DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly - [2011] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43
APPELLANT:		DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd)
RESPONDENT:		Kevin Paul Kelly
INSURER:		Cambridge Integrated Services Aust Pty Ltd t/as Xchanging
FILE NUMBER:		A1-10732/10
ARBITRATOR:	Ms N Serventy
DATE OF ARBITRATOR’S DECISION:		11 April 2011
DATE OF APPEAL DECISION:		11 August 2011
SUBJECT MATTER OF DECISION:		Aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; weight of evidence; alleged apprehended bias by Arbitrator during conciliation; application of principles in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421; unmeritorious and baseless appeal
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	LBR Legal
Respondent:	Slater & Gordon
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 11 April 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed

BACKGROUND

The respondent worker, Kevin Kelly, drives a rubber tyre gantry crane (an RTG) for the appellant employer, DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd). His work requires him to look down with his chin on his chest. His case is that, as a result of driving an RTG, he received an injury in the nature of an aggravation of degenerative changes in his neck.
Because of his injury, Mr Kelly was off work for a period and initially claimed weekly compensation from 19 April 2009 to 7 May 2009. He also claimed lump sum compensation of $6,875 with respect to an alleged whole person impairment of five per cent. At the conciliation stage of the proceedings, the claim was reduced to the period from 19 April 2009 to 24 April 2009.
The appellant employer’s insurer disputed injury, whether employment had been a substantial contributing factor to the injury, entitlement to lump sum compensation, whether the effect of the injury had ceased, and incapacity.
The Commission listed the matter for conciliation and arbitration on 24 March 2011. At the conclusion of the conciliation, counsel for the employer unsuccessfully applied to have the Arbitrator disqualify herself on the grounds of apprehended bias and the matter proceeded to arbitration. The arbitration could not conclude on 24 March 2011 and continued before the same Arbitrator on 7 April 2011.
In an extempore decision delivered on 7 April 2011, the Arbitrator accepted Mr Kelly’s evidence of the nature of his duties and the development of neck pain in the course of those duties, and the evidence from Dr Bodel, orthopaedic surgeon qualified by Mr Kelly’s solicitor, that Mr Kelly’s work had aggravated pre-existing degenerative changes in his neck. On the basis of that evidence, she found that Mr Kelly had suffered an injury in the nature of an aggravation of a disease under s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) and made an award in his favour for the weekly compensation claimed. The Arbitrator referred the claim for lump sum compensation to an Approved Medical Specialist (AMS) for assessment.
The Commission issued a Certificate of Determination on 11 April 2011 in the following terms:
“Findings
1.Mr Kelly suffered an injury to his cervical spine pursuant to 4(b)(ii) of the 1987 Act, by way of an aggravation of a disease, with the deemed date of injury of 19 April 2009.
2.Mr Kelly’s employment was a substantial contributing factor to that injury.
3.Mr Kelly suffered a period of incapacity from 19 April 2009 to 24 April 2009.
Orders
1.That the respondent will pay Mr Kelly weekly compensation, under s 36 of the Workers Compensation Act 1987, of $1610.12 from 19 April 2009 to 24 April 2009.
2.The matter is remitted to the Registrar for referral to an AMS to assess the whole person impairment resulting from the injury, with a deemed date of 19 April 2009.
3.The AMS is to be provided with a copy of the Application and the Reply and the attached documents; with the Application to Admit Late Documents dated 24/3/11 and attached documents, and with the Application to Admit Late Documents dated 23/3/11 and attached first two pages, together with a copy of these orders.
4.That the respondent pays Mr Kelly’s cost as agreed or assessed. This matter is certified as complex due to somewhat complex medical and legal issues, and I allow an uplift of 10% to apply to both parties.”
In an appeal filed on 10 May 2011, the appellant employer has challenged the Arbitrator’s determination and her decision to decline to disqualify herself on the grounds of apprehended bias.

PRELIMINARY MATTERS

Monetary threshold

As the weekly compensation awarded is only $1,610.12, Mr Kelly has submitted that the monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is not satisfied. That section provides that there is no appeal under s 352 unless the “amount of compensation at issue on appeal” is both at least $5,000 and at least 20 per cent of the amount awarded.
The amount of compensation at issue on the appeal is determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator (Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]). The decision appealed must have the “real capacity” to put the amount of compensation, determined by reference to the decision or the claim, in issue in the appeal (Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27]; Hawke v Stanyer t/as Stanyer Partnership [2007] NSWWCCPD 208).
While Mr Kelly has only recovered weekly compensation of $1,610.12, if successful, his total claim will exceed the $5,000 threshold. The appellant employer has submitted that Mr Kelly has no entitlement to compensation. Therefore, the compensation “at issue on appeal” is greater than $5,000.

Time

Mr Kelly has submitted that the appeal was lodged outside the 28-day period in s 352(4) of the 1998 Act. That is not correct. A party has 28 days “after the making of the decision appealed against” (s 352(4)). An Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Pt 16 r 2(2) of the Workers Compensation Commission Rules 2010). The Commission issued a Certificate of Determination in Mr Kelly’s matter on 11 April 2011. The appeal was filed on 6 May 2011 and is within time under the rules applicable at that time.

Interlocutory

Mr Kelly has submitted that, because the Arbitrator ordered that the matter be referred to an AMS for assessment of whole person impairment resulting from the injury, the appeal is against an interlocutory order and the appellant employer has no right to appeal. That is not correct. The Arbitrator’s decision finally determined the parties’ rights on the issue of injury, substantial contributing factor and incapacity. It is therefore not an interlocutory decision (P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 at [37(k)]).
If I am wrong on this issue, and the Arbitrator’s decision is an interlocutory decision, the Commission has power under s 352(3A) to grant leave to appeal against an interlocutory decision by an Arbitrator, but is not to do so “unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”. As the appeal will, if it is successful, determine all issues between the parties and eliminate the need for a examination by an AMS, it is necessary for the proper and effective determination of the dispute that the Commission grants leave to appeal. If it were necessary, I would grant leave to appeal.

