BHP Billiton Iron Ore Pty Ltd v Treby
[2018] WASCA 60
•3 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BHP BILLITON IRON ORE PTY LTD -v- TREBY [2018] WASCA 60
CORAM: BUSS P
MURPHY JA
CHANEY J
HEARD: 21 DECEMBER 2017
DELIVERED : 3 MAY 2018
FILE NO/S: CACV 14 of 2017
BETWEEN: BHP BILLITON IRON ORE PTY LTD
Appellant
AND
LEE DIANE TREBY
Respondent
ON APPEAL FROM:
For File No: CACV 14 of 2017
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : APP 88 of 2015
Catchwords:
Workers compensation - Arbitration - Preference of one medical opinion over competing opinion - Whether open to arbitrator to rely on report - Whether basis of opinion sufficiently disclosed - Whether reliance on report rendered decision unreasonable or irrational
Legislation:
Evidence Act 1906 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Dr J T Schoombee & Mr J R Ludlow |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | HWL Ebsworth Lawyers |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
JUDGMENT OF THE COURT:
On 21 October 2015, after a hearing in the Workers' Compensation Arbitration Service, the arbitrator, Mr B Nugawela, made orders that the appellant pay the respondent weekly payments of compensation for total incapacity with effect from 3 April 2014, together with statutory allowances in relation to the injury which the arbitrator found had been suffered at work by the respondent. The appellant sought leave to appeal against the arbitrator's decision pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). On 20 January 2017, the primary judge, Herron DCJ, refused leave to appeal.[1] The appellant then brought this appeal pursuant to s 254 of the Act. For the reasons that follow, leave to appeal should be refused, and the appeal dismissed.
[1] BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6.
The original application
The respondent was previously employed by the appellant as a truck driver on a mining site. In her original application to the arbitrator, the respondent sought weekly payments of compensation for total incapacity to work from 3 April 2014 arising out of an alleged back injury. The injury was described in the application as 'L4 end plate fracture, left L4 nerve root impingement, L4/5 degeneration and foraminal disc protrusion' sustained through 'repetitive bouncing and rocking, being jolted back and forward, and shuddering of truck'.
The respondent's case before the arbitrator was run on the basis that it was the course of her employment which gave rise to her injury, rather than a specific injury on a particular date.[2]
[2] Arbitrator's reasons [1]; Supplementary Appeal Book, page 3.
The appellant disputed that the respondent suffered any compensable injury and disputed the respondent's incapacity for work.
Liability on an employer to pay compensation arises where an injury, as defined in s 5 of the Act, occurs.[3] Relevantly for present purposes, s 5 of the Act defines injury to mean:
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
…
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree.
[3] Workers' Compensation and Injury Management Act 1981 (WA) s 18.
'Disease' is defined to include any physical or mental ailment, disorder, defect, or morbid condition whether of a sudden or gradual development.[4]
[4] Workers' Compensation and Injury Management Act 1981 (WA) s 5.
The issues before the arbitrator were, therefore, whether the respondent had suffered a relevant injury, and if so, whether that resulted in her total incapacity for work as claimed. The further issue before the arbitrator was whether the respondent was entitled to claim statutory allowances, but that issue is not relevant for present purposes.
The arbitration process
The practice and procedure in relation to dispute resolution through arbitration is governed by pt 11 div 4 of the Act. Section 188(2) of the Act provides that the Evidence Act 1906 (WA) does not apply to proceedings before an arbitrator and that an arbitrator is not bound by the rules of evidence except to the extent that the arbitration rules make them apply. The arbitrator is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[5]
[5] Workers' Compensation and Injury Management Act 1981 (WA) s 188(2)(b).
An arbitrator has the power to order a person to produce documents or furnish specified information, and may exercise that power either at the request of a party to a dispute or of the arbitrator's own motion.[6] An arbitrator may inform himself on any matter as he thinks fit,[7] and if he considers it appropriate, may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in the hearing.[8]
[6] Workers' Compensation and Injury Management Act 1981 (WA) s 193.
[7] Workers' Compensation and Injury Management Act 1981 (WA) s 188(3).
[8] Workers' Compensation and Injury Management Act 1981 (WA) s 198(3).
Section 213(1) of the Act requires that a decision and reasons for decision of an arbitrator be given in writing where required by the arbitration rules or requested by a party. 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.
The evidence before the arbitrator
The arbitrator received evidence from the respondent through two witness statements and heard oral evidence from her. She described her history of back pain. She described the dimensions of the 250 ton truck which she drove and the physical challenges associated with that task. She described how the truck shook violently when being unloaded, and when travelling across the rough terrain. The respondent said that prior to around February 2013, she had not had any major issue with her back other than some general stiffness, but that she began to experience significant pain and restrictions on her range of movement in February 2013.[9]
[9] Green Appeal Book, page 7.
The respondent's evidence was supported by evidence from a work colleague, Mr Laidlaw, who said that the respondent complained to him on a number of occasions that driving the truck on rough road conditions was causing her back pain.[10]
[10] Green Appeal Book, page 21.
A number of medical reports were produced to the arbitrator.
A radiological report of Dr Michael Fallon reported on an MRI examination on 19 March 2013. A comparison was made with a prior study of 12 June 2007. Dr Fallon's findings include the following:
There is oedematous marrow within the inferior half of the L4 vertebral body and focal depression of the inferior vertebral end plate consistent with a recent end plate fracture. This has developed since the prior study from June 2007.[11]
[11] Green Appeal Book, page 64.
Under the heading 'Comment', Dr Fallon reported:
1.L4 inferior end plate fracture with adjacent marrow oedema. Correlation with bone densitometric assessment is suggested to assess for underlying osteoporosis.
2.Bilateral L4 pars interarticularis defects with a minimal spondylolisthesis at L4/5. There is L4/5 disc degeneration with annulus bulging and a superimposed 5.5 to 6 mm left foraminal protrusion which posterosuperiorly displaces and impinges upon the left L4 nerve.[12]
[12] Green Appeal Book, page 64.
