Dodson v Woolworths Group Ltd - [2020] WADC 157

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DODSON -v- WOOLWORTHS GROUP LIMITED [2020] WADC 157
CORAM:   LONSDALE DCJ
HEARD:   10 JUNE 2020
DELIVERED          :   11 DECEMBER 2020
FILE NO/S:   APP 97 of 2019
BETWEEN:   TRACEY DODSON
Appellant
AND
WOOLWORTHS GROUP LIMITED
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR MOSS
File Number            :   A49673

Catchwords:

Workers' compensation - Appeal from arbitrator - Alleged recurrence of earlier injury - Whether arbitrator justified in accepting the evidence of an expert over others - Failure to give adequate reasons

Legislation:

Magistrates Court Act 2004 (WA)
Workers Compensation and Injury Management Act 1981 (WA), s 5(1), s 57B(2)(b), s 213, s 247(2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr A Illich
Respondent	:	Mr B Ullinger

Solicitors:

Appellant	:	Eureka Laywers
Respondent	:	SRB Legal

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105
Catholic Education Office of WA v Granitto [2012] WASCA 266
Cole v P & O Ports Ltd [2002] WASCA 157
Coote v Kelly; Northam v Kelly [2016] NSWSC 1447
Joyce v Anderson [2020] WASCA 48
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Manonai v Burns [2011] WASCA 165
Marks v Coles Supermarkets [2020] WADC 36
Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158
Nardi v Department of Education and Training (Unreported, C22/06 9 November 2016)
Nominal Defendant v Cordin [2017] NSWCA 6
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

LONSDALE DCJ:

Introduction and overview

On 6 April 2010 the appellant injured her back whilst working in the dairy section of Woolworths at the Mandurah Central Shopping Centre. The appellant had been standing on a roll cage and stacking shelves when a customer bumped the cage causing her to twist sharply and injure her back.
The respondent accepted liability to pay workers' compensation for the appellant's back injuries and paid her compensation until a final medical certificate was issued on 19 October 2011.
In the year 2017 the appellant was suffering back pain for which she sought medical treatment. She lodged a further claim for workers' compensation on the basis that her symptoms were a recurrence of the injury sustained on 6 April 2010. The appellant claimed in her most recent application that she had sustained not only back injuries but bilateral leg and ankle injuries.
Dr Kim Toh issued a first certificate of capacity on 12 July 2017. Dr Toh described the appellant's symptoms as 'persistent and worsening low back pain since initial injury'[1] and diagnosed her as suffering 'mechanical low back pain with radiculopathy'.[2]
[1] The reference to initial injury refers to the incident on 6 April 2010.
[2] Appellant's book of documents (ABD), page 421.
The respondent denied that the appellant had suffered bilateral leg and ankle injuries or that she had suffered a recurrence of her earlier back injury.
On 3 November 2017 the respondent issued a Form 3D Notice pursuant to s 57B(2)(b) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) disputing liability for the alleged recurrence of the appellant's injury.
The matter proceeded to an arbitration hearing in December 2018. As the arbitrator who heard the matter subsequently became unable to hand down a decision, the matter was referred to Arbitrator Moss (the arbitrator) to deliver a decision. The arbitrator reviewed all of the evidence adduced at the arbitration hearing including the medical records, witness statements and the transcript and audio recordings of the hearing.[3] On 3 December 2019 the arbitrator published reasons denying the appellant's claim for workers' compensation: Dodson v Woolworths Group Ltd (Unreported, Workers' Compensation Arbitration Service, A49673 3 December 2019).
[3] Arbitrator's reasons for decision [12], [13].
The appellant now appeals that decision.
For the reasons which follow I would grant leave on ground 1 but otherwise dismiss the appeal.

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.
The appellant primarily sought to rely on the reports of three experts - Dr Evan Jenkins, Dr Ross Goodheart and Mr Ian J Skinner each of whom expressed an opinion that the appellant's presenting symptoms were a recurrence or aggravation of the initial injury.
The respondent sought to rely on the opinion of Dr Joel Silbert whose opinion was that the appellant's condition was unrelated to the initial injury.
In her reasons for denying the appellant's claim the arbitrator stated that she preferred the opinion of Dr Silbert to the opinions of Dr Jenkins, Dr Goodheart and Mr Skinner.
The question of whether the arbitrator was right to prefer the opinion of Dr Silbert to the opinions of the other doctors is at the heart of the issues in this appeal.

Relevant statutory provisions

The appellant's current claim for compensation is based on s 5(1) of the WCIMA which relevantly defines an 'injury' (for which compensation is payable under the Act) as follows:
5.Terms used
(1)In this Act, unless the contrary intention appears -
…
injury means
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
…
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree ...
(emphasis added)

The grounds of appeal

The grounds of appeal are as follows:
1.The learned Arbitrator erred in law in misdirecting herself and construing that she was required to determine the nature of the appellants April 2010 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 appellants 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 appellants 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.

Leave is required under s 247(2)

The appellant seeks leave to appeal under s 247(2) of the WCIMA which reads:
247.Appeal against arbitrator's decision made under Part XI
…
(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.
In this appeal, the appellant relies on both s 247(2)(a)(i) and s 247(2)(b). It is not in issue that the amount is worth at best $5,000 or 20% of the amount awarded.