On the papers

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant employer has submitted that, because one of the grounds of appeal is apprehended bias, the appeal cannot be decided solely on the written material and would benefit from oral argument. Mr Kelly has submitted that an oral hearing is not required and the matter is “suitable for determination on the papers”.
I do not accept that an oral hearing is required in this matter. The submissions made by counsel on the apprehended bias issue at the arbitration were transcribed in full. These have been supplemented by written submissions on appeal. Both sides have had every opportunity to advance arguments in support of their positions and have done so. I do not believe the appellant’s position would be any further advanced in an oral hearing, or that it will be disadvantaged in any way by the absence of an oral hearing. That is especially so where it has not sought leave to adduce on appeal any fresh or additional evidence of the circumstances said to give rise to the alleged apprehended bias.
I note that there is no transcript of the appellant employer’s submissions before the Arbitrator. However, the submissions filed on appeal comprehensively cover all relevant issues in dispute and, in any event, the appellant employer has not relied on the absence of the transcript as a ground supporting its application for an oral hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the respondent worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Kelly suffered an aggravation injury to his cervical spine under s 4(b)(ii) of the 1987 Act;
(b)     finding that Mr Kelly’s employment was a substantial contributing factor to the alleged injury;
(c)     misdirecting herself in her determination of the issues of “injury”, “substantial contributing factor” and “incapacity” in that she found that the worker had discharged the necessary onus of proof on these issues;
(d)     misdirecting herself on the issues of “injury”, “substantial contributing factor”, and “incapacity” in that her findings on these issues were contrary to the weight of the evidence;
(e)     having found in favour of Mr Kelly on the issues of “injury” and “substantial contributing factor”, failed to find that any aggravation of an underlying disease process had ceased;
(f)      finding that Mr Kelly had been incapacitated from 19 April 2009 to 24 April 2009, and
(g)     failing to disqualify herself on the grounds of apprehended bias on the application of the appellant employer made prior to the commencement of the arbitration hearing on 24 March 2011.
For convenience, I will, after setting out a summary of the evidence, follow the headings in the appellant employer’s submissions.

EVIDENCE, SUBMISSIONS AND DISCUSSION

The evidence

Mr Kelly is 42 years old. He started work on the waterfront in the late 1990s. He drives an RTG in the course of his work with the appellant employer. An RTG has a glass bottom and, as he drives it, Mr Kelly looks down, with his chin on his chest, while the crane picks up containers and loads or unloads them onto trucks or stacks. He usually works two three-hour stints on a shift, with a break between those stints. He also drives a tug or forklift, which jolts when it is driven over uneven ground.
Over the three or four months before 31 March 2009, Mr Kelly gradually developed pain in his neck, which was exacerbated by driving the tug over uneven ground, but got worse when he drove the RTG. For the three or four months before the end of March 2009, his neck pain would come and go, but by the end of March 2009, the pain was constant.
Between the ages of 22 and 32, Mr Kelly was a professional boxer. He also played rugby league for many years. He denied having had any neck problems prior to the three or four months before 31 March 2009. He continues to train a lot for boxing and uses weights in his home gym. He continues to have pain in his neck, but it has subsided to the extent that he is “content to keep working with it”.
Mr Kelly reported his neck pain to first aid at work on 31 March 2009 and spoke to the return to work coordinator, Seta Samimi, at about 9.30 am on that day. He was told to see the company’s doctor, Dr Sekel, consultant in rehabilitation medicine, and did so on the same day. He said that the doctor took a detailed history about his sporting career and recreational activities, but did not really listen to him about what he had been doing at work.
On 3 April 2009, Matt Smith, the insurer’s injury management advisor, spoke to Mr Kelly and wrote an email to Ms Samimi. He recorded that Mr Kelly said he “got a sore neck from working the RTG cranes where he constantly had to have his ‘chin on his chest’ and was looking down all the time”. Mr Kelly added that he went to the “NTD” (the nominated treating doctor - Dr Sekel) but “wasn’t really happy with him” because the doctor said the pain was not work-related. Mr Smith concluded, “it does seem like that job would give you a bit of a sore neck to be fair to him”.
Mr Kelly said he saw his regular general practitioner, Dr Lewis, on 19 April 2009 and explained the history of his employment. He said that Dr Lewis recommended physiotherapy and rest, and certified the worker unfit (in a non-WorkCover certificate) from 19 April to 7 May 2009. Mr Kelly returned to work on 27 April (25 and 26 April being rostered days off), and to his usual duties on 8 May 2009. He gave Dr Lewis’s certificate to his employer and was given a workers’ compensation claim form to complete.
The clinical notes from Dr Lewis record that Mr Kelly attended on 9 April 2009, not on 19 April, as claimed by Mr Kelly. The notes refer to “pain in neck and L) shoulder f/i”. Dr Lewis ordered x-rays of the neck and left shoulder. An x-ray of the cervical spine on 21 April 2009 showed that “small osteophytes have developed about the C4/5, C5/6 and C6/7 disc spaces”. Mr Kelly’s statement wrongly refers to having undergone a “scan” on 21 April 2009. The evidence from Dr Lewis’s clinical notes suggests that the only “scans” performed on 21 April 2009 were plain x-rays of the neck and shoulder.
Mr Kelly saw Dr Lewis again on 21 April 2009. The doctor’s notes record “wc from 20/4 – 24/4/09. To continue with panadeine and Hypodorm and rev on 24/4/09 re RTW on full duties or light duties”. Dr Lewis issued a non-WorkCover medical certificate on 21 April 2009 certifying Mr Kelly to be unfit from 20 April to 24 April 2009 (not from 19 April to 7 May 2009 as stated by Mr Kelly) because of a “medical complaint”.
On 24 April 2009, Dr Lewis issued a WorkCover medical certificate certifying Mr Kelly to be unfit from 19 April 2009 to 24 April 2009 and fit for suitable duties from 27 April 2009 to 24 May 2009. Dr Lewis diagnosed Mr Kelly to have “neck pain”, which occurred due to “constant neck bending”. He did not indicate on the certificate if employment was a substantial contributing factor to the injury, though that is one of the questions on the standard WorkCover certificate.
On 27 April 2009, the insurer wrote to Dr Lewis. The letter requested, among other things, a diagnosis, and an opinion on the cause of Mr Kelly’s neck pain and whether the doctor believed work “to be the substantial contributing factor to Mr Kelly’s condition” (emphasis added). There is no evidence that Dr Lewis responded to this letter.
Mr Kelly again saw Dr Lewis on 4 June 2009. The doctor’s notes record “needs wc from 27/5 – 2/6/09 because of problems of a personal nature, not related to his neck injury”.
Dr Sekel reported to the insurer on 28 April 2009. He took a history that Mr Kelly worked with his head “slightly forward flexed” and that he had an intermittent mild ache in the right posterolateral neck and right suprascapular region, more constant for the past month. The pain had occurred intermittently for many years, especially for the initial two or three days after each bout of competition boxing. Under “Date of Injury”, Dr Sekel recorded “more noticeable past three to six months, but slight and intermittent for even much longer”. Dr Sekel also recorded that Mr Kelly ceased competition boxing in 2002 and “never spars”, but works out in his home gym four days per week and runs his own personal fitness business for an average of 10 hours per week. He gave no diagnosis.
On the question of whether “it” was work-related, Dr Sekel said the cause was not work-related because Mr Kelly “would certainly have degenerative changes in his neck based on his competition boxing, training clients at home etc, and his chronic degenerative changes would be gradually increasing with age”. Mr Kelly’s job would not “cause degenerative cervical disease or any other permanent abnormality”. Dr Sekel added that, at most, “it would cause his pre-existing condition to feel temporarily more stiff, until he mobilises it”. Therefore, it was “primarily not work-related, and his work would only cause brief temporary exacerbation of symptoms while at work, until he moves his neck”. Dr Sekel told Mr Kelly that the condition was “effectively not work related, and he appeared very comfortable with this”.
Mr Kelly’s claim was denied because of Dr Sekel’s report.
Mr Kelly submitted a claim form on 19 May 2009 in which he alleged he had suffered a “sprained neck” from “driving rtg’s/forklift for long periods of time in a hunched position”.
Mr Kelly saw Dr Lewis again for neck pain on 5 July 2010 and 6 August 2010.
At the request of his solicitor, Mr Kelly saw Dr Bodel on 6 September 2010. Dr Bodel took a history that Mr Kelly developed gradual neck and upper back pain “in association with the nature and conditions of his work in general”. He recorded that, when driving the RTGs, Mr Kelly has to “work sitting forward” and “looking down through the floor when lifting containers”. The worker “noted increasing pain and stiffness, particularly stiff rotating to the left”. He also had pain over the upper back and along the periscapular region. There was no specific incident and the process had “come on gradually”. Over time, Mr Kelly had made progress but he had “not completely resolved”.
Mr Kelly complained to Dr Bodel of pain in the back of the neck, particularly the left hand side, and in the upper part of the back along the medial border of the scapula on the left. A “head down” posture or use of the arms overhead could aggravate the pain. He had intermittent massage treatment, which was helpful.
On examination, Dr Bodel noted tenderness in the trapezius muscles at the base of the neck on the right hand side and a reduced range of neck flexion, extension and rotation in all directions, but most restricted on extension and rotation to the left. He diagnosed an aggravation of pre-existing degenerative change in Mr Kelly’s cervical spine as a consequence of the nature and conditions of his work. The aggravation was continuing. There was a direct causal relationship between the nature and conditions of Mr Kelly’s work and his ongoing complaints of neck pain.

