Bennett v Qantas Airways Ltd
[2019] NSWWCCPD 23
•29 May 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Bennett v Qantas Airways Ltd [2019] NSWWCCPD 23 | |
| APPELLANT: | Marie Bennett | |
| RESPONDENT: | Qantas Airways Ltd | |
| INSURER: | Self-insured | |
| FILE NUMBER: | A1-4609/18 | |
| ARBITRATOR: | Ms D Moore | |
| DATE OF ARBITRATOR’S DECISION: | 14 December 2018 | |
| DATE OF APPEAL DECISION: | 29 May 2019 | |
| SUBJECT MATTER OF DECISION: | An arbitrator’s duty to give adequate reasons | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | LHD Lawyers |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 14 December 2018 is confirmed. | |
INTRODUCTION AND BACKGROUND
Marie Bennett (the appellant) was employed by Qantas Airways Ltd (the respondent) as a long haul flight attendant, from 5 January 1987. On a date which is unclear she was promoted to be a customer service manager, but this remained “very much a hands on flight attendant role”.[1] She injured her left shoulder on a flight between Sydney and Los Angeles on 16 May 2015, lifting a bag of headsets from an overhead locker. She sought medical assistance on her return to Sydney, was referred to Dr Goldberg, orthopaedic surgeon, and underwent arthroscopic rotator cuff repair and acromioplasty on 20 October 2015. The respondent voluntarily accepted liability for the claim.
[1] Dr Bodel’s report dated 30 August 2017, Application to Resolve a Dispute (ARD), p 2.
Following the surgery, the appellant resumed work with the respondent on selected duties, at the Mascot long haul base, performing clerical work on a part-time basis. The appellant was involved in a further incident on 9 June 2016 whilst performing such duties. Some boxes of archived documents were stacked on each other, to about waist height. As she was filing documents into one of the archive boxes it began to slide, and she twisted quickly to try to catch it to stop it from falling. She injured her lumbar spine. A claim on the respondent in respect of this injury was accepted. The appellant resumed selected duties following this injury. Her employment with the respondent ultimately ceased on 18 May 2017, by way of voluntary redundancy.[2]
[2] Appellant’s statement dated 29 May 2018, ARD, pp 103–4.
The appellant was assessed by Dr Bodel, orthopaedic surgeon, at the request of her solicitors, and he reported on 30 August 2017. Dr Bodel assessed whole person impairment at eight per cent in respect of the left upper extremity (shoulder), and at seven per cent in respect of the lumbar spine. These impairments, if combined, yielded 14 per cent whole person impairment. Neither of the impairments, taken alone, was greater than 10 per cent, and accordingly, because of the operation of s 66(1) of the Workers Compensation Act 1987 (the 1987 Act), neither was sufficient to yield an entitlement to lump sum compensation pursuant to s 66. The appellant made a claim based on the 14 per cent combined figure, on 11 December 2017.[3] The respondent rejected this claim in a dispute notice dated 24 January 2018, on the basis that neither individual impairment exceeded 10 per cent, and the impairments could not be aggregated.[4]
[3] ARD, p 98.
[4] ARD, pp 99–101.
THE ARBITRAL PROCEEDINGS AND DECISION
The proceedings were commenced by way of the ARD registered on 5 September 2018. An arbitration hearing was held on 28 November 2018. Mr Hanrahan appeared for the appellant, and Mr Baker for the respondent. The ARD pleaded injuries on 16 May 2015 to the left shoulder, and on 9 June 2016 to the lumbar spine. It asserted the lumbar injury occurred in circumstances where the appellant could not use her injured left arm to stop the box falling, so “reflexively twisted” to use her right arm, “and in so doing suffered injury”.[5]
[5] ARD, Pt 4.
In the arbitration hearing, at the outset, the appellant’s counsel made various amendments to Pt 4 of the ARD, so as to delete the pleading of 9 June 2016 as a separate injury, and to allege that the lumbar impairment flowed from a condition that was consequential on the earlier left shoulder injury.[6] There were no applications to hear oral evidence. Counsel addressed and the Arbitrator reserved her decision. The Commission issued a Certificate of Determination dated 14 December 2018, accompanied by seven pages of reasons. There is a difficulty in the numbering of the paragraphs in the Arbitrator’s decision. Paragraphs [1] to [56] appear on pages 2 to 8 of the reasons. The paragraph numbering then reverts to [30] on page 8, so that the last five paragraphs are numbered [30] to [34] (thus those numbered paragraphs appear twice in the reasons). Where I refer to that nomenclature appearing for the second time, I have inserted “(2)” after the paragraph number, to indicate it is the second time the paragraph number has been employed.
[6] Transcript of arbitration proceedings, 28 November 2018 (T), T 8.32–10.1.
