 3. The respondent's leave to appeal be allowed. 4. The decision of the primary court be set aside, and the application be dismissed. Alternatively the application be relisted for hearing before a new arbitrator of the arbitration service of WorkCover WA.
Proceedings before the arbitrator on 30 July 2013 12 Given the cross-appeal deals with the arbitrator's findings on causal connection, I will deal with the issues it raises before considering the grounds of appeal in relation to the period of incapacity. 13 Ms Behme gave evidence at the hearing and adopted her witness statement dated 11 March 2013. The evidence included medical reports, worker's compensation first and progress medical certificates and related documentation. 14 Ms Behme had worked in a number of positions as a registered nurse prior to commencing at Royal Perth Hospital on 21 June 1999. She started fulltime work in Ward 4A, a short stay surgical unit, in August 2005 and is still employed fulltime there. She injured herself at work on 25 July 2011 in the course of a busy shift as a result of being required to assist in the transfer of a heavy prisoner/patient onto a commode chair and then being required to push him. Her shift continued with a high level of stress and physical activity and by the end of the shift she was experiencing lower left back pain and left buttock pain coming round to the left groin that caused her to limp. The symptoms persisted despite Ms Behme taking antiinflammatories and resting. The worker's compensation first medical certificate dated 22 August 2011 noted 'left low back strain and left groin/adductor strain'. 15 After the injury she continued to experience symptoms, at times improving and at other times being aggravated by work or other activities. She experienced recurrences of the injury on 20 September 2011, 29 November 2011, 29 June 2012 and 18 July 2012. 16 The symptoms following these incidents included pain and stiffness in both hips, groin and buttocks, difficulty standing from a chair and a 'feeling or delay before being able to walk', difficulty in getting in and out of the car and difficulty sleeping due to an inability to get comfortable due to pain and discomfort. 17 Ms Behme continued with her usual duties at work but exercised caution and avoided manual handling tasks as stipulated in her worker's progress reports. 18 The worker's progress medical certificate of Dr Balakrishnan dated 20 February 2012 noted: 19 Ms Behme continued her usual duties following the occurrence of her injury on 18 July 2012 (par 4, statement dated 11 March 2014). The progress medical certificate dated 8 August 2012 certified her fit to return to predisability duties with further treatment required. 20 On 9 October 2012 Ms Behme's car was struck forcefully at right angles on the passenger side by an oncoming car at traffic lights. She felt the left side of her back being pulled forcefully and powerfully during the accident and experienced strong back pain after the collision. Ms Behme was not charged with any traffic infringement or offence arising from the accident. 21 She was examined at Royal Perth Hospital emergency department and discharged on the night of the collision. She experienced very strong nerve pain shooting from her lower left spinal area into her left buttock, hip and leg if she moved in the wrong direction and said 'the previous stiffness I had in my lower back, hips, groin and buttocks was exacerbated by the accident' (par 31, statement dated 11 March 2013). 22 Ms Behme described her mother staying and assisting with household tasks because she could not bend down nor reach her feet. She had difficulty sleeping and was prescribed Pregabalin for nerve pain. 23 After the strong pain subsided she still had ongoing stiffness in her lower back, groin, hips and buttock but said 'after four weeks I felt close to my preaccident condition and wished to return to work' (par 34, statement dated 11 March 2013). 24 She experienced discomfort walking, sitting and standing as before the accident. She was not able to carry out manual handling tasks. 25 In evidence she says at ts 23: Well, I suppose after the motor vehicle accident my symptoms were more severe. Temporarily more severe. And now that I've gone back to a state where I'm having the same kind of symptoms that I had before the car accident, which were ongoing with the lower back soreness or pain, hip pains, those kind of things. 26 The Royal Perth Hospital Emergency Department notes for the motor vehicle accident dated 10 October 2012 record, '(L) flank pain postMVA'. 27 The notes in relation to patient's history state: Patient L/o l) flank pain since. - dull constant ache. - becomes a strong sharp pain on movement. - non-radiation down leg/buttocks. - no faecal incontinence/parasthesia. - was able to walk to ED. - also background of 1 year back pain on worker's compensation (works at RPH). 