Bonica v Piacentini & Son Pty Ltd
[2019] NSWWCCPD 4
•15 February 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
CITATION: | Bonica v Piacentini & Son Pty Ltd [2019] NSWWCCPD 4 | |
| APPELLANT: | Joseph Robert Bonica | |
| RESPONDENT: | Piacentini & Son Pty Ltd | |
| INSURER: | AAI Ltd t/as GIO | |
| FILE NUMBER: | A1-2877/18 | |
| ARBITRATOR: | Mr W Dalley | |
| DATE OF ARBITRATOR’S DECISION: | 31 August 2018 | |
| DATE OF APPEAL HEARING: | 5 February 2019 | |
| DATE OF APPEAL DECISION: | 15 February 2019 | |
| SUBJECT MATTER OF DECISION: | Alleged factual error – application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and associated authorities; notices pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | Oral | |
| REPRESENTATION: | Appellant: | Mr S Grant, instructed by J.N. Zigouras & Co |
| Respondent: | Ms N Compton, instructed by Hicksons | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s decision dated 31 August 2018 is confirmed. | |
INTRODUCTION AND BACKGROUND
Joseph Bonica (the appellant) claims in respect of an injury on 14 November 2005, when a ‘scraper’ he was operating at a mine dropped suddenly, throwing him around the cabin and injuring his head, neck and left shoulder. He was in the employ of Piacentini & Son Pty Ltd (the respondent) at the time. The respondent’s insurer accepted liability for the claim when one was made, in 2011.[1] The appellant came under the care of Dr Kossmann, an orthopaedic surgeon, in April 2012. On 8 January 2015, Dr Kossmann wrote to the insurer seeking approval for the cost of surgery, involving “mini arthrotomy, removal of his bursa and decompression of his left shoulder joint”.[2] The insurer issued a s 74 notice dated 24 March 2015, declining liability for the cost of this surgery. The denial was based on s 59A(1) of the Workers Compensation Act 1987 (the 1987 Act).[3] The appellant later came under the care of Dr Pak, an orthopaedic surgeon. Dr Pak, on 27 October 2016, sought approval from the insurer to carry out surgery involving “left shoulder scope, subdeltoid bursectomy, acromioplasty, lateral clavicle excision and a labral debridement and repair if required”.[4]
[1] Application to Resolve a Dispute (ARD), pp 52–53.
[2] ARD, p 26.
[3] ARD, pp 47–49.
[4]ARD, pp 7–8.
The insurer issued a further s 74 notice dated 16 February 2017. The notice referred to a report (involving a file review) by Dr Doig dated 30 January 2017.[5] The reasons for denial included that the appellant did “not have a left shoulder condition resulting from” the employment injury, and that the treatment was “not reasonably necessary as a ‘result of an injury’”.[6]
THE ARBITRAL PROCEEDINGS AND DECISION
[5]ARD, pp 11–16.
[6]ARD, pp 44–46.
The proceedings were commenced by the ARD registered on 5 June 2018. The ARD sought expenses pursuant to s 60 of the 1987 Act, including the proposed surgery. The matter was listed for arbitration hearing on 14 August 2018. The appellant was represented by Mr Grant and the respondent by Ms Compton. There were no applications to adduce oral evidence or to cross-examine. The parties’ representatives addressed, and the Arbitrator reserved his decision.
The Commission issued a Certificate of Determination dated 31 August 2018, accompanied by 21 pages of reasons.[7]
[7]Bonica v Piacentini & Son Pty Ltd [2018] NSWWCC 201 (Reasons).
The Arbitrator noted that ‘injury’ to the left shoulder on 14 November 2005 was not disputed, nor was whether the proposed surgery was “appropriate”. He said “[t]he issue is one of causation”.[8] He noted the “relative absence of reference to the left shoulder in the clinical records prior to 2011”.[9] He referred to the appellant performing “simple administrative work” with the respondent, until he left “on 18 December 2006 after an altercation with his boss”.[10] The Arbitrator described the appellant’s work history thereafter, until Christmas 2011 (the appellant “said that he had not worked since that time”[11]). The Arbitrator summarised the lay evidence, together with the medical records and reports from Mildura Base Hospital, Dr Ahmadi (a general practitioner), Sunraysia Physiotherapy, Mallee Track Medical Centre, Dr Kossmann, Dr Pak and various imaging reports. He summarised the medicolegal reports from Dr Billett, Dr Brearley and Dr Doig.[12] He summarised the parties’ submissions.[13]
[8]Reasons, [17]–[18].
[9]Reasons, [21].
[10]Reasons, [28].
[11]Reasons, [29]–[30].
[12]Reasons, [31]–[123].
[13]Reasons, [124]–[139].
The Arbitrator said the respondent’s submission, that “following the subject injury there was no complaint to a medical practitioner of left shoulder injury recorded in evidence until January 2012 is correct”. There was physiotherapy treatment after the accident, but “the records contained no complaint of left shoulder pain”. There was further physiotherapy in June 2007, but no reference to left shoulder injury, the attached document appeared to show the thoracic spine. The treating records did not show a note of the incident.[14] The Arbitrator said he accepted that there was injury to the left shoulder on 14 November 2005, but it “was not sufficiently serious to require x-ray examination or any other form of treatment”. He said it was the “right shoulder which was bruised [and] was x-rayed and was the subject of physiotherapy”.[15]
[14]Reasons, [140]–[141].
[15]Reasons, [142].
The Arbitrator noted the appellant’s evidence that, at the time of the injury on 14 November 2005, he had excruciating pain in the left shoulder. The appellant stated that the Mildura Base Hospital confused the shoulders. Neither Dr Ahmadi or the physiotherapist referred to left shoulder pain. Dr Ahmadi and the physiotherapist recorded bruising to the right shoulder and did not note injury to the left. It was the right shoulder that was x-rayed. The sole reference to the left shoulder by Dr Ahmadi was in February 2006, when he recorded that symptoms in the left shoulder were fully resolved. The appellant referred to a tendency to say the opposite of what he meant, he would say “right shoulder” when he meant “left shoulder”. The appellant had not explained how this may have affected the evidence in the proceedings. The appellant told Dr Brearley that his scalp laceration was sutured, when hospital records showed that this did not occur. The Arbitrator concluded that the appellant did “not have a clear recall of the accident and its consequences”.[16]
[16] Reasons, [143]–[147].
The Arbitrator said the “relatively sparse” clinical notes from the period February 2006 to January 2012 contained “no reference to the left shoulder at any time despite Mr Bonica’s assertions of acute pain”. There was no explanation of why he did not seek treatment for his left shoulder. His explanation, that his head and right shoulder injuries were “given priority at the time and … masked the left shoulder injury”, is inconsistent with his statement that he told the doctor at Mildura Base Hospital about the left shoulder, but this was mistakenly recorded as the right shoulder.[17] The Arbitrator said it was unexplained, why the appellant instructed solicitors to give notice of injuries (including the left shoulder) in 2010, and to complete a claim form in March 2011.[18]
[17] Reasons, [150]–[151].
[18] Reasons, [153].