The respondent saw Mr Paul Bannan, a consultant neurosurgeon, in July 2013. Mr Bannan reported to the respondent's general practitioner as follows:
She has stiffness and soreness of the back and the MRI suggests she has L4 pars defects. She does have a bulging disc on the left at L4/5 with some impingement on the left L4 nerve and there is a possibility of an end plate fracture of L4.
Her work does involve driving trucks, bouncing on uneven ground and with the 12 month history of back pain it is possible she has a work related back injury.
I think at this stage we do need further investigation. I am going to organise a bone scan for Lee and a CT scan through L4/5. I want to look at the pars fractures and to look to see if she does have an end plate fracture.[13]
[13] Green Appeal Book, page 83.
On 10 July 2013, Dr Geoff Bower provided a report to Mr Bannan on a dynamic whole body bone scan with tomography which he had performed. His interpretation of the scan was as follows:
The patient's back pain most likely relates to disc disease at L4/5 level as suspected clinically. The haemangioma and marrow oedema related to L4/5 disc disease most likely account for the reactions in the vertebral body of L4 although an end plate fracture in the pars cannot be completely excluded. The pars fractures in L4 are not active on this study.[14]
[14] Green Appeal Book, page 84.
A CT scan was undertaken by Dr Manoj Tharakan on 9 July 2013. His report is as follows:
Clinical Details: Bilateral L4 pars defects. ?Endplate fractures inferior endplate of L4.
Findings: There is grade 1 spondylolytic spondylolisthesis noted at L4/5 with about 3mm of anterior slip in the position of imaging. This is associated with bilateral pars defects within the L4 neural arch. There is ill defined sclerosis noted within the lower half of the L4 vertebral body with mild irregularity of the inferior endplate seen. There is reduction in height of the L4/5 disc noted with a small foci of gas anteriorly within the disc space likely reflecting degenerative change and vacuum phenomenon. There is rounded relatively well defined low attenuation area noted within the area of sclerosis on the left side of the L4 vertebral body which corresponds to the haemangloma demonstrated on the previous MRI scan.
There is a diffuse disc bulge at the L4/5 level where there is a mild focal left foraminal protrusion which abuts upon the undersurface of the exiting left L4 nerve root.
At L3/4 and L5/S1, no significant disc herniation or nerve impingement is identified.
Comment: Grade 1 spondylolytic spondylolisthesis noted at L4/5 with bilateral pars defects within the L4 neural arch. Ill defined sclerosis noted within the lower half of the vertebral body with mild irregularity of the inferior endplate of L4 noted, however no loss of height seen. No other displaced fracture or involvement of the posterior margin of the L4 vertebral body is seen. Additionally, there is a left foraminal protrusion at L4/5 abutting upon the undersurface of the exiting left L4 nerve root.[15]
[15] Green Appeal Book, page 65.
There was no evidence as to any further report from Mr Bannan following his review of the bone scan and CT scans.
The arbitrator also had before him a report of a neurosurgeon, Mr George T Wong dated 31 July 2014. He reported having seen the respondent that day. His report included the following history:
She is 42 years of age and she works as a Dump Truck Driver. She has been driving trucks since 2004. Since 2008 she has been working at Mount Whaleback Mine. In her type of work, there is a lot of jarring in the Dump Truck and the floor of the mine is quite rough as well. In September, 2012 she noticed some back pain in the lumbar spine whilst driving. She also has stiffness in the upper spine and pain going to the right shoulder region. She saw a Physiotherapist initially for the pain in the upper thoracic region to the right shoulder and had treatment mainly there but at that stage she was already having some low back pain. By February, 2013 the low back pain got worse. She feels that the back pain is related to a lot of jarring when she drives her truck. She started having some treatment to her low back in February, 2012 and an MRI Scan was done which will be detailed further on in this report. Then in March, 2013 because of continuing back pain, she reported it to her Supervisor. She complained about the jarring of the truck, particularly working on the floor which was very rough. She was asked to continue driving the truck but hopefully working on smoother surfaces. Unfortunately the continued driving of the truck aggravated the back pain and in October, 2013, because of continuing back pain, she resigned from the job. She has not been working since then.[16]
[16] Green Appeal Book, page 66.
Mr Wong then referred to the various radiological examinations that he had reviewed, summarising them as follows:
MRI Scan of the lumbar spine that was done on the 19th March, 2013 showed L4 inferior endplate fracture with adjacent marrow oedema. There is bilateral L4 pars defect.
CT Scan done on the 9th July, 2013 shows similar changes of bilateral L4 pars defect with ill defined sclerosis in the lower half of the vertebral body and irregularity of the inferior endplate of L4.
Bone Scan that was done on the 10th July, 2013 shows increased uptake of the L4 vertebral body.
Bone Scan done on the 20th May, 2014 shows increased activity at L4/5 endplate level.[17]
[17] Green Appeal Book, page 67.
His report then set out his answers to a number of questions which had been posed by the respondent's solicitors. In response to the question, 'What is your diagnosis?', Mr Wong said:
The diagnosis is mechanical back pain most likely coming from the L4/5 level. In 2013 there was an end plate fracture of L4.[18]
[18] Green Appeal Book, page 67.
Mr Wong was asked to provide his opinion, having regard to the history provided by the respondent, as to whether 'the current symptoms may be reasonably attributable to the accident' and if so to provide his reasons. His response was:
I do believe her symptoms of back pain are likely related to the driving of the dump truck which she advises me as having a lot of jarring and vibration and that is when her back pain came on. Certainly driving the truck made her back pain worse.[19]
[19] Green Appeal Book, page 83.