The Certificate of Determination provided that the appellant’s injuries resulted from two separate incidents, that neither permanent impairment reached the threshold in s 66(1) of the 1987 Act, and that there was no entitlement to lump sum compensation.
The Arbitrator, in her reasons, said the appellant did not, in her statement, assert that the duties she was given following the left shoulder injury were unsuitable. It was conceded by the appellant that she was naturally right handed, and that to reach for something with the right hand is a “naturally reflexive action”.[7] Dr Bodel took a history of two separate injuries to the two different body parts, and only gave a combined assessment because he was asked to do so by the appellant’s solicitors.[8] There were two separate claims and claim numbers.[9] The notes of Dr Saville, the general practitioner who treated the appellant following the incident on 9 June 2016, did not record any complaint that the appellant was sparing or avoiding the use of her left arm, leading to the lumbar injury. Dr Goldberg described power in the appellant’s left shoulder as “excellent” (on 17 August 2016) and “approaching full” (on 30 August 2016). The Arbitrator said that the appellant could well have used her left arm to prevent the box falling, but instinctively used her dominant right arm for the task.[10]
[7] Bennett v Qantas Airways Ltd, 4609/18, 14 December 2018 (Reasons), [20]–[22].
[8] Reasons, [24]–[28], [34].
[9] Reasons, [32]–[33].
[10] Reasons, [39]–[44].
The Arbitrator referred to the history recorded by Dr Dalton (who treated the back injury) in his initial report dated 12 October 2016.[11] There was nothing in the history to suggest a causal link between the two injuries, other than the fact that the appellant was “on light duties” as a result of the left shoulder injury.[12] Dr Powell, qualified by the respondent, said there were two separate injuries, and in a supplementary report said there were “two separate and unrelated incidents”.[13] None, of Drs Bodel, Powell, Dalton and Saville, was given a history of weakness in the left arm resulting in the condition of the lumbar spine. The history on this topic, in the appellant’s statement, was inconsistent with the histories recorded by these doctors.[14] The Arbitrator said common sense would suggest a right handed person would seek to perform the relevant task with the dominant arm, which is what the appellant did, in the process twisting and injuring her back.[15]
[11] ARD, p 32.
[12] Reasons, [45]–[46].
[13] Reasons, [47]–[49].
[14] Reasons, [51]–[53].
[15] Reasons, [54].
The Arbitrator quoted from s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and from the decision of Roche DP in Department of Juvenile Justice v Edmed,[16] which deals with when permanent impairments can be aggregated. She said she was not persuaded that the appellant “suffered more than one pathology (‘injury’) as a result of the one incident or injurious event”, so as for the two impairments to be assessed together. She concluded that neither of the permanent impairments reached the threshold in s 66(1) of the 1987 Act.[17]
[16] [2008] NSWWCCPD 6; 7 DDCR 288, [26]–[27] (Edmed).
[17] Reasons, [30](2)–[34](2).
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
GROUND OF APPEAL
The appellant relies on a single ground of appeal, that the Arbitrator failed to provide adequate reasons.
LEGISLATION
Subsections 65(1) and (2) of the 1987 Act provide:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”
The former s 65(3) of the 1987 Act was repealed effective 1 January 2019; it was not relevant to the issues in the current matter.
Section 322 of the 1998 Act relevantly provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.”
THE NATURE OF THIS APPEAL
Section 352(5) of the 1998 Act 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,[18] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[19] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[20]) to the nature of the appeal process involving factual error, 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’.”[21]
[18] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[19] (1966) 39 ALJR 505, 506.
[20] [1996] HCA 140; 140 ALR 227.
[21] Raulston at [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[22] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[23]
“… 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.”[24]
[22] [2017] NSWWCCPD 5, [67].
[23] [2001] FCA 1833, [28].
[24] Raulston, [20].
In Northern NSW Local Health Network v Heggie[25] 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, per Mason and Deane JJ.”[26]
[25] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[26] Heggie, [72].
APPELLANT’S SUBMISSIONS
The appellant submits the Arbitrator “was not satisfied from the medical evidence that the nature of the injury in May 2015 to the [a]ppellant’s left shoulder had any influence on the mechanics of the movement of the [a]ppellant’s back in the second ‘separate’ injury of 9 June 2016” (emphasis in original). The appellant submits this is a “narrow interpretation”, and does not explain why the second injury was not a “consequence of the first”.[27] The appellant is critical of the Arbitrator for her reference to the insurer accepting liability for “two separate events”. The appellant submits the two incidents were not “entirely unrelated”, as the appellant “was only engaged in filing duties that gave rise to the lumbar condition because of the fact of her accepted injury to the left shoulder some 11 months earlier”.[28]
[27] Appellant’s submissions, [2].
[28] Appellant’s submissions, [5].