Injury and substantial contributing factor

After setting out a brief summary of the evidence, the Arbitrator found that Mr Kelly sustained an injury in the nature of an aggravation of pre-existing degenerative changes in his cervical spine under s 4(b)(ii) of the 1987 Act (T18.58). She also found that, based on Mr Kelly’s evidence of continuing symptoms, the effect of the aggravation was continuing and that the “nature and conditions of his work was a substantial contributing factor to his aggravation injury” (T19.8).

On appeal, the appellant employer initially submitted that Dr Bodel had not explained his reasons for his diagnosis and had not sighted the original radiological investigations before forming a view. The reference to Dr Bodel having not sighted the x-rays was incorrect and retracted in supplementary submissions filed on 10 June 2011. However, the remainder of the submissions about Dr Bodel’s report were pressed. They were that Dr Bodel’s evidence could not be accepted because:
(a)     it was based on an examination 17 months after the alleged injury and Mr Kelly’s return to work on his pre-injury duties;
(b)     Dr Sekel’s history of Mr Kelly running his own fitness business at his home gym for 10 hours per week raised questions as to whether his activities outside the workplace may have also aggravated a pre-existing condition in his neck and Dr Bodel did not comment on the significance of this, and
(c)     Dr Bodel’s history was inaccurate or incomplete.
The supplementary submissions also raised an additional alleged “discrepancy” in Dr Bodel’s report. The doctor said that Mr Kelly probably has “a degenerative process in the neck on the basis of the reported findings on the CT scan”. It was submitted that, if Dr Bodel based his opinion on a CT scan, his opinion is inadmissible because the scan is not in evidence.
I do not accept these submissions.
I will deal with the submission about the CT scan first. The question of acceptability of expert evidence in the Commission is not one of admissibility but of weight (Beazley JA (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 at [83]). Dr Bodel based his opinion on his clinical findings on examination, the history he took from Mr Kelly and the x-ray report that showed osteophyte formation at C4/5, C5/6 and C6/7. He therefore properly identified the facts and reasoning process which he asserted justified his opinion and that was sufficient to enable the Arbitrator to evaluate the opinions expressed (Spigelman CJ in ASIC v Rich [2005] NSWCA 152; 218 ALR 764 at [105]).
More specifically, there is no evidence in Dr Lewis’s extensive notes (which include copies of investigations Mr Kelly has had as far back as 1999) that Mr Kelly ever had a CT scan of his neck and I therefore doubt that Dr Bodel’s reference to such a scan was correct. It is possible that the confusion arose from Mr Kelly’s reference in his statement to having undergone a “scan of my spine on 21 April 2009”. In fact, he had a plain x-ray done on that day. Dr Bodel’s reference to a CT scan was most likely an error and it is of no consequence.
The Arbitrator considered the history recorded by Dr Bodel and concluded that it was “similar enough to the history taken by Dr Sekel and to the history in Mr Kelly’s statement to provide a clear – a fair climate for his opinion” (T20.24). The Arbitrator’s statement was a clear and appropriate reference to Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510 in which it was held that a history recorded by a doctor does not have to accord precisely with the evidence, but merely has to provide a “fair climate” for the acceptance of the doctor’s opinion.
Dr Bodel’s report included a reference to Mr Kelly having always enjoyed physical fitness and doing weight training and boxing regularly, which he continued to do. If Dr Bodel intended to say that Mr Kelly was still boxing at the time of his examination on 6 September 2010, that was incorrect. Mr Kelly told Dr Sekel that he stopped boxing in 2002 and never sparred. In his statement, Mr Kelly said he still did “training for boxing” and did “weights”.
However, the error in Dr Bodel’s history (if it was an error) does not assist the appellant employer. Notwithstanding the doctor’s incorrect reference to Mr Kelly continuing to train and box regularly, Dr Bodel concluded that his employment was a substantial contributing factor to the injury. It was open to him to express that opinion. Employment only has to be a substantial contributing factor to an injury, not the substantial contributing factor. Even if Mr Kelly’s home activities were a factor in the aggravation of his condition that occurred in 2009, which is far from certain, that does not undermine Dr Bodel’s conclusion. Dr Bodel’s history provided a fair climate for the acceptance of his opinion.
I reject the submission that Dr Bodel’s report is of diminished weight because it was not obtained until 17 months after Mr Kelly first reported his symptoms. The doctor gave evidence as a qualified orthopaedic surgeon based on a history that was consistent with Mr Kelly’s evidence and it was open to the Arbitrator to rely on it. That Dr Bodel did not see Mr Kelly until September 2010 is of no consequence.
It was submitted that, based on the evidence from Dr Sekel, there was “insufficient evidence to establish that the worker suffered an ‘injury’ for the purposes of section 4 of the 1987 Act or that his employment was a ‘substantial contributing factor’ to his alleged injury”. The appellant employer also submitted that, based on the initial non-WorkCover certificate, Dr Lewis “apparently did not initially consider the worker to be suffering from a work related injury”.
I do not accept these submissions. Dealing with Dr Lewis’s evidence first, it is of no consequence that he did not initially issue a WorkCover certificate. He ultimately issued such a certificate and that certificate supports Mr Kelly’s claim. It is of no consequence that the WorkCover certificate did not indicate if employment had been a substantial contributing factor to the injury. That question is a question of fact for the Commission and is not solely dependent on medical evidence. More importantly, Dr Bodel, a qualified orthopaedic surgeon, supported Mr Kelly’s claim and the Arbitrator’s acceptance of Dr Bodel’s conclusions discloses no error.
The submission that, because of Dr Sekel’s evidence, there was insufficient evidence to establish that Mr Kelly suffered an injury or that his employment was a substantial contributing factor to that injury is wrong. The question of “sufficiency of evidence” to establish a case did not depend on Dr Sekel’s opinion. It depended on whether, after weighing all the evidence, the Arbitrator accepted Mr Kelly’s case, which included evidence from Mr Kelly about the development of his symptoms at work and persuasive supportive evidence from a qualified orthopaedic surgeon.
As to Dr Sekel’s evidence, the Arbitrator gave several persuasive reasons why she did not accept it. First, she said that Dr Sekel’s statement that, at most, Mr Kelly’s work “would cause his pre-existing condition to feel temporarily more stiff” until he mobilised it, was not consistent with Mr Kelly’s evidence, which she accepted, that over the three or four months before seeing Dr Sekel he developed neck pain that was exacerbated by driving the tug and the RTG. Second, she said that Dr Sekel’s diagnosis of a temporary aggravation due to stiffness did not adequately explain the development of Mr Kelly’s symptoms over time. Third, she recorded that Mr Kelly told Mr Smith on 3 April 2009 that he was not happy with Dr Sekel’s opinion. She said that Mr Kelly’s comment was not consistent with Dr Sekel’s statement that the worker appeared “very comfortable” with his advice that the condition was not work related. Last, she felt that Dr Sekel might have minimised the nature of Mr Kelly’s duties when he said that he worked with his head “slightly forward flexed”. All of these findings were open to the Arbitrator.
It was submitted that, to succeed, the worker had to establish not only the presence of degenerative changes in his cervical spine, but also some “disturbance in function or structure” of the affected body part. The quoted phrase is part of a definition of disease in Blakiston’s Gould Medical Dictionary (McGraw-Hill Book Company, 4^th ed, 1984) (Blakiston’s). Burke CCJ quoted the full definition in Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253 (Perry) at [47]. A finding of this nature, so it was argued, could not be made in the absence of reliable and supportive medical evidence and that evidence is lacking in this case. The “best” evidence is the evidence from Dr Sekel, whose opinion is contemporaneous with the report of injury. The second “best” evidence would be from Dr Lewis, but his evidence is inclusive. The next “best” evidence would be from Dr Bodel, whose opinion should be discounted.
I do not accept these submissions. Burke CCJ did not adopt the Blakiston’s definition in the manner suggested by the appellant employer’s submissions. His Honour concluded, at [57]:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process.”
The Court of Appeal has endorsed this approach in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 (Barrow). That case involved a claim for compensation as a result of overuse and repetitive trauma at work involving the worker’s shoulder. Relying on a medical report that stated that there was “evidence of rotator cuff and bicipital tendinitis as a result of overuse and repetitive trauma at work” (at [60] of the Court of Appeal decision), the Arbitrator found that the worker suffered from a disease and awarded compensation accordingly. The employer argued on appeal that there was no evidence of a disease because the doctors had not used that term in their reports. Mason P (Santow and Tobias JJA agreeing) rejected that argument, and said (at [61]):
“The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd [1992] NSWCC 16; (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker’s condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work.”
Acting Deputy President Snell considered the meaning of “disease” in Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153 where, after referring to Perry, he observed (at [100]):
“In Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC 19; (1995) 11 NSWCCR 656 Neilson J adopted the phrase ‘underlying morbid condition’ as one equivalent to the word ‘disease’, applying the discussion of Kirby P (as he then was) in O’Neill v Lumbey (1987) 11 NSWLR 640 at 646. Applying what was said in these cases, in my view it is appropriate to characterise the degenerative condition in the Respondent Worker’s cervical spine as a ‘disease’ within the meaning of section 4.”
Dr Sekel conceded that Mr Kelly has chronic degenerative changes in his neck and I do not understand it to be argued that such changes do not constitute a disease. If that were argued, I would have no hesitation in finding that, based on the above authorities, which the Commission has consistently applied in cases of this kind, such degenerative changes are a disease within the meaning of s 4 of the 1987 Act.
On the question of whether Mr Kelly suffered an aggravation of the disease in his cervical spine, it is well established that a disease is aggravated if the condition is made “more grave, more grievous or more serious in its effects upon the patient” (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 639). Considering this passage, Burke CCJ observed (at [17]) in Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”