28 Ms Behme said in evidence she had been working on normal rostering prior to the motor vehicle accident (ts 11). 29 Dr Balakrishnan, who had been Ms Behme's general practitioner since at least 27 July 2011 and had seen her in respect of her injuries on 21 occasions between 27 July 2011 and 6 February 2013, relevantly noted in her report dated 8 March 2013: 2. Findings over the period: 27/7/11: left groin tenderness with restricted flexion and abduction. Tendinitis. Spine non-tender with good range of movement. Straight leg raising test 90% bilateral. 22/9/11: pain in left lower back … 2/11/11: symptoms improve … Tightness at extremes of left hip flexion. 17/11/11: findings were the same. 15/12/11: reinjured back while exercising at gym. Left lower back soreness, unable to move. Occasional pain on bending and lifting in certain directions. … 20/2/12: occasional sore back. Hip area occasionally twinges … 18/4/12: occasional pain left hip and mid thigh on the left side. On examination the left hip had full range of movement. 5/7/12: spine non-tender, good range of movements. SLRT 90 degree bilateral. No neurological deficit. Right hip tender at posterior aspect at joint line. Range of movements restricted with pain on lateral rotation and abduction. 9/7/12: much better when getting in and out of the car … tender right trochanteric region. Good range of movement. Tender at gluteal region. 19/7/12: lower back pain stiffness after sitting in the car for a few hours … 8/8/12: pain lower back and soreness after travel from Thailand … 23/8/12: spine, minimum tenderness at the lumbar spine joint … Tenderness at right sacroiliac joint and trochanteric region on deep palpitation. 10/10/12: on examination in pain. Forward and lateral flexion restricted. Extension and rotation restricted. Tenderness at left sacroiliac joint region. 18/10/12: spine non-tender. Tender at sacroiliac joint on left side. Range of movement restricted. Lateral flexion and forward flexion limited to 45 degrees. 25/10/12: spine non-tender. Range of movements good except to the extremes of right lateral flexion. No neurological deficit. 30 The diagnosis of injury was of lower back injury, gluteus medius tendinopathy and greater trochanteric bursitis. Dr Balakrishnan said: Client's current condition might be as a result of 25/7/11 injury and aggravated by 9/10/12 injury. 31 Dr Lai, occupational physician, in his report dated 4 April 2013 stated: Examination findings There was tenderness over the low back at the levels from L4 to S1 both sides. The sacroiliac joints were not tender. There was moderate tenderness over right lateral buttock over the gluteal tendon insertion into the greater trochanter. The greater trochanter itself was minimally tender. There was mild tenderness over the mid-inguinal ligament. Resisted abduction/abduction was painless. The FABer test and active straight leg raise did not elicit any sacroiliac pain. 32 In cross-examination Ms Behme was asked about the report of Dr Thompson, consultant occupational physician, dated 13 November 2012 in which he noted that the back pain Ms Behme experienced in March 2011, being an episode of left leg buttock and lower back pain, had spontaneously completely resolved after a few weeks. 33 Ms Behme stated in evidence in relation to Dr Thompson's report in respect of the March 2011 episode: I don't know if his description is totally accurate. … Because I don't know if it spontaneously totally resolved. 34 She confirmed that prior to March 2011 she had not had any similar pain. 35 Dr Thompson also noted in his report dated 13 November 2012 (based on an assessment on 8 August 2013) at page 2: She indicated that she has now returned to driving. She indicated that she is sleeping well and that the 'nerve pain' that she previously experienced following the crash has resolved. However, she still has stiffness in her lower back similar to how it had been pre-crash. 36 Dr Thompson's diagnosis was (page 4): She did not have a normal back to start with, being symptomatic since July last year, with a short-lived episode in March last year. She has been discovered to have degenerative changes in her lumbar spine on CT and also having some incidental findings on groin and hip ultrasounds as above of tendinopathy. I conclude that she has soft tissue injuries, superimposed upon symptomatic degenerative changes in the lumbar spine. The level of the degenerative changes is much as one would expect in an individual of her age. She has suffered an exacerbation following a subsequent car crash. 37 Dr Thompson also stated in response to the question: In your opinion, what is the significant contributing factor to her current condition and incapacity to work taking into consideration the recent motor vehicle accident?
