Estate of Clarke v State of New South Wales (Greystanes Disability Services)
[2019] NSWWCCPD 29
•1 July 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Estate of Clarke v State of New South Wales (Greystanes Disability Services) [2019] NSWWCCPD 29 | |
| APPELLANT: | Mr Christopher McGlinn as Executor of the Estate of the late Christine Anne Clarke | |
| RESPONDENT: | State of New South Wales (Greystanes Disability Services) | |
| INSURER: | Employers Mutual NSW Ltd | |
| FILE NUMBER: | A1-5193/18 | |
| SENIOR ARBITRATOR: | Mr G Capel | |
| DATE OF SENIOR ARBITRATOR’S DECISION: | 17 December 2018 | |
| DATE OF APPEAL DECISION: | 1 July 2019 | |
| SUBJECT MATTER OF DECISION: | Alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; alleged legal error; finding of witness’s unreliability when witness not called – application of New South Wales Police Force v Winter [2011] NSWCA 330; burden of proof – consideration of phrase “not comfortably satisfied” and “actual persuasion on the balance of probabilities” - Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10; Elsamad v Belmadar Pty Ltd [2019] NSWWCCPD 22 | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | McCabe Partners Lawyers |
| Respondent: | EMP/Michael Lawyers | |
| ORDERS MADE ON APPEAL: | 1. That Christopher McGlinn, Executor of the Estate of the late Christine Anne Clarke be substituted as the appellant in this matter. 2. Orders four and five of the Senior Arbitrator’s Certificate of Determination of 8 November 2018 are revoked, otherwise the Certificate of Determination of 8 November 2018 is confirmed. Order four of the Certificate of Determination of 17 December 2018 is revoked. 3. The matter is remitted to another Arbitrator for redetermination in accordance with this decision of the outstanding issues as to whether the appellant suffered injury to her right lower extremity (hip) on 18 March 2007 and whether the appellant suffered a consequential injury to her right lower extremity (hip) and right shoulder. | |
INTRODUCTION
This matter concerns the application of the appropriate standard of proof in assessing whether or not the respondent is liable for the alleged injuries to the appellant worker’s right hip and right shoulder, either as a frank injury or a consequential injury. In particular, it concerns an analysis of the Senior Arbitrator’s finding that he was “not comfortably satisfied on the balance of probabilities” that the appellant discharged the onus of establishing she sustained an injury to her right hip on 18 March 2007, or that she developed a consequential condition in her right hip and right shoulder as a result of the accepted injuries to her back, neck, left shoulder and left hip.
This matter also concerns the practice and procedure of the Commission in circumstances where inferences of unreliability of evidence are drawn when the worker does not give oral evidence.
SUBSTITUTION OF THE APPELLANT
By letter dated 21 May 2019, the appellant’s solicitors advised this Commission that the appellant, Ms Christine Anne Clarke, passed away on 21 February 2019. The death of the appellant occurred after the Senior Arbitrator’s decision and after these appeal proceedings had been commenced.
Application was made by the solicitors for the appellant to substitute the Executor of Christine Anne Clarke in this matter with instructions from the Estate so to do. The respondent has consented to this application on 27 June 2019. Pursuant to the Workers Compensation Commission Rules 2011, and in particular r 18.4(2), I order that Mr Christopher McGlinn as Executor of the Estate of the late Christine Anne Clarke be substituted as the appellant in this matter in place of the deceased.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
Much of the evidence in this matter was not controversial. It was accepted that the appellant suffered an injury to certain parts of her body in the course of her employment on 18 March 2007. What was in dispute was whether or not on that date the appellant suffered injury to her right lower extremity (hip) and right shoulder or whether she suffered a consequential condition to the right upper extremity (shoulder) and right lower extremity (hip).
Appellant’s statements
In her statement dated 27 February 2018, the appellant advised that following the fall at work on 18 March 2007, she developed pain in the left knee and left hip. She consulted her general practitioner, Dr Baker, and she told her that she had pain in her knees and hips. She claimed that Dr Baker was unsure as to whether the fall had caused the problems in her knees and hips or whether it was due to the nature of her work which required manual handling. She claimed that Dr Baker advised her that the bursitis in her hip was the form of a repetitive strain injury and that she had continued to experience symptoms in both knees and both hips.