The appellant relied upon a report of an occupational physician, Dr Martyn Flahive. He reviewed the respondent on 27 October 2014. He had previously reviewed the respondent on a number of occasions when she was employed by her previous employer in relation to other problems. Dr Flahive's quite lengthy report set out the history which he had taken from the respondent including the various investigations and reviews undertaken by other medical practitioners in relation to her lower back problems since February 2013. In relation to his report as to her current abilities and disabilities, Dr Flahive reported that the respondent could sit for about 15 to 20 minutes depending on her backache and was able to drive for short periods before having to stop and get out of the vehicle. He reported that she said that she could not stand for too long but had no problem with walking. Dr Flahive's report then reviewed previous investigations of the respondent's lumbar spine including Dr Fallon's report of 19 March 2013, Dr Tharakan's report of 9 July 2013 and Dr Bower's report of 10 July 2013. In addition, Dr Flahive considered a report dated 15 May 2014 from Dr A Henderson in relation to a whole body scan, and a report of 6 June 2014 by Dr Iyer of an MRI examination of the respondent's sternum and sternoclavicular joint. Dr Henderson's report apparently reported high grade degenerative change at the L4/5 end plates and continued:
There is a likely Schmorl's node at this level. No other high grade end plate activity is seen at the lumbar spine nor abnormal uptake at the facet joints.[20]
[20] Green Appeal Book, page 95.
Dr Flahive then described his findings on examination. In the assessment section of his report, Dr Flahive referred to the March 2013 MRI scan as follows:
She subsequently underwent an MRI scan which showed the presence of L4/5 disc degeneration with a disc protrusion, chronic bilateral pars defects and a possible endplate fracture (not demonstrated on subsequent CT scan). Since then she has had further investigations including a bone scan and CT scan in July 2014 and a subsequent SPECT CT and bone scan of the lumbar spine in May 2014 which has shown more advanced endplate changes at the L4 and L5 vertebral endplates as well more marked L4/5 disc degeneration and the chronic L4 pars defect.[21]
[21] Green Appeal Book, pages 96 ‑ 97.
He summarised his assessment as being that the respondent had moderately severe L4/5 disc degeneration with associated end plate degeneration and chronic L4 pars defect with minimal spondylolisthesis. He continued:
Although, evidence suggests that in most cases it is more probable than not when doctors identify pathology on MRT scans that is not the cause of the pain, it would seem with her history there is fairly significant endplate degeneration (which has a high association with back pain) the L4/5level is the probable cause of her lower back symptoms.
The question is what role has her occupation played in the development of this disc pathology. This can be answered with some certainty as it has been studied at some length. The most significant cause of disc degeneration has been demonstrated to be constitutional and genetic with age and mechanical factors having also shown to play a role. In regard to the latter we know disc degeneration is more common in those with transitional vertebral and chronic pars defects and it is more significant lower lumbar discs.
In terms of her occupation, in studies of identical twins with differing exposures to occupational driving, there is no difference in disc degeneration with differing exposures and more specifically such studies have shown very little environmental influence on the progression of disc degeneration. Studies of tractor driving farmers and operators of heavy earthmoving equipment and rally car drivers have not shown such exposures as a cause of disc degeneration.
Thus, in this case it seems clear that Ms Treby does have significant pre‑existing factors that have predisposed her to and caused her fairly significant L4/5 disc degeneration and subsequent mechanical low back pain. However, it seems in this case a somewhat disappointing series of events. Ms Treby is a woman that has always presented as anxious about her wellbeing noting her prior history and reports in relation to concerns regarding specific exposures and use of medications. She reports she has been told she has significant pathology in her back (an endplate fracture and disc protrusion) and that her job has possibly caused it. She is then told if she does not give up her job she will end up being unable to walk by the age of 50.
Additionally she has been given advice that her occupation has made her pain worse and that she has bone on bone in her lumbar spine and she has had a fracture of her back from possibly driving a haul truck and may require fairly significant lumber spine surgery. This does not bode well for future management.'
She reports her treating surgeon has not changed her views in relation to this belief and Mr Wong has said the truck driving has caused her pain even though it did not start when she was driving a truck. This has done little to abate her anxiety and she is concerned about the cause of her pain and her future. Thus she has been guided by her treating practitioners' advice that there is something seriously wrong with her back as well as the direct cause of her symptoms (ie her occupation).[22]
[22] Green Appeal Book, pages 97 ‑ 98.
Dr Flahive said that there was no epidemiological evidence to support the view that the respondent's pathology had arisen in the course of her work and it was disappointing that it had been suggested (apparently by other medical specialists) that her occupation had made her back pain worse. He expressed the view that her persisting back pain was 'not being managed appropriately'. He concluded that 'there is no evidence that Ms Treby's condition has been either cause (sic) by or contributed to by her employment with BHP or as indicated employment as a haul truck driver'.[23] He expressed the view that there was no firm medical reason why the respondent could not return to her pre‑injury employment and that she was fit to undertake a wide range of occupations including administrative work that she had previously undertaken. Dr Flahive concluded his report with a comment in relation to Mr Wong's report as follows:
I note Mr Wong's report of 31 July 2014 indicating that there was an endplate fracture in 2013, however the initial MRI scan of 19 March 2013 only showed oedematous marrow in the inferior half of the L4 vertebral body with some focal depression suggestive of an endplate fracture (or endplate erosion). However subsequent CT scan on 9 July 2013 shows mild irregularity of the inferior endplate consistent with degenerative endplate erosion with associated reduction of height of the L4/5 vertebral disc and associated foci gas anteriorly within the disc space. The bone scan of 10 July 2013 shows increased uptake around the body of L4 in addition to L5 suggestive that the findings were related to degenerative disc disease with endplate degeneration and failure rather than endplate fracture in addition to a haemangioma which was demonstrated in all of these scans.
Thus the diagnosis of a fracture is unsupported and seems irrelevant to both her symptoms and management given that the findings … relate to the one pathological process, although given her fairly sedentary life and prior history, bone densitometry seems a reasonable screening option.
I do note she has some firm beliefs in relation to the cause of her symptoms and this has arisen as a result of advice from her treating practitioners. Unfortunately this is unlikely [sic] to result in ongoing anxiety in relation to her symptoms.[24]
[23] Green Appeal Book, page 99.
[24] Green Appeal Book, pages 101 ‑ 102.