'In my opinion, her current work incapacity relates to the recent motor vehicle crash, (which has delayed her recovery and was associated with exacerbation) and the degeneration of her lumbar spine.'
38 Dr Thompson clarified in his second report dated 19 June 2013 that he had not seen Ms Behme personally since November 2012. His findings were based on his review of Dr Balakrishnan's letter dated 8 March 2013 in which Dr Balakrishnan was of the opinion that on 6 February 2013 Ms Behme could carry out normal nursing duties to full capacity. Dr Thompson answered in response to the question: Are Ms Behme's symptoms and incapacity from 9 October 2012 caused by or contributed to in a material sense by the incident of 25 July 2011?
'She commented to me that prior to her crash, she did not have any sickness absence, but had lower back and bilateral hip pain, appearing in July 2011 and persisting thereafter. However prior to this, in March 2011 she had an episode of transient discomfort in her back which she related to frequent driving when she was working in the hospital at home system. Matters were then complicated by the subsequent crash in October 2012. Just prior to this crash she recalled having had some residual stiffness in her lower back, but she had managed to continue working. She then suffered her crash and was reportedly substantially worsened following this, and she had reportedly not been able to work following the crash.'
39 Dr Thompson surmised (page 2): It seems likely to me that her incapacity from 9 October 2012 related primarily to the crash, with only a small contribution from her pre-crash state.
The arbitrator's findings 40 Although the arbitrator found that the post 9 October incapacity resulted from the 25 July 2011 workplace injury the test he applied in reaching this conclusion was whether there was any materially significant new injury: [52]. His findings were that at first sight (medical evidence) suggested there was no significant change in Ms Behme's symptoms. After considering Dr Thompson's report dated 2 November 2012, he concluded Ms Behme was not recovered at the time of the motor vehicle accident because there did not appear to be any materially significant new injury as evidenced by the symptoms. The arbitrator was not persuaded the motor vehicle accident was a supervening factor which displaced the original injury as the cause of the incapacity: [52]. 41 The arbitrator accepted the report of Dr Balakrishnan and referred to her findings in the progress medical certificates and reports. He found that following the 25 July 2011 injury Ms Behme had symptoms that required further treatment but she was fit to return to pre-disability duties. 42 He concluded that prior to the motor vehicle accident Ms Behme had not fully recovered from the 25 July 2011 injury and that the medical reports accorded with Ms Behme's testimony: [34]. 43 The arbitrator noted Dr Thompson examined Ms Behme on 12 November 2012, approximately four weeks after the motor vehicle accident, and reported his findings in a letter to RiskCover of the same date. The arbitrator noted the first three pages were essentially by way of narrative and the detail of the examination commenced on page 4. The arbitrator said: Under the heading 'Examination' Dr Thompson note(d) (in part): … she sat in the Consultation room in no obvious severe distress. Sitting, standing, walking and squatting were satisfactory: and On examination of the thoracolumbar spine, there was no deformity and it was tendered to palpitation. She demonstrated a satisfactory range of motion of the thoracolumbar spine, straight leg raising was bilaterally. She was neurologically intact. 44 The arbitrator referred to Dr Thompson's reference to supporting documents including x-rays, CT scans and ultrasounds. He noted the reference to a CT scan dated 10 October 2012, the day following the motor vehicle accident: [46]. 45 At [47] the arbitrator said: In the section headed 'Questions' of his report, Dr Thompson comments 'the symptoms were of back pain which was still present prior to her accident but appeared to have been temporarily worsened by the motor vehicle crash. 46 And later: There was reference to degenerative changes in her lumbar spine and that 'she had suffered an exacerbation following a subsequent car crash'. This suggests to me that there was no significant material change in the symptoms as a consequence of the motor vehicle accident. 47 At [48] the arbitrator found Dr Thompson's opinion that Ms Behme's current work incapacity related to the motor vehicle crash (which has delayed her recovery and was associated with exacerbation) and the degeneration in her lumbar spine did not satisfy the rule in Pollock v Wellington (1996) 15 WAR 1. 48 The arbitrator referred to Dr Thompson being reliant on certification and history provided by others. The arbitrator concluded in respect of Dr Thompson's opinion that it seems 'plausible’ that the applicant would have been able to undertake normal duties. The arbitrator accorded minimal weight to this comment: [49]. 49 The arbitrator does not refer to Dr Thompson's report dated 19 June 2013.