The appellant stated that she was referred to Dr Coffey, orthopaedic surgeon, who prescribed steroid injections into her left hip, and then surgery on her left hip on 2 February 2009. She was advised to use crutches. Two weeks after the operation, she slipped and injured her left shoulder. She indicated that as a result of the fall in 2007 and the operation in February 2009, she had pain in her, neck, right shoulder, right hip, left knee, left hip and back radiating down her left leg.
The appellant stated that in September 2009, she was referred to knee and hip surgeon, Dr Walsh. Dr Walsh performed a gluteal tendon reconstruction surgery on her left hip on 16 November 2009. The appellant claimed that at this time, her main problem related to her left hip, but she also had pain in the lower back, right hip, left shoulder, right shoulder, neck and left knee.
The appellant claimed that her bilateral hip pain was worsening, so Dr Baker referred her to orthopaedic surgeon, Dr Graham, however he advised against further left hip surgery. It was the appellant’s belief that her pain and discomfort was caused by the injury sustained on 18 March 2007 and her altered gait that caused pain in her lumbar back, left hip, right hip and left knee. She also claimed that as a result of using crutches and the fall in 2009, she had pain in her neck and shoulders. When she saw rehabilitation physician, Dr Lahz, on 19 August 2014, she told the doctor that she had developed pain in her back and legs in January or February 2014.
In her second statement dated 28 May 2018, the appellant stated that she had pain and discomfort in her neck, low back, arms, hips and shoulders as a result of her accepted injuries and altered gait, repetitive falls and “secondary problems”. She had difficulty performing day to day activities and she relied on family members to assist around the house and yard.
Clinical notes, certificates and reports of Dr Baker
The Upper Mountains Medical Centre’s Patient Health Summary (clinical notes) commence on 4 March 2005 and conclude on 12 August 2017. Dr Baker reports the appellants first consultation was on 22 June 2007, however the first entry in these clinical notes following the incident was on 13 July 2007, when Dr Yumiko Okumura recorded that the appellant had left trochanteric bursitis. There was no history recorded in the clinical notes.
Dr Baker’s entries in the clinical notes commence on 30 August 2007. The initial certificate of Dr Baker was issued on 27 September 2007. She certified that the appellant was unfit for work due to bilateral trochanteric bursitis, the left worse than the right, from 2 October 2007 to 15 October 2007. The date of injury was identified as 18 March 2007. A similar certificate was issued on 15 October 2007. The numerous certificates that were issued from 22 October 2007 to 29 September 2017 only referred to left trochanteric bursitis.
In a report dated 16 October 2007, Dr Baker confirmed that she first saw the appellant on 22 June 2007, when she complained of pain in her left hip and left knee. She indicated that the appellant reported that she had fallen onto both of her knees. The doctor considered that the bilateral hip bursitis was consistent with the fall.
Dr Baker advised that the trochanteric bursitis arose as a result of the nature of the appellant’s work that involved a lot of lifting and manual handling and is considered to be a form of repetitive strain injury. She stated that the fall in March 2007 probably triggered the appellant’s awareness of the problem and she felt that the condition was work related.
In her report dated 19 March 2008, Dr Baker confirmed that the appellant had trochanteric bursitis and she considered that the appellant’s employment was a substantial contributing factor to her condition.
At the consultation on 1 July 2009, the appellant complained that she had left shoulder pain since using crutches in February 2009.
On 7 December 2009, Dr Baker recorded that the appellant, after using crutches for two days, had developed pain in her left thumb. She noted that “on exam: no swelling or deformity, but clicking heard at DIPJ, and triggering observed. Maximally tender over PIPJ”. On 30 December 2009, the appellant complained of severe back pain. The appellant felt that her back pain would cease once she stopped using the crutches.
At the consultation on 3 February 2010, Dr Baker recorded that although Dr Walsh was considering left thumb surgery, the appellant’s symptoms had improved since she had stopped using crutches. Between March 2011 and May 2011, the appellant’s complaints related to her left hip and in October 2011, the doctor referred her to Dr Graham providing details of the mechanism of injury, the appellant’s treatment history and advising that the appellant had developed left hip pain, diagnosed as trochanteric apophysitis, after her injury. On 21 November 2011 Dr Baker noted that Dr Graham recommended against another surgery. The left hip was still of concern in December 2012.