The appellant submits the notion of “separate” injuries was introduced by the respondent and “adopted by the Arbitrator without any statutory justification”, although the appellant describes the notion as “consistent with the note to s 65(2)” of the 1987 Act.[29] The appellant again makes the point that the only reason she was performing the clerical duties was “because of he[r] left shoulder injury”. The appellant submits it was not a medical question, but rather “a factual question to ascertain whether the left shoulder injury had a material contribution to the occurrence of the lumbar condition”. The appellant submits the Arbitrator failed to consider or explain how there was no material contribution to the lumbar spine condition, when the appellant was “on light duties as a result of the left shoulder injury”. The appellant submits it was “irrelevant” whether she reached with her right or left arm. The “fact that she was placed on light duties because of the left shoulder injury materially contributed to the subsequent lumbar condition”. The appellant submits the Arbitrator did not provide any adequate reasons for the dismissal of “the acknowledged fact that the [a]ppellant worker was on different ground duties as a result of her left shoulder injury”.[30]
[29] Appellant’s submissions, [6].
[30] Appellant’s submissions, [7]–[11].
The appellant refers to the Presidential decision in Murphy v Allity Management Services Pty Ltd,[31] in which Roche DP discussed a number of the authorities dealing with the meaning of ‘results from’, and conditions that have multiple causes. The appellant submits:
“The fact that the [a]ppellant was on restricted duties because of her left shoulder injury was not only real but was of fundamental importance to the emergence of a chain or network of causative events that led to the [a]ppellant’s lumbar condition.”[32]
[31] [2015] NSWWCCPD 49 (Murphy).
[32] Appellant’s submissions, [15].
The appellant refers to a passage from Soulemezis v Dudley (Holdings) Pty Ltd,[33] applied in Tudor Capital Australia Pty Limited v Christensen,[34] dealing with “a failure to give adequate reasons where a decision-maker ignores evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker”.[35]
[33] (1987) 10 NSWLR 247 (Soulemezis), 281G.
[34] [2017] NSWCA 260 (Christensen) [388].
[35] Appellant’s submissions, [17].
RESPONDENT’S SUBMISSIONS
The respondent states that the Arbitrator set out the question requiring determination at the commencement of the arbitration hearing, being “whether the [appellant] can combine, for the purposes of the lump sum claim, both injuries”.[36] The issue was also described in the reasons:
“The only issue in dispute was whether the condition in the lumbar spine was ‘consequential’ upon the left shoulder injury or a frank injury sustained on 9 June 2016. If the injuries (both accepted by the respondent) were separate, Ms Bennett did not reach the threshold for lump sum compensation.”[37]
[36] T 1.36–41.
[37] Reasons, [7].
The appellant conceded, it is submitted, that the incident on 10 August 2016 “resulted from a reflex action by the [a]ppellant in using her dominant right hand”. This was confirmed in the reasons.[38] The Arbitrator analysed the medical evidence to determine whether there was support for a causal connection between the two injuries. She noted the evidence regarding the two separate claims. She found the injury to the back was “a [discrete] injury suffered in the incident of the 9/6/2016”. The respondent says “[u]nsurprisingly, this factual finding is not challenged in this appeal”.[39]
[38] Reasons, [20]–[22].
[39] Respondent’s submissions, [4]–[5].
The respondent submits the suitable duties provided to the appellant were conceded by her to be suitable, and were consistent with her medical certification. The Arbitrator, contrary to the appellant’s submissions on appeal, did not “dismiss the fact that the appellant was working different duties because of her shoulder injury”. The respondent refers to the appellant’s submission before the Arbitrator:
“… because she says she lacked strength in her left arm, the injured arm and her shoulder to stop the box from falling she therefore turned quickly to try and catch the box with her right arm. She twisted, she then felt pain in her lumbar spine. So we say the only reason she was required to turn as she did to use her right arm was because she was given duties which were not suitable having regard to her left arm.
The major focus here in the dynamic of causation of this event was the injury to the left arm which prevented her from using it which would ordinarily have been available for her to stop the box from falling in those circumstances …”[40]
“That’s the fulcrum of our case, Madam Arbitrator, that the weakness of the left arm is the initial primary and dominant reason why these circumstances unfolded in the way that they did.”[41]
[40] T 11.12–26.
[41] T 12.31-4.
The respondent submits that there was “no further argument or any medical opinion raised for that proposition and no authority in support was argued either in the course of the matter at first instance or in this appeal.”[42] The respondent also refers to Murphy, in which success on the part of the worker, in demonstrating an alleged consequential condition, required proof “on a common sense test to show an unbroken line of causation flowing from the first episode to the consequential condition asserted to result from that episode”. The respondent submits that the highest the appellant comes, is the submission that the left shoulder injury was “of fundamental importance to the emergence of a chain or network of causative events that led to the appellant’s lumbar condition”.[43] The respondent submits that the passage from Soulemezis, quoted by the appellant, is supportive of the respondent’s position.