1. Did the arbitrator apply the correct legal test? 50 In Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 Wallwork J accepted the propositions of Bray CJ in Rosmini v Chrysler (1973) 6 SASR 212, 215, including: 2. If an incapacity exists, it is not necessary that the injury should be the sole cause of it. It is sufficient if it is a material contributing cause … 51 Wallwork J clarified the appropriate test of incapacity to be that a period of incapacity could be said to have resulted from an injury if that injury materially contributed to the period of incapacity. 52 His Honour accepted that it is a question of fact in each case to be determined on broad common sense lines. Where there is an injury at work and a subsequent incapacity the tribunal has to ask itself, did the latter result from the former?: Commonwealth v Butler (1958) 102 CLR 465, 480 (Windeyer J). 53 The test requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463 (Kirby P). 54 In this case, the respondent submits the arbitrator correctly stated the test in [4] of his reasons by stating by way of introduction: 4. The issue for my determination in this arbitration as submitted by the parties is then whether the injuries of 9 October 2012 'result from' (see Kirby J and Kooragan Cement Pty Ltd v Bates (1994) NSWLR 452) the workplace injury of 25 July 2011. That is, an issue of causation. This will by necessity involve a finding if the MVA was a supervening factor, a novus actus interveniens, which operated to displace in the eyes of the law the original injury as the cause of the incapacity (see Bray CJ in Rosmini v Chrysler (1973) 6 SASR 212). In summary, whether the incapacity 'results from' the 25 July injury notwithstanding it might also be said to result from the 9 October 2012 MVA. 55 However, the arbitrator later said after referring to the facts [52]: From an operative comparison of the (appellant's) symptoms from the evidence post 9 October 2012, whilst acknowledging the extent of the MVA as mentioned by both counsel (the vehicle was 'written off'), there does not appear to be any materially significant new injury as evidence by the symptoms, so I am not persuaded the MVA of 9 October 2012 was a supervening factor which may operate to displace in the eyes of the law the original injury as the cause of the incapacity. 56 The arbitrator considered the symptoms prior to and following the motor vehicle accident and concluded the nature of the symptoms prior to and following the motor vehicle accident were the same. He concluded that the appellant had not sustained a new injury. 57 The arbitrator also applied the same test, that is, whether the appellant had sustained a new injury in the motor vehicle accident, in determining whether or not the motor vehicle accident was a supervening factor. The arbitrator however did not comment on the facts in the context of incapacity and accordingly the facts as the arbitrator found them to be were not applied to the question of whether the incapacity post9 October 2012 was due to a new cause or whether the injury of 25 July 2011 materially contributed to the incapacity. 58 The arbitrator's reasoning process was not applied to the correct test and this led the arbitrator to err in law. I would grant leave to crossappeal and allow the crossappeal on this point.