The arbitrator's decision
The arbitrator referred to the respondent's evidence as to her medical and work history and the description of her work as a truck driver. He concluded that the respondent gave her evidence in a straight‑forward and unembellished way and that her oral evidence was consistent with her witness statements. He found her evidence to be factually accurate, corroborated by the evidence of Mr Laidlaw and not to have been seriously challenged in cross‑examination.[25]
[25] Arbitrator's reasons [8]; Supplementary Appeal Book, page 6.
The arbitrator then turned to the medical evidence. He referred to Mr Wong's report which he found complied with the rule in Pollock v Wellington[26] in that it was based upon information that was factually correct, being the nature of the applicant's truck‑driving tasks, her symptoms and the radiological evidence.[27]
[26] Pollock v Wellington (1996) 15 WAR 1, 3 ‑ 4.
[27] Arbitrator's reasons [10]; Supplementary Appeal Book, page 6.
The arbitrator reproduced Mr Bannan's report and noted that Mr Bannan accepted the possibility that the respondent's back pain was caused by her work driving trucks and bouncing on uneven ground, and that he advanced no other possibility.
The arbitrator then referred to the report of Dr Flahive and re‑summarised the opinions expressed by Dr Flahive. He then set out his findings on the medical evidence as follows:
Mr Wong and Dr Flahive have referred to the same radiological evidence and arrived at a different view as to the cause and continuation of the applicant's symptoms. I find that the applicant suffered an end plate fracture at the L4/5 level in 2013 - this is what the MRI scan report stated and this is consistent with the neurosurgical opinion of Mr Wong, whose opinion I prefer to the opinion of Dr Flahive. Dr Flahive is an occupational physician who although possibly conversant with epidemiological studies, does not have the same degree of neurosurgical expertise as Mr Wong. Furthermore, the epidemiological studies that Dr Flahive referred to have not been disclosed, require many assumptions to be made, and to the extent that Dr Flahive relies upon these, I am not persuaded upon a balance of probabilities that these would (if disclosed) carry more weight than the opinion of a trained and experienced neurosurgeon expressing a view within his area of specialisation.[28]
[28] Arbitrator's reasons [14]; Supplementary Appeal Book, page 9.
The arbitrator referred to limitations on the utility of epidemiological evidence and noticed that there were a number of unknown parameters in Dr Flahive's undisclosed epidemiological studies. The arbitrator concluded that the respondent's work with the appellant as a truck driver caused a traumatic fracture of the L4 endplate and that that was an injury within the meaning of par (a) of the definition of injury under the Act. He continued:
It matters not that she may have had a pre‑existing degeneration that made her susceptible to this fracture - as long as her work duties [were] a material contributing factor, that would on the authorities be sufficient to satisfy the requisite casual nexus: Legett v Argyle Diamond Mines [2000] WASCA 182; Commonwealth v Horsnby [1960] HCA 27; (1960) 103 CLR 588, 597. The fact that Dr Flahive opined that the applicant's pre‑existing pathology is the significant cause of her symptoms (see [13(i)] above) does not meant that the applicant's work is not a material contributing factor (which I have found it is, based on my preference for the opinion of Mr Wong).
On the applicant's evidence which I accept, her L4/5 condition was asymptomatic prior to commencement of employment with the respondent. After the onset of her back pain, it became progressively worse until the fracture occurred as shown in the March 2013 MRI. She however continued working with the respondent until she resigned in October 2013 because she was unable to cope with the pain - so much is clear from her oral evidence and the two written statements tendered in evidence. For the same reasons I have expressed a preference for Mr Wong's opinion over that of Dr Flahive, I also accept and prefer Mr Wong's opinion that 'certainly driving the truck made her back pain worse (italics mine). I find that if the applicant also had pre‑existing degenerative disease, that this was either asymptomatic and rendered symptomatic by her employment with the respondent or exacerbated or aggravated by the continued driving of the truck whilst in the respondent's employ. I find in other words that the employment with the respondent contributed to the symptomisation, worsening, aggravation or exacerbation of any pre‑existing degeneration to a significant degree, noting that 'significant' in this context means that which is not negligible: Mokta v Metro Meat International Ltd [2005] WASCA 143.[29]
[29] Arbitrator's reasons [16] ‑ [17]; Supplementary Appeal Book, pages 10 ‑ 11.
As to the respondent's capacity for work, the arbitrator referred to Dr Flahive's opinion as to her capacity for work in her pre‑injury or alternative roles. However, the arbitrator concluded that he preferred the opinion of Mr Wong to that of Dr Flahive, the former being 'based on the correct or preferable understanding of the traumatic etiology/pathology of the applicant's condition'.[30] He also referred to Mr Bannan's reference to the ultimate possibility of a back fusion operation.
[30] Arbitrator's reasons [21]; Supplementary Appeal Book, pages 12 ‑ 13.
As to the respondent's fitness for alternative duties, the arbitrator noted that the respondent had told Dr Flahive that she could only sit for 15 ‑ 30 minutes and his finding that there was no significant discrepancy between her clinical presentation and her reported day‑to‑day activities. On that basis, the arbitrator concluded that the respondent was totally incapacitated for work and made orders for the payment of weekly payments of compensation and for statutory allowances.
Appeal to the District Court
As noted above, the appellant sought leave to appeal against the arbitrator's decision pursuant to s 247 of the Act. That section confers a right of appeal from an arbitrator's decision to the District Court with leave of the District Court. Leave is not to be granted unless a question of law is involved.[31]
[31] Workers' Compensation and Injury Management Act 1981 (WA) s 247(2)(b).
The use of the word 'involved' indicates that the court's role is not confined to the determination of pure questions of law, but extends to questions of mixed fact and law.[32]
[32] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
The original notice of appeal identified what was said to be eight questions of law with which the appeal was involved and identified eight grounds of appeal. The appeal initially came on for hearing on 3 June 2016. In his reasons for decision, the primary judge recited the appellant's submissions that the appeal raised three questions of law, being:[33]
1.The arbitrator misdirected himself as to the nature of his task by failing to have regard to the onus of proof being on Ms Treby to prove on the balance of probabilities she had suffered a work related injury.