[42] Respondent’s submissions, [7].
[43] Respondent’s submissions, [10].
APPELLANT’S SUBMISSIONS IN REPLY
The appellant submits the way in which the Arbitrator dealt with the causation question failed to address whether the first injury “made a material contribution to the second injury”.[44] The appellant was performing archiving duties when she experienced lumbar pain, this was “because of the left shoulder injury”. It is submitted that “clearly the worker would pass the ‘but for’ test”. The appellant’s “reflexive action” on 9 June 2016 was a “reaction to her circumstances”, which included restrictions in use of the left arm.[45] No doctor witnessed the event or explained it in detail. The appellant submits:
“She ought not to have used her left arm when the box of files started to fall, a fact she would have been aware of, and will have already put in place unconscious strategies to limit her use of that arm in line with her medical restrictions. The limitation should be already assumed as a fact and denial of any causal relationship to the lumbar condition must necessarily involve proof of its non-involvement.”[46]
[44] Appellant’s submissions in reply, [3].
[45] Appellant’s submissions in reply, [6].
[46] Appellant’s submissions in reply, [7].
The appellant submits the Arbitrator failed to “explain how it is only possible that the left arm made no material contribution to the occurrence of the lumbar spine condition.”[47] The appellant refers to a “series of events that unfolded” because the left arm was “effectively unusable”. She had no use of her right arm for activities, which meant she was “constantly twisting her back to utilise her right uninjured arm”. When a box fell, additional strain was placed on the spine because of the requirement to use the right arm. The finding that the lumbar condition arose from a separate injury on 9 June 2016 does not mean that the earlier injury did not materially contribute to it. “[There] may have been more than one active cause of the second event.”[48]
[47] Appellant’s submissions in reply, [8].
[48] Appellant’s submissions in reply, [10]–[11].
The appellant submits that the Arbitrator made “no criticism” of the appellant’s evidence, and asks rhetorically “[w]hy then does she not accept the worker’s explanation of how the second event occurred”. The appellant submits “the Arbitrator does not explain how the left arm could not possibly be involved”. The appellant “was put to duties that were not suitable as they required excessive twisting of the back due to the unavailability of the left arm to support that task”. If not for these duties she would not have been exposed to “the unique twisting forces that caused the lumbar condition as a result, the worker says, of the limitation in the use of her left arm”. The Arbitrator has found the second event to be an ‘injury’, the “Arbitrator has not explained why … the condition of the lumbar spine is not also a result of the ‘restricted’ work duties” (emphasis in original). It is “possible to have both a s 4 injury and a consequential condition”.[49]
CONSIDERATION
[49] Appellant’s submissions in reply, [13]–[18].
How the case was run?
The case was pleaded, in the ARD at Pt 4, as two incidents, the first on 16 May 2015 to the left shoulder, and the second on 9 June 2016 to the lumbar spine. The lumbar spine injury was pleaded in such a way as to raise a potential causative link between the two injuries:
“The [appellant] was placing filing into boxes at waist height. During the filing process, one of the boxes fell. Due to her left shoulder injury the [appellant] could not use her left arm to prevent the box falling. The [appellant] reflexively twisted to use her uninjured right arm/hand to catch the box and in so doing suffered injury.”
At the commencement of the Arbitration hearing the Arbitrator said to counsel for the respondent “[n]either injury is in dispute, as I understand it, Mr Baker”, the answer to which was “[c]orrect”. The Arbitrator then, with no dissent from those appearing, described the “only issue in dispute” as “whether the [appellant] can combine, for the purposes of the lump sum claim, both injuries”.[50] The appellant then, without objection, amended the ARD at Pt 4, consistent with what appears in the Reasons at [8]. In the course of that application, the appellant’s counsel said “I’m not pleading it as a condition occurring on that date [6 June 2016], I’m just pleading it as a condition consequent upon the left shoulder injury”. He said that the alleged consequential lumbar spine condition “is brought to light when the appellant is provided with duties which are not suitable in June 2016”.[51]
[50] T 1.36–41.
[51] T 5.26–7.20.
The appellant’s submissions before the Arbitrator were made in a way consistent with the appellant’s statement[52] (see the passage quoted at [26] above).[53] The submissions went to the allegation of the event on 6 June 2016. The case run before the Arbitrator did not extend to submissions that the appellant’s lumbar injury resulted from the work duties she performed, in a more general sense, over time, when she resumed duties following the left shoulder injury.
[52] Appellant’s statement, ARD, p 104, [15]–[22].
[53] T 10.28–11.26, 16.24–7.
The appellant on appeal makes various submissions which go beyond the basis on which the matter proceeded before the Arbitrator. These will be further discussed below.