2. Did the arbitrator err in erroneously applying the principles of Pollock v Wellington and finding that the evidence of Dr Thompson did not satisfy these principles? 59 The arbitrator rejected Dr Thompson's findings in his report dated 13 November 2012 that Ms Behme's current working capacity related to the motor vehicle crash (which has delayed her recovery and was associated with exacerbation) and the degeneration in her lumbar spine, because the arbitrator found the statement did not satisfy the rule in Pollock v Wellington being unsure of the reasoning by which the opinion was expressed. 60 The rule in Pollock v Wellington was stated by Anderson J who said [3]: Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: See Ramsey v Watson … 61 As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt1) (NSW) 264. More recently, Buss JA stated in Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [46]: In general, the admissibility of expert opinion and the weight to be accorded to it depend on prove, in accordance with the law of evidence, of the facts on which the opinion is based. Also, the expert opinion will carry no weight unless the process of inference by which the opinion is arrived at is revealed in a manner which enables the expert's conclusions to be analysed and a judgment made as to their reliability. 62 Dr Thompson assessed Ms Behme on 1 November 2012 and received a letter of referral together with supporting documentation comprising: (1) worker's compensation first and subsequent progress medical certificates; (2) Stirling Radiology x-ray lumbosacral spine and CT lumbosacral spine dated 2 September 2011; (3) report to RiskCover from Dr David Chin dated 2 November 2011; (4) pelvic right hip x-ray and ultrasound right hip dated 6 July 2012; (5) ultrasound both inguinal regions dated 7 September 2011; (6) CT lumbosacral spine dated 10 October 2012; and (7) letter of referral from Dr Balakrishnan dated 25 October 2012. 63 The respondent submits that Dr Thompson's opinion was based on the material provided. The respondent also submits Dr Thompson later clarified his opinion in his second report dated 19 June 2013 because he made further comments in light of Dr Balakrishnan's report of 2013. 64 In his report dated 19 June 2013, Dr Thompson referred to the history of back pain given by Ms Behme for March 2011 and July 2011but he determined her symptoms were markedly worsened following her crash. His findings were that it seemed likely her incapacity from 9 October 2012 related primarily to the crash, with only a small contribution from her pre-crash state. 65 I accept that, given the material considered by Dr Thompson, the opinion given does not appear to offend against the principle in Pollock v Wellington, however it is open to the arbitrator to give the opinion the weight that he sees fit.
3. Did the arbitrator fail to take into consideration relevant evidence from Dr Thompson's report dated 19 June 2013?
Section 213(4) 66 Section 213(4) provides 4. The reasons for an arbitrator's decision: (a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and (b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and (c) need not canvass all the evidence given in the case; and (d) need not canvass all the factual and legal arguments or issues arising in the case. 67 In Valez Pty Ltd v Tudor [2011] WASCA 218 Murphy JA set out the principles relating to the adequacy of the arbitrator's reasons. His Honour accepted that common law principles were to be applied in light of and subject to s 213(4) and that under the common law judges have a duty to give reasons for their decisions. The function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appellable error has been made and to allow the parties to understand why they were or were not successful. 68 His Honour noted that the judge should refer to the relevant evidence but not necessarily in detail. The judge should set out any material finding of fact and any conclusions or ultimate findings of fact reached, however that requirement does not extend to making explicit findings on each disputed piece of evidence: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Meagher JA). 69 Murphy JA concluded [70]: In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied to the reasons for doing so (s 213(4)(b)) the arbitrator will in my view still be obliged to explain the reasoning process linking them and justifying the ultimate result. 70 Murphy JA also noted Wheeler JA's observation in Sotico Pty Ltd v Wilson [2007] WASCA 112 in relation to s 213(4). In Sotico Wheeler JA said: 23. It is important, in my view, to have regard to s 213 against the factual context in which it was enacted. Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. Injured workers may suffer from a number of different conditions at the same time, and different medical practitioners may assess each different condition in different percentage terms, giving rise to a very large number of potential outcomes. It is against that background that the Arbitrator is required only to identify the facts accepted and to give the reasons for doing so. 24. By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected. 71 In the context of Ms Behme having an episode of transient discomfort in March 2011 and then experiencing the workrelated injury in July 2011, Dr Thompson stated in his report dated 19 June 2013 that her symptoms were 'markedly worsened following her crash'. 72 Dr Thompson concluded that Ms Behme's incapacity at the time of his assessment on 12 November 2012 had been contributed to in a material sense by the motor vehicle accident, however the arbitrator in his decision stated that Dr Thompson's report dated 13 November 2012 indicated that there was no significant material change in her symptoms as a consequence of the motor vehicle accident: [47]. 73 The arbitrator noted that Dr Thompson in his report dated 13 November 2012 was reliant on the certification and history provided by others in stating that it seemed 'plausible' that she 'would' have been able to undertake normal duties: [49]. The arbitrator afforded this comment minimal weight. 74 The arbitrator did not specifically refer to Dr Thompson's subsequent report dated 19 June 2013. 75 I accept the arbitrator's finding that Dr Thompson indicated no significant material change in Ms Behme's symptoms after the motor vehicle accident was contrary to the contents of Dr Thompson's report. Further, I accept Dr Thompson's second report was relevant to the decision the arbitrator was required to make. However these factual issues alone would not lead to appellable error.