Consistent with these authorities, the Arbitrator said that there is an aggravation of a disease if it is made more serious in its effects, and “pain can be – often is the effect of injury” (T19.25). She accepted Mr Kelly’s evidence that his neck symptoms had increased in the months up to 31 March 2009 and that the increase in symptoms had been caused by his duties with the appellant employer. That conclusion was consistent with the evidence from Mr Kelly and Dr Bodel, and discloses no error.
Next, the appellant employer submitted that, for employment to be a substantial contributing factor to an injury, the causal connection must be “real and of substance” (Badawi v Nexon Asia Pacific Pty Ltd t/ as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75). It was argued that, on the balance of the medical evidence, the Commission ought not be satisfied that the worker’s employment was a substantial contributing factor to his injury. Reliance was placed on the evidence from Dr Sekel and the absence of an opinion on this issue from Dr Lewis.
I do not accept these submissions. As I have already stated, the Arbitrator’s rejection of Dr Sekel’s opinion discloses no error and it is of no consequence that Dr Lewis did not indicate if employment had been a substantial contributing factor to the injury (see [53] above). The evidence from Mr Kelly as to when his symptoms started, and from Dr Bodel as to the nature and cause of the injury, provided ample evidence to support the Arbitrator’s conclusion. In a case concerning an aggravation injury under s 4(b)(ii), it is only necessary to establish that the employment was a substantial contributing factor to the aggravation, not to the underlying condition (Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [64]). The evidence comfortably establishes that Mr Kelly’s employment was a substantial contributing factor to the aggravation of the disease process in his cervical spine.
It was also submitted in the appellant employer’s supplementary submissions that the Arbitrator’s reasons “read more like an extension of the submissions put forward by counsel for the worker than a fair, impartial and unbiased appraisal of the evidence”. The following “example” is quoted from the Arbitrator’s reasons (at T19.35) as allegedly supporting this submission:
“Although Dr Lewis initially wrote out a non-WorkCover medical certificate for a medical complaint on the 21^st of April, he clearly changed his mind because on the 24^th of April, a couple of days later, he issued a WorkCover certificate covering the period claimed. And in his clinical notes for the 21^st of April he states plan WC et cetera. I take it to mean that the GP felt the condition was work related.”
It was then submitted that the Arbitrator “overlooked” the fact that Dr Lewis did not see Mr Kelly on 24 April 2009, the date of the WorkCover certificate.
I do not accept that the Arbitrator’s reasons read more like an extension of the submissions put by Mr Kelly’s counsel. She referred to and gave detailed reasons why she rejected submissions made by the appellant employer’s counsel. The appellant employer has not challenged the decision because of a lack of reasons. If it had, I would have had no hesitation in rejecting that challenge. Though she did not expressly refer to Mr Kelly not having seen Dr Lewis on 24 April 2009, that is of no consequence. She referred to Dr Lewis’s evidence in detail and accepted that he felt Mr Kelly’s condition was work-related. That finding was open to her.
The appellant employer submitted that the issuing of a non-WorkCover certificate by Dr Lewis on 21 April 2009 was inconsistent with the entry which appears on his “computer generated” clinical notes for that date, which record “WC from 20/4 – 24/4/09” and it is unclear from the notes “precisely why and how a ‘WorkCover’ medical certificate came to be issued by him on 24 April 2009 in circumstances where he evidently did not see the worker on 24 April 2009”. It was then submitted:
“Rhetorically speaking there are simply too many unanswered questions in relation to what precisely is the opinion of the worker’s treating general practitioner, Dr Lewis, on the crucial issues of ‘injury’; ‘causation’; and ‘substantial contributing factor’. Furthermore, it is submitted that there was simply not enough evidence before the Arbitrator to satisfy her on these issues.”
I do not accept these submissions. It is far from clear that Dr Lewis did change his mind about whether Mr Kelly’s neck problem was work-related. All that is known is that he issued a non-WorkCover certificate on 21 April 2009 and a WorkCover certificate on 24 April 2009. Why he did that is not explained. That does not mean that the worker has not made out his case on the balance of probabilities. He based his case on the nature of his duties (working with his head bent), the development of neck pain while performing those duties, the x-ray evidence of degenerative changes, and Dr Bodel’s opinion that there had been an aggravation of pre-existing degenerative changes in the cervical spine because of his duties. The evidence supports that case and the Arbitrator’s acceptance of that evidence discloses no error.
It was submitted that, in light of the Arbitrator’s statement that she took Dr Lewis’s notes to mean that he felt the worker’s condition was work-related, she drew “unfounded inferences” from “snippets” of the evidence to justify her findings and did not apply an “impartial and even handed approach to the evidence”. I do not accept these submissions. The conclusion that Dr Lewis felt that Mr Kelly’s condition was work-related was not “unfounded”, but was based on an analysis of the doctor’s notes and certificates. Those documents clearly support the Arbitrator’s conclusion. The Arbitrator considered all of the relevant evidence and submissions and made findings based on that evidence. The submission that the Arbitrator did not apply an impartial and even-handed approach was without foundation and should not have been made.
Last, it was submitted that the Arbitrator failed to acknowledge that the worker bore the onus of proof. This submission has no proper foundation and I reject it. A close reading of the Arbitrator’s reasons makes it patently obvious that she was well aware that the worker carried the onus of proof and that she was satisfied that he had discharged that onus. She expressly noted that the appellant employer’s counsel “reminded” her that “Mr Kelly needed to satisfy [her] that he has some injury” (T19.18). She then dealt with counsel’s submissions in detail and gave reasons for not accepting them.

Incapacity and aggravation/aggravation ceased

The Arbitrator found that, based on Mr Kelly’s evidence that he has continued to experience symptoms in his neck, the effect of the aggravation injury was continuing.
The appellant employer has submitted that the weight of the medical evidence “strongly supports the proposition that if there was an ‘injury’ in the form of an aggravation of a disease process (which is denied) the effects thereof were temporary and short lived”. This submission is based on the arguments outlined above to the effect that the Arbitrator should have accepted the evidence from Dr Sekel and rejected the evidence from Dr Bodel.
For the reasons already outlined, the Arbitrator’s rejection of Dr Sekel and acceptance of Dr Bodel discloses no error. The only additional points argued under this heading are that Mr Kelly returned to his pre-injury duties the day after reporting his symptoms on 31 March 2009 and has continued to perform them, save for time off from 19 April to 24 April 2009.
Mr Kelly’s continued performance of his pre-injury duties after 24 April 2009 does not establish that the aggravating effect of his injury has ceased. His evidence, accepted by the Arbitrator, was that his neck symptoms have continued, though he has been able to continue his work. That evidence provided appropriate support for the Arbitrator’s finding that the effect of the aggravation has not ceased. The appellant employer’s submissions have no merit.