In January 2013 Dr Baker recorded that Dr Graham again advised against surgery and recommended the Sydney Pain Management Centre. The appellant complained of back pain at this time. At the consultation on 24 March 2014, Dr Baker recorded the appellant “now has pain in her Rt hip and lower back”.
On 24 April 2014, Dr Baker recorded that the appellant had fallen at home onto her right knee and she had pain around her right hip. On 9 May 2014, she noted the appellant had extreme pain in her right buttock, hip, thigh and leg to ankle. Dr Baker noted that an ultrasound showed no evidence of right trochanteric bursitis. The sonographer suggested that the appellant’s symptoms might be coming from her spine. In May 2014 the doctor referred the appellant for a CT scan of her back that showed stenosis and osteophytes.
On 28 October 2015, the appellant complained about cramps in her right hand and legs when driving and at night. There are no further records about the appellant’s injuries.
Physiotherapy reports
In a physiotherapy management plan dated 22 September 2007, Ms Greenaway, physiotherapist, noted the appellant had trochanteric bursitis. The treatment involved bilateral hip stabilisation, exercise and other therapies to improve the functioning of the appellant’s left hip. The subsequent management plans in 2009 only referred to the appellant’s left hip.
The prior insurer arranged for the appellant to be assessed by a physiotherapist, Nina Salameh, on 1 March 2008. She recorded that the appellant tripped over a mop bucket and landed on her knees, sustaining an injury to her left hip. An MRI confirmed that she had was developed left trochanteric bursitis. She recommended a program based on spinal flexibility and lumbo-pelvic stability in order to maximise the functional capacity of the appellant’s left hip.
In a report dated 19 May 2008, Ms Salameh recorded that there had been some improvement in the appellant’s physical and functional capacities, but she still had pain and stiffness in her left hip.
Diagnostic tests
I note that in an undated report, which judging from its location amongst Dr Baker’s clinical notes appears to be some time in 2006, Dr Michael Reeves reports undertaking an ultrasound of the right calf and noted “history of pain right calf since 25/6/05.? Gastrocnemius muscle tear.” He concludes there is a tear of the plantaris tendon with retraction. A further undated report of Dr Richard Bell notes an ultrasound guided injection lateral epicondyle right elbow.
Dr Baker’s clinical notes contain copy of an ultrasound report dated 4 July 2007. It was noted that the appellant had pain over the greater trochanter on both sides. The ultrasound showed evidence of bursitis and a probable partial tear on the left side, but there was no abnormality on the right side.
On 18 December 2012, the appellant had x-rays of her left hip and pelvis. It was noted that she had a long history of left hip pain and had undergone two operations. There was no abnormality in the left hip, but marked irregularity over the left greater trochanter.
The appellant had an x-ray of her pelvis and right hip on 28 April 2014. It was noted that she had fallen onto her right knee two days ago and she had experienced “right hip pain ever since”. The radiologist reported that there was no evidence of a fracture. An ultrasound of the right trochanteric region was conducted on 1 May 2014 which found no sonographic evidence of trochanteric bursitis, but bursitis was not excluded. The appellant complained of pain in the right hip and lower back in May and a CT guided injection was performed.
The appellant had an ultrasound on 1 May 2014 and a similar history was recorded. There was no radiological evidence of trochanteric bursitis, although it was not ruled out.
Reports of Dr Coffey
Dr Coffey, orthopaedic surgeon, provided four reports between February and August 2009. His comments focussed on the appellant’s progress following her left hip surgery in early February 2009. There was no history of any symptoms in or injuries to other parts of the appellant’s body.
In his report dated 13 February 2009, Dr Coffey confirmed that he repaired the appellant’s left gluteus medius tendon and associated trochanteric bursitis. He stated that the appellant would need to use crutches and he expected that she would be able to progress to full weight bearing in one month’s time. In his report of 21 April 2009, Dr Coffey recommended a further corticosteroid injection to assist in the appellant’s residual bursitis management.
In his final report dated 25 August 2009, Dr Coffey advised that the appellant had not experienced any significant improvement in her left hip symptoms. She had moderate tenderness and swelling over the trochanteric region of the left hip.