The duty to give reasons
In Pollard v RRR Corporation Pty Ltd[54] McColl JA (Ipp JA and Bryson AJA agreeing) summarised at some length the authorities and principles dealing with the duty to give adequate reasons.[55] Her Honour, in Christensen (to which the appellant refers in its submissions) described these principles as “well known”.[56] It is not necessary that I repeat here her Honour’s summary of the principles. Additionally, the obligation to give reasons in the Commission involves a statutory duty pursuant to s 294(2) of the 1998 Act and r 15.6 of the Workers Compensation Commission Rules 2011. I propose applying such principles in dealing with this issue.
[54] [2009] NSWCA 110 (Pollard).
[55] Pollard, [56]–[67].
[56] Christensen, [387].
Rejection of the case run before the Arbitrator
The case run before the Arbitrator was that, when the appellant was on selected duties, a box began to slide. The lumbar injury was alleged to have occurred when the appellant twisted quickly so as to catch the box with her right arm, as she lacked the appropriate strength in her injured left arm.[57] I accept the appellant’s submission, relying on Murphy, that conditions can have multiple causes. I accept that establishment of causation involves, applying the common sense test of causation, that the injury to the left shoulder made a material contribution to the condition of the appellant’s lumbar spine.[58] The appellant carried the onus in this regard.[59] The Arbitrator did not accept the appellant’s case on this issue. The Arbitrator’s reasons at [14] to [33](2), dealing with this topic, are described below. The Arbitrator said that the appellant did not suggest, in her statement or medical histories, that “the duties of themselves were unsuitable”.[60] The appellant is right handed, and counsel for both parties accepted that “reaching for something with the right arm was a naturally reflexive action”. It was as a result of this simple reflex action that the appellant “twisted and injured her back”. [61] The history recorded by Dr Bodel (in the appellant’s case) did not suggest a causal relationship between the injury to the left shoulder, and the condition of the lumbar spine.[62] Dr Bodel’s opinion treated the injuries to the left shoulder and the lumbar spine as discrete from each other, the doctor did not suggest any causal relationship between the two, he considered the two conditions as “separate”. The doctor only provided a combined assessment of permanent impairment in response to a specific request from the appellant’s solicitors that he do so.[63]
[57] Appellant’s statement, [20]–[21], ARD p 104.
[58] Murphy, [57]–[58].
[59] Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, [9].
[60] Reasons, [19].
[61] Reasons, [20]–[22].
[62] Reasons, [24]–[25].
[63] Reasons, [23]–[28], [34].
The Arbitrator said the appellant made two separate claims for compensation, one for each of the injuries.[64] She noted the solicitors’ letter of claim referred to an injury on 14 May 2015 and a “consequential injury” on 9 June 2016, but she described this as irrelevant, given the appellant’s reliance on Dr Bodel, who did not suggest the lumbar injury was consequential on that to the left shoulder.[65]
[64] Reasons, [32]–[33], [35].
[65] Reasons, [36]–[37].
The Arbitrator referred to the initial history recorded by the general practitioner, Dr Saville, on 10 June 2016. The Arbitrator said there was no suggestion in that history that the lumbar injury resulted from sparing or avoiding her left arm.[66] She referred to the history recorded by Dr Dalton (who treated the back injury) and Dr Powell (qualified by the respondent). There was nothing in these recorded histories to suggest the back injury resulted from the left shoulder injury.[67] Dr Powell, on a specific query from the respondent’s solicitors, said that the two incidents (to the left shoulder and the lumbar spine) were “separate and unrelated”.[68]
[66] Reasons, [39]–[41].
[67] Reasons, [45]–[48].
[68] Reasons, [49].
The Arbitrator referred to Dr Goldberg’s reports dated 17 August 2016 and 30 August 2016. In the earlier of these, the doctor described power as “excellent”. In the later, he described power as “approaching full”. The Arbitrator said that, given power in the shoulder was “excellent” as at 17 August 2016, it seemed to her that the appellant “could well have used her left arm to stop the box, given that it was at waist height, but instinctively used her dominant right arm for the task”.[69]
[69] Reasons, [42]–[44].
The Arbitrator said “none of these doctors was given a history of weakness in the left arm resulting in a consequential condition in the lumbar spine”. The Arbitrator noted Dr Powell’s description of the appellant as “a most compliant and co-operative patient”. The Arbitrator noted that the appellant’s statement was given years after the incidents, and was “inconsistent with the histories given to all the doctors, both around the time of the incidents and to doctors she saw later”. [70] She said that “[c]ommon sense suggests that a right handed person would perform a task with that dominant arm. This is what Ms Bennett appears to have done, and in the process she twisted and injured her back.”[71] The Arbitrator referred to s 322 of the 1998 Act and the Presidential decision in Edmed. She made an ultimate finding of fact:
“30(2). I am not persuaded on all the evidence that the [appellant] has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event, namely the injury to the left shoulder in May 2015, such as to enable her to have the injury to the left shoulder and the lumbar spine to be assessed together.