Onus of proof/weight of evidence

The appellant employer has submitted that, in the absence of a report from Dr Lewis, an inference should be drawn that the doctor would not have assisted Mr Kelly’s case.
The Arbitrator noted Dr Lewis’s evidence in the clinical notes and the WorkCover certificate dated 24 April 2009, and said that she was not convinced that a Jones v Dunkel [1959] HCA 8; 101 CLR 298 type inference should be drawn about the issue of injury. That conclusion was open to her and discloses no error.
Dr Lewis’s clinical notes and WorkCover certificate of 24 April 2009 establish that he was aware that Mr Kelly’s duties involved “constant neck bending” and that he supported a connection between those duties and the development of Mr Kelly’s symptoms. His failure to complete the section of the certificate dealing with substantial contributing factor is of no consequence.
Even if a Jones v Dunkel inference were drawn against Mr Kelly because of a failure to tender a report from Dr Lewis, that inference is only that Dr Lewis’s evidence would not have assisted his case, not that it would have been adverse to him (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 276 ALR 375 at [63] and [64]). If Mr Kelly’s case was otherwise accepted (and it was), such an inference would not adversely affect the outcome (Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 at [100]).
The Arbitrator accepted Mr Kelly’s case based on the evidence tendered, which included the clinical notes and WorkCover certificate from Dr Lewis, and evidence from Mr Kelly and Dr Bodel. In these circumstances, even if an adverse inference were drawn about the absence of a report from Dr Lewis, it makes no difference to the result.
Dr Lewis’s apparent failure to respond to the insurer’s letter is of no consequence. His opinion on diagnosis was not critical. He expressed an opinion on causation in his WorkCover certificate. On the issue of substantial contributing factor, the insurer asked the wrong question: it asked if employment was the substantial contributing factor to the injury when employment only has to be a substantial contributing factor to an injury for a worker to succeed. Further, it was always open to the insurer to have sought leave for a summons to be issued to require the doctor to attend to give oral evidence. That was not done.