Question of law must be involved

Leave may only be granted if 'a question of law is involved'. In order for the appeal to succeed, the appellant must establish that the arbitrator has made an error of law. See Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [54]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105.
Any error of law identified must be an error that is material to the decision in the sense that it contributes to the decision and but for the error the decision would or might have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; BHP Billiton Iron Ore Pty Ltd v Brady [15] (Pullin JA, Buss & Wheeler JJA agreeing).
The distinction as to what constitutes an error of fact and an error of law was discussed in the case of Australian Broadcasting Tribunal v Bond (355) ‑ (357) (Mason J) said:
(4)Review of the Findings of Fact
(a)Grounds of Review
…
The question whether there is any evidence of a particular fact is a question of law: McPhee v S. Bennett Ltd. (46); Australian Gas Light Co. v Valuer-General (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v Bathurst City Council (48). This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (49). So, in the context of judicial 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: Sinclair v Maryborough Mining Warden (50).
But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (51), per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White (52):
Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
The Court of Appeal in Pacific Industrial Co v Jakovljevic [2008] WASCA 60 considered the question of whether a matter of mixed law and fact would 'involve' a question of law under the WCIMA and how the workers' compensation commissioner (being the judicial officer who at that time conducted reviews of the arbitrator) should deal with the question of leave to appeal. Wheeler JA said:
17As has been noted on many occasions, the purposes of the Act include the resolution of disputes in a way which is fair and which is also expeditious, informal and inexpensive (s 3(d)). The primary fact-finder in the event of a dispute is, clearly, the arbitrator. The arbitrator may refer novel or complex questions of law to the commissioner (s 246). In some circumstances, the legislative intention appears to be that the commissioner's jurisdiction can be invoked only where there is, not only a question of law, but a question of law of some significance in terms either of its general importance in the administration of the Act, or in its impact upon a litigant (s 247(2)(a)). No doubt because of the potential economic impact of a decision that a worker is, or is not, entitled to take common law proceedings, the Act does not provide for an additional test of importance on appeal from an arbitrator's decision pursuant to s 93D(10). In respect of those matters, provided only that there is a question of law 'involved', leave may be granted. If no question of law whatever can be identified as arising from an arbitrator's decision, there is of course no jurisdiction in the commissioner to grant leave to appeal. The statutory framework indicates that the correction of errors of law is the commissioner's primary, but not sole, function.
18The legislative use of the term 'involved' indicates that the commissioner's role is not confined to the determination of pure questions of law. Plainly, it extends to questions of mixed fact and law. Further, in other contexts, it has been held that, if an appeal is provided for where a question of law is 'involved', the result is that if some question of law is involved, the whole of the decision appealed from is open to review, and not merely the question of law:
(citations omitted)
…
25I would not understand Pullin JA to have held that it is a necessary precondition to the conduct of the 'real review' that an error of law has been held to have occurred; rather, his Honour was making a broad observation about the statutory framework. That does not mean that the existence or otherwise of a question of law is irrelevant, however. As I noted earlier, the commissioner can, and I understand often does, consider in a single hearing both the application for leave and the appeal itself. If, on such a hearing, it is the commissioner's view that, although a question of law is 'involved', there has been no relevant error of law, that may be a factor which the commissioner will consider relevant to the question of whether leave should be granted. To take an extreme case, should an appellant raise a number of issues which were plainly questions of law, but were equally plainly unarguable, in an attempt to persuade the commissioner to engage in a pure factual review, the commissioner might consider that that was not appropriate, having regard to the legislative focus upon the correction of errors of law as the commissioner's principal, but not only, task.
(emphasis added)
It follows from the decisions I have referred to that there will have been no error of law merely because the tribunal finds facts wrongly or on a doubtful basis: Catholic Education Office of WA v Granitto [53] ‑ [55].
In my view, the question of whether leave should be granted should be considered together with the substantive merits of the appeal. It is only when the substantial merits of the grounds are properly examined will the court then be in a position to say whether an error of fact it is so fundamental that is properly characterised as an error of law. The court can then either grant leave or either uphold or dismiss the appeal or simply refuse leave: BHP Billiton Iron Ore Pty Ltd v Brady [14]; BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [52] - [54].
I have found it convenient to first conduct a review of the evidence before conducting an examination of the merits of whether leave should be granted.

History of the appellant's medical treatment following the incident on 6 April 2010

Following the incident on 6 April 2010, the appellant was directed to her general practitioner, Dr Sophie Hopkins who certified her unfit for work for three days.
The appellant commenced physiotherapy treatment not long after the incident which lasted some months but her condition did not improve.
By late April 2010 the appellant was ready to return to part‑time work with light duties.[4]
[4] ABD 72, report of Halls Head Physiotherapy dated 16 April 2010.
On 14 May 2010, radiologist Dr Steven Lee reported that a CT scan showed:[5]
At L5/S1, there is a broad based right foraminal disc bulge which causes moderate to severe narrowing of the right L5 neural foramen with potential for neural impingement. The disc bulge also abuts the origin of the right S1 nerve root, with potential for a neural impingement.
[5] ABD 317, report of Dr Lee dated 14 May 2010.
On 15 June 2010 neurosurgeon Mr Neville Knuckey reviewed the appellant who reported back pain aggravated by movement, bilateral diffuse leg pain and aching and paraesthesia of her feet. Mr Knuckey noted the disc bulge at L5/S1 and arranged a lumbar MRI and EMG of the lower limbs.[6]
[6] ABD 52, report of Dr Knuckey dated 15 June 2020.
On 18 June 2010 neurologist Dr Wally Knezevic conducted an EMG and nerve conduction study which returned a normal result. There was no evidence of peripheral nerve abnormality of the lower limbs and no evidence of left lumbosacral radiculopathy.[7]
[7] ABD 50, ABD 316, report of Dr Knezevic dated 18 June 2010.
On 28 June 2010, the appellant underwent an MRI. Radiologist Dr Brad Davis reported:[8]
There are changes of lumbar spondylosis with disc degeneration and facet joint arthropathy.
There is no significant narrowing of the central canal at any level.
At L4/5 there is mild to moderate left foraminal stenosis and there may be some impingement upon the left L4 nerve root at this site. At L5/S1 there is right subarticular recess stenosis with evidence of mild impingement upon the right S1 nerve root. There is also mild to moderate right foraminal narrowing at L5/S1 and there may be mild impingement upon the right L5 nerve root at this site.
[8] ABD 44 - ABD 45, report of Dr Davis dated 28 June 2010, pages 1 - 2.
On 1 July 2010, Mr Knuckey saw the appellant (who continued to report low back pain and sensory disturbance of the lower limbs). Mr Knuckey expressed the opinion that the EMG of her lower limbs was normal and, although the lumbar MRI showed some disc desiccation, there was no significant nerve root compression or surgical pathology. He recommended conservative treatment with regular exercise.[9]
[9] ABD 49, report of Mr Knuckey dated 1 July 2010.
In a report dated 12 October 2010, occupational physician Dr Silbert noted that the appellant reported persistence of a niggling low back pain which would deteriorate to a maximum severity of 9 out of 10 and become burning or throbbing in nature. Dr Silbert observed that:[10]
Ms Dodson presents with a clinical picture consistent with an acute mechanical trauma to the lumbosacral spine and manifesting as discogenic lumbosacral back pain. Ms Dodson is noted to present with pre-existent degenerative change at the lumbosacral level, with evidence of lumbar spondylosis, disc degeneration and facet joint arthropathy. Ms Dodson is considered likely to have sustained an acute aggravation of the identified pre-existent degenerative change with the symptomatic onset of pain. There is no evidence of radiculopathy at the consultation today. A limited recovery is reported by Ms Dodson at the consultation today with an overall 25% recovery to date.
[10] ABD 138, report of Dr Silbert dated 12 October 2010, page 10.
Dr Silbert described the appellant's prognosis as:[11]
good for continued resolution of symptoms, restoration of functioning and return to all activities … likely to be achieved over a period of 3 ‑ 6 months and following implementation of the [recommended medical and allied health management].
[11] ABD 144, report of Dr Silbert dated 12 October 2010, page 12.