31(2). In short, I am not persuaded, as Counsel for the [appellant] submitted, that there is only one injury, namely to the left shoulder, and that the condition of the [appellant’s] lumbar spine is as a consequence of that injury.
32(2). To find so would be contrary to the weight of evidence before me.
33(2). Different pathologies have arisen from different incidents, such that the [appellant] is not entitled to aggregate or combine her impairment assessments.” (emphasis in original)
[70] Reasons, [51]-[54].
[71] Reasons, [54].
Some specific attacks on the decision
The appellant correctly observes that the Arbitrator was not satisfied that the left shoulder injury “had any influence on the mechanics of the movement of the [appellant’s] back” in the second injury. The appellant submits this does not explain why the second injury was not a consequence of the first.[72] Putting the question in this way has a tendency to invert the onus. The operation of s 65(2) of the 1987 Act and s 322(3) of the 1998 Act was dealt with in [73]
“Some aspects of the New South Wales statutory scheme were considered by the Workers Compensation Commission (Roche DP) in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 at [26]:
‘That the term ‘injury’ can have two different meanings is acknowledged in s 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident …’ This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of s 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with s 65(2) of the 1987 Act and is uncontroversial.’
This, in my respectful opinion, is an accurate summary, subject to one modification. The provisions envisage that an ‘injury’ (or several ‘injuries’) will ‘arise from’ an ‘incident’ and that one or more ‘impairments’ will ‘result from’ the ‘injury’ (or ‘injuries’); and that it is ‘impairment’ or ‘impairments’ that must be assessed. The penultimate sentence in the quoted extract should therefore read:
‘The impairments resulting from those ‘injuries’ are to be assessed together.’”
[72] Appellant’s submissions, [2].
[73] [2013] NSWCA 116, [40]–[41].
This is the substance of the passage from Edmed that the Arbitrator referred to in her reasons. Assessment of the two impairments, resulting from the two pathologies, together, required that the two pathologies result from the one incident or injurious event. The only injurious event ultimately pleaded by the appellant was that on 16 May 2015. The appellant’s argument required that the lumbar condition have resulted from that event. It was not suggested that the appellant injured her lumbar region in the injurious event on 16 May 2015. The appellant’s argument therefore depended on a factual finding that the lumbar condition resulted from the event on 16 May 2015. For reasons summarised above, the Arbitrator did not accept that argument. That the Arbitrator was engaging in such an enquiry, which was consistent with how the matter was pleaded and conducted before her, was apparent from her reasons, particularly her reference to Edmed and her ultimate findings of fact (see [41] above). The Arbitrator adequately explained her reasoning process and why her findings of fact on causation led to the conclusion that the two impairments could not be aggregated or combined. The appellant’s attack on this aspect of the reasons is without merit.
The appellant’s submissions also criticise the Arbitrator, on the basis that she “unnecessarily emphasises the fact that liability was accepted by the [r]espondent for two injuries”.[74] The Arbitrator referred to the fact that two separate claims were made, in respect of the injuries on 16 May 2015 and 9 June 2016. This was potentially of relevance, it demonstrated how the parties conducted themselves in dealing with the compensation consequences of the two events. The persuasive force of this evidence would be slight. It is necessary that the Arbitrator’s reasons be read as a whole.[75] The overall thrust of the Arbitrator’s reasoning did not turn on the fact that two claims were made, a matter that was only referred to on the one occasion in her reasons. Rather, her reasoning relied essentially on her analysis of the recorded histories, and the fact that the history of the appellant twisting her back, in guarding her left arm, featured nowhere in the recorded medical histories. The Arbitrator additionally relied on the fact that neither of the orthopaedic surgeons, qualified by the parties, identified a causal relationship between the two incidents and one of them, Dr Powell, rejected that proposition. The Arbitrator’s observation that two claims were made was factually accurate. There is no indication that she placed inappropriate emphasis on this evidence, which was a minor part of her analysis, and does not appear to have been in any way central to the conclusion that she reached. Error, on the basis of inadequacy of reasons, is not established by reference to how the Arbitrator dealt with the fact that there were individual claims for each of the injuries.
[74] Appellant’s submissions, [5], referring to Reasons, [32]–[33].
[75] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 444.
At another point the appellant purports to quote from the Arbitrator’s reasons:
“The Arbitrator has acknowledged that ‘I make no criticism of the [appellant] … I simply make the point that her statement is inconsistent with … all the doctors …’. However, it is submitted that this is not a medical question for evaluation of weight of the evidence but rather a factual question to ascertain whether the left shoulder injury had a material contribution to the occurrence of the lumbar condition.”[76] (italics in original)
[76] Appellant’s submissions, [7].