2.The arbitrator erred in law in relying upon the evidence of Mr Wong (a medical report dated 31 July 2014) which had no probative force or basis.
3.The arbitrator's reasoning was unreasonable in the Wednesbury sense, that is, that it was so unreasonable that no reasonable arbitrator could have made it.
[33] BHP Billiton Iron Ore Pty Ltd v Treby [4].
Submissions made by the appellant's counsel at the hearing of the appeal on that day went beyond the grounds of appeal and beyond the written submissions that had been filed. As a result, the matter was adjourned to enable the respondent's counsel time to respond, and the appellant was directed to file a minute of proposed amended notice of appeal and supplementary submissions addressing those new issues. At a subsequent hearing on 15 August 2016, the primary judge gave the appellant leave to amend its notice of appeal in terms of the minute. The amended minute identified what was said to be eight questions of law arising from the arbitrator's reasons for decision, and proposed eight grounds of appeal. One of those grounds, ground 6, was subsequently abandoned when the matter resumed for hearing on 6 October 2016.
The relationship between what was said to be the issues of law involved in the appeal and the grounds of appeal is not readily apparent. In essence, the grounds of appeal could be distilled to the proposition that the arbitrator erred in law by relying upon Mr Wong's report when it lacked any probative force and in preferring the opinion of Mr Wong over that of Dr Flahive. That error is said to have infected both the arbitrator's finding as to the cause of the respondent's injury and his finding as to her level of incapacity for work.
At the resumed hearing on 6 October 2016, the appellant submitted that the grounds of appeal embodied three main contentions. Those contentions were summarised by the primary judge in his reasons for decision as follows:
1(a)The arbitrator misdirected himself as to the issue to be resolved - grounds 4 and 5.
1(b)In resolving the conflict in the medical opinions between Mr Wong and Dr Flahive and the other medical evidence, including Mr Bannan, the arbitrator failed to have any, or any sufficient, regard to the onus of proof being on Ms Treby to prove that she had suffered an injury by accident.
2The arbitrator erred in law by relying upon the report of Mr Wong when it was of no probative force and therefore could not be relied upon - grounds 1 to 3.
3The arbitrator's reasoning, and his reliance upon and acceptance of Mr Wong's opinion, was unreasonable or irrational - Wednesbury or Li unreasonableness - ground 4.[34]
[34] BHP Billiton Iron Ore Pty Ltd v Treby [30]; ts 56 ‑ 58, 6 October 2016.
The primary judge's reasons
The primary judge made, relevantly for present purposes, the following observations as to the nature of the appeal with which his Honour was dealing and the distinction, in that context, between errors of fact on the one hand, and errors of law and errors of mixed fact and law on the other:[35]
By s 247(2) of the Act the court may only grant leave to appeal from a decision of an arbitrator if 'a question of law is involved'. … A court or tribunal does not make an error of law merely because the court or tribunal finds facts wrongly or upon a doubtful basis: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21] (Buss JA (Wheeler and Pullin JJA agreeing)):
'If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.'
[35] BHP Billiton Iron Ore Pty Ltd v Treby [52].
In that regard, the primary judge also referred to and quoted[36] the observations of Pullin JA (Wheeler & Buss JJA agreeing) in BHP Billiton Iron Ore Pty Ltd v Brady:[37]
… As Brennan J said in Waterford v The Commonwealth of Australia (1987) 163 CLR 54, 77 'There is no error of law simply in making a wrong finding of fact'. See also R v District Court; Ex parte White (1966) 116 CLR 644, 654. Both of those authorities were cited with approval by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 where Kirby P said:
'If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another.'
To similar effect see Glass JA, 155 - 156, Samuels JA agreeing.
[36] BHP Billiton Iron Ore Pty Ltd v Treby [54].
[37] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [5].
The primary judge recounted the history of amendments to the grounds of appeal before accurately summarising the principal findings of the arbitrator. He then summarised the medical evidence before the arbitrator. That summary included references to Mr Wong's report of 31 July 2014 and the radiological examinations to which Mr Wong had regard. His Honour set out the salient passages of Mr Bannan's report of 9 July 2013. He set out Dr Flahive's conclusions in his report dated 28 October 2014. The primary judge then reviewed the arbitrator's statutory powers[38] before turning to a detailed consideration of the appellant's submissions as to what constitutes an error of law. After completing that analysis, the primary judge rejected the appellant's submission that reliance on Mr Wong's report amounted to an error of law. The primary judge concluded that, if such an error was made it was an error of fact not an error of law, but in any event he was satisfied that Mr Wong's report contained a sufficient basis to enable the conclusion expressed to be understood and evaluated.[39]
[38] BHP Billiton Iron Ore Pty Ltd v Treby [26] ‑ [29].
[39] BHP Billiton Iron Ore Pty Ltd v Treby [56].
The primary judge then considered the appellant's submission that the arbitrator erred in law in relying on Mr Wong's report when it had no probative force. He concluded that that submission was to the same effect as a submission that the report was inadmissible and therefore ought not to have been relied upon.[40] He noted that no objection to its admissibility had been made before the arbitrator and rejected submissions that objection before the arbitrator would have been pointless or would have necessarily been rejected by the arbitrator.[41] He concluded that had the issue regarding admissibility of the report been raised at the hearing, the respondent may have been able to or wished to adduce further evidence relevant to the admissibility of Mr Wong's opinion such as by obtaining a further report from him.[42] After referring to the observations of the court in A v Corruption and Crime Commissioner,[43] the primary judge concluded that it was not open to the appellant, not having taken issue with the admissibility of Mr Wong's report at the hearing before the arbitrator, to object to the admissibility of the report on appeal, there being no exceptional circumstances to permit that course.[44]
[40] BHP Billiton Iron Ore Pty Ltd v Treby [58] ‑ [62].
[41] BHP Billiton Iron Ore Pty Ltd v Treby [60] ‑ [62].
[42] BHP Billiton Iron Ore Pty Ltd v Treby [63].
[43] A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [111] ‑ [115].
[44] BHP Billiton Iron Ore Pty Ltd v Treby [65].
The primary judge then observed that, in any event, he rejected the submission that Mr Wong's report was of no probative value, and repeated his conclusion that the report did satisfactorily explain the basis upon which Mr Wong's opinion was reached sufficiently as to enable the arbitrator to understand and evaluate the basis of the opinion.[45] He found that the factual background related by the respondent and relied upon by Mr Wong to support his opinion was correct. He also noted the fact that Mr Wong had personally reviewed and examined the respondent and the various scans including the MRI scan of 19 March 2013. He concluded that those matters explained the basis upon which Mr Wong reached his conclusion.[46]
[45] BHP Billiton Iron Ore Pty Ltd v Treby [66].
[46] BHP Billiton Iron Ore Pty Ltd v Treby [66].
The primary judge referred to the appellant's submission that Dr Flahive's opinion that the MRI scan did not show an endplate fracture was correct. He concluded that, even if that were so, any error involved was an error of fact not an error of law.[47]
[47] BHP Billiton Iron Ore Pty Ltd v Treby [67].
The primary judge rejected the submission that Mr Bannan's report was inconsistent with Mr Wong's opinion as the existence of an endplate fracture. He concluded that Mr Bannan's acceptance that an endplate fracture was possible was in fact consistent with Mr Wong's report. He concluded that the arbitrator was entitled to prefer Mr Wong's interpretation of the scans over the contrary interpretation of Dr Flahive.[48] He rejected the submission that the arbitrator's reasons for decision were unreasonable or irrational.[49]
[48] BHP Billiton Iron Ore Pty Ltd v Treby [74].
[49] BHP Billiton Iron Ore Pty Ltd v Treby [75] ‑ [76].
The primary judge did not accept that the issues described in the amended notice of appeal as questions of law did in fact raise questions of law, but rather merely asserted that the arbitrator's decision was against the evidence or the weight of evidence or that the arbitrator had found facts wrongly or upon a doubtful basis. He found that those matters did not involve any error of law or question of law, citing Atanasoska v Inghams Enterprises Pty Ltd and Azzopardi v Tasman UEB Industries Ltd.[50]For that reason, the primary judge concluded that grounds 1 to 5 of the amended notice of appeal were not made out. Because grounds 7 and 8, which concerned the finding as to the level of incapacity, turned essentially on the same complaints as to reliance on Mr Wong's report, it followed that those grounds were also not made out. On that basis, leave to appeal on all grounds was refused.
[50] Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155 ‑ 156; BHP Billiton Iron Ore Pty Ltd v Treby [90].
The appeal to this court
The appeal to this court is brought under s 254 of the Act. That section permits an appeal to the Court of Appeal from a judgment, order or determination by the District Court, but the appeal must relate to a question of law and leave must be obtained from this court.
The primary judge's observations referred to in [41] and [42] above were not challenged in this appeal.
Nevertheless, the appellant contends that the appeal to this court relates to a question of law because, in substance (see [55] below), the appeal concerns the primary judge's failure to find that the arbitrator erred in law by accepting the evidence of the neurosurgeon, Mr Wong, over the evidence of Dr Flahive, an occupational physician, in the course of his fact‑finding as to the nature and cause of the respondent's injury.[51] In this regard, the appellant, in its written submissions, placed considerable reliance on administrative law principles.[52] In oral submissions before this court, counsel for the appellant appeared, however, to retreat from any reliance on administrative law principles.[53] Counsel for the appellant appeared, rather, to contend that the appeal to the primary judge involved a question of law because the appeal raised the issue of whether the burden of proof was applied 'properly' by reference to probative evidence.[54]
[51] The appellant did not take issue with the arbitrator's finding (at [32] above) that causation is established in the present context if the respondent's work duties were a material contributing factor to her injury.
[52] Reference was made to a number of decisions in the administrative law context, including Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164. Reference was also made to Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482.
[53] Appeal ts 43 ‑ 44, 21 December 2017.
[54] Appeal ts 35 ‑ 36, 41, 21 December 2017.
The arbitrator's findings as to the nature and cause of the respondent's injury were not exclusively based on his review of the medical evidence, but also took into account the evidence given by the respondent (who was cross‑examined by the appellant) and who the arbitrator, in effect, accepted as a witness of truth (see [69] ‑ [70] below).
The findings of fact[55] as to the asymptomatic nature of the respondent's condition prior to the commencement of her employment and the progressive worsening of her back pain up to the time of the report of the MRI on 19 March 2013 indicating an L4 inferior endplate fracture were effectively based on the arbitrator's assessment of the respondent's credibility. Appellate intervention in relation to such findings of fact, even in an appeal by way of rehearing, requires the appellant to demonstrate that the findings are flawed by reference to incontrovertible facts or uncontested testimony, that they are glaringly improbable or contrary to compelling inferences, or that the tribunal of fact has failed to use, or has palpably misused, his or her advantage as the trier of fact.[56]
[55] Arbitrator's reasons [17].
[56] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
'Properly analysed',[57] the appeal to the primary judge involved the question of whether the arbitrator erred in fact in his findings as to the nature of the respondent's injury and what caused it, in reliance on the evidence of Mr Wong and the respondent. The primary judge was correct to conclude that, in substance, the appeal did not involve a question of law.[58] However, even if the appeal to the primary judge involved a question of law or questions of law, the substance of the points raised by the appellant before the primary judge, and on appeal in this court, are unmeritorious for the reasons given below.
[57] See Atanasoska v Inghams Enterprises Pty Ltd [21] referred to in [41] above.
[58] BHP Billiton Oil Pty Ltd v Treby [96].
Grounds of appeal
There are ten grounds of appeal. They are lengthy and in many respects repetitive. The grounds assert that the primary judge erred in rejecting various contentions advanced by the appellant in the primary appeal. At the hearing of this appeal, counsel for the appellant accepted that the multitude of grounds essentially come down to the proposition that, as a matter of law, it was not open to the arbitrator to have accepted and relied upon the report of Mr Wong in preference to the report of Dr Flahive.[59] Because all grounds of appeal involve that contention, it is convenient to deal with that question first.
[59] Appeal ts 5, 9, 21 December 2017.
Was it open to the arbitrator to rely on Mr Wong's report?
The appellant contends that, as a matter of law, it was not open to the arbitrator to place any weight on Mr Wong's report because it lacked probative value. It is said by the appellant to lack probative value because it did not set out a satisfactory basis for the conclusions expressed in the report, and failed to have regard to what is said to be an inconsistent report by Mr Bannan. In those circumstances, the arbitrator's decision was manifestly unreasonable, illogical or irrational. The primary judge is said to have erred by failing to accept the appellant's contentions to that effect.
The conclusions in Mr Wong's report that the appellant contends should not have been accepted are the diagnosis of mechanical back pain most likely coming from the L4/5 level and an endplate fracture of L4 in 2013, and that 'the back pain is likely related to the driving of the dump truck which certainly made her back pain worse'.
Mr Wong recounted in his report the history which he obtained from the respondent when he examined her. That history was consistent with the evidence given by the respondent to the arbitrator. The arbitrator accepted the respondent's evidence as truthful. There is no challenge in this appeal to the respondent's evidence nor to the accuracy of the history taken by Mr Wong as recorded in his report of 31 July 2014.
The MRI scan of 19 March 2013 expressly identified an L4 inferior endplate fracture. Mr Wong referred to that MRI scan, along with the other radiological investigations of the respondent's body, in his report. It is also apparent that he made his own assessment as to the significance of those reports. It is apparent that the conclusions which he reached were based upon the undisputed history given to him by the respondent, his examination of her, and the radiological examinations which he reviewed.
Mr Wong is a consultant neurosurgeon. He was expressing an opinion within the field of his expertise. He had examined the respondent. He reviewed radiological examinations including an MRI that reported an endplate fracture. He took a history the accuracy of which was not challenged. On that basis he formed an opinion. His report obviously had probative value. It was a matter for the arbitrator as to what weight he afforded Mr Wong's report in the context of all the medical evidence. The proposition that the arbitrator was precluded, as a matter of law, from giving Mr Wong's opinion any weight is untenable.
In rejecting the appellant's submission that Mr Wong's report was of no probative value because it was not reasonably capable of supporting the opinion expressed, the primary judge acknowledged that 'the report does not perhaps provide as much detail or analysis as it might' but concluded that, largely for the reasons explained by the arbitrator, the report did satisfactorily explain the basis upon which Mr Wong's opinion was reached.[60] We agree with that conclusion.
[60] BHP Billiton Iron Ore Pty Ltd v Treby [66].
The contention that Mr Wong's report was of no probative value because it failed to have regard to an inconsistent report by Mr Bannan lacks any merit. That is because, as the primary judge found, there is no inconsistency between Mr Bannan's report and Mr Wong's report. Mr Bannan recognised the possibility that the respondent's back injury related to her driving trucks on uneven ground and recognised the possibility of an endplate fracture of L4. There is nothing inconsistent with those observations and Mr Wong's conclusions reached with the benefit of the review of the investigations suggested by Mr Bannan.
There was nothing manifestly unreasonable, illogical or irrational in the acceptance by the arbitrator of Mr Wong's opinion, nor of his preference for that opinion over that of Dr Flahive. The reasons for that preference were set out in the arbitrator's reasons. The arbitrator gave preference to the basis upon which Mr Wong reached his conclusion over the significant reliance by Dr Flahive on undisclosed epidemiological studies. It was open to the arbitrator to do so. It is not to the point to argue that he should not have given weight to those respective factors.
In light of those conclusions, we turn to the grounds of appeal.
Conclusions on grounds of appeal
Ground 1 reads as follows:
The learned primary judge erred in law in failing to consider, and uphold, the Appellant's contention that it should be inferred, from the following matters, that the learned Arbitrator had misdirected himself as to the task the learned Arbitrator was required to carry out in relation to the issue of liability:
a.the learned Arbitrator appears to have thought that his task was to decide whether the conclusions of the witness Mr Wong were to be preferred to those of the witness Dr Flahive, in which case, on the learned Arbitrator's apparent view of his task, the Respondent was entitled to succeed on the issue of liability; but
b.the true task of the learned Arbitrator was, rather, to decide whether, on all the evidence that had been led before the learned Arbitrator (including the evidence of other witnesses, in particular Mr Bannan), the Respondent had proved her case against the Appellant on the issue of liability on the balance of probabilities.
The appellant's submissions on this ground observe that the primary judge referred to the appellant's contention concerning misdirection by the arbitrator which was identified at the hearing on 3 June 2016, and then reformulated at the hearing on 6 October 2016.[61] The appellant contends that the primary judge then failed to deal with that issue in his reasons. The appellant submits that the inference can be drawn that the arbitrator misdirected himself on the basis asserted in ground 1.[62]
[61] See [37] and [40] above.
[62] Appellant's submissions [44]; White Appeal Book, pages 15 ‑ 16.
The inference is said to be drawn because 'the arbitrator appears wrongly to have proceeded on the basis that his preference for Mr Wong's evidence over that of Dr Flahive dictated the result that the worker's claim succeeded'.[63] Criticism is made of the arbitrator for failing to have regard to Mr Bannan's evidence and failing to consider whether he should prefer Mr Bannan's evidence over that of Mr Wong.
[63] Appellant's submissions [46]; White Appeal Book, page 16.
For reasons already canvassed, there was no inconsistency between Mr Bannan's report and Mr Wong's conclusion.
There is no reason to conclude that the arbitrator determined the matter solely on the basis of his preference for the evidence of Mr Wong over that of Dr Flahive, although that was obviously a significant conflict of evidence which required resolution.
The arbitrator canvassed the evidence of the respondent and its corroboration by Mr Laidlaw. It is clear that the arbitrator took into account the respondent's evidence as to the onset of her back pain and its progression.[64] He had regard to the duration of the respondent's employment and the nature of the tasks involved in driving the truck over rough terrain. He noted the absence of evidence of any activities of the respondent unrelated to her employment having any role in the development or continuation of her back injury.[65] The inference that the arbitrator misdirected himself as to his task is not open.
[64] Arbitrator's reasons [17]; Supplementary Appeal Book, page 11.
[65] Arbitrator's reasons [18]; Supplementary Appeal Book, pages 11 ‑ 12.
There is no merit in ground 1, and we would refuse leave to appeal on that ground.
Grounds 2 and 3 concern the primary judge's rejection of the appellant's contention that the arbitrator erred in law in rejecting the appellant's contention that Mr Wong's report lacked probative force. The submissions on these grounds focus upon the primary judge's conclusion that it was not open on the appeal to the District Court to contend that Mr Wong's report had no probative force because that contention was to the same effect as a submission that the report was inadmissible, an argument which had not been advanced before the arbitrator. The appellant contends that the primary judge confused the concepts of inadmissible evidence and evidence that lacks probative force.
To the extent that the appellant argued that the lack of probative value stemmed from the absence of a proper factual basis for the opinion, its submission was analogous to a submission of inadmissibility.[66] In its written submissions to the primary judge for the hearing on 3 June 2016, the appellant submitted that the arbitrator 'seems to have erred in assuming ... that (Mr Wong's) report was admissible under the ordinary rules of evidence' and that the correct approach 'would have been to consider whether, under those ordinary rules, Mr Wong's report was admissible (and/or had probative force).[67] In response, the respondent argued at the primary appeal that the appellant should not be permitted to raise the question of admissibility because it had not been argued before the arbitrator. In reply, in its written submissions before the resumed hearing on 6 October 2016, the appellant did not resile from the proposition that Mr Wong's report did not meet the requirements of admissibility, but rather argued that it would have been pointless and inconsistent with practice to have argued the issue of admissibility before the arbitrator.[68] The issue was joined on those submissions by the respondent.[69]
[66] Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [59].
[67] Appellant's Outline of Submissions, 26 May 2016 [55] ‑ [56]; Blue Appeal Book, page 62.
[68] Appellant's Supplementary Outline of Submissions, 21 June 2016 [7] ‑ [9]; Blue Appeal Book, page 87.
[69] Respondent's Amended Supplementary Outline of Submissions, 19 September 2015 [18] ‑ [26]; Blue Appeal Book, pages 105 ‑ 106.
Those submissions made clear that the position advanced by the appellant before the primary judge was that Mr Wong's report suffered defects which, in effect, rendered it inadmissible and lacking probative force. The appellant did not distinguish between concepts of inadmissibility and lack of probative value. The primary judge did not confuse those concepts. He dealt with the case as put by the appellant.
In any event, the primary judge's conclusion that it was not open to the appellant to argue questions of admissibility did not affect the outcome of the primary appeal. Having dealt with the arguments raised in the written and oral submissions on that question, the primary judge then concluded, correctly, that the argument that Mr Wong's report was of no probative value should be rejected. As a result, the findings of fact based on that report did not involve any error of law. The outcome of the appeal was unaffected by the primary judge's conclusions as to whether it was open to argue questions of admissibility. Further and in any event, the Evidence Act does not apply to proceedings before an arbitrator and the arbitrator is not bound by the rules of evidence except to the extent that the arbitration rules make them apply.[70] The arbitration rules embodied in the Workers' Compensation and Injury Management Arbitration Rules2011 (WA), made pursuant to s 293B of the Act, do not relevantly apply the Evidence Act or the rules of evidence. Grounds 2 and 3 do not identify any matter that affected the outcome of the case. There is no merit in those grounds.
[70] Workers' Compensation and Injury Management Act 1981 (WA) s 188(2).
Ground 4, 5, 6, 7 and 8 all turn on propositions that the primary judge erred by rejecting the appellant's contentions in relation to the probative value of Mr Wong's report. They rely upon the primary contention that Mr Wong's report did lack probative value. Because that primary contention is not made out, none of grounds 4, 5, 6, 7 or 8 have merit.
Ground 9 asserts that the primary judge erred in law in failing to uphold the appellant's contention that the arbitrator erred in law by failing to direct himself as to the burden of proof resting on the respondent to establish that she would not be able to return to administrative work. The arbitrator did not rely solely on his preference for Mr Wong's opinion over Dr Flahive's opinion in determining the question of the respondent's capacity for work. Reference was made to the respondent's evidence as to her work history, and to her assertion to Dr Flahive that she could only sit for 15 to 20 minutes. The arbitrator referred to, and relied upon, progress medical certificates relating to periods up to 5 April 2015 certifying that the respondent was totally incapacitated for work. He concluded that there was no reason to believe that her condition had altered since that date.[71]
[71] Arbitrator's reasons [23]; Supplementary Appeal Book, page 13.
Reliance is placed by the appellant on the observations of Roberts‑Smith J (with whom Templeman J and Sheppard AUJ) agreed in Mitchell v Canal Rocks Beach Resort[72] that the burden of proof of incapacity is on an applicant seeking compensation. That proposition is uncontroversial. In this case, the respondent adduced evidence as to both the cause of her injury and her fitness for work in the forms of the various medical reports produced, her own evidence, and the previous medical certifications. The arbitrator was satisfied on that evidence as to the relevant issues. There is no basis to suggest that he misdirected himself as to his task.
[72] Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [55].
There is no merit in ground 9.
Ground 10 asserts that the primary judge erred in failing to uphold the appellant's contention that the arbitrator had erred in law by failing to hold that there was no evidence to justify the conclusion that the respondent would not be able to return to administrative work. This ground also turns on the proposition that Mr Wong's report was of no probative value and therefore lacks merit for the reasons identified in relation to grounds 1 to 3.
Conclusion
There is no merit in any of the grounds of appeal. Leave to appeal should be refused on all grounds and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
ASSOCIATE TO THE HONOURABLE JUSTICE MURPHY3 MAY 2018
12