Apprehended bias

All transcript references in this section are to the transcript of the proceedings on 24 March 2011. As is usual in the Commission, there is no transcript of the informal conciliation stage of the proceedings and neither side has sought to tender any additional evidence of what occurred at the conciliation.
At about 11.45 pm on 24 March 2011 (T6.32), counsel for the appellant employer at the arbitration, Mr Saul, applied for the Arbitrator to disqualify herself on the ground of apprehended bias. His reasons were that he had made it clear at 10.00 am that, as his client disputed liability, he wished the matter to proceed to a formal arbitration hearing and did not wish to participate in any conciliation. He submitted that what the Arbitrator called conciliation was “nothing like conciliation, given the fact that my instructions have at all times remained perfectly clear that we did not wish to enter any further conciliation on the matter” (T5.38). He observed that the case had not resolved at the “teleconference phase” and the appellant employer did not wish to enter into any further negotiations, which it made clear at 10.00 am.
It was submitted that, rather than commencing the arbitration, the Arbitrator “embarked upon a very detailed analysis of the evidence” (T6.1) and Mr Kelly was permitted to “make some representations” and the employer’s side was “quizzed about evidence and the reliability of it” (T6.6) all of which:
“have now cast doubt upon you, whether it being put on the next hat, which is a unique role that you play within this model, when you take off your conciliator’s hat, which we say you should have done much earlier than now, and put on your Arbitrator’s hat, that a fair and independent observer and I couldn’t have a more independent observer than the person who is here on my behalf, and that’s Ms Samimi, would not feel that she would get a fair hearing.”
Mr Saul added that his client had “not at all wished to be party to” what the Arbitrator kept referring to as conciliation (T6.34), but that was something the Arbitrator had “turned a deaf ear to” (T6.38).
After hearing brief submissions from counsel for Mr Kelly, and further submissions from Mr Saul, the Arbitrator refused to disqualify herself. She referred to the document headed “The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission” issued by President Judge Keating in February 2011, which includes the Registrar’s “Guideline for the Practice of the Conciliation/Arbitration Process” (the Conciliation/Arbitration Guideline) and said that, in the conciliation process, an Arbitrator has the duty to invite the parties to offer suggestions or discuss how the dispute might be resolved (T8.56).
The Arbitrator agreed that Mr Saul had indicated at the start of the conciliation that he did not wish to have any (settlement) discussions. However, she pointed out (at T9.5) that some of the ways the dispute might be resolved at conciliation were by identifying the issues and differences between the parties, reviewing any agreements reached, encouraging the parties to review the strengths and weaknesses of their positions based on the evidence, identifying the range and possible outcomes for each party on the evidence, and identifying the barriers to agreement and exploring how they might be overcome. She said that the conciliation was an opportunity for both sides to informally look at the evidence, assess their positions and perhaps think about resolution even when no resolution appeared obvious to them when they first came to the conciliation. She said the job of the conciliator was to “cast a bit of doubt for both sides, to demonstrate the risk for both sides” (T9.25).
The Arbitrator also referred to the Registrar’s Guideline for “Standards of Conduct During Proceedings” in the Commission (the Registrar’s Guideline). She correctly noted that the general principles are that representatives appearing in the Commission will be knowledgeable about “the Workers Compensation practice, directions and guidelines” (T9.32) and will be expected to “actively participate in the conciliation stage of the process and assist the Arbitrator in the exercise of the statutory role and use their best endeavours to bring the parties to a settlement that’s appropriate for all” (T9.34).
She correctly noted that, though his solicitor had been present during the conciliation, Mr Saul had left the room at the early stage of the conciliation and only returned at the end of it and probably missed the discussion about admitting late evidence and the effect it would have on the worker’s case. The Arbitrator added that it was her duty at conciliation to prepare the matter for arbitration and to identify what was still in dispute and update any statement of agreed facts and issues. That was something she was about to do before Mr Saul’s application.
She said that, during the conciliation, it was discovered that the employer’s solicitor had an incorrect copy of the Application to Resolve a Dispute, which had wrongly alleged an injury to the back rather than the neck. The Arbitrator also discussed, during the conciliation, an application by the employer’s solicitor to rely on late documents he had filed. Those documents enabled the Arbitrator to identify the exact period of the claim and reduce it from 19 April 2009 to 7 May 2009, as originally claimed, to a claim for a few days.
In response to Mr Saul’s submission that a worker “shouldn’t be able to fiddle with the claim” (T11.5) at conciliation, the Arbitrator correctly noted that that happened very often in the Commission, and was often by consent.
Dealing with Mr Saul’s submission that Mr Kelly had been permitted to “make representations” (T11.47), the Arbitrator said that Mr Kelly had been permitted to answer questions. She said that one of the benefits of the conciliation process was to give both parties, including Ms Samimi, as the employer’s representative, the opportunity to participate in an informal discussion.
The Arbitrator said that she “did offer the parties a preliminary view”, which was something that she would “very commonly do” (T12.28). She added (at T12.32):
“But it’s, it is an expected part of this Commission process that the Arbitrator having had the benefit of a full conciliation process, having had the benefit of looking at the evidence and being pointed to relevant evidence by both sides can give the parties a sense of their preliminary view; preliminary because they haven’t had the benefit of submissions, and therefore allow the parties to go off and make some sensible analysis for themselves about the risk of proceeding to formality.”
Taking all of the above into consideration, the Arbitrator could not see that there could be any apprehended bias and she refused to disqualify herself.
After the Arbitrator gave detailed reasons for refusing Mr Saul’s application, he sought to “correct some comments” she had made. He made a comment (not properly transcribed) about the Arbitrator’s correct reference to him having been absent during the conciliation and referred to having been ably instructed by a solicitor of long standing. He then repeated that the issues of injury and whether employment had been a substantial contributing factor to the injury were in dispute and that the employer wanted those issues determined. He said that the conciliation process was not necessary to amend the claim from a low back injury to a neck injury. He noted that the case had a “three hour slot in the Commission” and two hours and 10 minutes had been taken up with what the Arbitrator called conciliation but was “not proper conciliation” (T14.20).
The Arbitrator responded by acknowledging that Mr Saul’s solicitor conducted the conciliation process in his absence. She reiterated that it was her practice to deal with applications to rely on late documents at the conciliation stage. Though the conciliation did not lead to a complete resolution of the matter, that did not mean that it had not been necessary. The Arbitrator commended the Conciliation/Arbitration Guideline to Mr Saul and he responded:
“MR SAUL: I’ve practised in this jurisdiction, with great respect Madam Arbitrator, for nearly seven years. I appear before your colleagues on a regular basis, both for what you call conciliation and arbitration, as does my friend opposite. What is occurring in a case that is of a very, very limited nature is most unusual with great respect. And I’m not making this Application without instructions of course, it’s nothing personal.”
Mr Saul’s response was, to say the least, inappropriate. He added that the things that had happened in the previous two hours and 10 minutes could have been advanced at the arbitral phase and that, at any stage during the arbitration, the matter can “fall back into conciliation phase” (T15.23).
