Dodson v Woolworths Group Limited
[2022] WASCA 22
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DODSON -v- WOOLWORTHS GROUP LIMITED [2022] WASCA 22
CORAM: QUINLAN CJ
BUSS P
BEECH JA
HEARD: 13 JANUARY 2022
DELIVERED : 22 FEBRUARY 2022
FILE NO/S: CACV 1 of 2021
BETWEEN: TRACEY DODSON
Appellant
AND
WOOLWORTHS GROUP LIMITED
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
Citation: DODSON -v- WOOLWORTHS GROUP LIMITED [2020] WADC 157
File Number : APP 97 of 2019
Catchwords:
Workers' compensation - Appeal under s 254 of the Workers' Compensation and Injury Management Act 1981 (WA) - Appellant claimed recurrence of an injury sustained at work - Appellant based her claim on her alleged ongoing pain - Whether the primary judge wrongfully rejected the appellant's evidence of ongoing pain - Whether the wrongful rejection of evidence amounts to an error of law - Whether the rejection of evidence in circumstances where the appellant was not cross–examined on that evidence amounts to an error of law
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | B L Nugawela & A G Illich |
| Respondent | : | A P Hershowitz |
Solicitors:
| Appellant | : | Eureka Lawyers |
| Respondent | : | McCabe Curwood |
Case(s) referred to in decision(s):
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
Browne v Dunn (1893) 6 R 67 (HL)
Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150
Cole v P & O Ports Ltd [2002] WASCA 157
Dodson v Woolworths Group Limited [2020] WADC 157
Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200
Kuhl v Zurich Financial Insurance Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Nankivell v Insurance Commission of WA [2017] WASCA 143
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243
Tracey Dodson v Woolworths Group Limited (Unreported, A49673 (Moss V) 3 December 2019)
JUDGMENT OF THE COURT:
The appellant seeks leave to appeal against a decision of the District Court, dismissing her appeal from a decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
The appellant injured her back at work, while working for the respondent, on 6 April 2010. The respondent accepted liability to pay workers' compensation for the appellant's back injuries and paid compensation until a final medical certificate was issued on 19 October 2011.
In 2017, the appellant sought medical treatment for the back pain she was suffering. She lodged a further claim for workers' compensation, claiming that her symptoms were a recurrence of the injury she had sustained on 6 April 2010.
The appellant's application was heard before an arbitrator on 6 December 2018. That arbitrator did not deliver a decision. At a directions hearing on 19 September 2019, the parties agreed that the matter should be allocated to a different arbitrator and determined from the transcript of proceedings and evidence adduced at the hearing.
On 3 December 2019, the arbitrator dismissed the appellant's claim for workers' compensation and published reasons to that effect.[1]
[1] Tracey Dodson v Woolworths Group Limited (Unreported, A49673 (Moss V) 3 December 2019) (Arbitrator's reasons).
The appellant sought leave to appeal to the District Court against that decision. The learned primary judge (Lonsdale DCJ) dismissed the appeal.[2]
[2] Dodson v Woolworths Group Limited [2020] WADC 157 (Primary reasons).
The appellant now seeks leave to appeal against the primary judge's decision.
Ultimately, the appellant advances one ground of appeal in this court. That ground asserts that the primary judge erred in law in failing to uphold grounds 4(c) and 4(d) of the appeal to the District Court, which, in turn, asserted that the arbitrator erred in law in making two factual findings (the impugned findings). The impugned findings were findings to the effect that:
(a)given the lack of medical evidence or physiotherapy evidence between 14 December 2011 and 14 February 2014 recording that she reported back or bilateral leg and ankle pain, the appellant was not experiencing pain in that period; and
(b)given the lack of medical evidence or physiotherapy evidence between February 2014 and April 2017 recording that she reported back or bilateral leg and ankle pain, the appellant was not experiencing pain in that period.
For the reasons that follow, we would refuse leave to appeal and dismiss the appeal. Grounds 4(c) and 4(d) did not involve any question of law. Nor did they demonstrate any legal error, or error of any kind, in the arbitrator's findings. The primary judge was right to dismiss those grounds for the reasons that her Honour gave.
The arbitrator's reasons
The appellant's claim and the issue for determination
It was common ground before the arbitrator that the appellant suffered an injury during the course of her employment on 6 April 2010; that, on 23 April 2010, the respondent accepted liability for weekly payments and medical expenses; and that, on 19 October 2011, the appellant was issued a final medical certificate.
The appellant's claim before the arbitrator was that on 6 April 2010 she suffered back injuries, as well as bilateral leg and bilateral ankle injuries; and that on and from 12 July 2017, she suffered a 'recurrence of [her] back, bilateral leg and bilateral ankle injuries'.[3] The appellant's counsel before the arbitrator described the issue as 'whether there's been a recurrence'.[4] Counsel confirmed that the claim was of a recurrence of the 2010 injury.[5]
[3] Application for arbitration dated 9 February 2018, section 24, BAB 83; Arbitrator's reasons [6].
[4] transcript, arbitration hearing before Arbitrator Findson, WorkCover WA, 6 December 2018, 6.
[5] transcript, arbitration hearing before Arbitrator Findson, WorkCover WA, 26 November 2018, 10 - 11; transcript, arbitration hearing before Arbitrator Findson, WorkCover WA, 6 December 2018, 17 - 18.
The respondent's case before the arbitrator was that the appellant suffered on 6 April 2010 an injury to only her back - specifically, that the injury was limited to the L5/S1 level of her spine. The respondent denied that the appellant sustained injuries on 6 April 2010 to her bilateral leg and ankle, denied that she suffered a recurrence of her back condition (or the bilateral leg and ankle injuries) on 12 July 2017, and denied that the appellant was entitled to receive compensation from 12 July 2017 onwards.[6]
[6] Arbitrator's reasons [1] ‑ [8].
In setting out the issue for her determination, the arbitrator reiterated that the appellant had clarified at the oral hearing that her case was that the 2017 injury was a recurrence of the 2010 injury.[7] The arbitrator then said:[8]
The issue for me to determine is the cause of Ms Dodson's current symptoms and incapacity from 12 July 2017 that is whether they are causally related to the April 2010 injury.
In order to consider the cause of Ms Dodson's symptoms and incapacity from 12 July 2017, I propose to review the evidence in order to make findings as to the nature of the April 2010 injury and the claimed July 2017 recurrence of that injury.
Discussion and analysis of the evidence
[7] Arbitrator's reasons [14].
[8] Arbitrator's reasons [15] ‑ [16].