The reference to the Arbitrator’s reasons in the above submission is a reference to the reasons at [52] to [53], which read:
“52. The [appellant’s] statement is dated 29 May 2018, many years after the incidents in question. I make no criticism of the [appellant]; indeed, Dr Powell said: ‘Ms Bennett was a most compliant and cooperative patient throughout the taking of history and examination. There was no suggestion of over-reaction or exaggeration.’
53. I simply make the point that her statement is inconsistent with the histories given to all the doctors, both around the time of the incidents and to doctors she saw later including both Dr Bodel and Dr Powell.”
Reading the original, it is apparent that the Arbitrator (contrary to the submission) was not, in these paragraphs, referring to evaluating the weight of medical evidence. She was contrasting the histories given to a number of doctors regarding the incident on 9 June 2016, with the version in the appellant’s statement. It is clear the passage goes to the acceptability (or lack of it) of the appellant’s account in her statement, of what happened on 9 June 2016. This point made by the appellant involves a misreading of the Arbitrator’s reasons, and is misconceived.
In similar terms, in the following paragraph of the appellant’s submissions, it is submitted that it is not necessary that the “nature of the injury must explain the consequences on a medical basis”. Rather, the appellant submits, it is a question of fact to be determined on all of the circumstances. This submission involves a misreading of the Arbitrator’s reasons.[77] There was no medical evidence that directly supported the appellant’s case, that the incident on 9 June 2016 occurred in circumstances where the appellant twisted, because of the left shoulder injury, so as to use her uninjured right arm to restrain the box. The opinion of Dr Powell, on a specific enquiry, was contrary to this proposition. The only evidence in the appellant’s case that gave direct support to the proposition was the statement of the appellant herself. The Arbitrator’s analysis was directly relevant to whether the appellant could discharge her onus in the circumstances. A significant issue in this regard was the acceptability of the appellant’s account. On a fair reading, this is clear from the Arbitrator’s reasons. The Arbitrator did not approach the causation issue simply having regard to the question of whether the consequences were explained on a medical basis.
[77] Appellant submissions, [8].
The appellant’s submissions, on multiple occasions, refer to the simple fact that the appellant was on selected duties at the time of the incident on 9 June 2016. Paragraph [9] is an example:
“It is submitted that the Arbitrator while acknowledging that the [a]ppellant was on light duties as a result of the left shoulder injury, nevertheless failed to consider or explain how she came to the view that those circumstances were entirely separate from and made no material contribution to the occurrence of the lumbar spine condition.”
Along similar lines, the appellant submits at [10] to [11]:
“10 …The injury to the left arm may not have caused the [a]ppellant to use her right arm in any mechanical sense, however the fact that she was placed on light duties because of the left shoulder injury materially contributed to the subsequent lumbar condition.
11. The Arbitrator has not provided any adequate reasons for the dismissal of the acknowledged fact that the [a]ppellant worker was on different ground duties as a result of her left shoulder injury.”
Again, putting the question in this way has the potential to invert the onus. The Arbitrator gave clear reasons, referred to above, for why she did not accept the case as it was conducted before her. The additional submissions, such as those at [9] to [11], are not specific in how it is asserted that there was a causal relationship between the selected duties that were provided due to the left arm injury, and development of the lumbar condition. The specific case run at the arbitration hearing, consistent with the appellant’s statement, was that the lumbar condition resulted from twisting when a box moved, as the appellant sought to use her right arm and guard her injured left arm.[78] This proposition had no medical support, and its acceptance depended on acceptance of the appellant’s evidence on this issue, and drawing a lay inference regarding the lumbar condition, on the basis of common knowledge or experience.[79] When the reasons are read as a whole, it is apparent that the Arbitrator did not accept the version of the incident in the appellant’s statement, given its inconsistency with other evidence. The effect of this was that the appellant’s argument, that the lumbar condition resulted from the injury on 16 May 2015, failed.
[78] T 10.28–13.11, 16.29–34.
[79] See Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720, 724.
At one point, in his submissions before the Arbitrator, the appellant’s counsel put the proposition that the incident on 9 June 2016 was “because she was given duties which were not suitable having regard to her left arm”.[80] When the passage is read in context, the submission relates to the circumstances which led to the incident on 9 June 2016. It was not part of a broader submission, that the selected duties provided, in a general sense, over time resulted in the lumbar condition.
[80] T 11.17–20.
For reasons given above, the Arbitrator’s reasons, which led to her rejection of the appellant’s case on aggregation, based on the incident on 9 June 2016, complied adequately with her obligations. To the extent that the submissions on appeal raise some more general allegation, that the selected duties were unsuitable and resulted in the lumbar condition, on a basis other than by way of favouring the left arm in that incident, such a case was not run before the Arbitrator, and was not dealt with by the Arbitrator. As such an allegation was not raised before the Arbitrator, she “could not commit an error of law in failing to deal with it”.[81]
[81] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [30].
The appellant, in its Further Submissions in Reply, raises matters that are not necessarily by way of reply to the respondent’s submissions, and that go beyond the way in which the matter was conducted before the Arbitrator. The appellant at [6] of her further submissions puts that “[t]he reasons she was performing these duties was because of the left shoulder injury. Clearly the worker would pass the ‘but for’ test.” At [16] of those submissions, the appellant puts the following:
“It is a matter of common sense that, had the [appellant] not been given the duties she was given in June 2016, she would not have been required to be exposed to the unique twisting forces that caused the lumbar condition as a result, the [appellant] says, of the limitation in the use of her left arm.”
The simple fact that the left shoulder injury caused the appellant to be placed on selected duties, in which the incident involving the lumbar spine occurred, does not establish a causal relationship between the injury on 16 May 2015 and the events of 9 June 2016. In Faulkner v Keffalinos[82] Windeyer J said:
“The consequences that flow from the second accident cannot, I think be regarded as caused, in any relevant sense, by the defendant’s tort. I realise that philosophers and casuists may see these as indirect consequences. But for the first accident the respondent might still have been employed by the appellants, and therefore not where he was when the second accident happened. But lawyers must eschew this kind of ‘but for’ or sine qua non reasoning about cause and consequence.”[83]
[82] [1971] 45 ALJR 80 (Faulkner).
[83] Faulkner, 86.
In the context of the Commission, in Warwar v Speedy Courier (Australia) Pty Ltd[84] Roche DP applied Faulkner.[85] In that decision the Deputy President said:
“62. It has been submitted that, as Mr Warwar was on a journey in respect of necessary medical treatment at the time of the motor vehicle accident, the accident resulted from the 2007 injury, and the consequences of the motor vehicle accident should be treated as ‘part of the effects of the injury on 2 February 2007’. It is argued that the issue raises a simple factual question as to whether the second injury resulted from the earlier injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’).
63. The argument is that Mr Warwar’s need to travel to receive necessary medical treatment as a result of the first injury exposed him to a risk of injury, namely the negligence of another motor vehicle driver, a risk to which he would not have been exposed but for the need for such treatment. Therefore, so it is argued, the consequences of the motor vehicle accident have resulted from the original injury.
64. I do not accept this submission.
65. Mr Warwar’s submission involves an application of the ‘but for’ test of causation. The correct test of causation in workers compensation matters is the ‘commonsense test’, as explained by Kirby P (as his Honour then was) in Kooragang (at 463–4).”[86]
[84] [2010] NSWWCCPD 92 (Warwar).
[85] Warwar, [68].
[86] Warwar, [62]–[65], and see the cases cited therein.
The appellant’s submissions on appeal (including those in reply) assert that the Arbitrator, in her reasons, failed to adequately exclude some possibilities (see the submissions on appeal at [2], [9], [11] and [14], and those in reply at [3], [7], [8], [11] and [12]). Various of these raise matters outside the basis on which the case was run before the Arbitrator. Some of the submissions involve factual assertions that were not established on the evidence. The submissions in reply at [6] assert that the reflexive action on 9 June 2016 involved a reaction by the appellant to her circumstances, including the restrictions in use of her left arm. This was inconsistent with the Arbitrator’s factual finding at [54], which was consistent with concessions made by the parties. The submissions in reply at [7] assert that by the time of the incident on 9 June 2016 the appellant had “already put in place unconscious strategies to limit her use of that arm [the left] in line with her medical restrictions” (see the passage quoted at [29] above). The submission referred to no evidence in support of this assertion, and I was unable to find any.
The Arbitrator’s reasons dealt appropriately with the issues, as they were presented for her determination. The balance of the appellant’s submissions on appeal, which tend to repetition, seek to raise various issues, some of which were not run before the Arbitrator, some of which tend to invert the onus of proof, and some of which raise factual assertions that were not established on the evidence. The appellant has not established appealable error on the basis that there was inadequacy in the Arbitrator’s reasons.
CONCLUSION
The basis on which the Arbitrator rejected the appellant’s case, as it appeared in the appellant’s statement and as it was run at the arbitration hearing, was clear, from her discussion of the evidence, her reliance on the decision of Edmed, and her factual findings at [30](2) to [33](2) of the reasons. It complied with her duty, both statutory and at common law.
The appeal is dismissed.
DECISION
The Certificate of Determination dated 14 December 2018 is confirmed.
Michael Snell
DEPUTY PRESIDENT
29 May 2019
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