Reports of Dr Walsh
Dr Walsh initially reported on 1 October 2009. He noted that the appellant tripped over a mop bucket in March 2007. She suffered an injury to her left hip and pain developed over the greater trochanter in the days following the fall. She had surgery in February 2009. The doctor observed that the appellant walked with a weight relieving limp on the left side. There was a full range of movement of the left hip, but she had pain over the trochanter.
Dr Walsh gave the appellant an injection and this resulted in almost complete remission of pain and she was able to walk without any discomfort. He suspected that her pain was caused by separation of the tendon, so he recommended further surgery to reconstruct the tendon.
In a report dated 26 October 2009, Dr Walsh advised that the appellant would need to use crutches for six weeks following the operation, followed by a period of retraining to allow her to walk without aides over a period of four to six weeks. He expected that she would be able to return to work within three months. He advised she practice the use of crutches pre-operatively and that post-operative physiotherapy and hydrotherapy would likely be required.
On 21 December 2009, Dr Walsh reported that he performed surgery on 16 November 2009. He advised that the appellant was mobilising well on crutches and he expected that she would be able to start full weight bearing in the new year.
On 28 January 2010, Dr Walsh advised that since the appellant had stopped using crutches, there had been a gradual remission of her symptoms, but she had developed a left trigger thumb.
On 25 February 2010, Dr Walsh reported that the appellant was still troubled by pain in her left hip. On 8 April 2010, he advised that her left hip was settling and she was walking almost without a limp.
In his report dated 8 July 2010, Dr Walsh recorded that the appellant’s left hip was vastly improved, even though she still experienced some pain. When next seen on 31 March 2011, the appellant complained of persistent left hip pain in the trochanteric area and she walked with a slight limp on the left side. The doctor arranged for an MRI scan and in his final report dated 4 May 2011, he advised that the appellant’s hip tendon had settled satisfactorily and her pain was perhaps due to a lack of fitness.
Reports of Dr Graham
Dr Graham reported on 7 November 2011 and 20 December 2012. He confirmed that the appellant injured her left hip in 2007 and despite surgery, she had continued to be troubled by pain. He recommended conservative treatment and he advised against further surgery.
Reports of Sydney Pain Management Centre
The reports of Dr Mendonca cover the period between 26 November 2013 and 19 March 2014. The reports provide details of the pain management treatment but there are few references to the appellant’s symptoms.
In the report dated 19 March 2014, the doctor recorded that the appellant had increased pain in her back and right hip. The appellant was discharged from the program because of the distance and because the appellant was gaining little benefit from the treatment.
Report of Dr Lahz
Dr Lahz reported on 19 August 2014. She recorded that the appellant fell onto her left hip, hands and knees in 2007, but she was able to work for two years despite persistent pain in her left hip region. She noted that in the last six months, the appellant had developed new sites of pain in her lower back and right trochanteric region, with the latter pain being less than that in her left greater trochanter.
Dr Lahz noted that the appellant was functionally disabled by her back and the bilateral trochanteric pain. She noted the appellant rated the left hip pain intensity at 9/10 and the right hip and lower back approximate 3/10 intensity. Dr Lahz could not recommend any other form of treatment.
Report of Dr Matalani
Dr Matalani, consultant occupational physician, reported on 6 August 2010. Unfortunately, the doctor’s substantive report is not in evidence. It is noted that that the doctor was not asked to assess the appellant’s hip and right shoulder.
Reports of Dr Giblin
Dr Peter Giblin, orthopaedic surgeon qualified by the appellant, reported on 19 April 2018 and 5 June 2018. He noted that the appellant had a well recorded history of tripping over a bucket on 18 March 2007 and injuring her hips and knees. In February 2009 surgery was undertaken on her left hip and she had physiotherapy and three injections. She had fallen over five times in the previous few months but she had suffered no new injuries, though her leg pain gets worse. Dr Giblin noted the appellant had a short-stepped unsteady gait.
Dr Giblin noted complaints of recurrent neck and low back pain, but her hips were the main problem. She had noticed that her shoulders were getting increasingly sore, especially the left shoulder.
Dr Giblin diagnosed soft tissue injuries to the appellant’s neck, back, left hip and left shoulder as a result of the fall in March 2007. The doctor considered that she had developed on-going deterioration and compensatory soft tissue symptoms affecting her right hip and shoulder. He stated that the appellant might need a left total hip replacement as a result of her work injury.