The arbitrator's consideration and analysis of the evidence was to the following effect.
Ms Dodson's evidence
Ms Dodson's evidence was that she suffered continuous pain since the incident on 6 April 2010 and that the pain became worse over time. However, after referring to conflicts between the appellant's evidence and the evidence of two of her managers, and to inconsistencies in the appellant's evidence as to what she told Dr Silbert about the April 2010 accident, the arbitrator concluded that the most reliable evidence of her symptoms was the contemporaneous medical and physiotherapy evidence. The arbitrator considered that the inconsistencies in the appellant's account of her symptoms in 2010 could be attributed to the effluxion of time and to the appellant's tendency to exaggerate her account. The arbitrator accepted the appellant's claims to be in pain only if they were corroborated by medical and physiotherapy evidence.[9]
[9] Arbitrator's reasons [20] ‑ [29].
In light of this, the arbitrator considered the question of when, during the period between the 2010 accident and 2017, Ms Dodson's claims to have suffered pain were corroborated by medical and physiotherapy evidence. In short, the arbitrator found that the development of back pain radiating down both legs occurred subsequent to the April 2010 accident, as the appellant reported to both Dr Silbert and Dr Knuckey,[10] and that the appellant reported fluctuating symptoms of lower back pain and bilateral leg pain in the period between the accident and 14 December 2011.[11] Further, during this period, the arbitrator found that the appellant reported to Dr Silbert and to her physiotherapist some improvement - including that, on 8 April 2011, she reported to Dr Silbert that she made a 95 ‑ 99% recovery from symptomatic and functional perspectives. However, sometime after 13 September 2011, but before 19 September 2011, the appellant reported to Dr Silbert the development of lower back pain since mid‑August 2011 to 'a maximum 10/10 severity', and she reported to her physiotherapist that her symptoms were aggravated due to changes in work duties. Here the arbitrator referred, in part, to the physiotherapy report of 14 December 2011.[12]
[10] Arbitrator's reasons [27].
[11] Arbitrator's reasons [30]-[35].
[12] As to the relevance of this physiotherapy report, see further at [19] below.
As to the period between 14 December 2011 and April 2017, the arbitrator said:[13]
[36]Given the lack of any contemporaneous medical or physiotherapy evidence between 14 December 2011 and 18 February 2014 recording that she reported experiencing any back pain, bilateral leg and bilateral ankle pain I do not accept that she experienced any such pain during this period. I would have expected that if she had, she would have consulted her GP or physiotherapist about it. I find that she was not experiencing any pain during this period.
[37]On the basis of the medical records at the Murray Medical Centre I find that in February 2014 Ms Dodson reported experiencing back pain.
[38]Given the lack of any contemporaneous medical evidence between February 2014 and April 2017, I do not accept Ms Dodson's claim to have experienced ongoing pain during this period as I would have expected that if she had, she would have consulted her GP about it. I find that she was not experiencing any pain during this period.
The last sentences of paragraphs [36] and [38] of the arbitrator's reasons were the impugned findings challenged by grounds 4(c) and 4(d) of the appellant's appeal to the District Court. The primary judge dismissed grounds 4(c) and 4(d). By ground 2 of her appeal to this court, the appellant contends that the arbitrator erred in law in making the impugned findings, and that the primary judge erred in law in failing to uphold grounds 4(c) and (d) of her appeal in the District Court.
[13] Arbitrator's reasons [36] - [38].
The arbitrator concluded that, based on medical records, the appellant reported experiencing lower back pain and bilateral leg pain in April 2017 through to August 2017.[14]
Physiotherapy reports
[14] Arbitrator's reasons [39].
The arbitrator noted that there were nine physiotherapy reports from Halls Head Physiotherapy in evidence, dated from 17 September 2010 to 14 December 2011. Relevantly, the arbitrator said that, in the final report dated 14 December 2011, the appellant reported being back at full duties with aggravating factors (awkward positions, prolonged sitting, walking and vacuuming) causing her lower back pain. The report also said that further improvements were required to optimise the appellant's recovery.[15]
[15] Arbitrator's reasons [44].
The appellant relied on this report in the particulars to grounds 4(c) and 4(d) of her appeal to the District Court.[16]
Medical evidence
[16] Primary reasons [156].
First, the arbitrator reviewed the certificates of capacity. Relevantly, she noted that Dr Sophie Hopkins issued the final medical certificate in respect of the 6 April 2010 injury on 19 October 2011. The arbitrator recorded that the certificate stated that the appellant had recovered from the effect of the disability enough to return to full‑time work and that she was fit for work, though it recorded that discomfort was still present in the left sacroiliac joint during a back exam.[17] The arbitrator also said that there were no certificates of capacity for the period 19 October 2011 to 11 July 2017.[18]
[17] Arbitrator's reasons [50].
[18] Arbitrator's reasons [51].
Next, the arbitrator summarised medical records from the appellant's GPs;[19] the radiological evidence; the evidence of Mr Knuckey, a surgeon who reviewed the appellant several times in 2010 and 2011; and the evidence of Mr Narula, a neurosurgeon who saw her in 2017. The appellant had numerous consultations with her GP from May 2010 to October 2011. On 18 February 2014 and in May 2014 there were records with reference to back pain. Thereafter, the next record of a consultation was April 2017.[20]
[19] Arbitrator's reasons [54] ‑ [66].
[20] Arbitrator's reasons [58] ‑ [62].
Ultimately, on the arbitrator's analysis, the key medical evidence was that of Dr Silbert - on which the respondent relied ‑ and the reports of Dr Goodheart, Mr Skinner and Dr Jenkins ‑ on which the appellant relied.
Dr Silbert
Dr Silbert provided four reports dated 12 October 2010, 11 April 2011, 19 September 2011 and 12 October 2017.
In summary, Dr Silbert's report of 12 October 2010 reported that the appellant presented with acute mechanical trauma to the lumbosacral spine, which manifested as discogenic back pain. The report noted that the appellant denied any immediate symptoms and recalled the subsequent development of lower back pain radiating through both legs. He also noted that the appellant had reported an overall 25% recovery to date.
The report of 11 April 2011 records the appellant as having reported a good and unremarkable recovery of her symptoms ‑ an overall 95% ‑ 99% recovery from symptomatic and functional perspectives. The appellant reported that she was pain free, other than occasional niggles when getting in and out of bed. She denied having other symptoms, or precipitating or aggravating features, and she denied the need for medical or allied health management.