Dr Silbert noted the appellant at the time of his examination to be 'a forthright and reliable historian in no distress'.[12]
[12] ABD 140, report of Dr Silbert dated 12 October 2010, page 8.
On 2 November 2010 the appellant was again reviewed by Mr Knuckey to whom she reported soreness along the lower lumbar region, a throbbing sensation in her legs to her feet, mild tenderness to the lumbar spine and exacerbation of her back pain upon straight leg raise.[13]
[13] ABD 48, report of Mr Knuckey dated 2 November 2010.
Over the next 12 to 15 months the appellant's condition gradually improved but the medical notes show her condition would fluctuate.
Physiotherapy reports between 17 September 2010 and 14 December 2011 showed fluctuation in the appellant's symptoms but improvement overall.
Dr Silbert reviewed the appellant on 8 April 2011. In his report dated 11 April 2011 Dr Silbert again expressed the view that the appellant was a forthright and reliable historian in no distress. He noted that the appellant was able to move freely and fluidly with no obvious deformity or gait disturbance; she presented with a good and unremarkable recovery of her previously identified mechanical lumbosacral back pain. Dr Silbert found no evidence of any residual abnormality[14] and thought the appellant had made a 95% - 99% recovery.[15]
[14] ABD 175, report of Dr Silbert dated 11 April 2011, page 3.
[15] ABD 176, report of Dr Silbert dated 11 April 2011, page 4.
Dr Silbert considered that the appellant's prognosis was good for continued and unremarkable recovery of symptoms, restoration of functioning and return to normal activity; she was likely to achieve a complete recovery. He recommended finalisation of the claim.[16]
[16] ABD 178, report of Dr Silbert dated 11 April 2011, page 6.
By May 2011 the appellant reported minimal symptoms although in July 2011 and December 2011 she reported symptoms after a change in work duties and certain activities.
The appellant reported that in mid-August 2011 she had developed low back pain radiating distally through both left and right legs to the knee and discomfort within the soles of her feet.
Dr Silbert next reviewed the appellant on 13 September 2011 and found the appellant to have made a 'full and unremarkable recovery' having returned to her pre-injury state between April and July 2011 and finding no evidence of residual symptoms or dysfunction. Dr Silbert thought the appellant's recent onset of back pain to be of unknown aetiology and found no evidence to support a direct causal, temporal or other relationship with the lumbosacral injury of 6 April 2010. He assessed her as having no permanent impairment and he recommended finalisation of her claim.[17]
[17] ABD 216, ABD 233, report of Dr Silbert dated 19 September 2011, page 4.
In his report dated 27 September 2011, Mr Knuckey said:
On examination the lower lumbar region is mildly tender. Straight leg raise is normal except for contra-lateral exacerbation around the left hip. Neurological examination is normal.
The previous investigations revealed degenerative spine disease.
From a clinical perspective she has back pain without sciatica and in my opinion she should have conservative treatment with re-evaluation of her work position and continue with physiotherapy.
On 19 October 2011, the appellant was issued with a final medical certificate.[18]
[18] Respondent's book of trial documents, final medical certificate, N4.19.
Following the granting of the final medical certificate David Puzey physiotherapist conducted a final appraisal on 9 December 2011. He noted an increase in pain with higher workloads but significant improvement with recovery time from aggravation reducing.
There was no evidence that after December 2011 the appellant sought physiotherapy for back pain whether related to the April 2010 incident or not.

The appellant's evidence regarding her recent symptoms

The appellant gave a statement which was tendered at the hearing and she also gave oral evidence.[19]
[19] ts 19.
In her statement the appellant claimed that she had ongoing issues with her back at work. She said that about three years prior [to 2017] her manager (Lynne Taylor) had transferred her from the inventory fresh station to the self‑serve section because of the appellant's ongoing back problems.[20]
[20] Appellant's statement, par 17.
In her statement tendered in the arbitration hearing, the appellant described her most recent onset of back pain after working a shift in April 2017. The appellant said at [16] - [24]:
16… After a year of light duties I was put into Inventory Fresh, which is about counting stock in different departments. …
17After Inventory Fresh I was put back into Grocery, back to stocking shelfs, then I went back to Inventory Fresh and after that Lynn Taylor, who was the store manager at the time, put me into the self-serve section due to duty of care because I still had issues with my back. This was approximately three years ago. She had known for a long time about my back pain and just came to me one day and told me she had talked to the area manager about my pain and they decided to do this for me. She thought it might help because I did not have to lift as much. But unfortunately it did not help my back pains much. Lynn is currently store manager at the Miami store, which is a Woolworths store close by.
…
19My rosters have been changed many times over the years but when I was working full-time I did 38 hours per week and when I went down to part-time.
20I went down to part-time because our new store manager changed all our rosters and I had a 10 hour day on Tuesdays and by the end of that day my body was sore and throbbing so after a month of that I dropped my Wednesdays hoping that would give my body time to recover by Thursday.
21One time on one of those Tuesdays I was put at the Express check out and towards the last three hours of that shift my back was so sore that I could not even lift the shopping items and went home half an hour earlier. It was after that shift I stopped working Wednesdays and this was in about April 2017.
22I came home and laid on the lounge and took two calmatives and then I got up and showered and went to bed. I could not cook or anything else that night because I was that sore. My husband was home and saw that I was in agony.
23The next day is when I went to see my GP. The pain was starting to become unbearable and my husband pursued me to go because he could see my pain was getting worse.
24I did speak to the new store manager at the time, I think his name is Daniel and explained I had an issue with the 10 hour day due to my back problem but he did not want to hear about it. He said that if he let everybody chose their hours they would not be running a company. I tried to explain that I have been having problems due to the incident in 2010 but it did not matter.
…

Evidence of Dorothea Lynne Taylor

The appellant called two other witnesses with whom she had worked at Woolworths. The first was the appellant's manager Dorothea Lynne Taylor.
Ms Taylor said that when she began work at the store in 2015, she had no idea about the appellant's work capacity or whether the appellant had had an injury or had symptoms of back pain.[21]
[21] ts 42.
When the appellant first suffered her injury on 6 April 2010 Ms Taylor was working in a different department, [22] so the appellant would not have reported the injury to her. Ms Taylor said she heard about it from other people in the store but did not have any idea of the circumstances of the injury or what the appellant's work capacity was.[23]
[22] ts 50.
[23] ts 38.
Ms Taylor said that the appellant struggled to work with fully stacked roll cages due to her small stature. Ms Taylor had no recollection of the appellant complaining of back symptoms[24] and denied the appellant had complained of struggling to move the roll cages because of her back.[25]
[24] Witness statement of Dorothea Lynne Taylor, pars 6, 14 - 15.
[25] ts 38.
Ms Taylor said that the appellant was 'taken off the roll cages' whilst Ms Taylor was the store manager.[26] Ms Taylor said that the decision to move her from the roll cages was because she could not handle the workload 'productivity wise'.[27]
[26] ts 50.
[27] ts 51.
Ms Taylor's evidence was in direct contradiction to the appellant's assertions that Ms Taylor knew about her back problems and so had transferred her to the self-serve section.

Evidence of Jayden Vaughan Knowles

Jayden Vaughan Knowles had worked for Woolworths for 6½ years as a manager and had been the appellant's manager since April 2016 and knew her quite well. He considered her to be a good worker and hard working.[28] Mr Knowles was aware of the incident in April 2010 but was under the impression the appellant was not suffering any symptoms [resulting from that incident]. He recalled the appellant talking to him about difficulties with her back in 2017 but she had not told him about that before then.[29]
[28] ts 56.
[29] Witness statement of Jayden Vaughan Knowles dated 28 May 2018.
He had gained the impression that the appellant's accident (in 2010) had 'not been anything big'.[30]
[30] ts 57.
Under cross-examination Mr Knowles said he did not know exactly what the appellant's injuries were, but knew it to be something to do with her back.[31]
[31] ts 57.
Mr Knowles had difficulty remembering when the appellant had started to complain about having a sore back. He recalled the appellant had been working as normal [until 2017] when she had 'brought the case up again'.[32]
[32] ts 58.
Mr Knowles agreed that in his statement he had said that the appellant had told him about the incident in 2014. However, she had not complained of being incapable of performing her duties.[33]
[33] ts 58.
Mr Knowles denied that in 2014 he had become aware that the appellant was having problems with her back. His evidence was that it was not until 2017 that she started complaining about her back being sore.[34]
[34] ts 59.
Mr Knowles' evidence was not supportive of the appellant's claim to have suffered ongoing back problems known to management.

Medical evidence regarding report of recurrence in 2017

The appellant visited the Murray Medical Centre on a number of occasions between the years 2014 and 2017 and those records were before the arbitrator.[35]
[35] ABD 238 - ABD 276, Murray Medical Centre records.
Relevant to the appellant's claim are records of 18 February 2014 and 15 May 2014 where the appellant reported back pain. Those records contain a reference to the 2010 event.[36] These are the only two such records for that period. The appellant did not make a further report of back pain to a medical professional until 13 April 2017 when Dr Sonia Sahu noted that the appellant presented with low back pain [which was] 'worse since a month' [sic].[37]
[36] ABD 239.
[37] ABD 240.
On 13 April 2017 the appellant underwent a CT scan of her lumbosacral spine. Radiologist Dr Ashish Chaula reported that the scan showed 'degenerative disc changes and facet arthropathy … at multiple levels'.
On 22 May 2017 Dr Sahu referred the appellant to Dr Toh who saw her on 12 July 2017 and provided her with a first certificate of capacity.[38] Dr Toh described her symptoms as 'persistent and worsening low back pain since 6 April 2010'.[39]
[38] ABD 242.
[39] ABD 425.
In May 2017 the appellant received CT guided facet joint injections which gave the appellant some relief and neurosurgeon Mr Soni Narula raised the possibility of surgery to fuse her spine.[40]
[40] ABD 246.
MRIs conducted on 4 and 30 May 2017 both revealed multilevel spondylolitic changes, a disc bulge at L5/S1 and multilevel facet arthropathy most prominent at L3/4 and L4/5.[41]
[41] ABD 249.
Mr Narula reviewed the appellant in August 2017 and noted the appellant's reports of ongoing pain. He recommended a further scan.[42]
[42] ABD 275.
On 11 September 2017 the appellant underwent a dynamic bone scan. The report of that scan noted the presence of:
1.active intervertebral degenerative changes present at L5/31; and
2.active right L3/4 facet joint arthropathy.

The expert medical opinions in 2017

The appellant adduced evidence before the arbitrator from three doctors who each gave opinions that her present symptoms were a recurrence or aggravation of the earlier injury.

Dr Jenkins

The first expert relied on by the appellant was medicolegal consultant Dr Jenkins. He assessed the appellant and reviewed a number of medical notes, reports and scans.[43] The appellant had expressly denied to Dr Jenkins that she had ever enjoyed a complete recovery of symptoms since the incident on 6 April 2010.
[43] Dr Jenkins' report did not suggest he had reviewed the bone scan ordered by Dr Narula and conducted on 11 September 2017.
Dr Jenkins' opinion was that the appellant's low back symptoms were related to the incident in April 2010 and, had the appellant not then been injured, would not have developed chronic and continuous low back symptoms from that date to the current time.[44]
[44] ABD 39, report of Dr Evan Jenkins dated 30 January 2018, page 1.
Dr Jenkins considered there was good reason to suspect that the appellant's work had contributed to the variability of her symptoms and deterioration at times but nevertheless thought that her ongoing symptoms could be traced back and are attributable to the injury on 6 April 2010.[45]

Mr Skinner

[45] ABD 26, report of Dr Jenkins dated 30 January 2018, page 2.

The second expert the appellant sought to rely on was orthopaedic surgeon Mr Skinner who saw the appellant in April 2018. He took a history of the incident in 2010, conducted a physical examination and reviewed medical records dating back to 2010.
Mr Skinner said that he reviewed a discogram of 17 October 2017 and the MRI on 28 June 2010. However, Mr Skinner did not say what the discogram revealed and I have been unable to find any evidence of what was contained in the discogram.
Mr Skinner assessed the appellant as suffering from discogenic pain as a result of the injury sustained on 6 April 2010[46] which he found to be entirely consistent with the appellant having improved but without the injuries ever having resolved completely and subsequently deteriorating. In his opinion, the appellant's employment was a contributing factor to the recurrence of the injury.[47]

Dr Goodheart

[46] ABD 17, report of Mr Skinner dated 10 April 2018, page 8.

[47] ABD 18, report of Mr Skinner dated 10 April 2018, page 9.

The third expert the appellant sought to rely on was consultant neurologist Dr Goodheart. On 3 July 2018 the appellant reported to Dr Goodheart that her lower back symptoms had continued to fluctuate in severity since the incident in April 2010 but had never settled completely; for approximately 12 months prior to his review she had noticed increased lower back pain with radiation of discomfort into the legs[48] and constant lower back pain in the mid line which could radiate through both buttock regions and the posterior aspect of both legs towards the ankles.
[48] ABD 92, report of Dr Goodheart dated 3 July 2018, page 1.
Dr Goodheart noted that an MRI scan of the lumbar spine performed on 28 June 2010 had showed spondylosis at L4/5 and L5/S1 with potential for irritation of merging L5 and S1 nerve roots. The MRI scan taken on 4 May 2017 revealed multi-level spondylitic changes and more prominent disc movement at L5/S1 to the right of the mid line with potential for irritation of the emerging right S1 nerve root.[49]
[49] ABD 96, report of Dr Goodheart dated 3 July 2018, page 5.
Dr Goodheart's opinion was that (taking into account the history obtained from the appellant on 3 July 2018, his own examination and findings and his review of the medical notes) the appellant had sustained a predominant soft tissue injury to her thoracolumbar spine on 6 April 2010 from which she had continued to experience symptoms. In his opinion, the appellant was predisposed to degenerative changes within the lumbosacral spine as a result of that injury and her history suggested she had not made a full recovery.
Dr Goodheart was unable to identify a specific event in 2017 which would account for her increased lumbar discomfort. His opinion was that the appellant had continued to experience predominant soft tissue symptoms in the lumbosacral region associated with the incident in 2010.[50] He thought the appellant's continued employment was a significant contributing factor in the persistence and subsequent increase in those symptoms.[51]

Dr Silbert

[50] ABD 95, report of Dr Goodheart dated 3 July 2018, page 4.

[51] ABD 96, report of Dr Goodheart dated 3 July 2018, page 5.

Dr Silbert saw the appellant on a number of occasions in 2010 and 2011 and saw her again on 28 September 2017. Dr Silbert reviewed the appellant's complete medical history, including all of the recent radiological evidence and the reports of Dr Goodheart, Dr Jenkins and Mr Skinner.
In a report dated 12 October 2017 Dr Silbert noted the appellant's complete recovery in 2011 and expressed the opinion that the appellant now presented with age-related symptomatic degeneration of the spine with evidence of posterior element pain. Dr Silbert's opinion is that her present symptoms were unrelated to the incident in April 2016.[52]
[52] Respondent's book of trial documents pages 493 - 502, report of Dr Silbert dated 12 October 2017.

The arbitrator's findings as to the appellant's credibility

The arbitrator did not accept that the appellant was credible and reliable because there were areas of inconsistency between her account of events and her symptoms and the medical evidence and expert medical opinion.
When the appellant spoke to Dr Goodheart, Dr Jenkins and Mr Skinner in 2018, she gave an account of the incident in April 2010 which was inconsistent with what she had reported about the incident at the time of its occurrence. The appellant told each of these doctors that after the incident she had noticed immediate mid line lower back pain and then went to the office to make a report.
However, as the arbitrator observed, the appellant had said something different to Mr Knuckey and Dr Silbert in 2010 - namely that she had experienced an onset of pain after she had finished her duties on the day on which the incident occurred.[53]
[53] Arbitrator's reasons for decision [26].
In her testimony at the arbitration hearing the appellant denied telling Dr Silbert in 2010 that she had suffered 'immediate' pain; she gave evidence that she had continued working for five minutes after the incident and subsequently developed symptoms.[54] The arbitrator found therefore that her account of what occurred in 2010 to have changed.
[54] In Dr Silbert's reports of 12 October 2010, 11 April 2011 and 19 September 2011 she had reported that she suffered immediate pain.
Secondly, the arbitrator found that the appellant's evidence (to the effect that she had 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 this review of her in July 2018.
Thirdly, the arbitrator found that the absence of medical reports between 14 December 2011 and 18 February 2014 was inconsistent with the appellant's claims to have had ongoing back pain attributable to the incident in 2010.[55]
[55] Arbitrator's reasons for decision [36].
The arbitrator accepted that inconsistencies in the appellant's account of events might be attributed to the effluxion of time but were also indicative of a tendency on the part of the appellant to exaggerate.[56]
[56] Arbitrator's reasons for decision [27].
The arbitrator regarded the most reliable evidence of the appellant's symptoms as the 'contemporaneous evidence'[57] ie: the medical notes and reports generated close in time to the appellant experiencing symptoms.
[57] Arbitrator's reasons for decision [27].

In my view, the inconsistencies between 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. It is understandable that the appellant's recollection of the details of the incident would have altered over time and thus affected her reliability. However, any inconsistencies in the appellant's recollection of the incident on 6 April 2010 were not likely to have affected the opinions of the doctors concerning the cause of the appellant's initial injury and her subsequent symptoms. At the time of the incident in 2010 there was no controversy that her injuries were causally related to the incident with the roll cage. Whether she noticed pain immediately or some short time after is not important.
Further, none of the experts (including Dr Silbert) has suggested that the appellant was exaggerating her symptoms in 2017. Her present symptoms are explained by the pathology and it can be accepted that her symptoms are genuine.
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 arbitrator preferred the opinion of Dr Silbert and found that the appellant's present incapacity did not 'result from' a work-related injury

The arbitrator referred to the relevant legal principles in relation to assessing whether a worker has suffered incapacity which results from a work-related injury. 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:[58] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182; Cole v P & O Ports Ltd [2002] WASCA 157.
[58] Arbitrator's reasons for decision [132].
The arbitrator accepted Dr Silbert's opinion expressed in his report of 12 October 2017 that the appellant's present symptoms were unrelated to the incident in 2010 and thus the arbitrator rejected the opinions of the appellant's experts Dr Goodheart, Dr Jenkins and Mr Skinner.
I have distilled seven reasons why the arbitrator preferred the opinion of Dr Silbert to the opinions of Dr Goodheart, Dr Jenkins and Mr Skinner.
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.[59]
[59] Arbitrator's reasons for decision [107], [139].
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.[60]
[60] Arbitrator's reasons for decision [142] - [144], [147].
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).[61]
[61] Arbitrator's reasons for decision [108].
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.[62] 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.
[62] Arbitrator's reasons for decision [107].
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.[63]
[63] Arbitrator's reasons for decision [109].
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). [64]
[64] Arbitrator's reasons for decision [107].
In relation to this aspect of the arbitrator's reasons, I have observed that I have some reservations about whether the arbitrator was correct to find the appellant had a tendency to exaggerate and whether any inconsistencies in her accounts were significant. However, the arbitrator's conclusions were also partly based on the absence of contemporaneous medical evidence to corroborate the appellant's claims. For this reason, I could not conclude that the arbitrator erred in rejecting the appellant's account of events.
I now turn to consider the grounds of appeal.

Ground 1 - alleged error that the arbitrator misdirected herself

Ground 1 asserts that the arbitrator erred in law by misdirecting herself and 'construing' that she was 'required' to determine the nature of the appellant's April 2010 injury. At the hearing of the appeal counsel submitted that this error was revealed at [15] and [16] of the arbitrator's reasons for decision which read as follows:
15The 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.
16In 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.
The arbitrator then went on to review the evidence and concluded that the appellant's present symptoms were not a recurrence of the injury sustained in April 2010. The arbitrator expressed her conclusion thus:[65]
124On the basis of the contemporaneous medical evidence of Mr Knuckey, the contemporaneous radiological evidence and the evidence of Dr Silbert I find that the injury sustained by Ms Dodson on 6 April 2010 was 'mechanical lumbosacral back pain' with no evidence of any residual symptoms or dysfunction. On the basis of Mr [Knuckey's] report I find that she presented with a degenerative spine disease without sciatica.
….
130On the basis of Dr Silbert's report of 12 October 2017 I find that Ms Dodson's April 2010 injury was a minor mechanical trauma.
[65] Arbitrator's reasons for decision [124], [130].
The appellant's submission that the arbitrator was wrong to examine the cause of the earlier injury is inconsistent with the basis of the appellant's claim (being a claim of a recurrence of an earlier compensable injury). In order for the arbitrator to determine whether the current symptoms were indeed a recurrence of the earlier injury, logic dictates that it would first have been necessary for the arbitrator to understand the nature of the initial injury. If the injury was not a recurrence of the earlier, existing injury for which compensation was payable, then there would be no liability under the WCIMA.
As I understand the appellant's primary submission in relation to ground 1, the arbitrator did not need to determine the nature of the April 2010 injury because that had already been determined. However, in order to decide whether the presenting symptoms were a recurrence of the earlier injury, it was necessary to first understand the nature of the original injury. The arbitrator's approach was entirely logical.
In written submissions purportedly relating to ground 1, the appellant submitted that the arbitrator's assessment of Mr Knuckey's opinion of 15 June 2010 was wrong because Mr Knuckey had not utilised the expression 'mechanical lumbosacral back pain'.
The appellant is correct that Mr Knuckey did not use that expression.
However, ground 1 does not assert that the arbitrator erred in accepting the report of Mr Knuckey - and the appellant did not seek leave to amend ground 1.
Regardless of whether the appellant's submissions in this regard do in fact relate to ground 1, I can find no error in the arbitrator's approach. The arbitrator's conclusion was not based on Mr Knuckey's report alone but also on the opinion of Dr Silbert who did employ that expression. Although the arbitrator did not specifically mention the language employed by Mr Knuckey who expressed his diagnosis as 'back pain without sciatica',[66] it is apparent from what the arbitrator said that she had incorporated both opinions in her conclusion.
[66] Arbitrator's reasons for decision [124F].
Although Mr Knuckey's opinion was expressed in different terms to that of Dr Silbert, the two opinions were entirely congruent. The arbitrator was entitled to assimilate the medical evidence and express her conclusions using whatever language she wished, provided that her reasons were properly explained. In this regard the arbitrator did not err.

Was there a failure to follow Leggett v Argyle Diamond Mines?

In written submissions filed in respect of ground 1, the appellant further submitted that the arbitrator had erred by failing to follow the 'results from' test arising from the decision in Leggett v Argyle Diamond Mines Pty Ltd. The appellant submitted (applying the reasoning in that case) that it was not necessary for her to establish that she had continued to suffer from her work-caused injury following the incident in 2010: Leggett [30] and need only establish that the earlier injury was a 'material contributing cause': Leggett, supra at [22] following Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212, 215 (Bray CJ).
In Leggett the court illustrated the principle by giving the example of a worker who injured his back at home when he had not fully recovered from a compensable injury would be found to have suffered an incapacity from the earlier event.
In this case the appellant contends that she never fully recovered from the compensable injury because she continued to suffer fluctuating back pain after the final medical certificate was issued. She further submits that the weight of the medical evidence, in conjunction with her account of her pain over the years, supports a conclusion that her present symptoms are a recurrence of the earlier disability and therefore 'resulted from' that event.
As I understand the appellant's submission, it was an error for the arbitrator to have said that there was 'no evidence' that the current presenting condition could have arisen due to her injury in April 2010 because the injury 'would have resolved in its entirety over a period of weeks to months following the incident'.[67] The appellant submits the arbitrator was wrong in this regard because there are medical records evidencing the appellant's claims of lower back pain between December 2011 and February 2014. The appellant further submits that, had the arbitrator not made that error, then she would have reached the same conclusions as Dr Goodheart, Dr Jenkins and Mr Skinner.
[67] Arbitrator's reasons for decision [14].
Put another way, the arbitrator's error is said to be the finding that in 2010 the appellant had suffered mechanical lower back pain and then made a complete recovery.
I do not accept the appellant's submissions for the following reasons.
The arbitrator cited Leggett in her reasons and was clearly aware of the correct test for establishing whether an injury was a recurrence of an earlier injury.
To the extent that the arbitrator found there to be no evidence that the appellant's injuries had not resolved, the arbitrator's reasons might be somewhat overstated (having regard to the report of the physiotherapist in December 2011 and to the appellant's evidence and the 2014 medical notes from Murray Medical Centre). However, the arbitrator was aware of both of these facts and they are specifically mentioned in her reasons for decision.
Also, even if the arbitrator did make an error of fact, it would not have changed the conclusions of Dr Silbert who based his opinion not only on the medical evidence but on his own examinations of the appellant and who was aware of the onset of back pain after finalisation of the claim.
If there was some overstatement by the arbitrator concerning an absence of reports of back pain, it is still necessary to view the arbitrator's reasons for decision in their entire context. The arbitrator's conclusions appear after she had analysed and weighed all of the evidence and made findings of fact which led her to prefer Dr Silbert's opinion. Thus, it is plain that the arbitrator's decision comes down to a preference for Dr Silbert's opinion.
Ground 1 does not assert that the arbitrator failed to follow Leggett in the sense that it is asserted that the arbitrator did not appreciate that the appellant need only establish that the earlier injury was a material contributing cause. No amendment to ground 1 was sought.
Ground 1 involves an error of law. Therefore, I would grant leave to appeal but dismiss ground 1.

Ground 2(a) - failure to act judicially

The appellant did not pursue this submission at the hearing of the appeal and provided no further particulars in relation to it.
This ground has no merit and I therefore decline to grant leave in respect of it.

Grounds 2(b), 4(c) and 4(d) - alleged errors of fact and failure to give adequate reasons

It is unclear whether ground 2(b) is subsumed by the alleged failure to give reasons in grounds 4(c) and 4(d) but I will come to deal with these three grounds insofar as they relate to an assertion of a failure to give adequate reasons together.

Ground 4(a) and 4(b) - failure of arbitrator to accept appellant's account of injuries except where evidence is corroborated by medical evidence and finding that the most reliable evidence of the appellant's symptoms was 'contemporaneous evidence'

Grounds 4(a) and 4(b) can be conveniently dealt with together.
The impugned parts of the arbitrator's decision for grounds 4(a) and 4(b) appear at [27] and [29] respectively:
27In contrast she told Dr Goodheart in 2018 that she noted immediate midline lower back pain, and went to the office and reported the incident. Similarly she report to Mr Skinner in 2018 and Dr Jenkins in 2018 that she developed low back pain radiating down both legs immediately, and went to the manager's office. In my view these inconsistencies may be attributed to the effluxion of time and a tendency to exaggerate her account. I regard the most reliable evidence of her symptoms as the contemporaneous evidence, and find that the development of back pain radiating down both legs occurred subsequently, as reported to Dr Silbert and Dr Knuckey.
…
29In respect of Ms Dodson's claim to have been in continuous pain since the accident and that it has become worse over time, and regardless of what she may or may not have told various people at work about this, the most reliable evidence of her symptoms over time is to be found in the contemporaneous medical evidence and the evidence contained in the physiotherapy reports. I reject her claim to have been in continuous and worsening pain since April 2010 and accept her claims to be in pain only when this is corroborated by the medical and physiotherapy evidence.
The appellant submits that the arbitrator erred because she did not accept the appellant's reports of being in ongoing pain in the absence of corroboration by 'contemporaneous medical evidence'.
Although I have some reservations about the arbitrator's findings concerning the appellant's credibility[68] the arbitrator was nevertheless justified in concluding that the most reliable evidence of the appellant's symptoms was the contemporaneous medical evidence.
[68] Arbitrator's reasons for decision [27].
The arbitrator did acknowledge having summarised all of the medical evidence that the appellant had complained of experiencing some back pain between 2010 and 2017. But those records also revealed an absence of treatment for back pain for a very significant period (between 14 December 2011 and 18 February 2014).[69]
[69] Arbitrator's reasons for decision [36].
Having conducted a review of the medical evidence and noted the absence of treatment for back pain over a significant period of time, the arbitrator was in my view entitled to conclude, consistent with the opinion of Dr Silbert, that the appellant had not established there had been a recurrence of the earlier injury and the appellant's present symptoms are likely to be unrelated to the earlier event.[70]
[70] Arbitrator's reasons for decision [27] - [29].
The appellant relies on two authorities in support of ground 1 namely Nominal Defendant v Cordin [2017] NSWCA 6, 219 and State Rail Authority of New South Wales v EarthlineConstructions Pty Ltd (in liq) (1999) 73 ALJR 306.
The appellant submits that these two cases are authority for the proposition that the arbitrator erred by concluding that the most reliable evidence of the appellant's symptoms was the contemporaneous evidence from the medical notes.
However, Nominal Defendant v Cordin is authority for the converse proposition. The court at [165] referred to Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 which detailed a series of cases highlighting credibility issues, the fallibility of memory and the importance of contemporary documentation.
I accept the respondent's submission that the observations in those cases concerning the fallibility of memory are particularly important because Dr Goodheart, Dr Jenkins and Mr Skinner reviewed and took a history from the appellant some six or seven years after the date of the original injury.

In my view, in accordance with the observations of the court in Nominal Defendant, the arbitrator was entitled to conclude that the appellant's history as presented to Dr Goodheart, Dr Jenkins and Mr Skinner was unreliable to the extent that there was insufficient evidence to support her claims to have suffered ongoing symptoms in the medical records.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) the court was concerned with whether the primary judge had made findings of fact heavily against the weight of the evidence. This is not the case here as there is a paucity of evidence that the appellant suffered ongoing symptoms after 2010.
I find there was no error of fact or law on the part of the arbitrator at [27]. On the contrary, the arbitrator was right to have concluded that the most reliable evidence as to whether the appellant suffered ongoing symptoms was the contemporaneous medical evidence.
With respect to ground 4(a) the appellant asserts that the arbitrator made an error of fact rather than an error of law. However, the appellant's submissions in support of that ground amplify the ground of appeal by asserting a failure to give adequate reasons (which can 'involve' an error of law).[71] However, there was no application to amend ground 4(a) to assert a failure to give adequate reasons.
[71] Appellant's submissions, pars 71 - 75.
I will deal with the alleged failure by the arbitrator to give adequate reasons when I come to consider an alleged failure to give reasons under other grounds.
Leave to appeal in respect of grounds 4(a) and 4(b), is denied.

Grounds 4(c) and 4(d) - alleged failure to consider physiotherapy reports and Murray Medical Centre reports

The impugned part of the arbitrator's reasons in respect of grounds 4(c) and 4(d) appear at [36] - [38]:
36Given 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 consisted her GP or physiotherapist about it. I find that she was not experiencing any pain during this period.
37On the basis of the medical records at the Murray Medical Centre I find that in February 2014 Ms Dodson reported experiencing back pain.
38Given 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 asserted failure to give adequate reasons in grounds 4(c) and 4(d) are a reiteration of the asserted failure to give adequate reasons found in the appellant's written submissions in grounds 4(a) and 4(b) but with particulars.
The particulars of grounds 4(c) and 4(d) reference a physiotherapy report from Halls Head Physiotherapy dated 14 December 2011 which refers to a final appraisal conducted on the appellant on 9 December 2011 and to the appellant suffering ongoing back pain. The appellant submits (on the basis of the report) that the arbitrator's conclusion the appellant suffered no symptoms between 14 December 2011 and 18 February 2014 has been shown to be erroneous.[72]
[72] Appellant's submissions, pars78 - 81
I do not accept the appellant's submission in this regard. The arbitrator's reasons reveal that she did consider the physiotherapist's findings[73] and the findings of physiotherapist Mr David Puzey between 17 September 2010 and 14 December 2011.[74]
[73] Arbitrator's reasons for decision [34] - [36], [40] - [44].
[74] Arbitrator's reasons for decision [34].
However, the arbitrator was nevertheless entitled to accept the finding of Dr Silbert who had observed in his report of October 2010 that by July 2010 the appellant's symptoms had resolved and that the subsequent report of back pain in August 2010 was unrelated to the incident in April 2010.
Even if the arbitrator had made an error of fact by concluding that there was 'no evidence' of ongoing symptoms between 2010 and 2014 (there being at least some evidence from the appellant herself about this) the arbitrator was nevertheless entitled to reject that 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.

Ground 4(d)

The argument raised by the appellant in ground 4(d) is similar to ground 4(c). Here the appellant submits that the assessor failed to consider the Murray Medical Centre records of a patient consultation with Dr Kaminiben Patel on 1 May 2014 in which the appellant reported back pain. The note of that record mentions a 'back injury 3 yrs ago'.
The appellant submits that this record establishes the arbitrator's findings to be erroneous because it demonstrates that the appellant did complain of back pain between February 2014 and April 2017 which she related to the injury in April 2010.
The appellant is correct that this record does establish that (on at least one occasion in 2014) the appellant presented to her doctor with back pain. It is likely that the appellant herself attributed it to the 2010 incident. However, the fact that the appellant made a report of back pain and attributed that pain to the earlier incident, could not of itself support a finding that her presenting symptoms were causally related to the original incident.
Grounds 4(c) and 4(d) do not involve a question of law but a question of fact. Leave is refused on both grounds.
In any event, I have 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. The arbitrator was therefore entitled to conclude, 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.

Grounds 2(b), 4(c) and 4(d) - adequacy of reasons

Grounds 2(b), 4(c) and 4(d) assert a failure to give adequate reasons. That submission must be rejected.

What constitutes the giving of adequate reasons?

The relevant considerations for assessing the adequacy of reasons were examined in Joyce v Anderson [2020] WASCA 48. In that case Mitchell JA with whom Beech and Vaughan JJA agreed, said at [80]:
The fundamental requirement for reasons is to adequately disclose the actual intellectual process which has resulted in a particular determination. Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. As was noted in G v O, whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole, if necessary in the context of the evidence, to determine if they achieve their required function and purpose. The fundamental elements of a statement of reasons are:
(1)a reference to the relevant evidence (which need not be detailed);
(2)a statement of material findings of fact and any ultimate conclusions;
(3)a statement of the reasons for making those findings and conclusions; and
(4)an explanation of how the law was applied to the facts as found.
(footnotes omitted)
An assertion of the failure to give adequate reasons must be considered in light of s 213(4) of the WCIMA which permits an arbitrator to depart from the rules of natural justice. Section 213(4) provides:
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.

The requirements for the giving of reasons in s 213(4) of the WCIMA is designed to promote 'expedition, simplicity and transparency'. An arbitrator is therefore not required to provide detailed reasons. See Nardi v Department of Education and Training (Unreported, C22/06 9 November 2016).
Section 31(1) of the Magistrates Court Act2004 (WA) (MCA) is in almost identical terms to s 213(4) of the WCIMA. As Hall J said in relation to s 31(1) of the MCA Manonai v Burns [2011] WASCA 165:
53Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred.
(citations omitted)
An assertion of a failure to give adequate reasons can involve a question of law. However, an assertion of providing inadequate reasons will only amount to an error of law and to appealable error where there is a miscarriage of justice. See Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158; Catholic Education Office of WA v Granitto.
If a question of law is found to be involved then the whole decision is open to review. In those circumstances the court must conduct a real review but, before the appeal is allowed, there must be demonstrated some error of fact, law or logic. See Pacific Industrial Co v Jakovljevic [20] and [26].
In this case the arbitrator confirmed she had read all of the necessary documentation, had listened to the recording of the arbitration hearing and the transcript thereof.[75] She identified the correct legal authorities.[76] She evaluated the evidence presented by both parties.[77] After attending to the foregoing, the arbitrator then made a determination of the nature and extent of the original injuries suffered by the appellant on 6 April 2010[78] and concluded that the appellant had not established that her present symptoms were a recurrence of the earlier injury.[79]
[75] Arbitrator's reasons for decision [13].
[76] Arbitrator's reasons for decision [131] - [135].
[77] Arbitrator's reasons for decision [18] - [111].
[78] Arbitrator's reasons for decision [112] - [130].
[79] Arbitrator's reasons for decision [137], [138] - [148].
In my view, the arbitrator did engage with the appellant's case. She specifically addressed the appellant's submissions that Dr Silbert's opinion should not be preferred over the opinions of Dr Goodheart, Dr Jenkins and Mr Skinner.[80]
[80] Arbitrator's reasons for decision [140].
Whilst it is possible that a failure to give reasons as asserted in grounds 2(b), 4(c) and 4(d) would involve an error of law, the submissions here amounted to no more than an assertion by the appellant that the arbitrator's findings were 'contrary to the weight of the evidence'. That is to make a submission as to an error of fact: See Glass JA (with whom Samuels JA agreed) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
Leave to appeal on grounds 2(b), 4(c) and 4(d) is refused.

Ground 3 - alleged error in discounting or rejecting the relevant opinion evidence without carrying out foundational fact-finding

Here the appellant submits that the arbitrator erred in 'discounting and/or rejecting' the opinion evidence of Dr Goodheart, Dr Jenkins and Mr Skinner without 'carrying out the necessary foundational fact‑finding analysis or evaluation required by law'.
The impugned part of the arbitrator's decision appears at [11] where she says:
For the reasons given, I prefer the evidence of Dr Silbert, who has reviewed Ms Dodson on four occasions from 12 October 2010 to 12 October 2017, and all of the 2017 radiological evidence. Given his comprehensive review of all of the evidence, I prefer his opinion to that of the other doctors.
This ground of appeal here asserts an error contrary to the authority of Beer v Duracraft Pty Ltd [2004] WASCA 192. That case is as authority for the proposition that for an expert opinion to be probative and carry weight it must be founded on facts which have been proven. The principle is drawn on the well‑known principle expounded by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743 ‑ 744 [85]. It is unnecessary for me to repeat what was said in that case.
It should also be appreciated that, because of the provisions of the WCIMA, the arbitrator was not bound by the rules of evidence. She was entitled to inform herself on any matter she thinks fit subject to a requirement to comply with the rules of natural justice and procedural fairness.
The modification to the usual rules of evidence that appear in s 188 of the WCIMA provide that an arbitrator is bound by rules of natural justice but not generally bound by the usual rules of evidence. It provides:
188.Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(4)An arbitrator may -
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
Section 213(4) of the WCIMA governs the principles to be applied by the arbitrator in the provision of reasons for decision. Relevantly, it states:
213.Decisions and reasons, form and content of
…
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
As Murray J in Beer v Duracraft Pty Ltd observed in relation to broadly similar provisions of the WCIMA as they then stood at [20] ‑ [21]:[81]
20In the present context, in relation to the proof of the primary facts before a review officer the provisions of s 84ZA(2) are to be borne in mind:
The review officer is to act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise.
21At a review hearing, s 84ZD(1) and (2) provide:
(1)The review officer is not bound by rules of evidence, but may inform himself or herself on any matter in such manner as the review officer thinks fit.
(2)The review officer may refer any technical or specialized matter to an expert and accept that expert's report as evidence.
[81] Section 84A-84ZZ was deleted by 'No. 42 of 2004' s 67; s 188 was inserted by 'No. 42 of 2004' s 130; amended by 'No. 31' of 2011 s 76.
The modification to the usual rules of evidence in the WCIMA is subject to an obligation to comply with the rules of natural justice and procedural fairness - but whether or not evidence would be admissible at common law is not determinative of whether the arbitrator can rely on it. Of course, if the factual basis of an expert opinion is doubtful, then it may affect the weight that ought to be given to that evidence. See Beer v Duracraft Pty Ltd [128] (McLure J).
In relation to ground 3 the appellant does not assert that Dr Silbert was not entitled to the opinion he expressed. Rather, the appellant submits that the arbitrator did not have a proper factual foundation for forming that opinion. The appellant submits that the opinions of Dr Goodheart, Dr Jenkins and Mr Skinner should have been preferred.
Preference for one body of expert evidence over another does not demonstrate an error of law: Azzopardi v Tasman UEB Industries Ltd, 151 (Kirby P); BHP Billiton Iron Ore Pty Ltd v Treby [42]; BHP Billiton Iron Ore Pty Ltd v Brady [5].
In any event, I find that the arbitrator provided sound reasons for preferring the opinion of Dr Silbert over the other doctors. By preferring the evidence of Dr Silbert the arbitrator did not, as the appellant suggests, reject the evidence of the others without considering it. On the contrary, the arbitrator considered there were good reasons to reject their evidence - not least that neither Dr Goodheart, Dr Jenkins nor Mr Skinner had not examined the appellant in 2010.
It was certainly open to Dr Goodheart, Dr Jenkins and Mr Skinner to express the opinion that the appellant's symptoms were a recurrence of the earlier injury. However, the arbitrator was not bound to accept their opinions in light of the contrary opinion of Dr Silbert.
In preferring the opinion of Dr Silbert I find the arbitrator carefully reviewed the factual basis for his opinion and disclosed her reasoning for doing so.
As this ground alleges an error of fact then I decline to grant leave.

Additional grounds raised by submissions at pars 85 - 92 of the appellant's submissions

The appellant's written submissions go beyond the grounds of appeal and assert a denial of natural justice. The appellant admits she was denied an opportunity to present evidence on the issue of whether her pain was corroborated by medical or other evidence.
In my view, there was no denial of natural justice. The possibility that the appellant's evidence might be challenged and not be accepted was a risk inherent in the issues to be determined. The arbitrator was obliged to warn the appellant. See Marks v Coles Supermarkets [2020] WADC 36 (Gething DCJ) and the authorities referred to therein.
The appellant was on notice as to what the issues were. To the extent that the appellant seeks to argue a new ground of appeal, it is without merit and I refuse leave to amend.

Orders

The orders on this appeal are as follows:
1.Leave to appeal on ground 1 is granted.
2.Leave to appeal on grounds 2, 3 and 4 is refused.
3.The appeal is dismissed.
4.I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
PH
Court Officer
11 DECEMBER 2020