On appeal, it was submitted that Mr Saul had made it “abundantly clear” to the Arbitrator that the employer did not wish to conciliate the matter because there were significant issues on injury, substantial contributing factor and incapacity, and the employer wanted to have those issues determined. In spite of that, the Arbitrator conciliated the matter, “against the employer’s will”, for one hour and 45 minutes. During that time, the employer was “quizzed about its evidence and the reliability of it” and the worker was permitted to make “oral representations to the Arbitrator”.
The appellant employer emphasised that, if there was to be any further identification of the “real issues” and the “real problems” in the matter, it wanted those discussions to take place during the arbitration hearing, not during conciliation. The appellant employer’s position is that, once one party expresses a desire not to conciliate, “procedural fairness dictates that the Arbitrator should honour that request”. The Arbitrator’s failure to do so in the present case, and her discussion about the reliability (or otherwise) of the employer’s evidence, in the presence of the worker, gave rise to a situation of apprehended bias.
Mr Kelly has submitted that, during the conciliation phase, the Arbitrator explored the issues in the case and discussed whether late evidence would be admitted. In light of documents produced late by the employer, the period of compensation claimed was reduced. The conciliation process is generally conducted with the parties and their legal representatives present. The legislation requires the Arbitrator to conciliate and attempt to bring about a settlement before moving to the arbitration phase. That is what occurred. As a result of the documents produced late by the employer, Mr Kelly made an offer to settle the claim.
Before dealing with this issue, it is appropriate to consider the legislation, the Conciliation/Arbitration Guideline and the authorities.
Section 355(1) of the 1998 Act provides that an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination “without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them” (emphasis added). That is, an Arbitrator has a statutory obligation to attempt to bring the parties to a settlement before making an award or otherwise determining a dispute. That obligation is a continuing one, but is primarily discharged at the conciliation stage of the proceedings. Section 355(2) provides that no objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator has previously used his or her best endeavours to bring the parties to a settlement.
The conciliation process must be viewed in its proper statutory context. As the Conciliation/Arbitration Guideline points out, the Commission is part of a broader statutory scheme for dealing with workers’ compensation issues and claims in a way that is just, timely, fair and affordable (ss 3 and 367 of the 1998 Act). To achieve this goal, the Commission’s rules require that the parties have the opportunity to explore settlement in the proceedings (Pt 15 r 15.3 Workers Compensation Commission Rules 2011).
The Conciliation/Arbitration Guideline provides that, at the conciliation, the Arbitrator will:
“invite the parties (including the worker personally) to make any offers of settlement or suggestions as to how the issues remaining in dispute might be resolved.
The Arbitrator will use some or all the following ways to assist discussions:
• identify issues and differences between the parties in relation to each;
• review any agreements reached;
• encourage parties to review the strengths and weaknesses of their positions based on the evidence;
• identify the range of possible outcomes for each party based on the evidence;
• identify barriers to agreement and explore how these might be overcome;
• identify practical solutions;
• facilitate realistic settlement offers;
• identify the advantages of settlement and the risks of leaving the matter for determination by a third party;
• allow parties to undertake private conferencing as between themselves and their legal representatives if that is deemed to be appropriate and productive, and
• assist parties to draft terms of settlement in accordance with any agreement reached.
The Arbitrator will not engage in private discussions with one party and/or their legal representatives.”
If some or all of the issues are not resolved at conciliation, then, following the Conciliation/Arbitration Guideline, the Arbitrator will prepare the matter for arbitration and will:
“• identify which issues are still in dispute between the parties and update any Statement of Agreed Facts and Issues, or wages schedule;
• identify the issues of fact on which findings will need to be made;
• identify legal issues in relation to which a determination will need to be made;
• identify the evidence to be used as a basis for determination, and
• ensure all parties are fully aware of all of the evidence to be adduced, including that contained in any witness statements.”
The question of what constitutes apprehended bias was restated by the High Court in Johnson v Johnson [2000] HCA 48; 201 CLR 488 where it was held in a joint judgment by Gleeson CJ, McHugh, Gummow and Hayne JJ at [11] and [12]:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
The test is not whether the judicial officer will decide the case adversely to one party, but whether he or she will decide the case impartially and without prejudice (Mason J in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 (JRL)). Reasonable apprehension of bias on the ground of prejudgment must be “firmly established” (JRL).
The Court of Appeal considered the question of alleged bias by a Commission Arbitrator in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [134] (Edmonds). In that matter, it was argued that the Arbitrator showed actual bias in the form of prejudgment when he encouraged the worker to amend her claim to allege the relevant disease provisions and he said, immediately before delivering his decision, “I think I’ve indicated from the outset that I’ve got a certain view” (Edmonds at [103]). McColl JA noted at [103] “the critical question is whether he [the Arbitrator] had so prejudiced the matter as to be incapable of altering his view, whatever evidence or arguments may be presented”.
In the course of deciding that question, her Honour made a number of important observations (Giles and Tobias JJA agreeing) about the principles relating to bias (both apprehended and actual) and how those principles apply to proceedings in the Commission. Those observations have particular relevance in the present matter and may be summarised as follows:
(a)the conduct of the decision-maker must be considered in the context of the nature of the decision-making process in which he or she is engaged (Edmonds at [103] citing Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 (Jia Legeng) at [78]);
(b)a judicial officer has never been required to approach a case with a blank mind. An Arbitrator is required to consider the “substantial merits of the case” (s 354(3) of the 1998 Act and Edmonds at [104]);
(c)an Arbitrator’s first task at the initial teleconference is to use his or her best endeavours to bring the parties to a settlement acceptable to them before determining any dispute (s 355 of the 1998 Act and Edmonds at [104]);
(d)an Arbitrator has an “overall and continuing duty” (Aluminium Louvres & Ceiling Pty Ltd v Zheng [2006] NSWCA 34 at [25]) to use his or her best endeavours to bring the parties to a settlement by identifying issues and practical solutions to those issues (Edmonds at [104]);
(e)“the nature of the jurisdiction the Arbitrator was exercising made it obligatory that he form a view about the issues” (Edmonds at [105]);
(f)in assessing whether a decision-maker has been guilty of actual or apprehended bias, it is necessary to consider the extent to which that person is constrained from taking into account an opinion formed in the course of undertaking his or her task (Edmonds at [106] citing Hayne J in Jia Legeng at [187]);
(g)while a Commission Arbitrator is obliged to act impartially, he or she is entitled, in discharging the decision-making function, to take into account views he or she has formed in the course of discharging the primary role of achieving a settlement acceptable to both parties (s 355(1) of the 1998 Act) (Edmonds at [106]), and
(h)the requirements of natural justice are not infringed by a mere lack of nicety (R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553). The forming of a provisional view will facilitate an expeditious hearing, but does not demonstrate that the Arbitrator has so prejudged the matter as to be incapable of altering his or her views (Edmonds at [110]).