The report dated 19 September 2011 states that the appellant presented with a complete recovery and full restoration of normal lumbosacral back functioning following the accident on 6 April 2010. It says there was no evidence of residual symptoms or dysfunction. However, the report also states that the appellant recalled developing lower back pain in mid‑August 2011 to a maximum 10/10 in severity. Dr Silbert concluded that this onset of back pain was completely independent of the back injury of 6 April 2010 ‑ Dr Silbert considered the recent pain to be inter‑current, coincidental and entirely unrelated.
The report dated 12 October 2017 records that the appellant reported persistent back pain prior to and following the issuance of the final certificate of capacity on 19 October 2011, and records deterioration in her symptoms in early 2017.
The arbitrator summarised Dr Silbert's opinion as to causation, and its basis, in the following manner:[21]
[21] Arbitrator's reasons [99] - [100].
In respect of causation Dr Silbert opines that Ms Dodson sustained an acute mechanical trauma to the lumbosacral spine through the incident reported to have occurred at work on 6 April 2010, and from which she completely recovered. In his opinion she now presents with age-related symptomatic degeneration of the lumbosacral spine with evidence of posterior element pain and most likely a right L3/4 facet joint arthropathy. In his opinion, Ms Dodson presents with lumbosacral back pain subsequent to, but entirely independent of, the reported incident at work on 6 April 2010.
His opinion is based on the following medical evidence:
(a)Ms Dodson reports a mechanical trauma at work on 6 April 2010, which he considers to be a minor mechanical trauma.
(b)There is no evidence of any internal derangement of the lumbosacral spine arising from the reported incident of 6 April 2010.
(c)The incident of 6 April 2010 would have been sufficient to result in simple myoligamentous inflammation of mechanical back pain to the lumbosacral spine but not any other significant internal derangement of the lumbosacral spine.
(d)Ms Dodson reported at the consultation of 8 April 2011 of remaining pain‑free and with a normal examination finding, demonstrating a full range of pain‑free movement of the lumbosacral spine and without evidence of any abnormality on formal examination.
(e)Ms Dodson is noted to have remained asymptomatic between April 2011 and July 2011.
(f)Ms Dodson reports the subsequent development of lumbosacral back pain following July 2011, without evidence of any specific incident or activity or any other factor to account for the onset of her symptoms.
(g)Ms Dodson reports her current symptoms remaining unchanged subsequent to the onset of her symptoms about July/August 2011.
(h)Ms Dodson's current clinical findings are that of posterior element pain and are likely right L3/4 facet joint arthropathy, in the presence of widespread degeneration of the lumbosacral spine of an age-related basis.
In Dr Silbert's opinion, while the appellant's current symptoms were consistent with her initial symptoms arising subsequent to 6 April 2010, this was coincidental in nature. While there may have been episodic and temporary symptomatic aggravation of her underlying pathology through her work, any relationship between her current symptoms, underlying pathology and work activities was coincidental in nature. In Dr Silbert's opinion, the appellant's current complaints and symptoms were totally and exclusively related to age-related degeneration of the lumbosacral spine and the development of posterior element pain.[22]
Dr Goodheart, Mr Skinner and Dr Jenkins
[22] Arbitrator's reasons [101] - [103].
The arbitrator explained why she preferred the evidence of Dr Silbert to that of Dr Goodheart, Mr Skinner and Dr Jenkins.
First, she said that Dr Silbert examined the appellant on four occasions from 2010 to 2017, whereas each of the doctors on which the appellant relied only examined her once, in 2018.[23]
[23] Arbitrator's reasons [106].
Further, Dr Silbert had reviewed all of the radiological evidence from 2017.[24] The same was not true of the doctors on whom the appellant relied. The arbitrator made the following observations as to those doctors:[25]
(a)It was unclear exactly what radiological evidence Dr Goodheart and Mr Skinner had access to or had reviewed.
(b)It was unclear whether all the clinical notes had been provided to Dr Goodheart, and Mr Skinner's report indicated that he was provided the notes from one of the clinics the appellant attended, but not the notes from the other clinic she attended.
(c)Dr Goodheart's and Mr Skinner's reports do not address Dr Silbert's reports, and there was no evidence that Mr Skinner had access to Dr Silbert's most recent report of 12 October 2017.
(d)Dr Goodheart's report was based on the appellant's account that she had lower back symptoms from the 2010 incident until 2017, and that her symptoms never completely settled. Similarly, Dr Jenkin's report was based on the premise that Ms Dodson had continuing lower back symptoms from the date of the 2010 accident until the present time, and that the symptoms had worsened since 2012. Therefore, the factual premises for their reports were not supported by the arbitrator's findings (see [15] - [17] above).
[24] Arbitrator's reasons [111].
[25] Arbitrator's reasons [107] ‑ [110].
In light of these matters, the arbitrator concluded that she preferred the evidence of Dr Silbert to that of the other doctors.[26]
The nature and extent of the April 2010 injury
[26] Arbitrator's reasons [111].
The arbitrator then turned to examine the nature and extent of the injury the appellant suffered in 2010. The arbitrator again said that the most reliable evidence as to these matters is the contemporaneous medical evidence, namely that of Mr Knuckey, Dr Silbert, the radiological evidence and the GP notes (Dr Hopkins). After summarising some of this evidence, the arbitrator found, on the basis of Mr Knuckey's and Dr Silbert's evidence, and the radiological evidence, that the injury the appellant sustained on 6 April 2010 was mechanical lumbosacral back pain, with no evidence of any residual symptoms or dysfunction. She found, on the basis of Mr Knuckey's evidence, that the appellant presented with a degenerative spine disease without sciatica.[27]
[27] Arbitrator's reasons [124].
The arbitrator further found, based on Dr Silbert's report of 19 September 2011, that, as of the date of that report, the appellant had made a complete recovery from the injury sustained in 2010. She also accepted Dr Silbert's opinion that there was no causal link between the 6 April 2010 injury and the pain that the appellant reported she suffered in the four weeks leading up to 19 September 2011.[28]
[28] Arbitrator's reasons [125].
Relying on Dr Silbert's report of 19 September 2011, the arbitrator rejected the appellant's claim that she was not fully fit for work on 19 October 2011. The arbitrator said this conclusion was also supported by the final medical certificate issued on 19 October 2011, which stated that the appellant had recovered from the injury enough to return to full-time work.[29]
[29] Arbitrator's reasons [129].
Based on Dr Silbert's report of 12 October 2017, the arbitrator concluded that the appellant suffered a minor mechanical trauma on 6 April 2010.
Was the July 2017 injury a recurrence of the April 2010 injury?
Before answering this question, the arbitrator set out the relevant test to apply, including reference to Leggett v Argyle Diamond Mines Pty Ltd,[30] in terms not challenged on appeal: [31]
[30] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182.
[31] Arbitrator's reasons [131] ‑ [136].
Sections 18 and 21 of the Act provide that if an injury to a worker occurs, the employer shall, subject to the Act, be liable to pay compensation under the Act from the date of incapacity resulting from the injury.
The leading authority in Western Australia in relation to the term 'results from' is Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 in which it was held that a period of incapacity results from a work-related injury if the injury is a material contributing cause of the incapacity. It need not be the only contributing factor. This is a question of fact which is to be decided on broad common‑sense lines.
A common-sense evaluation of the causal chain is what is required: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
The test to be applied when assessing causal connection was also considered by the Court of Appeal [sic] in Cole v P & O Ports Ltd [2002] WASCA 157 where Murray and Wheeler JJ said, after referring to Kooragang:
'This approach to the question of causation under Workers' Compensation legislation has been adopted by this Court recently in Leggett v Argyle Diamond Mines Ply Ltd ... which was concerned with the question whether incapacity was caused by a number of injuries or disabilities, including some which were compensable, and in which it was held that provided work related injury was a material contributing cause to the incapacity, it would be proper to conclude that the incapacity resulted from the compensable disability. In other words, that was a case where there might be found to be a number of contributing causes to an incapacity for work ...'
It is not necessary for there to have been continuity of symptoms between the onset of an injury and the commencement of the period of incapacity, although such continuity is capable of being evidence of a causal connection: Pedley v West Coast College of TAFE, C21-2006, 8 November 2006; Treasure v WA Country Health Service, Cl 7-2010, 26 November 2010.
I now turn to the question of whether Ms Dodson's 12 July 2017 injury is a recurrence of the April 2010 injury.
On the basis of contemporaneous medical evidence, the arbitrator found that the appellant's 2017 symptoms were of lower back pain and associated lumbar radiculopathy in her bilateral lower limbs, and that she had pain radiating to her ankles.[32]
[32] Arbitrator's reasons [137].
She then turned to the medical evidence 'to consider the issue of the cause of these symptoms'.[33] She considered, in particular, Dr Silbert's report of 12 October 2017. That report noted that the appellant had previously reported to Dr Silbert a complete recovery between April and August 2011. The arbitrator rejected the appellant's submission that this was inconsistent with her complaint to Dr Silbert of deterioration in her symptoms when she was examined by him on 13 September 2011. The arbitrator reasoned that Dr Silbert, in his 2017 report, was cognisant of the deterioration in symptoms in 2011.[34]
[33] Arbitrator's reasons [138].
[34] Arbitrator's reasons [140] ‑ [141].
Dr Silbert's current clinical findings were of posterior element pain and right L3/4 facet joint neuropathy, in the presence of widespread age‑related degeneration of the lumbosacral spine. The arbitrator noted that this was supported by MRI scans taken in May 2017 and a bone scan taken on 11 September 2017.[35]
[35] Arbitrator's reasons [142] ‑ [143].
The arbitrator agreed with Dr Silbert's views and found that the appellant's current symptoms were 'wholly, totally and exclusively related to age‑related degeneration of the lumbosacral spine and the development of posterior element pain'.[36] The arbitrator added:
In [Dr Silbert's] opinion, with which I agree, there is no evidence that her current clinical findings have arisen due to her injury on 6 April 2010 as any contribution from that injury would have resolved in its entirety over a period of weeks to months following the incident and I so find.
[36] Arbitrator's reasons [144].
The arbitrator noted the appellant's submission that Dr Silbert's evidence conflicts with the evidence of the other doctors who attributed the recurrence to her L5/S1. However, the arbitrator repeated her reasoning that Dr Silbert was the only doctor who had all of the 2017 radiological evidence, including the bone scan of 11 September 2017, which reported active right L3/4 facet joint arthropathy.[37]
[37] Arbitrator's reasons [147].
On the basis of Dr Silbert's evidence, the arbitrator found that the appellant's 2017 symptoms were caused by age‑related degeneration of her lumbosacral spine, the development of posterior element pain and, most likely, a right L3/4 facet joint arthropathy.[38]
Conclusion
[38] Arbitrator's reasons [148].
Consequently, the arbitrator was not satisfied that on 12 July 2017 the appellant suffered a recurrence of her April 2010 injury or that her current symptoms and incapacity were a result of a recurrence of the April 2010 injury.
Grounds of appeal to the District Court
The appellant filed an appeal notice in the District Court seeking leave to appeal, pursuant to s 247 of the Act, from the arbitrator's decision.
Section 247 provides, relevantly, as follows:
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
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(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.
The appellant sought leave to appeal to the District Court on four grounds:
1.The learned Arbitrator erred in law in misdirecting herself and construing that she was required to determine the nature of the appellant[']s April 20l0 injury.
2.The learned Arbitrator erred in law by failing to discharge the obligation to act judicially to:
(a)Consider relevant evidence and to make proper findings; and
(b)Give adequate reasons for decision.
3.The learned Arbitrator erred in law in discounting and/or rejecting the relevant opinion evidence of the neurologist Dr Goodheart, the orthopaedic surgeon Mr Skinner and general practitioner Dr Jenkins, without herself carrying out the necessary foundational fact finding analysis/evaluation required by law (see Beer v Duracraft Pty Ltd [2004] WASCA 192).
4.The learned Arbitrator erred in law:
(a)In only accepting the appellant[']s evidence that she was in pain when that evidence is corroborated by medical and physiotherapy evidence (at [29]). This error also infected the learned Arbitrators conclusions relating to whether the appellant has suffered a recurrence of the April 2010 injury;
(b)In making the finding (at [27]) that the most reliable evidence of the appellant[']s symptoms was contemporaneous evidence;
(c)In making the finding (at [36]) that the appellant was not experiencing any pain between 14 December 2011 and 18 February 2014, in the absence of any evidence to support that finding and/or without giving any or any adequate reasons;
(d)In making the finding (at [38]) that the appellant was not experiencing any pain between February 2014 and April 2017, in the absence of any evidence to support that finding and/or without giving adequate reasons.
The judge's reasons
The primary judge summarised the basis of the appellant's claim:
The basis of the appellant's present claim is that she had never fully recovered from the injury in 2010 and the symptoms reported in 2017 were a recurrence or aggravation of the earlier injury.
Her Honour identified that the question of whether the arbitrator's preference for the opinion of Dr Silbert to the opinions of the doctors relied on by the appellant reveals error was at the heart of the issues in the appeal.[39]
[39] Primary reasons [13] - [14].
Having considered the need for leave to appeal under s 247(2) of the Act, and authorities relevant to that question, the judge considered it convenient to conduct a review of the evidence before the arbitrator prior to examining the merits of whether leave should be granted.[40]
[40] Primary reasons [25].
The judge then carefully reviewed the following aspects of the evidence:[41]
(1)the history of the appellant's medical treatment following the incident on 6 April 2010 until December 2011;
(2)the appellant's evidence regarding her symptoms;
(3)the evidence of two employees of the respondent who were both the appellant's managers at different times;
(4)the medical evidence regarding the appellant's back pain in 2017;
(5)the expert medical opinions in 2017.
The arbitrator's findings as to the appellant's credibility
[41] Primary reasons [26] - [85].
The judge noted that the arbitrator did not accept that the appellant was credible and reliable because there were areas of inconsistency between her accounts of events and her symptoms and the medical evidence and expert medical opinion. Her Honour outlined the inconsistencies in the appellant's account as to whether she experienced pain immediately or only after she had finished her duties on the day of the incident. Secondly, the judge noted the arbitrator's finding that the appellant's evidence that she suffered ongoing symptoms was inconsistent with what she had told Dr Goodheart, namely that she had been suffering back pain with radiation of discomfort into her legs 12 months prior to his review in July 2017. Thirdly, her Honour noted the arbitrator's finding that the absence of medical reports between 14 December 2011 and 18 February 2014 was inconsistent with the appellant's claims to have ongoing back pain attributable to the incident in 2010.[42]
[42] Primary reasons [86] - [91].
The judge expressed the view that the inconsistencies in what the appellant said to the doctors between 2010 and 2017 were fairly minor in nature and ought not to have been a significant factor in the assessment of the appellant's credibility. Her Honour considered that whether the appellant noticed pain immediately or some short time afterwards was not important in circumstances where, at the time of the incident in 2010, there was no controversy that her injuries were causally related to the incident at work.[43]
[43] Primary reasons [94] - [95].
The judge also noted that there was no suggestion from the experts that the appellant was exaggerating her symptoms in 2017 and no reason to doubt that those symptoms were genuine.[44]
[44] Primary reasons [95].
Her Honour then said as follows:[45]
The real issue for the appellant in establishing that her symptoms were a recurrence or aggravation of the earlier injury is not whether she can now correctly recall the circumstances of the 2010 incident, but whether there is evidence of symptoms between 2010 and 2017 (apart from a physiotherapist record in December 2011 and one report of back pain to a doctor in 2014) to suggest she did not make a full recovery.
In my view, the arbitrator was correct to conclude that the evidence of the appellant's symptomology over this period is inconsistent with her claim that she never fully recovered from the initial injury. What Dr Silbert observed in late 2010 - namely, that the appellant had been symptom free for some time prior to that is significant. When Dr Silbert's observations are considered together with the recent medical evidence (which shows a different pathology to that observed in 2010) it was open for the arbitrator to conclude on balance that the appellant's recent symptoms were unlikely to have resulted from the earlier incident.
The primary judge's summary of the arbitrator's preference for the opinion of Dr Silbert and of the arbitrator's finding that the incapacity did not result from a work‑related injury
[45] Primary reasons [96] - [97].
The primary judge noted that the arbitrator referred to the relevant legal principles, and that the arbitrator acknowledged that the earlier injury need only be a material contributing cause of the incapacity and need not be the only contributing factor.[46]
[46] Primary reasons [98], referring to Leggett v Argyle Diamond Mines Pty Ltd; Cole v P & O Ports Ltd [2002] WASCA 157.
Her Honour identified seven reasons why the arbitrator preferred the opinion of Dr Silbert to the opinions of the doctors relied on by the appellant:[47]
[47] Primary reasons [101] - [111].
First, the arbitrator found scant evidence in the medical reports that the appellant displayed symptoms of worsening back pain since the occurrence of the 6 April 2010 injury.
Secondly, when Dr Silbert examined the appellant in mid-2011, he found that she had reported no symptoms for some months, had made a good recovery and recommended finalisation of her claim.
Thirdly, Dr Silbert's recent findings of posterior element pain were based on the MRI scans in May 2017 (which found multilevel facet arthropathy at the L3/4 and L4/5 facets) and a CT bone scan (which found right L3/4 arthropathy but not at L4/5). Dr Silbert considered these results were not consistent with the appellant's symptoms being a recurrence of the original injury.
In rejecting the opinion of Dr Goodheart, the arbitrator noted that Dr Goodheart had not reviewed all of the radiological evidence that had been available to Dr Silbert. (Dr Goodheart's report refers only to MRIs of 28 June 2010 and 4 May 2017.) Importantly, Dr Goodheart did not refer to the CT scan conducted on 13 April 2017 which found active right L3/4 facet joint arthropathy.[48]
Mr Skinner's report dated 10 April 2018 did not disclose that he had considered the EMG conducted by Dr Knezevic on 18 June 2010 or the other (recent) radiological evidence such as the CT scan conducted on 13 April 2017 and the MRI of 30 May 2017 (excepting the discogram conducted at SKG on 17 October 2017).
Fourthly, the arbitrator found it was not apparent that Dr Goodheart, Dr Jenkins and Mr Skinner had had access to all of the clinical notes. Although Dr Goodheart said he was provided with all of the clinical notes, his report did not reveal he had in fact been provided with all of the notes.
Mr Skinner's report did not reveal that he had seen GP notes from the Murray Medical Centre from 2014.[49] Mr Skinner's report lists medical records from Sonic Health Plus dated 19 February 2018 which only contained records between 7 April 2010 and 19 October 2011. There is no indication Mr Skinner had seen the Murray Medical Centre records between 2014 and 2017.
Dr Jenkins' report did not make reference to the bone scan of 11 September 2017 ordered by Dr Narula which showed active right L3/4 facet joint arthropathy. Dr Jenkins listed the documentation he had considered as 'General Practitioner Records, extensive, including Patient Health Summary printed 21/09/17'. The Patient Health Summary refers to 'Sonic Health Plus - Mandurah' and contains records between 7 April 2010 and 19 October 2011. It is not clear whether this included the Murray Medical Centre records from 2014 ‑ 2017.
Fifthly, Dr Goodheart did not appear to have considered Dr Silbert's report of 12 October 2017.[50]
Sixthly, Dr Silbert had reviewed the appellant on four occasions in 2010, 2011 and 2017. Dr Goodheart, Dr Jenkins and Mr Skinner had each reviewed the appellant on only one occasion in 2017.
Seventhly, the opinions expressed by Dr Goodheart, Dr Jenkins and Mr Skinner relied in part on an acceptance of the appellant's account of her back symptoms which the arbitrator did not accept (and thus a fundamental factual basis for their opinions fell away).
[48] Arbitrator's reasons [142] - [144], [147].
[49] Arbitrator's reasons [108].
[50] Arbitrator's reasons [109].
The judge then referred to her earlier reservation about whether the arbitrator was correct to find that the appellant had a tendency to exaggerate or that any inconsistencies in her account were significant. Nevertheless, because the arbitrator's conclusions were also based on the absence of contemporaneous medical evidence to corroborate the appellant's claims, her Honour considered that she was not able to conclude that the arbitrator erred in rejecting the appellant's account of events.
The judge then turned to consider the grounds of appeal.
Ground 1: alleged error that the arbitrator misdirected herself
As no ground of appeal to this court challenges the primary judge's rejection of ground 1, the judge's reasons for doing so can be briefly summarised.
Her Honour observed that the appellant's contention, advanced by ground 1, that the arbitrator was wrong to examine the cause of the earlier injury, was inconsistent with the basis on which the appellant had advanced her claim. The appellant had advanced her claim on the basis of a recurrence of an earlier compensable injury. The judge considered that logic dictated that, given that basis, it was necessary for the arbitrator to understand the nature of the initial injury because if the subsequent injury was not a recurrence of the earlier injury for which compensation was payable, there would be no liability.[51]
Grounds 2 and 3: alleged error by the arbitrator discounting or rejecting the evidence of doctors relied on by the appellant
[51] Primary reasons [116] - [117].
Because no error is asserted in this court in the primary judge's decision to reject grounds 2 and 3 of the appeal to the District Court, it is not necessary to detail her Honour's reasons for doing so.
Ground 3 asserted an error in discounting or rejecting the opinion evidence of the doctors relied on by the appellant. The judge rejected this ground on two bases. First, the ground went no further than alleging an error of fact and so did not involve a question of law.[52] Secondly, the arbitrator disclosed sound reasons for preferring the opinion of Dr Silbert over the other doctors.[53]
Grounds 4(a) and 4(b): failure of the arbitrator to accept the appellant's account and alleged error in finding that the most reliable evidence of the appellant's symptoms was contemporaneous evidence
[52] Primary reasons [184], [185], [189].
[53] Primary reasons [186] - [188].
Although the primary judge reiterated her reservations about the arbitrator's findings concerning the appellant's credibility, her Honour considered the arbitrator was justified in concluding that the most reliable evidence of the appellant's symptoms was the contemporaneous medical evidence.[54] The arbitrator acknowledged, having summarised all the medical evidence, that the appellant had complained of some back pain between 2010 and 2017. Nevertheless, the judge observed that those records also revealed an absence of treatment of back pain for a very significant period, that is, between 14 December 2011 and 18 February 2014.
[54] Primary reasons [141].
Her Honour considered that the arbitrator was entitled to conclude, consistently with the opinion of Dr Silbert, that the appellant had not established that there had been a recurrence of the earlier injury and that the appellant's present symptoms were likely to be unrelated to the earlier event.[55]
Grounds 4(c) and 4(d): alleged failure to consider physiotherapy reports and Murray Medical Centre reports
[55] Primary reasons [143].
In rejecting these grounds, the primary judge observed that the arbitrator's reasons revealed that she had indeed considered the physiotherapist's findings. The judge considered that, in any event, the arbitrator was entitled to accept the finding of Dr Silbert that the appellant's complaint of back pain in August 2011 was unrelated to the incident in April 2010.[56]
[56] Primary reasons [158]. This part of the primary reasons contains a typographical error. It refers to the subsequent report of back pain in August 2010 rather than, as was the case, in August 2011. In context it is clear that the primary judge is referring to Dr Silbert's conclusion referred to at [27] above.
As to ground 4(c), the judge concluded that even if the arbitrator made an error of fact in concluding that there was no evidence of ongoing symptoms between 2010 and 2014, the arbitrator was nevertheless entitled to reject the appellant's evidence on the basis that the absence of medical evidence over a period of years supported a conclusion that the 2017 symptoms were not causally related to the 2010 incident.[57]
[57] Primary reasons [159].
In any event, her Honour concluded that grounds 4(c) and 4(d) did not involve a question of law, but only a question of fact, and refused leave accordingly.[58] As will be seen, we agree with that conclusion, which is fatal to the appeal to this court.
[58] Primary reasons [163].
As to ground 4(d) the judge also concluded that the arbitrator was entitled to conclude as a matter of fact that there was insufficient contemporaneous medical evidence between February 2014 and April 2017 to support the appellant's assertion that her back pain in 2017 was a recurrence of the injury in 2010. Her Honour concluded that the arbitrator was entitled to find, based on the paucity of medical evidence over the intervening period, that the appellant had not established that her present symptoms were related to the 2010 incident.[59]
Additional complaint raised in written submissions
[59] Primary reasons [164].
The primary judge noted that the appellant's written submissions went beyond the grounds of appeal by asserting a denial of natural justice in the absence of an opportunity to present evidence on the issue of whether her pain was corroborated by medical or other evidence.
Her Honour rejected that complaint on the basis that the possibility that the appellant's evidence might be challenged and not accepted was a risk inherent in the issues to be determined. Consequently, the arbitrator was not obliged to warn the appellant of such a risk. The appellant was on notice as to what the issues were. Insofar as the appellant sought to argue a new ground of appeal, the judge considered it was without merit and refused leave to amend.[60]
[60] Primary reasons [192].
Grounds of appeal to this court
The appellant initially advanced two grounds of appeal in this court. However, during oral submissions, the appellant abandoned ground 1.[61] Ground 2 is in the following terms:
Ground 2
2.In the alternative to Ground l above, if the appellant was required to prove continuity of symptoms from 2010 onwards in order to satisfy the Leggett test of causation, then the learned Arbitrator erred in law in finding, contrary to the appellant's sworn testimony, that there was no such continuity (at [WC 36], [WC 38]) given that the appellant's oral evidence on this issue was never challenged in cross-examination, was not inherently incredible and was in fact corroborated by the contemporaneous documentary evidence examined below. The learned primary Judge erred in law in failing to uphold Ground 4(c) and (d) below, on a real review of the evidence.
[61] Appeal ts 12.
Leave to appeal
The appellant requires leave to appeal from the decision of the primary judge. Section 254 of the Act provides that an appeal may be made to this court in respect of a judgment in proceedings in the District Court under pt XIII of the Act, but the appeal must relate to a question of law and leave to appeal must be obtained from this court.
This court's power to grant leave to appeal is not restricted or qualified, except that the appeal must relate to a question of law.[62] Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.[63] Among the matters relevant to whether that is so are whether the decision was wrong or attended with sufficient doubt as to justify leave, and whether substantial injustice would be done by leaving the decision unreversed.[64]
[62] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 [73].
[63] Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200 [30].
[64] Johnson v Denwest Nominees Pty Ltd [31].
Appellant's submissions
Ground 2 asserts that the arbitrator erred in law in making the impugned findings in [36] and [38] of the arbitrator's reasons. For convenience, we again set out those paragraphs in full:[65]
Given the lack of any contemporaneous medical or physiotherapy evidence between 14 December 2011 and 18 February 2014 recording that she reported experiencing any back pain, bilateral leg and bilateral ankle pain I do not accept that she experienced any such pain during this period. I would have expected that if she had, she would have consulted her GP or physiotherapist about it. I find that she was not experiencing any pain during this period.
On the basis of the medical records at the Murray Medical Centre I find that in February 2014 Ms Dodson reported experiencing back pain.
Given the lack of any contemporaneous medical evidence between February 2014 and April 2017, I do not accept Ms Dodson's claim to have experienced ongoing pain during this period as I would have expected that if she had, she would have consulted her GP about it. I find that she was not experiencing any pain during this period.
[65] Arbitrator's reasons [36] - [38].
The appellant points to the primary judge's view that the arbitrator overstated the position in finding that there was no evidence that the appellant's injuries had not resolved, given the physiotherapist's report of December 2011, the appellant's evidence, and the 2014 medical notes.[66] The appellant also refers to the judge's finding that the inconsistencies in what the appellant said to the doctors between 2010 and 2017 were fairly minor in nature and ought not to have been a significant factor in the assessment of the appellant's credibility.[67]
[66] Appellant's submissions [16] - [18]; appeal ts 13.
[67] Primary reasons [94] - [95], see [54] - [55] above. Appeal ts 14 - 15, 19.
The appellant also points to various findings of the arbitrator regarding her physical state and her reports of pain:[68]
[68] Appellant's submissions [21].
(a)The final physiotherapy report on 14 December 2011 recording that there were aggravating factors causing her lower back pain and that further improvements were required to optimise her recovery.
(b)The appellant's experience of on and off back and leg symptoms between 7 April 2010 and 19 October 2011.
(c)In July 2011, the appellant had increased lower back and leg pain due to a change in work duties.
(d)Between 17 September 2010 and 14 December 2011, she attended physiotherapy for back and leg pain.
(e)Between mid‑August 2011 and 13 September 2011, her lower back pain worsened in severity.
(f)On 14 December 2011, her lower back pain symptoms were aggravated because of a return to full work duties.
(g)In February 2014, the appellant attended her GP reporting pain and did so again on 15 May 2014.
(h)In April 2017, the appellant attended her GP with lower back and bilateral pain.
(i)In May 2017, the pain was radiating to her ankles and feet.
(j)In July 2017, the pain was not getting any better.
(k)In August 2017, she continued to report pain.
The appellant submits that the findings of the arbitrator at [36] and [38] of the arbitrator's reasons disclosed legal error because:[69]
(a)They were contrary to the appellant's sworn testimony, which the arbitrator had not seen.
(b)That testimony was not challenged in cross‑examination.
(c)Consequently, if the arbitrator had doubted the credibility of the evidence, the arbitrator should have recalled the appellant to give her the opportunity to adduce further evidence or provide an explanation.
[69] Appellant's submissions [22], referring to Kuhl v Zurich Financial InsuranceServices Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [69], [72], [75].
Further, the appellant points to aspects of the evidence, including a number of certificates for unfitness for work and other medical records, which she asserts were overlooked or disregarded by the arbitrator.[70]
[70] Appellant's submissions [23] - [24]; appeal ts 23 - 28.
The appellant submits that the 'wrong' factual findings so made by the arbitrator were material in causing the arbitrator to reject the opinion of the doctors on whom the appellant relied.[71]
[71] Appellant's submissions [25].
Disposition
The appellant's ground of appeal to this court has insufficient merit to sustain the grant of leave to appeal. That is so for two reasons, each of which is itself sufficient to sustain and require the dismissal of the ground.
First, the ground asserts that the primary judge erred in failing to uphold grounds 4(c) and 4(d) of the appellant's appeal to the District Court. Thus, as the appellant accepted,[72] success for the appellant in this court requires her to establish error by the primary judge in failing to uphold grounds 4(c) and 4(d). The appellant cannot establish error by the primary judge in that respect because, as the primary judge correctly found,[73] grounds 4(c) and 4(d) do not involve a question of law and raise only questions of fact. That of itself was fatal to those grounds of appeal in the primary court and is fatal to the sole ground of appeal to this court.
[72] Appeal ts 12.
[73] Primary reasons [163].
The appellant was unable to identify the question of law that was said to be involved in grounds 4(c) and 4(d). When invited to do so, counsel for the appellant's response was in the following terms:[74]
The question was, 'was there a wrong finding of fact as a result of wrongly rejecting evidence coming to the conclusion that there was no evidence - no documentary evidence - when that isn't what was required?'
[74] Appeal ts 29.
That response does not identify a question of law. Whether a finding is 'wrong' reveals nothing as to the character of the basis - factual or legal error - upon which it is impugned, nor the nature of any question that is thereby involved in the appeal. The repeated reference to 'wrong' or 'wrongly' - a 'wrong' finding of fact and 'wrongly' rejecting evidence - does not alter the character of complaints as to factual findings or lead to them raising a question of law.
In response, the appellant also points to [22] of the appellant's submissions, which is outlined in [80] above.[75]
[75] Appeal ts 29.
Those submissions do not assist the appellant. Those submissions assert a legal error, but do not in their terms identify a question of law involved in the appeal. Counsel did not identify a question of law said to be implicit in those submissions. In any event, the submissions summarised in [80] above are not within the ambit of grounds 4(c) and 4(d). So far as relevant, those grounds asserted that the arbitrator erred in law in making the impugned findings in the absence of any evidence to support the findings. That is a complaint of a fundamentally different character from the complaint asserted by the submissions summarised in [80] above.
The submissions summarised in [80] above might be seen as a reformulation of the additional complaint made to the primary judge asserting a denial of natural justice. As already noted (see [72] to [73] above), the primary judge refused leave to amend the grounds of appeal to add a ground asserting a denial of natural justice. No ground of appeal to this court challenges that conclusion.
Thus, grounds 4(c) and 4(d) of the appeal to the District Court did not involve any question of law and the primary judge was correct to so find.
Secondly, and in any event, even if a question of law were involved, there is no merit in the ground. The appellant's submissions do not demonstrate any error by the primary judge or by the arbitrator.
We begin with the submissions summarised in [80] above. There was no unfairness, of the kind conventionally described as a breach of the rule in Browne v Dunn,[76] in the arbitrator making the impugned findings. In short, there was no unfairness because the appellant was clearly on notice that her evidence that she suffered pain continuously from 2010 to 2017 was challenged by the respondent.
[76] Browne v Dunn (1893) 6 R 67 (HL).
It is well established that the failure to accept evidence given by a party that was not challenged in cross‑examination will not be a breach of the rule in Browne v Dunn, or otherwise give rise to unfairness, if, through other means such as pleadings, submissions or the general manner in which the case is conducted, the party is on notice that the evidence is challenged.[77]
[77] See, for example, Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [184]; Nankivell v Insurance Commission of WA [2017] WASCA 143 [52] ‑[57]. See also the cases outlined by Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 70 ACSR 1 [1027] ‑ [1034].
The respondent's submissions in preparation for arbitration, filed at an early stage of proceedings, stated that the respondent relies on the evidence of Dr Silbert to contend that the appellant's ongoing symptoms do not result from the injury suffered on 6 April 2010. The submissions recorded that, at Dr Silbert's examination of the appellant on 11 April 2011, she reported to him a 95% to 99% recovery from a symptomatic and functional perspective; and reported being pain‑free, apart from an occasion niggle when getting out of bed.[78] The respondent's submissions also referred to Dr Silbert's opinion, in his report of 19 September 2011, that the appellant had achieved a full and unremarkable recovery and returned to her pre-injury state between the period of April 2011 and July 2011, and that the pain then being reported by the appellant had no causal or other relationship with the injury of 6 April 2010.[79]
[78] Respondent's submissions at arbitration [3.3] - [3.4], BAB 97 - 98.
[79] Respondent's submissions at arbitration [3.14] - [3.17], BAB 99.
In the course of cross‑examination of the appellant, objection was taken by her counsel to questions posed by the cross‑examiner. In response, counsel for the respondent said that what was to be demonstrated by the cross‑examination was that the manner in which the appellant was representing her symptoms from the date of the incident onwards was exaggerated, enhanced or augmented in her reports to the doctors on whom she relied.[80]
[80] GAB 36 - 37.
Shortly after the cross‑examination resumed, in response to a further objection, counsel for the respondent said:[81]
The [appellant's case] is that she continued to suffer symptoms. Our case, or the evidence from Dr Silbert, was that she had recovered … we use this evidence to demonstrate that [the appellant] didn't continue to suffer symptoms continuously. (emphasis added)
[81] GAB 39.
Counsel for the appellant continued to press his objection. The arbitrator said that he was inclined to agree with the objection, saying that he had earlier indicated that he would not be having regard to the intervening period in respect of a recurrence of an injury which was for a specified period. On appeal, the appellant emphasises, and asserts the correctness of, the arbitrator's observation.[82]
[82] Appellant's submissions [22], footnote 3; appeal ts 14, 19, 40.
However, in response to that observation, counsel for the respondent submitted (correctly) to the arbitrator that the factual basis for the appellant's evidence, and for the expert evidence on which she relied, was that there was a continuance of the symptoms from 2010 onwards. The arbitrator then overruled the objection.[83]
[83] GAB 40.
These matters were comfortably sufficient to put the appellant and her legal advisers on notice that her evidence that she suffered pain continuously from 2010 to 2017 was challenged by the respondent.
That was further made plain by counsel for the respondent's opening address at the arbitration. During that opening address, the respondent's counsel observed that it was important to note that the appellant has reported that she always continued to suffer symptoms from the date of the injury. Counsel said that he would point to evidence suggesting that that was not the case and that there was doubt as to whether those symptoms were continuing because of the distinct lack of evidence as to attendances at medical practitioners in relation to those symptoms between 2011 and 2016.[84]
[84] GAB 79.
For these reasons, there is no merit in the appellant's submissions summarised at [80] above.
The appellant's other submissions do not establish any error on the part of the arbitrator or the judge. The medical certificates and other documents relied on by the appellant[85] fall well short of demonstrating any error. The appellant points to a number of certificates of unfitness for work occurring from time to time over the course of six years. Only two of them refer to back pain. Several of them, either on their face or from other evidence, can be seen to be for reasons other than problems with the appellant's back or legs.
[85] Appellant's submissions [24].
The appellant did not give any evidence specifically directed to the reason for her unfitness for work on those occasions. Her evidence did not sustain an inference that all, or any specific proportion, of them related to back pain. In any event, the evidence to which the appellant now points amounts to no more than about 30 days of unfitness for work spread over about five years.
There is no error in the arbitrator's observation[86] that if the appellant had been experiencing back pain or bilateral leg and ankle pain during these periods, it was to be expected that she would have consulted her general practitioner or physiotherapist about it. Contrary to the appellant's assertion, the arbitrator's observation does not amount to the imposition of a legal requirement of corroboration. Rather, it is an observation rooted in common sense and experience.
[86] Arbitrator's reasons [36].
Many of the appellant's submissions are, in substance, an attempt to reargue the question of what factual findings should be made from the whole of the evidentiary material that was before the arbitrator. At their highest, they do no more than identify that it would, or may, have been open to the arbitrator to make different findings. To state the obvious, that does not demonstrate error in the findings made by the arbitrator.
The arbitrator was entitled to conclude, as a matter of fact, that there was insufficient contemporaneous medical evidence in the two relevant periods to support the appellant's assertion that her back pain in 2017 was a recurrence or continuation of the injury in 2010. The primary judge was right to so find.[87]
[87] Primary reasons [164].
For these reasons, the appellant's sole ground of appeal to this court is without merit.
Conclusion
For the above reasons, we would make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BM
Associate to the Honourable Justice Beech
22 FEBRUARY 2022
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