The Arbitrator said that the appellant’s support from Dr Billett and Dr Brearley was based on a history that the appellant had “continuing problems with the left shoulder from the date of injury”. The appellant attended a general practitioner regularly from August 2008 onwards. He sought “appropriate assistance” when he was troubled by his back and his right elbow. There was no explanation for why he did not seek treatment for his left shoulder until January 2012.[19] The Arbitrator said it was difficult to accept the appellant’s evidence in his statement, that he continued to have problems with his left shoulder, and was unable to continue with a particular job in 2008 because of that condition.[20] The Arbitrator concluded that he was “not satisfied that the history of continuing problems with the left shoulder since the subject injury is established on the whole of the evidence”.[21]
[19] Reasons, [155]–[156].
[20] Reasons, [163].
[21] Reasons, [166].
The Arbitrator said there was “no dispute” that the appellant suffered an injury to his left shoulder on 14 November 2005. It was “probable that a degree of pain and restriction of movement followed that injury”. In February 2006, the appellant’s general practitioner noted that symptoms in the left shoulder had resolved and the appellant had returned to work as a plant operator/driver. The appellant drove other plant and equipment, although he did not return to his pre-injury duties on the scraper. The appellant made no complaint of left shoulder problems until he approached solicitors in 2010. The solicitors wrote making a claim for injury on 14 November 2005, including to the left shoulder. A physiotherapy account claimed at that point did not relate to the left shoulder, but to problems in the low back after driving a bulldozer for some days. In March 2011, the appellant lodged a claim form that referred to a complaint of injury to the left shoulder in November 2005. The Arbitrator said there was “no reference to any complaint, treatment or investigation of the left shoulder between February 2006 and January 2012 in the clinical records”.[22]
[22] Reasons, [168]–[174].
The Arbitrator said he accepted that there was an injury to the left shoulder in November 2005, and an evidentiary onus then shifted to the respondent to establish that the effects of the injury had ceased. He referred to Brown v Lewis[23] and Greif Australia Pty Ltd v Ahmed.[24] He accepted the respondent’s submission that the absence of clinical evidence of ongoing symptoms, although treatment was sought for other work injuries, suggested that the causal link had been broken. In the absence of imaging from the time of the 2005 injury, the support given by Dr Billett, Dr Kossmann and Dr Brearley must have depended on the history of continuing symptoms. The Arbitrator was “not satisfied that that history has been established”.[25]
[23] [2006] NSWCA 87.
[24] [2007] NSWWCCPD 229; 6 DDCR 461 (Ahmed), [54].
[25] Reasons, [179]–[183].
The Arbitrator made an ultimate finding of fact, that on the whole of the evidence he did not feel an “actual persuasion that the requirement for surgery … results from injury to the left shoulder in November 2005”.[26] He made an award for the respondent.
THE HEARING OF THE APPEAL
[26] Reasons, [184].
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The parties submitted that the appeal could be determined ‘on the papers’. I formed the view that the parties’ written submissions did not adequately address the issues raised in the appeal. The appeal was listed for oral hearing on 5 February 2019. The Notice of Hearing directed:
“The parties are requested to be in a position to address generally, and specifically to address on the adequacy of the s 74 notices (having regard to Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227), the consequences of any inadequacies in the notices, and whether Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 at [36] has application.”
On the hearing of the appeal, Mr Grant appeared for the appellant and Ms Compton for the respondent.
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.
GROUNDS OF APPEAL
The appellant pleaded three grounds in its initial Application to Appeal. Transcript of the arbitration hearing was issued to the parties on 4 October 2018. In accordance with the Commission’s usual practice, the appellant was advised it could lodge “supplementary submissions”, on or before 1 November 2018, if these could not previously be completed due to the absence of transcript. On 1 November 2018, the appellant lodged supplementary submissions, together with a statement of the appellant dated 31 October 2018. The supplementary submissions included a further ground of appeal (Ground No 4 in those that follow). The respondent opposes the appellant being given leave to raise “new issues”, which it submits should have been raised at first instance.[27] The appellant raises the following grounds:
(a) The Arbitrator erred in law in finding that, in the absence of contemporaneous evidence of complaint or treatment, he was not satisfied that the need for surgery was causally related to the injury on 14 November 2005. (Ground No 1)
(b) The Arbitrator erred in finding that the respondent had discharged its evidentiary onus to establish that the effects of the injury on 14 November 2005 to the left shoulder had ceased. (Ground No 2)
(c) The Arbitrator erred in finding that there was a failure by the appellant to discharge his onus of proof, on the causal linkage between the injury on 14 November 2015 and his need for surgery, on the basis of an absence of complaint to doctors after 2005. (Ground No 3)
(d) The Arbitrator failed to decide the matter in accordance with the issues in dispute in the s 74 notice dated 16 February 2017. (Ground No 4)
THE APPLICATION TO ADMIT FRESH EVIDENCE
[27] Respondent’s submissions, [1.3].
The appellant, in a covering email dated 1 November 2018, enclosing supplementary submissions dated 1 November 2018, requests that his statement dated 31 October 2018 be admitted pursuant to s 352(6) of the 1998 Act. The respondent opposes that course, submitting the evidence should have been put on at first instance.[28] Section 352(6) provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
[28] Respondent’s submissions, [1.3].
Section 352(6) was considered by the Court of Appeal in CHEP Australia Limited v Strickland.[29] Barrett JA (Macfarlan JA agreeing) at [27] and [31] said:
“27 In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.
…
31 … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[29][2013] NSWCA 351; 12 DDCR 501 (Strickland).
Dealing with exercise of the discretion pursuant to s 352(6), Roche DP in Drca v KAB Seating Systems Pty Ltd[30] said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)
[30] [2015] NSWWCCPD 10, [28].
The appellant’s covering email and submissions do not otherwise deal with the precise basis on which admission of the further statement is sought. It is difficult to see any basis on which the first limb of Strickland could have application. The further statement deals with matters that predated the appellant’s statement dated 29 May 2018 (which was included in the ARD). There is no reason why such evidence could not have been included in this earlier statement, or in a supplementary statement prior to the arbitration hearing. It is evidence that was available in advance of the proceedings. There is no submission that such evidence was not available for the arbitration hearing.
In Onesteel Reinforcing Pty Ltd v Sutton[31] Allsop P (as his Honour then was) at [2]–[3] said:
“2. The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.
3. Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions.” (omitting citations)
[31][2012] NSWCA 282; 13 DDCR 351.
Much of the supplementary statement recites matters that could be extracted from the medical evidence (see [2], [3], [4], [5], [7] and [8] of that statement). Some of it includes material of a medical nature, about which the unqualified comments of the appellant would not carry weight (see [6], [9] and [13]). Some of it is irrelevant (see [10]). Some of it is simply speculative and/or argumentative (see [11], [12], [15], [16], [17], [19], [20] and [21]). Those parts of the statement that could carry weight, applying the principles in s 354 and r 15.2, are paragraphs [1], [14] and [18]. These would, if accepted, establish that the appellant’s left shoulder did not recover after the injury on 14 November 2005, and that, thereafter, there were restrictions on his use of the left shoulder in a work context. They would establish that the respondent took the x-rays and the appellant did not see them.
The appellant’s history of ongoing restrictions and pain was in evidence before the Arbitrator, in Dr Kossmann’s history of “movement restrictions and pain” since the injury in the scraper,[32] and also in the appellant’s statement dated 3 August 2018.[33] There is no basis for concluding that restating such evidence in a further statement would affect the result. No basis is identified by the appellant, that evidence in the further statement, that the respondent took the x-rays and the appellant did not see them, would change the result. The proposition is quite unlikely.
[32] ARD, p 18.
[33] Application to Admit Late Documents (AALD) 6 August 2018, p 5, [31].
It follows that neither of the two limbs of s 352(6) of the 1998 Act, as discussed in Strickland, are satisfied. The application to rely on the appellant’s further statement dated 31 October 2018, as fresh evidence, is refused. Additionally, admission of such evidence is discretionary. The fact that this evidence, from the appellant, could readily have been included in the evidence put on before the Arbitrator, would militate against exercise of the discretion on appeal.
At the hearing of the appeal, the parties by consent handed up a printout from the respondent’s insurer, setting out payments made by the insurer on the appellant’s claim (exhibit ‘A’).[34]
THE NATURE OF THE APPEAL
[34] Transcript of Appeal Proceedings 5 February 2019 (T2) 28.14–17.
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,[35] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[36] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[37]) 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’.”[38]
[35] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[36] (1966) 39 ALJR 505, 506.
[37] [1996] HCA 140; 140 ALR 227.
[38]Raulston at [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[39] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[40]
“… 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.”[41]
[39] [2017] NSWWCCPD 5, [67].
[40] [2001] FCA 1833, [28].
[41]Raulston, [20].
In Northern NSW Local Health Network v Heggie[42] Sackville JA 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.”[43]
LEAVE REGARDING GROUND NO 4
[42][2013] NSWCA 255; 12 DDCR 95 (Heggie).
[43]Heggie, [72].
Ground No 4 was included in the appellant’s supplementary submissions dated 1 November 2018, put on after transcript was made available to the parties. The respondent at the hearing of the appeal opposed the appellant having leave to rely on it. The respondent, in its submissions on appeal, submits the appellant “is not able to bring new claims”.[44] The appellant does not include a specific application for leave to amend his grounds, or submissions in support of such an application. The substance of Ground No 4 is that the Arbitrator decided the matter on a basis that was not raised in the relevant s 74 notices, which constituted error.
[44] Respondent’s submissions, [1.3].
Whilst such a ground was not spelled out in the original three grounds of appeal, it was raised in the submissions in support of each of those grounds.[45] The respondent’s written submissions dealing with Grounds Nos 1–3 failed to deal with the issue, and similarly failed to deal with Ground No 4, although it was on notice of this ground when its submissions were lodged. The respondent does not assert prejudice, and was given an opportunity to address Ground No 4 at the oral hearing of the appeal. As Ground No 4 largely relies on points made previously in respect of the other grounds, the preferable course is to grant leave to add the ground, and deal with it on its merits.
DEALING WITH THE GROUNDS OF APPEAL
[45] Appellant’s submissions, [1.1]–[1.7], [2.12]–[2.15], [3.11]–[3.12].
There is substantial overlap between all four grounds of appeal. All deal with the scope of the s 74 notice dated 16 February 2017,[46] and whether the notice raised the causation issue in a general sense, or whether the issue raised was restricted to that identified in Dr Doig’s report dated 30 January 2017. If the issue raised was so restricted, was the way in which the parties presented their cases before the Arbitrator such that the pleadings, including the notices, no longer governed the area of contest?[47] The various grounds raise the issue of the acceptance of liability by the respondent’s insurer on 10 November 2011,[48] and the significance of this in determination of the causation issue. The grounds raise the validity of the opinion of Dr Doig, and the correctness of the Arbitrator’s reasoning in concluding that the appellant had failed to discharge his onus, or that the respondent had discharged any onus it may have carried. It is convenient to deal with the grounds together.
APPELLANT’S SUBMISSIONS
[46] ARD, pp 44–46.
[47] Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490, Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279, Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1; 14 DDCR 157.
[48] ARD, pp 52–53.
The appellant submits the issues were defined by the s 74 notices dated 24 March 2015 and 16 February 2017. The appellant refers to the terms of s 74 of the 1998 Act, in its form at the time of the arbitral proceedings and decision. The respondent did not seek leave to raise issues outside the notices. The first notice relied only on s 59A of the 1987 Act. The second notice stated that it denied liability based upon the opinion in Dr Doig’s report dated 30 January 2017. The appellant submits the notice was “wholly based upon Dr Doig’s views”.[49]
[49] Appellant’s submissions, [1.1]–[1.6].
The appellant submits Dr Doig proceeded on an “inaccurate history”, that the appellant “recovered and returned to his pre-injury work which was not the case”.[50] The appellant refers to Dr Doig’s references to MRI scans dated 31 October 2013 and 28 September 2016. Dr Doig said that in the first of these there was “no evidence of any Hill-Sach’s or Bankart lesion”. In the second there was “a Hill-Sach’s lesion with an extensive anterior inferior labral tear with paralabral cyst formation and osteolysis of the distal clavicle”. The doctor said that this pathology demonstrated in the later MRI “has obviously developed between the initial incident of 14 November 2005 and the current presentation and is certainly not related”.[51]
[50] Appellant’s submissions, [1.7].
[51] Appellant’s submissions, [1.9]–[1.10]
The appellant submits Dr Doig does not explain why the lesion was present in the later MRI but not the earlier, nor why the changes were not related to the work injury in 2005. The appellant refers to the absence of other explanation and the history of left shoulder symptoms from November 2005. The appellant submits the reasonable explanation of Dr Doig’s opinion is that he considered there was an injury between the dates of the two MRI scans. The doctor also mentioned the possibility that the second scan was not accurate.[52] Dr Doig failed to refer to the MRI scan report dated 31 October 2013, the ultrasound of 3 February 2013, and the evidence that the appellant was suffering from left shoulder symptoms from 2010, and thereafter. Dr Doig was influenced by mistakenly thinking the appellant had returned to his pre-injury work. Even if there had been a second injury, this would not preclude a finding that it was causally related to the injury on 14 November 2005. Reference was made to Cluff v Dorahy Bros (Wholesale) Pty Ltd[53].[54] The appellant submits that Dr Brearley and Dr Pak, with knowledge of the MRI scan results, both supported the appellant’s argument on causation.[55]
[52] Appellant’s submissions, [1.11]–[1.13].
[53](1979) 53 WCR 167 (Cluff).
[54] Appellant’s submissions, [2.8]–[2.11].
[55] Appellant’s submissions, [1.14].
The appellant submits the s 74 notice was based on a single medical report of Dr Doig, which was flawed in two respects. Any suggestion in the s 74 notice that the appellant had recovered from the injury on 14 November 2005 was based only on Dr Doig’s opinion. The s 74 notice did not suggest it should be found, because the appellant did not attend a specialist doctor until 2012, that he had recovered from the effects of the 2005 injury. To raise this issue would have required leave (which was not sought) pursuant to s 289A of the 1998 Act. The appellant also submits there was no dispute that treatment paid for by the insurer up to 31 December 2013 was not related to the left shoulder injury on 14 November 2005.[56]
[56] Appellant’s submissions, [1.21]–[1.23].
The appellant submits the respondent’s acceptance of liability was an admission, that “might have been rebuttable”, but “no such release” was sought in the s 74 notices, the Reply, or by oral application at the hearing.[57] The respondent paid for treatment expenses to the left shoulder up to 31 December 2013, by inference it accepted the appellant required this medical intervention to his left shoulder, related to the injury on 14 November 2005. When the respondent then declined liability, it was on the basis of s 59A of the 1987 Act.[58]
[57] Appellant’s submissions, [2.3].
[58] Appellant’s submissions, [2.5]–[2.7].
The appellant refers to the reasons at [184]:
“Having regard to the whole of the evidence and the absence of any explanation as to why no treatment was sought in respect of the left shoulder between February 2006 and January 2012, I could not feel an actual persuasion that the requirement for surgery first advanced by Dr Kossman[n] in January 2015 results from injury to the left shoulder in November 2005.”
The appellant submits the Arbitrator found as a fact that the appellant suffered from left shoulder pain in 2010, when he sought legal advice about payment for medical expenses. The issue was whether the appellant suffered ongoing pain from the injury on 14 November 2005, not whether he sought treatment for pain. The appellant was “undeniably” suffering pain between 2010 and 2012, yet did not seek specialist medical advice prior to 2012. The ultrasound investigations and MRI scans (from 2012 to 2016) revealed significant pathology which explained left shoulder symptoms and would have taken time to develop. The evidence was that the appellant never returned to his full plant operator duties after 14 November 2015. He was a poor historian, and care should be taken in relying on histories or a lack of them (reference was made to Bruce v Kaye[59]). The appellant submits a conclusion that he was not suffering from symptoms resulting from the injury on 14 November 2005, based on a failure to seek ongoing treatment, was not a matter raised in the s 74 notices.[60]
[59] [2004] NSWSC 277.
[60] Appellant’s submissions, [3.3]–[3.12].
The appellant submits the only suggestion of an intervening injury is from Dr Doig, whose reasoning was flawed. The Arbitrator’s conclusion on the causation issue relied on this flawed evidence, which was unreasonable and constituted a demonstrable error of fact (reference is made to House v The King[61]).
[61][1936] HCA 40; 55 CLR 499.
In his oral submissions, the appellant’s counsel said that the scope of the issue raised in the second s 74 notice should be read in the context of the report of Dr Doig, on which he relied. The respondent accepted the occurrence of the injury on 14 November 2005, and did not seek to withdraw its admission of liability at the arbitration hearing. The respondent did not, at the arbitration hearing, seek to raise credit as an issue, or seek leave to cross-examine.[62] Dr Doig’s opinion was prepared without an examination, so the doctor did not have a history of the appellant’s ongoing problems over the years.
APPELLANT’S SUPPLEMENTARY SUBMISSIONS
[62] T2 8.32–9.1.
The Arbitrator referred to the issues in the case at the arbitration hearing:
“ARBITRATOR: … There is a claim for past medical treatment and a claim pursuant to section 60, subsection (5) in respect of future surgery. Both of those claims really require consideration of the same issues, is that treatment reasonably necessary in respect of the subject injury on the 14th of November, 2005. The insurer doesn’t dispute the injury but says that the effects of the injury ceased and ceased long ago. The dispute is that the treatment is reasonably necessary and that it is caused, is not related to the injury in 2005. If it is established that the treatment is reasonably necessary treatment in respect of the injury, the respondent says that section 59A(1) will preclude any payment. Is that a reasonable summary ‑ ‑ ‑
MR GRANT: I think so.”[63]
[63] Transcript of Proceedings 14 August 2018 (T1) 1.30–2.3.
The appellant, in his supplementary submissions, refers to that part of the above passage which is highlighted. The appellant submits that this demonstrated “a misunderstanding of the issue in dispute”. The issue was not that the appellant had recovered from the effects of the injury at some time before liability was accepted on 10 November 2011, “but rather that he had suffered a subsequent injury presumably between October 2013 and September 2016”.[64]
[64] Appellant’s supplementary submissions,
In his oral submissions, Mr Grant submitted that, in deciding the matter on the basis which he did (that the appellant had not discharged his onus), the Arbitrator decided the matter on a basis outside the dispute raised in the s 74 notice.[65] The appellant’s counsel submitted that it was not open to the Arbitrator to decide the matter having regard to the evidence of a lack of left shoulder complaints to treating practitioners, because it was outside the terms of the dispute.[66]
RESPONDENT’S SUBMISSIONS
[65] T2 10.1–13.
[66] T2 10.30–11.6.
The respondent’s written submissions are brief. Its written submissions put that the injury on 14 November 2005 was to the right shoulder and not the left. It refers to the absence of recorded complaint to the left shoulder in the medical records between 2005 and 2012. It submits it was open to the Arbitrator to determine the appellant “did not have a left shoulder condition during this period”. It notes the appellant was attending medical practitioners during this period for other problems. It submits that if there was an injury to the left shoulder as alleged, the clinical note in Dr Ahmadi’s records on 15 February 2006 indicates it had “fully resolved” by that stage. It disputes there was any error of fact or law made by the Arbitrator. It requests that the Arbitrator’s decision be confirmed.[67]
[67] Respondent’s submissions, [1.1]–[2.1].
In her oral submissions, the respondent’s counsel (properly) said she did not rely on the submission that only the right shoulder was injured on 14 November 2005.[68] She submitted that the Arbitrator, in deciding the matter, was entitled to take into account the additional evidence in the ARD. The Arbitrator gave some weight to Dr Doig and the other medicolegal reports. He attached substantial weight to the contemporaneous treating records, which he was entitled to do. This was notwithstanding that reliance on these records was not referred to in the s 74 notice.[69] It was clear Dr Doig did not have such records when he made his assessment.[70] The respondent’s counsel submitted that the s 74 notice dated 16 February 2017 did raise the causation issue. This was consistent with the Arbitrator’s recitation of the issues at the commencement of the arbitration hearing.[71] Consistent with those described issues, the Arbitrator accepted the occurrence of injury to the left shoulder on 14 November 2005, in his reasons at [168]. In her submissions in support of the admission of late documents[72] at the arbitration hearing, the causation issue was squarely raised.[73] The Arbitrator, in reaching his conclusion, relied largely on the records of treating practitioners, much of which was evidence put on by the appellant.[74]
CONSIDERATION
[68] T2 32.29–33.17.
[69] T2 34.5–20.
[70] T2 36.10–16, 37.17–22.
[71] T2 38.16–32.
[72] AALD 31.7.18.
[73] T1 3.11–4.10.
[74] T2 35.15–18.
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if:
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Section 74 of the 1998 Act (which has been amended subsequently) relevantly provided:
“74 Insurers to give notice and reasons when liability disputed
(1) If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2) The notice must contain the following:
(a) a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability),
(b) such other information as the regulations may prescribe.
(3) The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section. The regulations may require an insurer to give a copy of a notice under this section to the claimant’s employer.
(4) The regulations may create offences in connection with any failure to comply with this section.
Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (see section 93 and the offence arising under section 94).
(5) Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.
(6) This section does not apply to a dispute based on a work capacity decision of an insurer under Division 2 of Part 3 of the 1987 Act.”
Clause 41 of the Workers Compensation Regulation 2016 provided for the provision of copies of relevant reports (which were described in subcl (1) of that clause) as attachments to a s 74 notice.
In Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[75] an issue before Roche DP was the adequacy of a s 74 notice in putting ‘injury’ in issue. The Deputy President specifically agreed with the following statement made at first instance by the Arbitrator in the matter:
“In my view, the obligation imposed by s 74(2)(a) of 1998 Act will not be discharged unless the reason/s the insurer disputes liability are clearly stated and the issues relevant to the decision particularised. A citation in the notice to another document does not in my view constitute disclosure of all issues addressed in that document for the purpose of s 74(2)(a). Nor, in my opinion, will a passing reference to a legislative provision constitute ‘catch all’ disclosure of any legal or factual issue that might arguably be relevant to the application of the provision. The wording of s 74(2) requires the insurer to state why it disputed liability and the matters relevant to its decision. In my view, it also requires the insurer to particularise those matters in a manner comprehensible to a person unfamiliar with the workers compensation jurisdiction. That reading of the provision is consistent with s 74(2B) which requires the notice to be expressed in plain language.” (emphasis in original)[76]
[75] [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus).
[76]Mateus, [45].
The Deputy President’s approach to this issue was referred to with approval by the Court of Appeal in Fairfield City Council v Arduca.[77] The Presidential decision in Mateus has been regularly applied in the Commission.
The section 74 notices
[77][2015] NSWCA 166, [30], [33], [35].
The s 74 notice dated 24 March 2015 raised only the disentitling provisions of s 59A of the 1987 Act. It declined liability for expenses pursuant to s 60 of the 1987 Act, in respect of treatment after 31 December 2013. The application of s 59A was not controversial in the running of the arbitration hearing. The appellant did not pursue a claim for medical and related expenses beyond 31 December 2013, save for the cost of the proposed surgery, in respect of which a declaration was sought.[78] On appeal, the appellant submits[79] that the approach he seeks is that taken in Flying Solo Properties Pty Ltd v Collet.[80] The application of s 59A is not a matter of controversy on the appeal.
[78] Reasons, [10].
[79] Appellant’s submissions, [2.14].
[80][2015] NSWWCCPD 14; 16 DDCR 223.
The s 74 notice at issue is that dated 16 February 2017. That notice described the decision:
“GIO Decision
A decision has been made by GIO to decline liability for ongoing payment of compensation for the left shoulder condition.
This decision means that GIO will not pay any weekly workers compensation benefits claimed to be payable due to the left shoulder condition noting that you do not have a ‘total or partial incapacity for work (that) results from an injury’ – as required by Section 33 of the Workers Compensation Act 1987 (the Act).
This decision means that GIO will not pay for any further medical treatment for the left shoulder condition.
This is because Section 60 of the Act states that treatment is available ‘If, as a result of an injury received by a worker, it is reasonably necessary’ that treatment is provided.
The result of this decision is that GIO will not fund the cost of the surgery on your left shoulder as proposed by Dr Pak.
GIO will not pay any lump sum compensation for permanent impairment claimed to be due to the left shoulder condition. – section 66 of the Act refers [sic]
Legislation Used in Making the Decision
The decision to decline liability is an application of Section 33 and Section 60 of The Workers Compensation Act 1987 (the Act) reproduced as follows:
[ss 33 and 60(1) of the 1987 Act were there reproduced.]
Reasons for the decision:
GIO have made this decision based on the report of Dr Doig dated 30 January 2017.
The report of Dr Doig dated 30 January 2017 contains the following:
‘The current condition appears now to have changed in that the MRI scan on 28 September 2015 has revealed an old Hill-Sachs’ lesion with an extensive anterio-inferior labral tear with paralabral cyst formation and mild clavicle osteolysis. This pathology has obviously developed between the initial incident of 14 November 2005 and the current presentation and is certainly not related.’
‘In my opinion, therefore, employment is not a substantial contributing factor to the current condition and clinical presentation for the above reasons.’
‘Mr Bonica is still suffering from a left shoulder condition, based on the MRI scan of September 2016. This is not related to the work incident of 14 November 2005.’
‘No further investigations or treatment are required with respect to the incident of 14 November 2005.’
Accordingly, GIO have made the decision that you do not have a left shoulder condition resulting from your employment with PIACENTINI & SON PTY LTD that has caused ‘total or partial incapacity for work results from an injury [sic]’ see section 33 of the Act as quoted earlier in this letter.
Further GIO have made the decision that you do not have a left shoulder condition resulting from your employment with PIACENTINI & SON PTY LTD and compensation for cost of medical or hospital treatment or rehabilitation is not reasonably necessary as a ‘result of an injury’, see section 60 of the Act as quoted earlier in this letter.
The documents GIO will rely on to support this decision are as follows and included with this letter:
·Report of Dr Doig dated 30 January 2017.
The following are the reports and documents we have received from you in relation to your claim:
·Report of Dr Kossman[n] dated 4 February 2014.
·Report of Dr Pak dated 27 October 2016
·MRI Reports 28 September 2016 and 1 November 2013.”[81]
[81] ARD, pp 44–45.
Section 74(1) of the 1998 Act applied where the insurer “disputes liability in respect of a claim”. The insurer must give “notice of the dispute to the claimant”. In Divertie v Startrack Express Pty Limited,[82] Keating P dealt with whether there was a “dispute as to liability” within the meaning of s 41A of the 1998 Act. His Honour said that where a claim had been made, and was disputed in a s 74 notice, this constituted a dispute as to liability. In Favetti Bricklaying Pty Limited v Benedek[83] Bellew J said that issues of liability may arise in a number of different circumstances, and included “the fundamental liability to pay compensation”.[84] In Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney[85] Roche ADP (as he then was) said:
“To decide liability the Commission must decide, among other things:
(a) whether the worker sustained an ‘injury’ within the meaning of section 4 of the 1987 and 1998 Acts;
(b) does the injury satisfy the conditions in section 9A of the 1987 Act, and
(c) what are the consequences of the injury, that is, what pathology is said to result from the injury.”[86]
And:
“… the determination of the issue of ‘injury’ requires not only an assessment of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event.”[87]
[82] [2008] NSWWCCPD 45; 6 DDCR 26.
[83] [2017] NSWSC 417 (Favetti Bricklaying).
[84]Favetti Bricklaying, [78].
[85] [2006] NSWWCCPD 124; 5 DDCR 337 (Connor).
[86]Connor, [46].
[87]Connor, [48].
The causation issue was one in respect of liability. Section 74 required that the insurer give notice of the dispute regarding liability. This dispute was spelled out in clear terms in the description of the insurer’s ‘decision’, being that treatment under s 60 is only available if the treatment is reasonably necessary “as a result of an injury”. The notice set out s 60(1) of the 1987 Act; such compensation is dependent on treatment being “as a result of an injury”. The notice provided the reasons for decision. Following reference to Dr Doig’s opinion, the notice stated “you do not have a left shoulder condition resulting from your employment”. The notice, in clear terms, spelled out that the dispute was one in which the insurer denied the left shoulder condition, for which Dr Pak’s surgery was proposed, resulted from the employment injury (which it did not dispute).
The appellant submits that the respondent did not seek to withdraw its formal admission of liability (see for example its submissions at [3.11]). The s 74 notice made it clear that the respondent did not accept that the left shoulder condition resulted from the conceded injury. The respondent did not need to do anything further by way of notice, and did not need to “withdraw” the voluntary acceptance of the claim made previously on 10 November 2011.[88] The respondent’s decision was plain enough. The appellant’s submissions describe the reasoning in Dr Doig’s report as “flawed”, and state that “therefore the Sec. 74 WCA Notice was itself flawed”.[89] There is a distinction to be drawn between notice of the dispute, and the evidence on which the respondent relied. If the notice was to be contested, Dr Doig’s opinion may or may not ultimately be accepted, when considered with the whole of the evidence. This had nothing to do with whether the notice was flawed. It was not.
[88] ARD, pp 52–53.
[89] Appellant’s submissions, [1.19].
The appellant has not referred to authority, in support of its argument that the respondent needed to seek leave pursuant to s 289A(4) of the 1998 Act, if it proposed making submissions on a basis other than reliance on the report of Dr Doig. The proposition is inconsistent with settled practice in the Commission. Section 74(1) of the 1998 Act requires an insurer to give notice of the dispute, when it disputes liability. Section 74(2) requires that the notice contain a concise and readily understandable statement of the reason the insurer disputes liability and the relevant issues.
The respondent, in its Amended Reply (which was not objected to[90]) relied on the dispute notices, including that dated 16 February 2017. The causation issue was squarely raised in the proceedings. There is not an obligation to refer to all of the evidence which may become relevant, or all of the submissions that may ultimately be made. Such an obligation would be unworkable, and is not required by s 74. Section 289A(1) of the 1998 Act prevents referral of a dispute for determination by the Commission unless it concerns only matters previously notified as disputed. Section 289A(2) provides relevantly that a matter is previously notified as disputed if it was notified in a notice of dispute. The reference to a “matter” is a reference to what was required in the notice of dispute (the s 74 notice), being notice of the dispute about liability.
[90] T1 2.29–3.12.
If the insurer sought to raise a different or further ‘liability’ issue, beyond what was referred to in the s 74 notice, this would require leave pursuant to s 289A(4). In the current matter, for example, if the insurer sought to dispute the occurrence of ‘injury’, or to argue that the proposed surgery was not ‘reasonably necessary’ within the meaning of s 60 of the 1987 Act, such further ‘liability’ issues would require leave. The respondent did not seek to do this. It relied, throughout, on the issue identified in the notice dated 16 February 2017, that it disputed whether the left shoulder condition, for which surgery was recommended, resulted from the injury on 14 November 2005.
It follows from the above that s 289A(1) of the 1998 Act did not prevent the dispute, as identified in the relevant s 74 notice, being determined by the Commission. There was not a requirement for leave pursuant to s 289A(4).
How the case was conducted
At the commencement of the arbitration hearing, the Arbitrator outlined the issues (see [43] above). This specifically included an issue that the disputed treatment “is not related to the injury in 2005”. The appellant accepted this description of the issues, and the respondent did not demur.[91] The respondent’s counsel, at the arbitration, said:
“Well, it goes to the issue as to whether or not there was an argument, arguable argument, that in 2015, although it is accepted he sustained an injury, he didn't obtain extensive treatment at that time. And accordingly, any ongoing causative effects of the accepted injury had ceased.”[92]
And:
“I note that there’s been an accepted injury arising from the 14th of November 2015 [sic, 2005], but our primary submission is that injury was minor in nature and did not necessitate any treatment until a period of time in 2012.”[93]
[91] T1 1.29–2.3.
[92] T1 4.5–10.
[93] T1 14.5–9.
The respondent’s counsel addressed at length on the appellant’s medical records. She referred to a note by a general practitioner on 15 February 2006 that said the “left shoulder problem fully resolved”.[94] She referred to a note from a physiotherapist[95] dated 21 November 2005, with a diagram that indicated symptoms were then in the thoracic region, head, neck and right shoulder.[96] She referred to a note from the same physiotherapy practice dated 7 June 2007 that indicated symptoms were then in the thoracic region extending to the shoulders, with tingling in the arms and lower legs.[97] The respondent’s counsel submitted that there were then no notations in the notes, relating to treatment of the left shoulder, “until sometime in 2011”.[98] She referred to the list of expenses paid by the insurer,[99] in which the earliest payment was for radiology in February 2012,[100] notwithstanding the letter accepting liability for such expenses was in November 2011.[101] The respondent’s counsel referred to the notes from the Mallee Track Medical Centre.[102] The respondent’s counsel referred to an ultrasound report relating to the left shoulder dated 6 February 2012,[103] and submitted this was “the first treatment relating to this left shoulder injury”.[104] (The referral for the ultrasound in fact followed a consultation on 30 January 2012.[105])
[94] T1 18.5–12.
[95] T1 18.16–21.6.
[96] AALD 31.7.18, p 8.
[97] AALD 31.7.18, p 9.
[98] T1 21.19–23.
[99] Ex ‘A’.
[100] T1 25.4–9.
[101] T1 26.4–12.
[102] Reply, pp 13–28.
[103] Reply, p 40.
[104] T1 32.14–16.
[105] Reply, p 25.
The respondent’s submissions on the medical records were of such a nature as to demonstrate its argument that there was little or no treatment for the left shoulder until 2012, consistent with the proposition that the injury on 14 November 2005 was “minor in nature”, and unlikely to be the cause of the condition for which surgery was recommended by Dr Pak.
The appellant’s counsel, in reply, made some submissions dealing with what had been put regarding the medical records. He referred to dealing with medical notes as “a tricky road” in circumstances where “we no longer have the facility to bring the doctor along and ask him questions”.[106]
[106] T1 55.1–9.
The issue of whether the history of treatment supported the alleged causal link between the injury in 2005, and the surgery recommended by Dr Pak, was plainly explored in the running of the arbitration. No objection was taken to this course on the basis that it raised matters outside the scope of the s 74 notice. The case was conducted on the basis of an acceptance by the parties (in my view correctly) that the ‘liability’ issue was whether the condition of the left shoulder, for which surgery was recommended by Dr Pak, resulted from the injury on 14 November 2005. The hearing was not conducted on the basis that the issue was restricted to whether the opinion of Dr Doig should be accepted.
Conclusion on the s 74/s 289A(4) issue
It follows that I reject the appellant’s argument on these matters. Accordingly, Ground No 4 fails. This also deals with many of the submissions made in respect of Grounds Nos 1 to 3. To the extent to which Grounds Nos 1, 2 and 3 go beyond this argument, they are further dealt with below.
Dr Doig
The appellant’s submissions criticise the reasoning of Dr Doig, and argue that the doctor’s opinion should not be accepted. The Arbitrator, in his reasons, summarised the evidence of Dr Doig,[107] as he did each of the doctors who had furnished medicolegal reports, together with the various treating entities that produced material. The Arbitrator’s reasoning process, which led to the result, is set out in his reasons under the heading “Discussion”, at [140]–[186]. The Arbitrator’s reasoning process was not dependent on an acceptance of Dr Doig’s opinion. Indeed, Dr Doig is not mentioned at all in the discussion passage of the Arbitrator’s reasons. It follows that those parts of the appellant’s submissions that deal critically with Dr Doig’s views are irrelevant to the result, as the reasoning did not rely on Dr Doig. This is sufficient to dispose of the argument summarised at [44] above. To characterise the issue between the parties as whether the appellant “suffered a subsequent injury presumably between October 2013 and September 2016” is to regard the issue as being confined by Dr Doig’s opinion, which it was not.
The respondent’s initial acceptance of liability
[107] Reasons, [115]–[123].
The appellant, in various passages of his submissions, refers to the respondent’s initial acceptance of liability, in the letter dated 10 November 2011. The appellant submits this admission might have been rebuttable, but no such relief was sought in the s 74 notices, the Reply or at the hearing. He submits this admission involved acceptance that the appellant suffered symptoms, causally related to the relevant work injury, up to 31 December 2013.[108]
[108] Appellant’s submissions, [2.3]–[2.6].
The appellant’s submissions refer to a decision of Roche DP in Begnell v Super Start Batteries Pty Ltd,[109] in which the Deputy President reviewed a number of authorities relating to the payment of compensation, and the extent to which it constitutes an admission. Reference was made in Begnell to Chase v State of New South Wales,[110] a common law matter in which the weight attached to the voluntary payment of workers compensation was considered. Giles JA (Tobias and Bryson JJA agreeing) said:
“The judge appeared to accept that the admission could be found in the payment of workers compensation benefits. It is correct that she did not consider whether it had been explained away. She did not have to do so. The unexplained admission was plainly taken into account as part of a consideration of the whole of the evidence. Any admission is evidentiary only, to be weighed together with all other evidence, and in her Honour’s view on the whole of the evidence the appellant had not established that the injury for which she claimed damages was work related. There was no error in her Honour’s approach.”[111]
[109] [2009] NSWWCCPD 19; 8 DDCR 177.
[110] [2004] NSWCA 441 (Chase).
[111]Chase, [70].
The issue was dealt with in Department of Education and Training v Sinclair,[112] where Spigelman CJ (Hodgson and Bryson JJA agreeing) said:
“88. The Respondent submitted that the Appellant, by not contesting liability between November 2001 and August 2003, has made an admission of some character that ought to bear upon this Court’s assessment of the evidence.
89. These is some authority for the proposition that payment of compensation is prima facie evidence of a compensable injury: see Vergis v Brownbuilt Ltd (1973) 5 SASR 591; Christiansen v JW Simpson & Co Pty Ltd [1971] SASR 412; Nizich v Royal Prince Alfred Hospital [1973] WCR 291; Way v Penrikyber Navigation Colliery Co Ltd [1940] 1 KB 517.
90. Nevertheless, in my view, this submission should be rejected.
91. First, it would involve a substantial stretch to apply these principles to the present circumstances that involve the complex interaction of statutory tests. While it might be appropriate to attach some small weight to such an admission in cases involving simple questions of fact (e.g. whether there was an employment injury), it would not be appropriate to develop that principle to cases of this complexity. In particular, it would be inappropriate to see such action as an admission that the statutory ‘whole or predominant test’ is established.
92. Secondly, any weight that could be attached to such an admission must be of the slightest weight given that medical reports have been tendered.
93. Finally, I would particularly reject any suggestion that an employer might adversely affect their position in the Commission by not fully investigating each possible defence prior to making their first payment. Such an outcome would have the effect of deterring precisely the kind of reasonable behaviour that beneficial legislation such as the workers compensation scheme seeks to encourage.”
[112][2005] NSWCA 465; 4 DDCR 206 (Sinclair).
It follows from the above that the respondent’s acceptance of liability on 10 November 2011 was simply one piece of evidence, to be weighed with the evidence in the matter as a whole. The Arbitrator was aware of the earlier acceptance of liability, it is referred to in his reasons.[113] The probative force of an admission must be determined “by reference to the circumstances in which it is made and may depend altogether upon the party’s source of knowledge”: Lustre Hosiery Ltd v York.[114] The Arbitrator said that the respondent’s payment or reimbursement of treatment expenses during 2012 indicated that it “at that time, accepted a causal relationship based upon the reports of Dr Billett and Dr Kossman[n]”.[115]
[113] Reasons, [4].
[114][1935] HCA 71; 54 CLR 134, 143–144.
[115] Reasons, [178].
According to Exhibit ‘A’, the first actual payment made by the insurer was on 10 May 2012, for a service described as “GP/Doctor/Specialist – AMA” on 5 April 2012. This is consistent with the initial consultation with Dr Kossmann on 5 April 2012.[116] Dr Kossmann’s report dated 5 April 2012 included a claim number, and referred to a request that the insurer take over responsibility for the shoulder injury. Dr Kossmann’s second report, dated 10 August 2012, said he was “still waiting to hear from GIO regarding confirmation that they will take over responsibility for a cortisone injection in [the appellant’s] left shoulder”.[117] This is consistent with Dr Kossmann furnishing the insurer with copies of his correspondence. The appellant’s statement dated 3 August 2018 described an exchange of correspondence between Dr Kossmann and the insurer.[118] Dr Billett examined the appellant at the insurer’s request on 30 October 2012, and reported to the insurer.[119]
[116] ARD, p 18.
[117] ARD, p 19.
[118] AALD 6.8.18, p 5, [29].
[119] ARD, pp 1–6.
The Arbitrator said that Dr Kossmann and Dr Billett were given a history in 2012, by the appellant, that he had “a history of left shoulder pain and restriction of movement going back six to seven years”. The Arbitrator said that he did not accept the accuracy of that history. This is consistent with the admission being deprived of weight, as it was based on medical evidence which itself did not have weight due to the lack of correlation between the history assumed in the relevant reports, and the facts as proved: Hancock v East Coast Timber Products Pty Limited.[120] The Arbitrator both identified the admission, and gave a valid reason for why the admission, when weighed with the evidence as a whole, lacked probative force. There was no error in how the Arbitrator dealt with the respondent’s acceptance of liability on 10 November 2011.
The respondent’s onus of proof
[120][2011] NSWCA 11; 8 DDCR 399, (Hancock), [70]–[78], [82]–[83].
Ground No 2 speaks of whether the respondent had discharged its evidentiary onus of proving the effects of the work injury to the left shoulder had ceased. The appellant, as the moving party, carried the ultimate onus of proof: Commonwealth v Muratore.[121] This is consistent with the Arbitrator’s reasons at [167]. The Arbitrator said that, the appellant having established ‘injury’ to the left shoulder on 14 November 2005, with symptoms continuing at least up to February 2006, this was consistent with an evidentiary onus moving to the respondent to establish that the effects of the injury had ceased.[122] The Arbitrator, in his reasons at [180], quoted the following passage from the decision of Roche DP in Ahmed:
“54. In [Brown vLewis], Mason P stated at [83], ‘the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake [1960] HCA 58; (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.’ In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) CLR 114 164 at 168 (‘Purkess’)). Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed ‘if his evidence be accepted’ (at 168).[123]
[121][1978] HCA 47; 141 CLR 296, [11].
[122] Reasons, [179].
[123]Ahmed, [54].
The Arbitrator said that he accepted a submission by the respondent that “the causal link had been broken and that the requirement for surgery did not result from the subject injury to the left shoulder”. The appellant said that he suffered continuing pain and restriction in the left shoulder, which had forced him to abandon employment in 2008. The Arbitrator said there was no explanation of why, in such circumstances, the appellant had not sought some investigation or treatment of the problem, between February 2006 and January 2012. This was notwithstanding that the appellant had sought treatment over this time for other work injuries.[124] It is apparent that the Arbitrator did not accept the appellant’s evidence regarding his symptoms following the injury on 14 November 2005. This is dealt with further below, in the discussion dealing with Ground No 3 and the credit issue.
[124] Reasons, [181]–[183].
The respondent’s submissions on Ground No 2 predominantly involve references to the allegedly restricted nature of the s 74 notice, the alleged deficiencies in Dr Doig’s analysis, and the effects of the “admission of liability” on 10 November 2011. These are dealt with above. This includes the reference to Cluff, which is in the context of whether there was a further injury (a possibility raised by Dr Doig, which the Arbitrator did not accept).
The appellant’s failure to discharge his onus
Ground No 3 is critical of the Arbitrator’s finding that the appellant failed to discharge his onus on the causation issue, based on an absence of chronicled complaints to doctors from February 2006 to January 2012. The appellant submits that failure to seek treatment is not the issue, but rather whether the appellant had symptoms from November 2005. It is submitted that care should be taken in relying on histories or the lack of them, in medical reports or notes. Many of the appellant’s submissions, based on the scope of the s 74 notices, the alleged defects in Dr Doig’s opinion, and the significance of the acceptance of liability on 10 November 2011, have already been dealt with.
The appellant’s submission that care should be taken in relying on histories, in the records and reports of treating doctors, is consistent with authority (see, for example, Nominal Defendant v Clancy,[125] Davis v Council of the City of Wagga Wagga[126] and King v Collins[127]). The Arbitrator dealt with the clinical material with care. The appellant does not submit there was any specific error in how the Arbitrator dealt with this material. The Arbitrator summarised the treating material from 14 November 2005 to 2012 carefully, in his reasons at [55] to [87]. The analysis of such material, set out in the discussion passage of the reasons, was properly available.
[125] [2007] NSWCA 349.
[126] [2004] NSWCA 34.
[127] [2007] NSWCA 122.
The Arbitrator was clearly aware that the causation issue revolved not around whether there were recorded complaints, but rather whether there were symptoms present after the 2005 injury. This is inherent in the factual finding at [183] of the reasons:
“In the absence of any imaging from the time of the subject injury [it] is difficult to see how Dr Kossman[n], Dr Billett and Dr Brearley were able to conclude that the ongoing symptoms in the left shoulder were attributable to the subject injury. In arriving at that conclusion those doctors must have relied upon the history of continuing symptoms. I am not satisfied that that history has been established for the reason set out above.”
The appellant last saw Dr Ahmadi on 15 February 2006. The notes from that day recorded he was “fit to resume normal duties”, and “[l]eft shoulder problem fully resolved”. The Arbitrator, in his reasons at [152], observed:
“The statement contains complaints of substantial painful ongoing disabilities arising from the subject injury. This statement needs to be weighted against the total absence of any complaint to a doctor of problems with the left shoulder in the period between February 2006 and January 2012.”
In his reasons at [151], the Arbitrator noted “Mr Bonica does not provide any explanation as to why he did not seek treatment for his left shoulder”. At [163], he said:
“In the absence of any explanation by Mr Bonica as to why he did not seek medical attention for his left shoulder problems it is difficult to accept his statement that he continued to have such problems and that he was unable to continue with a particular job in 2008 because of that condition.”
The Arbitrator’s reasons, at [181]–[184], said that, in the absence of imaging from the time of the injury in 2005, those doctors supporting the case on causation (Drs Kossmann, Billett and Brearley) “must have relied upon the history of continuing symptoms”. The Arbitrator said that he did not accept that history was made out on the evidence. Applying settled principles (Hancock and associated authorities) this deprived the medical opinion, based on that history, of weight. The appellant has not demonstrated factual error based on the principles discussed in Raulston. The Arbitrator’s finding on the causation issue was properly open to him on the evidence.
The issue of credit
The appellant submits that the respondent did not, at the arbitration hearing, seek to raise credit as an issue, or seek leave to cross-examine. “It was never said that this man wasn’t telling the truth”.[128]
[128] T2 8.32–9.1.
There is no right to cross-examine in the Commission: Aluminium Louvres & Ceilings Pty Ltd v Zheng.[129] In New South Wales Police Force v Winter[130] Campbell JA (Giles JA and Handley AJA agreeing) dealt with the rule in Browne v Dunn and principles of procedural fairness, in the context of the Commission. Applying that decision in JB Metropolitan Distributors Pty Ltd v Kitanoski,[131] Roche DP at [121] said:
“The apparent suggestion that, if an Arbitrator has not heard oral evidence from a party, it is not open to the Arbitrator to form a view about that party’s credit or consistency is plainly wrong. Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).”
[129] [2006] NSWCA 34; 4 DDCR 358, [37].
[130] [2011] NSWCA 330, [77]–[85].
[131] [2016] NSWWCCPD 17.
It follows that the respondent’s failure to seek leave to cross-examine does not assist the appellant. The material on which the respondent made the relevant submissions, and on which the Arbitrator relied in reaching his conclusion, was contained in the documentary evidence exchanged between the parties, and both parties had the opportunity to make submissions on it.
It is unclear what the reference to failing to raise credit means. The appellant had put on statements that stated he had continuing severe pain in his left shoulder,[132] and that from 14 November 2005 to the date of his supplementary statement (3 August 2018), the “left shoulder has never recovered”.[133] The respondent at the arbitration hearing, to the contrary, made submissions that the “injury was minor in nature and did not necessitate any treatment until a period of time in 2012”, and addressed on the medical records in support of this proposition. It was inherent in how the respondent conducted the case, that it was submitting the appellant’s evidence of his symptoms from time to time was not to be accepted. As was said in a well-known passage from Fox v Percy:[134]
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”[135] (excluding footnotes)
[132] ARD, p 40.
[133] AALD 6.8.18, p 5 [31].
[134] [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (Fox v Percy).
[135]Fox v Percy, [31].
It was not incumbent on the respondent to put to the appellant that he was being deliberately untruthful, there were various possible explanations for why the appellant’s evidence may have been unreliable. The Arbitrator had regard to the contemporary materials, being the clinical records from multiple sources. These formed the basis for his reasoning regarding whether the appellant’s evidence, in his statements, should be accepted, given the lack of chronicled complaint about the left shoulder from February 2006 to early 2012. He reasoned from these materials, that the appellant did “not have a clear recall of the accident and its consequences”.[136] The reliability of the appellant’s evidence was sufficiently challenged in the circumstances.
[136] Reasons, [147].
The reasons given above are sufficient also to dispose of Ground No 1.
CONCLUSION
For the reasons given above, Grounds Nos 1, 2, 3 and 4 fail.
The appeal is dismissed.
DECISION
The Arbitrator’s decision dated 31 August 2018 is confirmed.
Michael Snell
Deputy President
15 February 2019
3
31
0