4. Did the arbitrator fail to provide any or any adequate reasons for concluding that the motor vehicle accident on 9 October 2012 did not displace the original injury as the cause of the incapacity? 76 The respondent submits that the arbitrator failed to address the evidence that identified that prior to the motor vehicle accident Ms Behme may have been symptomatic but able to undertake full duties and that it was only after the motor vehicle accident that she was certified totally unfit. 77 For the reasons given I find the arbitrator applied the incorrect test in respect of incapacity. Given that his findings on the correct test are not clear, I accept the arbitrator did not provide adequate reasons for his conclusions in relation to incapacity.
The appellant's grounds of appeal
The arbitrator's decision – period of incapacity 78 The arbitrator accepted Ms Behme's statement that despite some ongoing stiffness in her lower back, groin, hips and buttocks after four weeks (after the motor vehicle accident) she felt close to her pre-accident condition and wished to return to work but was prevented by Royal Perth Hospital and RiskCover's instructions and intervention: [34]. The arbitrator noted Ms Behme was keen to avoid prolonged time off work but Royal Perth Hospital and RiskCover prevented her from returning until 12 December some nine weeks after the motor vehicle accident: [39]. The arbitrator noted neither statement was challenged in cross-examination. I find the arbitrator accepted both statements. 79 The closest medical report proximate to the date four weeks after the motor vehicle accident was referred to by the arbitrator. He noted Ms Behme was fit to return to work for restricted duties and noted that being fit for restricted return to work also applied after 15 November 2012 because a report referring to the same restrictions applied until 29 November 2012. The arbitrator did not refer to any subsequent reports. 80 The arbitrator accepted a total incapacity from 9 October 2012 until 15 November 2012 and stated that he did not consider that Ms Behme would be able to sell her labour in any reasonable accessible relevant labour market in the relevant period subsequent to this period: Board of Management of Sir Charles Gardiner Hospital v Coleman (Unreported, WASCA, Library No 960241, 8 May 1996). He noted that one could reasonably anticipate that there would be some delay in commencing to search for alternate employment and that she had an existing contract of employment with the respondent. He noted there would objectively be some time in investigating alternative employment and in applying for and being interviewed and selected for alternate employment which could also be problematical in view of the impediment of the incapacity. 81 The arbitrator accepted that the appellant had led evidence of medical expenses of over $3,187.87, however found she had not substantiated the amounts claimed pursuant to cl 17 and cl 19 sch 1 of the Act. The only order made in respect of incapacity related to the period of total incapacity from Wednesday, 31 October to Thursday, 15 November 2012.
Deemed or partial incapacity 82 Ms Behme sought weekly payments as follows: 1. For total incapacity from 9 October until 15 November $2,012 (this was the subject of the arbitrator's order). 2. For partial incapacity from the period 15 November to 12 December 2012 on the basis it be deemed as total incapacity because the employer declined to make available to the worker any suitable employment. 3. For partial incapacity calculated in accordance with cl 7(2) from 12 December 2012 to 7 January 2013.
Deemed incapacity 83 The Act confers a discretion upon an arbitrator in respect of any order made that the worker's incapacity be treated or continued to be treated as one of total incapacity for such period and on such conditions as the arbitrator considers fit. The arbitrator needs to determine factually whether the following conditions are satisfied (cl 8 sch 1): (a) The worker has recovered from the compensable injuries so as to be fit for employment of a certain kind. (b) The worker has taken all reasonable steps to obtain that employment. (c) The worker has failed to obtain that employment. (d) Such is as a consequence, wholly or mainly, of the injury. The onus of proof in relation to a claim for weekly payments of compensation is on the worker. 84 What amounts to 'all reasonable steps' depends on the circumstances of the case. 85 Counsel for Ms Behme argues that the main issue for arbitration was the causal nexus between the incapacity after 9 October 2012 and the 25 July 2011 injury. Once the arbitrator reached findings in respect of the causal nexus there was no challenge to the deemed total incapacity or partial incapacity. The respondent however, submits that Ms Behme was put to proof on deemed total incapacity and partial incapacity and that she failed to discharge her burden of proof because no evidence was called specifically in relation to the cl 8 sch 1 issues to be determined. 86 I find, in light of the arbitrator's decision, the arbitrator was satisfied that Ms Behme had recovered from the compensable injuries so as to be fit for employment of a certain kind consistent with the relevant medical reports. I also find the arbitrator accepted she had taken all reasonable steps to obtain employment by indicating she was keen to avoid prolonged time off work. The arbitrator accepted the contractual nature of her employment, the impediments of her partial incapacity, and the time taken to explore other employment options as reasons why she would not be able to sell her labour in any reasonably accessible relevant labour market in the relevant period. The findings of fact were consistent with Ms Behme's incapacity being deemed to be total incapacity for the period of her unchallenged evidence (being until 12 December 2012), a period of nine weeks after the motor vehicle accident.
Partial incapacity 87 Partial incapacity is to be calculated in accordance with cl 7(2) sch 1. Clause 7(2) states: Subject to s 56 and subclause 3 where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury. 88 Ms Behme gave evidence that she returned to work, however not to a full roster. No evidence was led in relation to the hours she actually worked nor of the difference between the partial incapacity and her anticipated total weekly earnings: cl 7(2). 89 The onus is on Ms Behme to prove partial incapacity: Mitchell v Canal Rocks Beach Resort [2002] WASCA 331. I am not satisfied that the required evidence was presented to the arbitrator. There is no appellable error demonstrated.
Medical expenses 90 The arbitrator accepted that medical expenses of over $3,187.87 were claimed by Ms Behme. The reasonableness of the sums claimed is limited by cl 17 and, in respect of travel expenses, by cl 19 sch 1. Although the respondent does not concede this ground of appeal, there is no real dispute that evidence was led in respect of the medical expenses and related travel expenses consistent with sch 1. Once the arbitrator reached a decision in respect of causal nexus, there was no reason why the sum should not have been allowed given there was no challenge that they were costs that were unrelated to the claim nor that they exceeded the sums set out in the schedule.
Conclusion 91 For the reasons I have given, leave to appeal is granted to the appellant and the appeal is allowed in respect of grounds 2.1. The appeal is otherwise dismissed. 92 Leave to cross-appeal is allowed. The cross-appeal is granted in respect of ground 1. The cross-appeal is otherwise dismissed. 93 By s 249(7) I am empowered to make any decision that should have been made in the first instance. However, I consider it is appropriate to quash the decision of the arbitrator and order that the matter be re-heard by another arbitrator so that an arbitrator can make findings of facts and then apply the correct legal test. I order that the matter be re-heard. 94 The orders are: 1. Leave to appeal is granted. 2. The appellant's appeal is granted in part. 3. Leave to cross-appeal is granted. 4. The respondent's cross-appeal in part. 5. The decision of the arbitrator is quashed. 6. The matter is to be re-heard before another arbitrator to be appointed by the registrar.
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