Applying the above authorities to the present matter, no aspect of the Arbitrator’s conduct during the conciliation came close to suggesting that she had prejudged the issues in dispute or that she would not determine the issues impartially and without prejudice. The appellant employer’s submissions, both at the arbitration and on appeal, have ignored the legislation and the relevant authorities. This is surprising and regrettable.
An Arbitrator has a statutory obligation to use his or her best endeavours to bring the parties to a settlement (s 355(1)). That is a continuing obligation. The obligation is satisfied partly at the teleconference stage, but mainly at the conciliation stage. The obligation is not eliminated because one party does not wish to participate in that process. The refusal to commence the arbitration at the time demanded by the employer’s counsel did not demonstrate anything approaching apprehended bias. Nor did it deny the employer procedural fairness. The employer had every opportunity to present its case and did so.
While parties have a right to inform Arbitrators of the likely settlement prospects, they have no right to demand how and when matters are to proceed. It is completely inappropriate for counsel to insist that a matter proceed to arbitration at 10.00 am, as Mr Saul appears to have done in the present case. As the Registrar’s Guideline makes explicit, legal practitioners appearing in the Commission are expected to:
“Actively participate in the mediation/conciliation stage of the Commission’s process, and assist the Mediator/Arbitrator in the exercise of his or her statutory duty to use his or her best endeavours to bring the parties to a settlement acceptable to all.”
Though the appellant employer was not prepared to enter settlement negotiations, that did not mean that there was no purpose served by the conciliation and it certainly did not mean that the matter had to immediately proceed to arbitration. The Arbitrator correctly observed that the conciliation serves a much broader function than the important purpose of exploring settlement options. It allows the parties to identify the issues still in dispute, the issues of fact on which findings will be required, legal issues, and the evidence to be admitted. As a result of the conciliation in the present matter, the parties considered the evidence to be admitted in an application to admit late documents filed by the employer, clarified the allegation of injury (that it was to the neck, not the back), and reduced the period of the claim. None of those steps indicated that the Arbitrator would not bring an impartial mind to the determination of the dispute. Dealing with those issues during the conciliation involved no error.
The complaint that Mr Kelly had been permitted to “make representations” during the conciliation was not taken any further, either at the arbitration or on appeal. Just what “representations” Mr Kelly made are not known. The representations were made in the presence of the appellant employer’s solicitor and Ms Samimi, and it has not been suggested that they prejudiced the employer or raised any new issue. The Arbitrator correctly observed that the conciliation phase is an opportunity for the parties to participate in an informal discussion. That is what happened.
The Arbitrator conceded that she offered the parties a “preliminary view” during the conciliation. There is no evidence of what that view was. However, as McColl JA observed in Edmonds, in cases where all the papers have been before the Arbitrator prior to the start of the hearing, the forming of a preliminary view will facilitate an expeditious hearing. It does not demonstrate that the Arbitrator had so prejudged the matter as to be incapable of altering her view.
Mr Saul’s submission that the worker should not have been allowed to “fiddle with the claim” at the conciliation was surprising, to say the least. Though it is regrettable, and unsatisfactory, it is common for claims to be amended at the conciliation stage. The amendment that occurred on this occasion was to reduce the period of the claim. It involved no prejudice to the employer.
At the conclusion of the conciliation, the Arbitrator heard submissions from both sides and submissions in reply by Mr Saul. She then delivered an extempore decision. There is no suggestion that the Arbitrator did not give the appellant employer every opportunity to present its case. The submission that, by not starting the arbitration at 10.00 am, the Arbitrator denied the appellant employer procedural fairness is not supported by any evidence and is untenable.
It follows that the Arbitrator’s conduct of the conciliation was consistent with the legislation, the Conciliation/Arbitration Guideline and the authorities. The application that she disqualify herself on the ground of apprehended bias was completely baseless and should not have been made.

OTHER MATTERS

After the Arbitrator gave detailed reasons for refusing the application that she disqualify herself, Mr Saul, under the guise of “correcting” some of the Arbitrator’s comments made in the course of her reasons, continued to press the submissions he had already put and which the Arbitrator had rejected. That was inappropriate. If counsel believes that an Arbitrator has overlooked an obvious matter in the course of his or her reasons, it is reasonable that that matter be brought to the Arbitrator’s attention so that, if necessary, any such omission can be corrected. However, once an Arbitrator rules on an application, counsel should abide by that ruling and exercise his or her right of appeal, if any.

CONCLUSION

The Arbitrator’s reasons and conclusions disclose no error. The arguments presented on appeal were specious and demonstrated a fundamental lack of understanding of the principles and longstanding authorities under which claims in the Commission are determined. This appeal was completely without merit and should not have been filed. The application that the Arbitrator disqualify herself was baseless and equally without merit.

DECISION

The Arbitrator’s determination of 11 April 2011 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
11 August 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE