Buxton v Ausdrill Ltd
[2019] WADC 25
•27 FEBRUARY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BUXTON -v- AUSDRILL LTD [2019] WADC 25
CORAM: SCOTT DCJ
HEARD: 24 OCTOBER 2018
DELIVERED : 27 FEBRUARY 2019
FILE NO/S: APP 39 of 2018
BETWEEN: GREG LEIGH FRANCIS BUXTON
Appellant
AND
AUSDRILL LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR POWLES
File Number : A44625 of 2017
Catchwords:
Appeal from reconsideration decision by arbitrator pursuant to s 217A of Workers' Compensation and Injury Management Act 1981 - Effect of substantial delay in bringing reconsideration application - Revocation of finding by arbitrator
Legislation:
Workers' Compensation and Injury Management Act 1981, s 61(1), s 61(3) s 61(4), s 217A, s 247
Result:
Leave to appeal
Appeal partly allowed
Representation:
Counsel:
| Appellant | : | Mr R Cywicki |
| Respondent | : | Mr T J Hammond |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | SRB Legal |
Case(s) referred to in decision(s):
Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Kuligowski v Metrobus [2004] HCA 34
Mirvac (WA) Pty Ltd v Seddon (Unreported, C16-2009, 19 June 2009)
Murphy v Abi-Saab (1995) 37 NSWLR 280
P & O Australia Ltd v George (Unreported, CM-144/01, 22 February 2002)
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Qantas Flight Catering v Joncevski [2004] WASCA 121
Read v Cape Modern Joint Venture (Unreported, CM-188/02, 7 August 2003)
Sinclair v Bickford (Unreported, C5-2011, 11 March 2011)
Vurlow v Leighton Nursing Home [1978] WAR 15
Walsh v Fortesque [2016] WADC 140
Wilson v Metaxas [1989] WAR 285
SCOTT DCJ:
Appeal
This is an appeal pursuant to pt XIII of the Workers' Compensation and Injury Management Act 1981 (Act) against the decision (Reconsideration Decision) of the arbitrator in Application A44625 (Reconsideration Application) dismissing the appellant's application for a reconsideration of the arbitrator's decision in Application 1349 (s 61 Application) in which the arbitrator dismissed the appellant's application made pursuant to s 61(3) of the Act (Decision).
Background
The appellant was employed by Connector Drilling Pty Ltd (Connector Drilling) as a driller's offsider. On 31 May 2011 he suffered a work related injury to his lower back (injury). The respondent, which had taken over Connector Drilling in 2011, filed a Form 3A dated 21 June 2011 by which it accepted it was liable under the Act to compensate the appellant for that injury and weekly payments of compensation were commenced to be paid. In the Form 3A the nature of the appellant's incapacity was described as a strain to lower back.
On 23 April 2012 the appellant was served with a Form 5 'Notice to Worker of Intention to Discontinue or Reduce Payments' pursuant to s 61 of the Act (s 61 Notice). The s 61 Notice stated that the respondent intended to discontinue weekly payments of compensation to the appellant on the basis that he had fully recovered from the effects of the injury, was fit to work in his pre‑injury occupation as a driller's offsider on a full‑time basis and without restriction and in the alternative was fit to work in alternative occupations on a full‑time basis without restriction. The s 61 Notice was based upon the opinion of Dr Dare in medical reports dated 2 September 2011 and 10 April 2012.
Upon being served with the s 61 Notice the appellant filed an application pursuant to s 61(3) of the Act disputing the respondent's right to discontinue his weekly payments. There was no dispute by the appellant that the s 61 Notice was valid for the purposes of s 61 of the Act. The issue that fell for the determination of the arbitrator was whether the appellant had the capacity to work full‑time or part‑time in his pre‑injury occupation as a driller's offsider and/or whether he had capacity to work full‑time or part‑time in alternative occupations, particularly as a store person.
The appellant bore the onus of establishing on the balance of probabilities that as a result of the injury he did not have capacity to work full‑time or part‑time in either his pre‑injury occupation or the alternative occupation of a store person.
On 28 September 2012 the arbitrator handed down the Decision in which she dismissed the appellant's s 61 Application resulting in weekly payments being discontinued from that date.
On 27 May 2013 the appellant filed an Election to Retain Right to Seek Damages at WorkCover pursuant to s 93K(4) of the Act (Election) and on 29 May 2013 the Election was registered with effect from that date.
On 26 June 2013 the appellant issued proceedings against Connector Drilling in the District Court (District Court action) in which he sought damages arising from the occurrence of the injury.
In her Decision the arbitrator made the following finding (par 60):
There is consensus in the opinions of Dr Dare and Dr Malone that the injury suffered by the [appellant] was a facet joint strain. I so find.
In the District Court action:
(a)The appellant in his statement of claim pleaded:
7.By reason of the accident the plaintiff sustained injuries.
Particulars of injuries
The plaintiff suffered —
7.1an anterior verge compression fracture of the T12 vertebrae body with approximately 20% loss of vertebral body height anteriorly;
7.2a right paracentral disc protrusion causing indentation of the right anterior thecal sac at T11/T12 level;
7.3a mild circumferential disc bulging at L3/4 level with mild loss of disc height;
7.4a shallow posterior disc building causing mild indentation of the anterior thecal sac at L4/5 level with a small synovial cyst projecting posteriorly from the right facet joint;
7.5loss of disc height and mild posterior disc bulging at L5/S1 level;
7.6shock.
(b)By an amended defence filed 25 May 2016 the defendant pleaded:
7.The defendant denies paragraphs 7, 8 and 9 of the statement of claim and further states that by reason of a decision of Arbitrator Powles in Application 1349 made at the Conciliation and Arbitration Service, the Arbitrator found as a matter of fact that the only injuries suffered by the plaintiff in the course of his employment on 31 May 2011 was a facet joint strain. In the circumstances the plaintiff is bound by the Arbitrator's decision and can only claim damages (which are denied) in relation to a facet joint strain.
Following an unsuccessful conciliation, on 4 August 2017 the appellant filed the Reconsideration Application pursuant to s 217A of the Act in which he sought orders that:
1.the decision of Arbitrator Powles dated 28 September 2012 be varied pursuant to s 217A(2)(a) of the Act in that the findings at pars (60) (and 70 – 71) that the applicant suffered a facet joint strain and that the applicant did not prove on the balance of probabilities that he did not have the capacity to work in his pre‑injury occupation or alternative duties as a storeperson, be set aside and substituted in lieu thereof that the applicant suffered multi‑level back injuries and that the applicant was totally unfit to return to work as at 28 September 2012;
2.the respondent pay to the applicant arrears of weekly payments of workers' compensation for the period from 29 September 2012 to 29 May 2013 being the date of the registration of election for common law at 22% of person impairment HPI on a full incapacity basis and further:
2.1seventy five per cent of his weekly payments of workers' compensation for a period of three months from 30 May 2013 to 30 August 2013;
2.2Fifty per cent of his weekly payments of workers' compensation for a period of three months from 31 August 2013 to 1 December 2013.
3.in the alternative the finding of fact in the decision of Arbitrator Powles dated 28 September 2012 be revoked pursuant to s 217A of the Act and there be a finding in terms of orders 1 – 2 contained herein upon reconsideration of the applicant's application.
The arbitrator heard the Reconsideration Application on the papers and on 15 March 2018 made orders that the Application be dismissed.
Relevant provisions of the Act
18.Employers liable to pay compensation for injuries to workers
(1)If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
(2)If an injury of a worker occurs and the worker dies, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1A.
(3)Subsection (2) does not limit the application of Schedule 5 in relation to the death of the worker.
57A. Claims procedure where employer insured
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or
61. Discontinuing or reducing weekly payments without order
(1)Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days’ prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).
(3)A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.
(4)Upon the hearing of an application referred to in subsection (3) an arbitrator shall —
(a)adjourn the application on such terms as the arbitrator thinks fit; or
(b)dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or
(c)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.
217A. Arbitrator may reconsider decision if new information
(1)In this section —
new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.
(2)If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and —
(a)vary or revoke the decision previously made; or
(b)make any further decision,
as the arbitrator considers appropriate having regard to the new information.
247. Appeal against arbitrator’s decision made under Part XI
(1)If written reasons for an arbitrator’s decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5,000 or such other amount as may be prescribed by the regulations; and
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
Section 61 Application
Pursuant to s 61(1) the s 61 Notice must, with reasonable clearness, contain the opinion or conclusion of a medical practitioner with respect to the following matters:
1.that the worker has a total capacity for work; or
2.that the worker has partial capacity for work; or
3.that the incapacity is no longer a result of the injury; and
the medical practitioner must set out his or her grounds for that opinion.
To certify that a worker has a total or partial capacity for work, or that the incapacity is no longer a result of the injury, requires the medical practitioner to state what is the injury which has given rise to the incapacity and that the injury no longer incapacitates the worker or that any incapacity which may exist is no longer a result of the injury: Walsh v Fortesque[2016] WADC 140[47] (Herron DCJ) citing: Vurlow v Leighton Nursing Home[1978] WAR 15, 16 (Burt CJ), 18, 19 (Wickham J).
A s 61 application cannot be used by either an employer or worker to debate questions over whether an injury has been suffered. A s 61 application cannot be used to establish or dispute liability for an injury: Walsh [57].
A s 61 application is only concerned with whether there is an ongoing incapacity for work arising from a compensable injury, that is, an injury for which liability has already been established. There is no power under s 61 to determine whether a worker has suffered an injury and whether an employer is liable to pay compensation in respect of that injury: Walsh [62].
An application pursuant to s 61 is in the nature of an interim or interlocutory application. It is intended to determine in an expeditious way, but on an interim basis, whether the status quo should remain, that is, whether a worker is entitled to ongoing weekly payments of compensation in the interim period. It does not finally determine the rights and entitlements as between a worker and an employer: Walsh [44] citing Heat Containment Industries v Kimberley (1990) 2 WAR 47; Qantas Flight Catering v Joncevski [2004] WASCA 121 (20).
In the s 61 Application the evidence upon which the appellant relied comprised:
(a)Reports of Dr Melad Benyamine (general practitioner) 18 May 2012 and 29 August 2012.
(b)Progress medical certificates by Dr Benyamine 1 May 2012 and 22 August 2012.
(c)Reports of Dr Quinton Malone (neurosurgeon) 24 April 2012 and 17 August 2012.
(d)Appellant's witness statement 21 August 2012. In addition to his witness statement the appellant gave oral evidence.
In summary the appellant's evidence was that:
(a)He sustained an injury to his lower back on 31 May 2011. At that time he was working as a driller's offsider which included continually clearing broken rock and soil from a trench at a mine site. At the time he was inured he was clearing rock and soil from the trench, felt a sudden pop in his lower back and the onset of acute pain.
(b)On 14 June 2011 he attended Dr Shahzad and was certified fit for restricted duties whereupon he returned to work on a return to work program until 6 September 2011 when he was certified unfit for work by his general practitioner Dr Benyamine.
(c)He was then referred to Dr Malone with whom he consulted on 15 December 2011.
Dr Malone recommended facet joint injections which were carried out the next day. The appellant said that he did not have any relief from those injections and was then referred by Dr Malone to Dr Paul Graziotti a pain management specialist.
(d)Due to a death in the family on 28 January 2012 he left Australia and while overseas he had several flare ups and significant pain at times for which he sought medical attention and was prescribed pain medication. On his return to Australia he attended an appointment with Dr Dare on 10 April 2012. Dr Dare was a consultant occupational physician and was instructed by the respondent's insurer.
(e)On 3 June 2012 when he was lying on his bed watching TV, for no apparent reason his lower back became extremely painful and his legs felt heavy and sore for which he took pain killers which had no effect on easing the pain symptoms. Following that episode he attended his general practitioner and then consulted Dr Graziotti on 26 June 2012 and was referred for an MRI scan.
(f)Following the MRI scan he had an appointment with Dr Graziotti on 4 July 2012 who booked him in for further facet joint injections. These injections were carried out by Dr Graziotti on 16 July 2012.
(g)On 2 August 2012 he attended Dr Graziotti who arranged for a rhizotomy to be carried on 29 August 2012. He was to be reviewed by Dr Graziotti on 1 November 2012 - which was after the hearing of the s 61 Application and the Decision.
There were two progress medical certificates from Dr Benyamine. The first on 1 May 2012 certified the appellant totally unfit for work from 1 May 2012 - 1 June 2012. The next certificate on 22 August 2012 certified the appellant to be totally unfit for work from 22 August 2012 - 22 September 2012 observing 'flare up of lower back pain/seen by pain specialist/pending rhizotomy on 29/08/2012/still suffers lower back pain and right buttock/occasionally to the thigh down to knee'.
In his report of 17 August 2012 Dr Malone noted that the appellant was initially reviewed on 15 December 2011 by him and most recently on 16 January 2012. In that report Dr Malone said that his examination findings at his initial review of the appellant on 15 December 2011 were of 'quite significant tenderness over the L5/S1 facet joints'. He said that the MR study of the appellant's lumbar spine performed on 25 July 2011 (which appears to be an error - the study was performed on 22 July 2011) was available to him for review. He said that in view of the appellant's history and examination findings he considered the appellant's symptoms to be consistent with a mechanical lumbar back pain syndrome with this mostly arising from the L5/S1 facet joints. He considered the appellant's presentation to be consistent with facet joint injury.
As to his most recent review on 16 January 2012 Dr Malone said in his report of 17 August 2012 that he referred the appellant to Dr Graziotti for further intervention involving medial branch rhizotomy at the L5/S1 level of the lumbar spine to reduce innervation of the facet joints and reduce his pain syndrome.
Dr Malone confirmed in that report that he was aware that the appellant was subsequently reviewed by Dr Graziotti on 21 June 2012 and then on 4 July 2012 and that Dr Graziotti had advised that he would now proceed with the radiofrequency rhizotomy at the lumbosacral junction which course, Dr Malone said, was his advice in January 2012 with which Dr Graziotti agreed. He said that given the passage of time between the referral and the opportunity for Dr Grazziotti to see the appellant, a repeat MRI study was undertaken which did not show any changes.
In that report Dr Malone said that on reviewing Dr Graziotti's letter it was apparent to him that the appellant continued to suffer similar symptoms to those described when he was reviewed by him in January 2012 and his opinion therefore was that the appellant had not recovered from the effects of the injury sustained on 31 May 2011. Dr Malone opined that the appellant was currently unfit to undertake work on either a full‑time or part‑time basis or to carry out alternative occupations. He added that the appellant was not fit to return to work as a driller's offsider on a full‑time basis until his treatment had been completed by Dr Graziotti and his symptoms settled. He observed that it was important to note that once his facet pain settles, however, the appellant would be in a position to return to his routine duties reasonably rapidly'.
The respondent adduced the following documents in evidence:
(a)s 61 Notice 20 April 2012.
(b)Reports of Dr Dare 2 September 2011 and 10 April 2012.
(c)Report of Professor Charles Mulvey, Labor Net managing director 15 June 2012.
In Dr Dare's first report of 2 September 2011 he described the mechanism of injury as told to him by the appellant and stated that the appellant told him he still had ongoing, constant lower back pain and reported that 'examination of Mr Buxton's lumbosacral spine demonstrated normal extension and normal forward flexion describing little discomfort with either of these movements except for coming up from the flexed position to the upright position'. He noted that the appellant was able to squat with no difficulty but had minor discomfort with lateral flexion of his spine and stated 'Mr Buxton has suffered a soft tissue injury to his lumbosacral spine which is causing ongoing pain. His scans demonstrate minor degenerative changes which, based on his history, have been asymptomatic in the past. He is describing right lower limb pain but clinically he does not have radiculopathy and this is supported by his MRI scan and CT scan which demonstrate no disk protusions causing nerve root impingement. He does appear to be improving however he continues to have constant lower back discomfort which is not uncommon still three months from such an injury'.
In that report Dr Dare said that the appellant had a number of features on examination which 'suggest possibly a facet joint strain injury but overall I consider his scan findings are reassuring and I consider there is no reason why he will not fully recover from this injury and be able to return to his pre-injury occupation without restriction'.
In his report of 10 April 2012 he referred to additional material provided to him which included a report of Mr Alexeeff dated 11 October 2011 and the report of Dr Malone dated 15 December 2011. He noted that the appellant had facet joint injections but it appeared from his questioning of the appellant that he had no real relief from his symptoms. Dr Dare said that he was therefore unsure why Dr Gee had recommended rhizotomies considering the poor response to the facet joint injections.
Dr Dare noted that the appellant told him that he still had ongoing, constant lower back pain, he described his recovery as being variable and he had exacerbations of his pain. Dr Dare reported that the examination of the appellant's lumbosacral spine was similar to previously 'with a good range of movement with extension and forward flexion describing only minimal discomfort with these movements but described discomfort principally with coming up from the flexed position to the upright position'. He noted that the appellant was able to squat with no difficulty, able to walk on his heels and toes, simulated spinal compression and rotation tests were negative and examination of his lower limbs demonstrated normal straight leg raising and he had normal power, sensation and reflexes in both lower limbs.
Dr Dare said in this report that it was of concern that the appellant was describing no improvement in his symptoms since he was last examined by him. He considered that to be inconsistent with the normal recovery and healing from a soft tissue injury to the lower back. He said that on clinical examination there was little to find again with a good range of movement of his back and no signs of radiculopathy. He was not convinced that facet joint rhizotomies were indicated as the appellant had a poor response to his facet joint injection at L5/S1 and he considered that ongoing conservative management would be appropriate. He said he considered there was little objective evidence of a significant injury to the appellant's lower back and he could not explain why he continued to have such significant ongoing pain now getting up to 12 months since his initial injury. He therefore considered that the appellant had recovered from his work related injury and would be fit to return to his pre‑injury employment.
In this report he said that the initial injury was a musculoligamentous injury or soft tissue injury to the appellant's lumbosacral spine. He considered that getting up to 12 months following his initial injury the appellant had recovered from that injury despite complaining of persistent symptoms and impairment.
Decision
The arbitrator said that the appellant gave evidence that he considered himself totally unfit for work because he suffers constant pain in his lower back. He said he had just undergone radiofrequency rhizotomy to the lumbar sacral facet joints several days prior to arbitration and it was apparent to the arbitrator at the hearing that he was suffering ill-effects from that procedure. She accepted his evidence that he was continuing to experience lower back pain.
The arbitrator said (at par 60) 'there is consensus in the opinions of Dr Dare and Dr Malone that the injury suffered by Mr Buxton was a facet joint strain. I so find. As to prognosis, Dr Dare and Dr Malone have differing opinions. Dr Dare considers Mr Buxton's prognosis to be poor due to his persistent subjective pain and impairment. By contrast, Dr Malone considers that once Mr Buxton's mechanical backache is treated and his facet pain settles, he will be in a position to return to his routine duties reasonably rapidly.'
The arbitrator said that Dr Dare's opinion was given after consideration of his findings on physical examination and review of CT and MRI scans. In addition, he considered reports of specialist, Mr Alexeeff, dated 11 October 2011, Dr Malone dated 15 December 2011, Dr Gee dated 23 January 2012, and Dr Brooks dated 6 February 2012 and after reviewing that information, Dr Dare considered that there was little objective evidence of a significant injury to the appellant's lower back.
The arbitrator observed that medical opinion as to the appellant's capacity for work is conflicting. As to the opinion of Dr Malone, the arbitrator said that he expressed the opinion in his August 2012 report that the appellant had not recovered from the effects of the injury, however, she found he had not examined the appellant since January 2012 and that Dr Malone's assessment of incapacity was based on a letter from Dr Graziotti which had not been adduced in evidence. She observed that there had been no recent examination by Dr Malone, nor any examination or diagnostic findings by any other medical practitioner to support Dr Malone's opinion of incapacity for work.
In the event, the arbitrator found that she preferred the opinion of Dr Dare to the opinion of Dr Malone as Dr Dare examined and assessed the appellant more recently than Dr Malone. She also preferred the opinion of Dr Dare to that of Dr Benyamine who had not reported any recent examination findings and had provided insufficient explanation for his opinion of the appellant's continuing total incapacity for work.
She found that the appellant had not established that he did not have capacity to work in his pre‑injury occupation or alternative duties as a store person. She dismissed the s 61 Application resulting in weekly payments being discontinued.
Events leading up to Reconsideration Application
After filing his Election in which the description of his injury was 'back injury', the appellant filed the writ of summons in the District Court.
On 19 August 2016 the solicitors for the appellant wrote to the arbitrator making submissions to her to reconsider the Decision.
On 30 August 2016 the registrar wrote to the solicitors for the appellant informing them that an application must first be made for conciliation of a dispute before an application could be made to an arbitrator for reconsideration.
The solicitors for the appellant then made an application for conciliation and on 20 July 2017 the conciliation officer confirmed that there was a minimal chance of an agreement being reached and as a consequence conciliation had ended.
On 4 August 2017 the appellant filed the Reconsideration Application pursuant to s 217A of the Act to which was attached:
(a)Attachment 'A' being the description of the accident;
(b)Attachment 'B' being a summary of the nature of the dispute and the outcomes;
(c)Attachment 'C1' and 'C2' being respectively a copy of the amended defence in the District Court action filed 25 May 2016 and a copy of the amended reply to the defendant's amended defence, the letter from the appellant's solicitors to the arbitrator of 19 August 2016 referred to above (marked 'C3'), a letter from the solicitors for the respondent to counsel for the appellant dated 6 April 2017 (marked 'C4') and a copy of the appellant's witness statement dated 21 June 2017 (marked 'C5') together with further medical reports upon which the appellant relied, namely:
(i)report of Dr Stephen Young, radiologist 13/6/11;
(ii)MRI lumbar spine report of Dr Michael Kriesser, consultant radiologist 22/7/11;
(iii)report of Dr Michael Alexeeff, orthopaedic surgeon 11/10/11;
(iv)report of Dr Quentin Malone, neurologist 15/12/11;
(v)CT guided facet joint injection report of Dr Chawla 17/12/11;
(vi)reports of Dr Paul Graziotti 26/6/12 and 2/8/12;
(vii)MRI lumbar spine report of Dr David Price, radiologist 1/7/12.
In the Reconsideration Application the appellant sought the following orders:
1.The Decision be varied in that the findings at paras 60 and 70 – 71 that the applicant suffered a facet joint strain and that the appellant did not prove on the balance of probabilities that he did not have the capacity to work in his pre‑injury occupation or in alternative duties as a store person be set aside and there be substituted in lieu thereof a finding that the appellant suffered multi-level back injuries and that the appellant was totally unfit to return to work as at 28 September 2012.
2.The respondent pay to the appellant arrears of weekly payments of workers' compensation for the period from 29 September 2012 to 29 May 2013 being the date of registration of the Election on a full incapacity basis and further:‑
2.175% of his weekly payments of workers' compensation for a period of three months from 30 May 2013 to 30 August 2013; and
2.259% of his weekly payments of workers' compensation for a period of three months from 31 August 2013 to 1 December 2013.
3.In the alternative the finding of fact in the Decision be revoked and there be a finding in terms of orders 1 – 2 upon reconsideration of the s 61 application.
The parties filed submissions as follows:
(a)Appellant's submissions filed 16 October 2017;
(b)Respondent's submissions filed 25 October 2017;
(c)Appellant's submissions in response (undated).
The arbitrator, with the agreement of the parties, dealt with the Reconsideration Application on the papers. On 15 March 2018 she handed down the Reconsideration Decision in which she dismissed the Reconsideration Application. A brief summary of the Reconsideration Decision is as follows:
1.The arbitrator was of the view that s 217A of the Act involved a two stage process:
(a)determining whether there is 'new information' as defined in s 217A(1); and
(b)if there is, reconsidering the Decision,
citing Commissioner McCann in Mirvac (WA) Pty Ltd v Seddon (Unreported, C16-2009, 19 June 2009).
The arbitrator said that there were three steps in a reconsideration pursuant to s 217A of the Act:
(a)first there must be information relevant to a decision that was not available to the arbitrator; and
(b)second, the arbitrator must be satisfied that the information justifies reconsideration of the matter.
These first two steps being as to the jurisdictional facts.
(c)If these two jurisdictional facts are established, the third step requires an arbitrator to reconsider the original decision and make any orders in accordance with s 217A(2).
The arbitrator confirmed the documents on which the appellant relied as constituting new information being a report dated 11 October 2011 from orthopaedic surgeon Mr Michael Alexeeff; reports dated 26 June 2012 and 2 August 2012 from pain medicine specialist Dr Paul Graziotti; CD lumbar spine report dated 13 June 2011 and MRI lumbar spine reports dated 22 July 2011 and 1 July 2012. As to whether these materials comprised 'new information' the arbitrator said she was satisfied that there was information relevant to her Decision that was not available when that decision was made.
The arbitrator said that there was no dispute that these reports were not adduced in evidence at the hearing of the s 61 Application on 4 September 2012 and as such were not available to her when she made the Decision. She also found that those reports comprised information relevant to the Decision. In the course of making the Decision she said she had to determine whether the appellant could establish that he was totally unfit for work as a result of the compensable injury. In fact the task for the arbitrator was also to consider whether the appellant could establish whether he was totally or partially fit. Be that as it may, nothing turns on that matter in this appeal. The reports upon which the appellant relied contained medical opinion about the nature of the compensable injury and about his capacity for work. She said she was satisfied that these reports constituted new information for the purposes of s 217A.
As to whether the new information justified reconsideration of the matter, the arbitrator considered the appropriate test which she had to apply was whether the new information was 'likely to change the result' citing P & O Australia Ltd v George (Unreported, CM-144/01, 22 February 2002) [19] (Packington CM). That approach was followed in Read v Cape Modern Joint Venture (Unreported, CM-188/02, 7 August 2003) (Hogan CM).
The arbitrator said that the test as to whether the new information was likely to change the result was to be applied by evaluating the likely probative effect of the new information in light of the evidence originally presented to her. She made clear that in so doing she was not at that stage conducting a reconsideration of the appellant's case. Rather, she said, in order to ascertain whether reconsideration was justified, the likely probative effect of the putative new information must be considered in the context of the evidence that was before her at the time of the Decision.
The parties do not dispute that the arbitrator enunciated the correct test to be applied pursuant to s 217A.
The arbitrator then summarised the new information and the respective submissions by the parties. A summary of each party's position as found by the arbitrator was as follows.
Appellant
The appellant submitted that the reports of Mr Alexeeff and Dr Graziotti, together with the CT and MRI reports justified a reconsideration of the Decision. Mr Alexeeff's report contained examination and diagnostic findings that supported Dr Malone's opinion that the appellant was not fit to return to work as a driller's offsider and his report demonstrated diagnostic findings that supported Dr Malone's opinion that the appellant was unfit to return to work. In his report of 11 October 2011, Mr Alexeeff diagnosed the appellant's injury as mechanical low back pain and that the L5/S1 disc was implicated. He opined that the appellant's circumstances lent themselves ideally to consideration of a localised epidural injection at the L5/S1 level and that the natural history of mechanical low back pain in the absence of significant disc protrusion and/or instability was for symptoms to settle in due course whether treated or not. His assessment as to the appellant's capacity for work at that time was that he retained a work capacity but for restricted duties in which he should avoid heavy lifting and/or awkward posture.
In the CT lumbar spine report dated 13 June 2011 Dr Young commented:
The clinical history has noted that no significant disc protrusion is identified. There is mild bulging of the annulus at the L5/S1 level and to a lesser degree at the L4/5 level. No associated distortion of the thecal sac or significant narrowing of the exit foramina can be seen. No significant facet joint arthropathy is identified.
In the MRI lumbar spine report from Dr Krieser dated 22 July 2011, reference was made to there being no significant facet arthropathy. There was multi‑level disc generation of generally mild degree. Numerous shallow disc bulges were present. No nerve root compromise or significant narrowing of the spinal canal or foramina had been demonstrated.
In the MRI lumbar spine report of Dr Price dated 1 July 2012, reference was made to the following:
1.Shallow central/left paracentral disc protrusion at L5/S1 associated with minor end plate lipping. It is completely unchanged in appearance since previously.
2.The other levels examined are normal.
3.Mild anterior compression fracture of T12 also unchanged from the previous study.
The arbitrator noted that the MRI lumbar spine report of 22 July 2011 was available to Dr Malone and was considered by him in his report of 17 August 2012 where he stated:
The MR study of the lumbar spine performed on 25/7/11 was available for review. This study confirmed the presence of mild disc degeneration at the L5/S1 level in association with a posterior annular tear. There was no evidence of nerve root entrapment. Free fluid within the L5/S1 facet joint was noted bilaterally.
In view of his history and examination findings I advised Mr Buxton that his symptoms were consistent with a mechanical lumbar back pain syndrome with this most likely arising from the L5/S1 facet joints. His presentation was entirely consistent with facet joint injury.
The arbitrator also noted that Dr Malone had been provided with the MRI lumbar spine report of 1 July 2012 in respect to which he stated in his report of 17 August 2012:
Mr Buxton was most recently reviewed on 16/1/12. At that time I referred him to Paul Graziotti for further intervention, with this involving medial branch rhizotomy at the L5/S1 level of the lumbar spine to reduce innervation of the facet joints and reduce his pain syndrome.
I am aware that Mr Buxton was subsequently reviewed by Dr Graziotti in initial consultation on 21/6/12 with subsequent consultation occurring on 4/7/12 wherein Dr Graziotti advised that he would now proceed with radio frequency rhizotomy at the lumbosacral junction. As you are aware this was my advice from January and Dr Graziotti is in agreement.
… a repeat MR study was undertaken. This did not show any new changes.
On reviewing Dr Graziotti's letter it is apparent that Mr Buxton continues to suffer similar symptoms to that I described when he was most recently reviewed in January 2012. It is my opinion therefore that Mr Buxton has not recovered from the effects of injuries sustained on 31/5/11.
The appellant submitted that the reports of Dr Graziotti reflected two examinations by him that were each more recent than the examination undertaken by Dr Dare and that Dr Graziotti's reports were considered and relied upon by Dr Malone in formulating his opinion that the appellant was not fit to return to work in his pre‑injury capacity or in alternative duties.
Additionally, the appellant submitted that as Dr Malone was the treating neurosurgeon, his opinion ought to be afforded more weight than that of an occupational physician who was briefed by the respondent to prepare a medico‑legal report. The appellant submitted that the opinion of Dr Malone was based on findings on examination, consideration of scan results and review of another treating specialist's opinion and that that was contrary to what was stated in the Decision as a basis for preferring Dr Dare's opinion.
Respondent
With respect to Mr Alexeeff's report, the respondent submitted that Mr Alexeeff advances the diagnosis that the appellant was suffering from mechanical lower back pain and expressed the opinion that he retained a work capacity but did not express an opinion as to whether he had the capacity to work in his pre‑injury role or in the alternative positions which were referred to.
The respondent submits that Mr Alexeeff's opinion that the appellant had some work capacity contrasts with the opinion of Dr Malone. The respondent also submitted that Mr Alexeeff's reports pre‑dated Dr Malone's last examination of the appellant prior to the Decision and, more significantly, submitted that Mr Alexeeff's report pre‑dates the report of Dr Dare such that Dr Dare's assessment should be preferred.
The arbitrator observed, correctly in my view, that contrary to the appellant's submission, Mr Alexeeff did not state in his report that the diagnostic finding supports a conclusion that the appellant was unfit to return to work. She considered that Mr Alexeeff's opinion was capable of supporting a finding that the appellant was not fit for his pre‑injury duties as there was evidence before her that the work of a driller's offsider was heavy work, however, his opinion would not preclude a finding that the appellant was fit for alternative duties. The arbitrator concluded that Mr Alexeeff's opinion expressed in his 11 October 2011 report had low probative value in respect to the appellant's incapacity and did not add weight to Dr Malone's opinion that he was totally unfit for work.
The arbitrator observed that Mr Alexeeff's opinion about the appellant's capacity for work was formulated following a medical examination on 28 September 2011 which post‑dated Dr Dare's examination of 2 September 2011. It was therefore only the later examination by Dr Dare on 10 April 2012 that was more recent than Mr Alexeeff's examination.
The arbitrator referred to Dr Dare's report of 10 April 2012. In that report Dr Dare stated:
Mr Buxton describes no improvement whatsoever in his symptoms now 7 months since my last assessment.
On his examination of the appellant, Dr Dare said:
On clinical examination there was little to find again with a good range of movement of his back and no signs of radiculopathy … I consider there is little objective evidence of a significant injury to his lower back and I cannot explain why he continues to have such significant ongoing pain now getting up to 12 months since his initial injury.
The arbitrator pointed out that when Dr Dare made his observation about the objective evidence of injury, he had reviewed the CT scan of lumbar spine report of 13 June 2011 and the MRI lumbar spine report of 22 July 2011. The MRI lumbar spine report of 1 July 2012 had not by then been performed and as a consequence, he did not have that information available to him, nor was he aware of Dr Graziotti's treatment plan for the appellant.
In respect of Dr Graziotti's report of 26 June 2012, the respondent highlighted that Dr Graziotti did not provide a diagnosis of the appellant's condition, he stated that the appellant's range of movement was normal and he did not comment on the appellant's work capacity.
The arbitrator observed that the respondent submitted that Dr Graziotti in that report did not provide a diagnosis of the appellant's condition and did not state that he was incapacitated for work and consequently asserted that Dr Graziotti's reports did not justify a reconsideration of the Decision.
The arbitrator concluded after assessing the evidence and the submissions that the new information would have been likely to change the result of the Decision and advanced the following reasons:
(a)Dr Dare in his report of 10 April 2012 noted that the appellant had no improvement in his symptoms since he was previously reviewed by him in September 2011 which he considered to be inconsistent with the normal recovery and healing from a soft tissue injury to the lower back.
(b)However the weight of medical opinion from Dr Benyamine, Dr Malone, Mr Alexeeff and Dr Graziotti suggested that the appellant had suffered an injury that was more significant than a soft tissue injury. He was having investigations and assessments by medical practitioners in various specialities to try and identify the underlying cause of his ongoing pain and other symptoms.
(c)Dr Graziotti observed in his 26 June 2012 report to Dr Malone that the appellant had previously had facet joint injections at L5/S1 and said:
I think it is important to know if there has been a significant disc injury at the time of the incident as it sounds like he was working very hard in the days up to the injury with a lot of bending, lifting and twisting. To that end I have arranged a repeat MRI as often those injuries do not show up early on. I have told him though that if the repeat MRI is the same as the previous MRI then one can fairly categorically state that he has not had a significant disc injury. Then the question remains as to whether his pain is facetal in origin and the only way to diagnose that would be with accurately placed facet joint injections or dorsal ramus blocks, which I would then undertake. If he had short‑term relief from those (I would do L4/L5 and L5/S1) then it would be reasonable to proceed with radiofrequency rhizotomy.
(d)In his report to Dr Malone of 2 August 2012, Dr Graziotti stated:
I reviewed Greg today. He had positive diagnostic response to facet joint injections at L4/5/1 with good relief from immediately after the procedure for 5 days. Then the pain has gradually recurred and on that basis I do think it is worth proceeding to a radiofrequency rhizotomy which I went through with him today.
(e)At the hearing of the s 61 Application, the arbitrator noted that the appellant gave evidence that he had undergone the rhizotomy procedure on 29 August 2012 and was due to be reviewed again by Dr Graziotti on 1 November 2012.
(f)In his report of 17 August 2012, Dr Malone expressed the view that not only was the appellant not fit to return to work as a driller's offsider but also was currently unfit to undertake work on either a full-time or part-time basis or to carry out any alternative occupations as suggested.
(g)Dr Graziotti's reports, in particular, would not only have added greater weight to Dr Malone's opinion, but would have reinforced the reliability of the appellant's own evidence.
Particularly, Dr Graziotti's decision to refer the appellant for further MRI as well as his explanation to Dr Malone why further facet joint injections were undertaken and why as a result he recommended rhizotomy all strengthen the appellant's case that the source of his lower back was still being investigated and treated. That would be likely to diminish the weight of Dr Dare's view that there was 'little objective evidence of a significant injury to his lower back' and his subsequent statement that he 'could not explain why Mr Buxton continues to have such significant ongoing pain now getting up to 12 months since his initial injury' which appeared to inform Dr Dare's opinion that the appellant had capacity to work in his pre‑injury duties on a full‑time basis.
The arbitrator said that she was satisfied that the new information would be likely to change the result of her Decision and concluded that it justified reconsideration such that the second jurisdictional fact was established.
Arbitrator's reconsideration of Decision
The arbitrator, correctly in my view, said that conducting a reconsideration pursuant to s 217A involves reassessing all the evidence including the new information and the evidence relied on in the s 61 Application. It requires a fresh determination of the issues in dispute.
She added that reconsideration also required her to consider matters relevant to the exercise of her discretion whether to vary or revoke the Decision or make any further order and to that end she cited an excerpt from Sinclair v Bickford (Unreported, C5-2011, 11 March 2011) at [12] where Commissioner McCann (as his Honour then was) stated:
If the jurisdictional facts are established then the third element or step requires the arbitrator to exercise a discretion as to whether to vary or revoke the decision, or whether to make such further decision as the arbitrator considers appropriate having regard to the new information.
And at [55]:
The discretion conferred by s 186(2) is informed by the objectives of the Act … and care should be taken before making an order for reconsideration if the applicant does not have 'clean hands'. So any unexplained or improper delay in the bringing of an application for reconsideration is a relevant factor and arises for consideration …
The arbitrator then considered the delay on the part of the appellant in bringing the Reconsideration Application and made the following observations:
(a)the respondent had submitted that five and a half years had expired since the Decision was made and that s 217A contemplates any application based on new information being filed within a reasonable time and that the appellant had not answered the respondent's submissions about delay;
(b)the appellant had submitted that, in light of the new information, the arbitrator ought to determine that her reasons for preferring Dr Dare's opinion were incorrect, that she should prefer Dr Malone's opinion over Dr Dare's opinion and on that basis, find that the appellant was totally unfit for work. Following that finding, the appellant submitted that the arbitrator ought to vary the Decision and make an order that the appellant's weekly payments be not discontinued;
(c)to that submission the arbitrator observed that 'the consequences of making such an order so many years after my original decision have not been addressed at all by Mr Buxton. Nor has he offered an explanation for the delay between my original decision and this application'.
(d)the delay has had significant potential impact. If, as a consequence of concluding that the appellant was totally unfit for work, she was to vary her original decision and order that weekly payments not be discontinued, this would have the consequence of reinstating the appellant's weekly payments from 28 September 2012 ongoing. Such a variation would result in retrospective imposition of an obligation to pay weekly payments and because of the time that had elapsed the respondent would have lost the opportunity to challenge the liability to pay weekly payments over the period that obligation extended and that would be manifestly unfair;
(e)in addition that would be inconsistent with the purposes of the Act which, by s 3(d) specified that the purposes included making provision for the hearing and determination of disputes 'in a manner that is fair, just, economical, informal and quick'.
The arbitrator considered the substantial delay by the appellant in seeking a reconsideration of her original decision to be of primary importance in exercising her discretion. To that end she found that due to the delay by the appellant in applying for reconsideration pursuant to s 217A it would be contrary to principles of equity and justice to make any order varying or revoking her original decision and dismissed the Reconsideration Application.
Appeal
On 11 April 2018 the appellant filed an appeal notice (Appeal Notice) against the dismissal by the arbitrator of the Reconsideration Application.
The right to appeal the decision of an arbitrator is confined by the provisions of the Act. Section 247(1) provides that a party to a dispute may, with leave of the District Court, apply to the District Court against an arbitrator's decision.
Relevant to this appeal, the court is not to grant leave to appeal unless an amount of compensation of at least $5,000 is in issue and a question of law is involved. The amount in issue in this case is more than $5,000. If leave was given then the appeal is to be by way of review of the decision from which the appeal is made (s 247(5)). The hearing is not de novo. The appeal judge does not start with a blank page, but with a formal decision and unless the 'review' persuades the judge that the order being reviewed should be altered or discharged, it should stand: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].
A decision will not involve an error of a question of law simply because an arbitrator has made a wrong finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. This means that there is no error in law just because the arbitrator preferred one version of the evidence to another or one set of inferences to another. An appeal involving a question of law extends to questions of mixed fact and law. So if some question of law is involved, the whole of the decision under appeal is open to review and not just the question of law.
The question whether there is any evidence of a particular fact is a question of law. Similarly, the question whether a particular inference can be drawn from the facts found or agreed is a question of law. In the context of review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
The grant of leave to appeal lies in the discretion of the court. In general it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, substantial injustice would be done, by leaving the decision unreversed. What is a substantial injustice must depend on all the circumstances of the case: Wilson v Metaxas [1989] WAR 285, 294 (Malcolm CJ).
Appeal Notice
In the Appeal Notice, the appellant identified the questions of law as follows:
1.The arbitrator erred by finding that if the original decision were to be varied, this would have the consequence of reinstatement of the appellant's weekly payments from the date of the decision ongoing, contrary to s 93P(2) of the Act as the appellant elected to pursue a common law claim on 29 May 2013.
2.The arbitrator erred in finding the delay alone a sufficient factor to dismiss an application where the 'new information' was accepted to be likely to change the result of the original decision and failed to exercise her discretion according to law.
3.The arbitrator failed to have regard to evidence of delay that was before her at the time of exercising her discretion.
4.The arbitrator, having determined that her discretion to reconsider her earlier decision was enlivened having concluded that the reports relied upon by the appellant were 'new information' and that 'new information' would have been likely to change the result of the original decision, failed to properly exercise that discretion according to law.
5.The arbitrator erred in the exercise of her discretion in finding that the weight of medical opinion contained within the 'new information' supported a diagnosis that the appellant had suffered a multi-level back injury and failed to vary her original decision which reflected her finding that the appellant suffered a facet joint strain.
The decision sought in the Appeal Notice was that:
1.The original decision be varied and an order be made that the appellant's weekly payments of worker's compensation not be discontinued for the period 28 September 2012 until the date of the appellant's registration of election for common law claim being 29 May 2013 upon which date the provisions contained within s 93P(2) would take effect.
2.That the finding of the arbitrator namely that the appellant suffered a facet joint strain be varied and substituted therefore that the appellant suffered a multi-level back injury.
Respondent's notice of contention
The respondent submitted that the arbitrator was correct in dismissing the reconsideration application on the grounds relied upon by the arbitrator and that the arbitrator should have found that the new information was unlikely to change the result of the original decision.
Application for leave to amend Appeal Notice
On 10 October 2018 the appellant filed an application to amend the Appeal Notice in the following manner:
1.By deleting paragraphs 4 and 5 of the appeal notice and substituting in lieu:
4.The arbitrator erred in law in failing to revoke her earlier finding that the appellant had suffered a facet joint strain when:
4.1a s 61 application was only concerned with a worker's entitlement to weekly payments; and
4.2the arbitrator had determined that such a finding was not supported by the evidence.
2.And as to the decision sought by deleting par 2 and inserting in lieu thereof:
That the finding of the arbitrator, namely that the appellant suffered a facet joint strain, be revoked.
In support of the application to amend the Appeal Notice, the appellant filed an affidavit sworn by the appellant's solicitor Sharad Chandra Nigam on 10 October 2018. In summary, Mr Nigam deposed that:
(a)At a directions hearing on 31 August 2018 counsel was referred by the presiding judge to the decision of Walsh;
(b)The essential thrust of the appeal is the arbitrator's determination in her decision that the appellant had suffered a facet joint strain which formed the basis of an issue estoppel defence pleaded by the respondent in the District Court action;
(c)the decision of Walsh reinforces the appellant's contention that the arbitrator erred in law in making such a finding where the application under s 61(3) before her did not require her to make that finding;
(d)it was accepted by the arbitrator that the 'new information' before her in 2018 did not support her finding that the appellant had suffered a facet joint strain; and
(e)the arbitrator's determination that the appellant suffered a facet joint strain should therefore be revoked which the arbitrator failed to do.
In submissions the appellant contended that the delay in seeking to amend the Appeal Notice is explicable by reason that:
(a)The parties were alerted to the authority of Walsh on 31 August 2018 at the directions hearing, neither party having previously considered that authority.
(b)The respondent is not prejudiced by the proposed amendment which does not materially alter the central thrust of the appeal nor the nature of the orders sought.
On the other hand, the respondent opposes the application on the basis of unnecessary delay in making the application to amend the Appeal Notice and that the proposed amendments lack merit. The respondent submits that:
(a)Walsh is distinguishable from the subject matter of this appeal; and
(b)the appeal is an inappropriate vehicle with which to ventilate what is, in essence, the real grievance of the appellant - that is the extent to which the respondent may rely upon the findings of the arbitrator for the purposes of defending the District Court action in which a plea of estoppel has been made. The respondent says that this argument is one which ought properly be dealt with in the District Court action.
My finding on application to amend
The application to amend the Appeal Notice is allowed. In my view the delay in making the application is explicable in the manner urged by the appellant. In addition there is no demonstrated prejudice to the respondent. Finally, the principles enunciated in Walsh are arguably relevant to the matters the subject of this appeal.
The following submissions have been filed by the parties in this appeal:
(a)appellant's submissions filed 30 July 2018;
(b)respondent's submissions filed 20 August 2018;
(c)appellant's submissions in reply filed 27 August 2018;
(d)appellant's submissions in relation to disposition of appeal filed 27 November 2018; and
(e)respondent's submissions in response filed 29 November 2018.
Leave to appeal - whether error of law
At [84] the arbitrator said that her original Decision was to dismiss the appellant's application and as a consequence, the respondent was able to discontinue making weekly payments to him. She said that if as a consequence of concluding that the appellant was totally unfit for work she was to vary her original Decision and order that weekly payments be not discontinued this would have the consequence of reinstating his weekly payments 'from 28 September 2012 ongoing' (my emphasis).
The appellant's contention that there was an error of law made by the arbitrator in this regard has, in my view, no merit. The appellant centres on the word 'ongoing'. The plain meaning is 'ongoing' for as long as the appellant was entitled to receive weekly payments.
In my view the matters of law contended by the appellant which are referrable to delay in grounds 2 and 3 can be conveniently dealt with together. To that end I am satisfied that the arbitrator's finding at [81] that the appellant had not answered the respondent's submissions about delay constitutes an error of law. It is not the case, on the face of it that the arbitrator considered reasons advanced by the appellant for delay and discounted them. It is the case that she has by her reasons in [81] not considered at all the explanations by the appellant as to delay and that is a question of law.
To that end, the evidence of the appellant's explanation as to the delay in making the Reconsideration Application comprised the following:
(a)The Reconsideration Application was filed on 4 August 2017. Referred to in the Application and annexed were documents marked A, B, C and D.
(b)In attachment B there was the following:
1.The application arises out of a dispute in the applicant's action for damages for personal injury against the respondent as a result of the accident which occurred on 31 May 2011 … presently pending in the District Court in action number 1999 of 2013 between the applicant as plaintiff and the respondent as defendant.
…
3.The respondent filed in the District Court action its amended defence on 25 May 2016 pleading that by reason of a decision of Arbitrator Powles in application no 1349 made at the Conciliation and Arbitration Service, the arbitrator found as a matter of fact that the only injury suffered by the plaintiff in the course of his employment on 31 May 2011 was a facet joint strain.
4.In the circumstances the plaintiff was bound by the arbitrator's decision and can only claim damages (which are denied) in relation to the facet joint strain. This finding is disputed by the plaintiff. Attached hereto and marked 'C1' is a copy of the amended defence filed 25 May 2016. Attached hereto and marked 'C2' is a copy of the amended reply to the defendant's amended defence.
5.On 19 August 2016 Nigams Legal, solicitors for the applicant, wrote to the Arbitrator Powles requesting a review of her decision, enclosing the relevant new information and provided a copy of the said letter to SRB Legal, solicitors for the respondent. Attached hereto and marked 'C3' is a copy of the said letter without the enclosures thereto.
6.On 6 April 2017 Mr Anthony Basile of SRB Legal wrote to Mr Theo Lampropoulos of counsel for the applicant and advised the applicant that their view was that the arbitrator's finding was binding, could not be revoked or reviewed. Attached hereto and marked 'C4' is a copy of the said letter.
7.On 12 May 2017 the applicant's solicitors wrote to the respondent's solicitors and advised them that the applicant would be making an application to review the said decision of Arbitrator Powles.
8.The applicant instructed his solicitors to file an application for conciliation with WorkCover WA. This application was lodged on 20 June 2016 [sic 2017] a period of approximately one year after it became apparent that the decision of Arbitrator Powles dated 28 September 2012 was to be relied upon by the respondent in the District Court action.
…
10.The applicant further refers to his written statement annexed hereto and marked 'C5' together with the supporting material outlining the chronology of the events.
(c)The amended defence pleads the finding by the arbitrator, as a matter of fact, that the only injury suffered by the appellant in the course of his employment on 31 May 2011 was a facet joint strain and in the circumstances the appellant (plaintiff) is bound by the arbitrator's decision and can only claim damages (which are denied) in relation to a facet joint strain. The reply joins issue with that plea.
(d)In 'C3' in attachment 'B', the following appears at page 5:
Reasons for delay
The applicant has instructed us that following the date of the decision the respondent ceased his weekly payments of worker's compensation and acting on the advice of his then solicitor, Mr Kim Waters of Waterside Legal, he did not appeal the decision.
On or about 16 May 2013 Dr David Kennedy assessed the applicant's whole person impairment at 22% and the applicant on or about 27 May 2013 filed his election to claim damages at common law with WorkCover.
Following the registration of the election the applicant instructed his then solicitor, Mr Kim Waters, to issue proceedings in the District Court claiming damages at common law against the respondent.
…
We further advise that the respondent in its amended defence filed 25 May 2016 pleaded that the applicant's injuries as a result of the accident are limited to 'facet joint strain' pursuant to your finding in the Decision.
It was only after the respondent's amended defence filed in the District Court action the applicant instructed us to take steps to make a submission to request you to reconsider the decision in order to make a finding consistent with further medical reports on the applicant enclosed herewith.
(e)Attachment 'B' also includes a witness statement of the applicant dated 21 June 2017 'C5' in which reference was made by the appellant in similar terms to (d).
From the Reconsideration Decision it is clear that the arbitrator dealt with the Reconsideration Application on the papers. I can only assume that the papers before the arbitrator must have included the Reconsideration Application and as a consequence the attachments. If the attachments were not before the arbitrator, they ought to have been.
As a consequence there was evidence in which the appellant by his solicitors and in his statement explained the reasons behind the delay of 5 1/2 years in making the Reconsideration Application.
The failure on the part of the arbitrator to consider this evidence is an error of law. Having found that a question of law is involved, the whole of the decision under appeal is open to review not just that question of law.
By s 247(7) of the Act, on an appeal the court may affirm, vary or quash the decision appealed against, or substitute and make in addition any decision that should have been made in the first instance.
As to the Reconsideration Decision I am satisfied that it was open on the evidence for the arbitrator to find:
(a)that the reports listed in the Reconsideration Decision (at par 18) constituted 'new information'. That is that material constituted information relevant to the Decision that was not available to her; and
(b)the new information justified a reconsideration of the matter for the reasons articulated by her. That is an evaluation of the likely probative effect of the new information in light of the evidence to which she had regard in the s 61 Application was likely to change the result of the Decision.
The arbitrator made no error in making each of these findings.
In this appeal the appellant seeks orders that the Decision be varied and orders made that:
(a)the appellant's weekly payments for worker's compensation not be discontinued as and from 28 September 2012 until 29 May 2013; and
(b)the finding of the arbitrator, namely that the appellant suffered a facet joint strain, be revoked.
Significance of delay
In the Reconsideration Decision the arbitrator, correctly in my view, concluded that having found there to be new information which, when considered with the information before her when making the Decision, was likely to change the result of her Decision, she was then obliged to reconsider the Decision and in doing so was required to consider whether to vary or revoke the Decision or make any further decisions that she considered appropriate. In conducting that discretionary exercise she was obliged to take into account the delay on the part of the appellant in making the Reconsideration Application.
The respondent submits that the arbitrator was correct in her conclusion that if upon a reconsideration of all of the evidence she was then to conclude that the appellant was totally unfit for work and she was to vary the Decision and order that weekly payments not be discontinued, that would result in a retrospective imposition of an obligation to pay weekly payments and because of the time that has elapsed, the respondent would have lost the opportunity to challenge the liability to pay weekly payments over the period that obligation extended which would be manifestly unfair (pars 84, 85). In addition such a variation would be inconsistent with the purposes of the Act to which I have already referred.
Notwithstanding I am satisfied that the arbitrator was in error in finding that there was no evidence from the appellant by way of explanation for delay in making the Reconsideration Application, I consider, upon taking into account the appellant's explanation for delay, that to vary the Decision so as to reinstate, retrospectively, the respondent's obligation to pay the weekly payments would be contrary to the principles of equity and justice in the circumstances of this case.
My reasons are as follows:
(a)In Sinclair Commissioner McCann, in dealing with s 186(2) of the Act (then in force) which is in exactly the same terms as s 217A, said at [55]:
The discretion conferred by s 186(2) is informed by the objectives of the Act … and care should be taken before making an order for reconsideration if the applicant does not have 'clean hands'. So any other unexplained or improper delay in the bringing of an application for reconsideration is a relevant factor and arises for consideration … Whilst it was unwise for him to 'put his head in the sand' I am not satisfied that his conduct was so deliberate or contumelious as to forfeit the opportunity to have the claim against him determined on the merits based on all available evidence.
And at [57]:
Overall it is important that the proceedings be determined on the merits taking into account the new information on the merits.
(b)In this matter, the arbitrator handed down the Reconsideration Decision on 28 September 2012 the effect of which was that the respondent's obligation to make further weekly payments was discontinued. The appellant made the deliberate decision not to appeal that determination.
(c)The Reconsideration Application was only made when the respondent amended its defence in the District Court action and that was some five and a half years after the Reconsideration Decision.
The appellant concedes that the thrust of the Reconsideration Application was to meet the amendment to the defence.
(d)In these circumstances to make any order in this appeal retrospectively reinstating weekly payments with the effect of depriving the respondent from an opportunity to adduce further evidence or make further investigations referable to the ongoing liability to pay weekly payments over that period would be both unfair and unjust.
It is not appropriate for any order to be made in these circumstances to the disadvantage of the respondent.
Arbitrator's finding that the appellant's injury was a facet joint strain
Appellant's submissions
The appellant says that the issues in dispute in the s 61 Application were identified by the arbitrator at [10] of the Decision as:
(a)whether the appellant had capacity to work full‑time in his pre‑injury occupation as a driller's offsider; and
(b)whether the appellant had capacity to work full‑time in alternative occupations, particularly as a store person.
The appellant says that the arbitrator in the Decision found there to be consensus in the opinions of Dr Dare and Dr Malone that the injury suffered by the appellant was a facet joint strain while noting that Dr Dare and Dr Malone held different opinions as to prognosis. The appellant says that this finding was made in error in that:
(a)In his report of 2 September 2011 Dr Dare said that the injury sustained by the appellant was a soft tissue injury to his lumbar sacral spine and that he had a number of features which suggested possibly a facet joint strain injury. In his report of 10 April 2012 Dr Dare said that the appellant had a musculoligamentous injury or soft tissue injury to his lumbar sacral spine.
(b)Dr Malone in his report of 17 August 2012 said that the appellant's symptoms were consistent with mechanical lumbar back pain syndrome likely arising from L5/S1 facet joint. His presentation was entirely consistent with facet joint injury.
(c)In the Reconsideration Decision the arbitrator came to the conclusion, correctly the appellant says, that Dr Graziotti's reports in particular would have not only added greater weight to Dr Malone's opinion but would have reinforced the reliability of the appellant's own evidence as to his constant lower back pain. The arbitrator found (at [69]):
Dr Graziotti's decision to refer Mr Buxton for a further MRI as well as his explanation to Dr Malone why further facet joint injections were undertaken and why as a result he recommended rhizotomy, all strengthened Mr Buxton's case that the source of his lower back pain was still being investigated and treated. This would be likely to diminish the weight of Dr Dare's view that there was 'little objective evidence of a significant injury to his lower back' and his subsequent statement that he 'could not explain why Mr Buxton continues to have such significant ongoing pain now getting up to 12 months since his initial injury' which apparently informed Dr Dare's opinion that Mr Buxton had capacity to work his pre-injury duties on a full-time basis.
(d)At [62] the arbitrator, correctly the appellant says, found:
However, the weight of medical opinion from Dr Benyamine, Dr Malone, Mr Alexeeff and Dr Graziotti suggests that Mr Buxton had suffered an injury that was more significant than a soft tissue injury. He was having investigations and assessments by medical practitioners in various specialities to try to identify the underlying cause of his ongoing pain and other symptoms.
The appellant submits that having made those findings the arbitrator was in error in not finding on a reconsideration of all of the evidence that the appellant had suffered an injury that was more significant than a soft tissue injury in respect to which there were ongoing investigations and assessments to identify the underlying cause of his ongoing pain and other symptoms - which Dr Dare had dismissed as subjective and inconsistent with the 'normal recovery and healing from a soft tissue injury to the lower back'.
The appellant says further that it was not part of the arbitrator's task in the Decision to make a finding that the appellant had suffered a particular injury when the s 61 Application was only concerned with a worker's entitlement to weekly payments as the arbitrator had identified at [10] of the Decision.
As such, the arbitrator was in error in failing to revoke her finding that the appellant's injury was a facet joint strain.
The respondent submits that the primary issue before his Honour in Walsh related to whether a left bicep strain suffered by him in the course of his employment for which liability was accepted was the only injury the arbitrator was able to consider for the purpose of the s 61 Application. The respondent submits that from Walsh the following relevant principles can be derived:
(a)In relation to the Act a s 61 notice is in the nature of an interim or interlocutory application. It does not finally determine the rights of entitlement as between a worker and an employer (44).
(b)A s 61 application cannot be used by either an employer or a worker to debate questions over whether an injury or disability has been suffered (57); and
(c)A s 61 application in its own right does not permit a determination to be made by either party regarding an employer's liability to pay compensation pursuant to s 18 (62).
Counsel for the respondent submits that those principles, which are not challenged by the respondent, do not assist the appellant in strengthening his argument as to why the arbitrator was incorrect in her interpretation of how to apply the principles involved in a s 217A application under the Act.
The respondent submits that the s 61 proceedings, the Reconsideration Application and this appeal are inappropriate vehicles with which to ventilate what is in essence the real grievance of the appellant - that is, the extent to which the respondent seeks to rely upon the finding of the arbitrator as to the nature of the injury for the purpose of defending the appellant's common law action.
Determination
Whilst the principles enunciated in Walsh are not disputed by either the appellant or the respondent, the factual context in Walsh is different from the matters dealt with in the s 61 Application. In Walsh the issue before his Honour related to whether a left bicep injury suffered by the worker for which liability was accepted by the employer was the only injury the arbitrator was able to consider for the purposes of the s 61 application - there being an asserted injury to his left shoulder as well. It seems that the left bicep strain was the specific injury for which liability was accepted by the employer.
In this case the injury sustained by the appellant on 31 May 2011 for which liability was accepted by the respondent, has not been so succinctly described. To that end:
(a)in the Form 3A Notice That Liability Is Accepted, the nature of incapacity is described as 'strain to lower back';
(b)in the certificate of degree of permanent impairment pursuant to s 146H(1) filed 27 May 2013, the description of injury is described as 'lumbar spine injury' as is the case in the Form 33 Assessment of Degree of Permanent Whole of Person Impairment;
(c)in the Form 34 Election the injury is described as 'back injury';
(d)in the Reconsideration Application the injuries are described as 'back injuries'.
I accept that a number of these descriptions of the injury sustained by the appellant post‑dated the Form 3A by which liability was accepted by the respondent, but it does demonstrate the ongoing imprecise description of the appellant's injury.
As part of the reasoning process undertaken by her in the Decision, I do not consider the arbitrator to have been in error in identifying, as she perceived it from the evidence, the injury to the appellant giving rise to his capacity for work. It is however this 'finding' as the arbitrator describes it, upon which the respondent relies in its assertion in the amended defence in the District Court action that the damages to which the appellant is entitled is restricted to a facet joint strain.
The matter raised in the amended defence is, as the respondent says, quite rightly one which ought be dealt with in the common law action. It is essentially an assertion of an issue estoppel having regard to the finding made by the arbitrator in the Decision. I have real reservations as to the extent to which such a finding can ground an issue estoppel, it being a finding made in an interlocutory proceeding and not a final determination: see Murphy v Abi-Saab (1995) 37 NSWLR 280 cited with approval in Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95 [63]. And see Kuligowski v Metrobus [2004] HCA 34.
That matter is not of course one for me to consider. However, the purported finding by the arbitrator in the Decision is. To that end, I am of the view that the arbitrator was in error in failing to revoke that finding by reason that:
(a)the arbitrator erred in finding (at [60]) that there was consensus in the opinions of Dr Dare and Dr Malone that the injury suffered by the appellant was a facet joint strain when Dr Malone's opinion expressed in his report of 17 August 2012 said the appellant's symptoms were consistent with mechanical lumbar back pain syndrome likely arising from a L5/S1 facet joint and that his presentation was entirely consistent with facet joint injury (my emphasiss);
(b)having regard to her findings in the Reconsideration Decision that the weight of medical opinion suggested that the appellant had suffered an injury that was more significant than a soft tissue injury and was having investigations and assessments by the Decision by medical practitioners in various specialities to try and identify the underlying cause of his ongoing pain and other symptoms, she was in error in not reconsidering the evidence pursuant to s 217A(2) and had she done so, I am satisfied that she ought to have made a finding consistent with those observations and was in error in not revoking the finding at (60) in the Decision.
Whilst the appellant's delay in making the Reconsideration Application militated against any retrospective result pertaining to the respondent's liability to pay weekly payments, the same cannot be said for the finding of the injury made by the arbitrator in the Decision. The revocation of that finding, will necessarily affect the plea by the respondent in the District Court action and will disadvantage the respondent. Nonetheless that plea is based upon a finding in the Decision with which the arbitrator ought to have revoked. That finding in the Decision ought not be left to stand in all of the circumstances.
Conclusion
1.The appellant have leave to amend the appeal notice in accordance with the minute dated 10 October 2018.
2.The appellant have leave to appeal the Reconsideration Decision.
3.The Reconsideration Decision be varied by there being an order that the arbitrator's finding in the Decision that the appellant suffered a facet joint strain be revoked.
I will hear counsel with respect to any further orders and orders for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
Associate to Judge Scott27 FEBRUARY 2019
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