Dr Giblin assessed 5% whole person impairment of the appellant’s cervical spine, 7% whole person impairment of the lumbar spine, 1% whole person impairment for scarring (TEMSKI), 10% whole person impairment of the left lower extremity (hip), 6% whole person impairment of the right lower extremity (hip), 10% whole person impairment of the left upper extremity (shoulder) and 8% whole person impairment of the right upper extremity (shoulder), for a combined assessment of 37% whole person impairment.
Reports of Dr Panjratan
Dr Panjratan, orthopaedic surgeon qualified by the insurer, reported on 13 April 2017. He recorded that the appellant developed pain in her knee and left hip following the fall on 18 March 2007, but she continued to work. After conservative treatment by Dr Baker, the appellant was diagnosed with trochanteric bursitis due to pain in her left hip. She had x-rays and ultrasounds of her hips in July 2007 that showed evidence of bursitis in her left hip. An MRI in October 2007 showed mild left trochanteric bursitis. Dr Coffey operated on her left hip on 2 February 2009 and two weeks after the operation, she slipped when she was using crutches and injured her left shoulder. The appellant claimed that as a result of her gait and limping, she had developed low back pain radiating down to the left leg. She underwent further ultrasound guided injections to the left trochanteric area.
Dr Panjratan recorded that the appellant was referred to Dr Walsh in October 2009 and he performed a gluteal tendon reconstruction on 16 November 2009. She had also been referred to Dr Graham in November 2011. She complained of left hip pain, which radiated across her back to the right hip, and intermittent low back pain.
Dr Panjratan confirmed that the appellant suffered a work-related injury resulting in impairment and he conceded that it was possible that the appellant may have developed some secondary problems in her right hip related to her left hip. He assessed 4% whole person impairment of the appellant’s left lower extremity (hip) and 1% whole person impairment for scarring (TEMSKI) for a combined total of 5% whole person impairment.
In his report dated 10 October 2018, Dr Panjratan advised that Dr Giblin had not properly assessed the appellant’s lower extremities, because his assessments related to the lower extremity impairment and had not been converted to whole person impairment. According to Dr Panjratan, Dr Giblin’s assessments amounted to 2% whole person impairment of the right lower extremity (hip) and 4% whole person impairment of the left lower extremity (hip).
THE SENIOR ARBITRATOR’S DETERMINATIONS
The Certificate of Determination issued on 8 November 2018 records:
“The Commission determines:
1. The applicant did not sustain an injury to her right lower extremity (hip) arising out of or in the course of her employment on 18 March 2007.
2. The applicant did not develop a consequential condition in her right lower extremity (hip) and right upper extremity (shoulder) as a result of the injury sustained to her cervical spine, lumbar spine, left upper extremity (shoulder) and left lower extremity (hip) on 18 March 2007.
The Commission orders:
3. The name of the respondent is amended to State of New South Wales (Greystanes Disability Services).
4. Award for the respondent in respect of the allegation of injury to the applicant’s right lower extremity (hip) on 18 March 2007.
5. Award for the respondent in respect of the allegation of a consequential condition in the applicant’s right lower extremity (hip) and right upper extremity (shoulder) as a result of the injury sustained to her cervical spine, lumbar spine, left upper extremity (shoulder) and left lower extremity (hip) on 18 March 2007.
6. I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment of the applicant’s left lower extremity (hip) and the left upper extremity (shoulder) due to injury sustained on 18 March 2007.
7. Leave to the respondent to file and serve written submissions as to order 6 above, if this is considered appropriate, within 10 days.
8. Leave to the applicant to file and serve written submissions in reply as to order 6 above, if this is considered appropriate, within 17 days.
9. The documents to be reviewed by the Approved Medical Specialist are:
(a)Application for Assessment by an Approved Medical Specialist in matter no 5193/18 and attachments, and
(b)Response in matter no 5193/18 with attached documents.
By consent:
10. The respondent to pay reasonable medical expenses up to $566.45 on production of accounts and/or receipts and the Medicare charge pursuant to section 60 of the Workers Compensation Act 1987.
11. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
A second Certificate of Determination was issued on 17 December 2018 after the receipt of further submissions and records:
“The Commission determines:
1. The findings in paragraphs 1 and 2 of the Certificate of Determination dated 8 November 2018 are confirmed.
The Commission orders:
2. The orders in paragraphs 3 to 5 and 7 to 11 of the Certificate of Determination dated 8 November 2018 are confirmed.
3. Order 6 of the Certificate of Determination dated 8 November 2018 is revoked.
4. I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment of the applicant’s cervical spine, lumbar spine, left lower extremity (hip), left upper extremity (shoulder) and scarring (TEMSKI) due to injury sustained on 18 March 2007 for the purpose of a threshold dispute.
5. The documents to be reviewed by the Approved Medical Specialist are:
(a)Application for Assessment by an Approved Medical Specialist in matter no 5193/18 and attachments;
(b)Response in matter no 5193/18 with attached documents, and
(c)Certificate of Determination in matter no 5193/18 dated 8 November 2018.
6. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The two Certificates of Determination deal with different aspects of this matter. The first certificate of 8 November 2018 deals with the issue of whether or not the respondent is liable for the alleged injuries to the appellant’s right hip and right shoulder, either as a frank injury to the right hip or a consequential injury to the right hip and right shoulder. The second Certificate of Determination of 17 December 2018 dealt with the issue of the referral of the appellant’s claim to an Approved Medical Specialist (AMS) for assessment of whole person impairment of specified body parts. Order four of the Certificate of Determination of 17 December 2018 makes the relevant orders regarding the referral to the AMS.
It can be seen that a consideration of Part A, paragraph [2.1] of the Application to Appeal and the four grounds of appeal, set out below, and the first order of relief sought in paragraph [2.10] of the appeal application are all directed to the Certificate of Determination dated 8 November 2018 (especially orders 4 and 5) and that is the decision with which this appeal is concerned. Clearly depending upon the result of this appeal, it might be necessary to vary orders made in the Certificate of Determination of 17 December 2018 as is identified in prayer [3] of the relief sought by the appellant.
GROUNDS OF APPEAL
The following grounds of appeal are raised:
(a) The Senior Arbitrator erred in fact finding in failing to find that the appellant suffered injury to her right hip on 18 March 2007 (paragraph [124]).
(b) The Senior Arbitrator erred in law in doubting the veracity of the appellant's statement because it was “completed with the assistance of her solicitor in February 2018, some 11 years after her fall” (paragraph [98]) without the appellant being given the opportunity to respond to the inferences drawn.
(c) The Senior Arbitrator erred in law in purporting to apply the principles in Kooragang Cement Pty Ltd v Bates[1] and Comcare v Martin[2] to the factual question whether the appellant suffered injury to her right hip in the fall of 18 March 2007.
(d) The Senior Arbitrator erred in the factual findings that the appellant did not suffer consequential conditions of her right hip and/or right shoulder.
[1] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[2] [2016] HCA 43; 258 CLR 467 (Martin).
Legislation
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Ground One
Appellant’s submissions
The appellant submits that there was evidence available that should have “actually persuaded” the Senior Arbitrator that the appellant had suffered injury to her right hip in the fall on 18 March 2007. The appellant refers to her own statement which recounts having pain in both hips soon after the work injury and further the appellant states that this statement is corroborated by the medical report of Dr Baker of 16 October 2007, a medical certificate of Dr Baker of 15 October 2007 and a physiotherapy plan by Ms Greenaway of 22 September 2007. It is submitted that these statements all refer to the appellant having bilateral problems with her hips and the failure to so find was a factual error. The submission is not developed further.
Respondent’s submissions
With regards to Ground One (and indeed all four grounds of this appeal) the respondent submits that the appeal grounds do no more than complain that the Senior Arbitrator came to incorrect conclusions and simply invite the Presidential member to review the reasons to detect error. The respondent submits that the appellant has not in terms specified the appealable factual error raised in Ground One which would warrant intervention on appeal. The respondent recounts its observation of the evidence pointing to the appellant’s statements which were made in 2018 which did not assert any contemporaneous onset of symptoms. It is relied upon by the respondent that the report of injury referred to pain in the left knee and left hip. The respondent states that this account given 11 years after the event was “cryptic” in respect of right hip symptoms and the time and circumstances of onset. The respondent submits that the lay and relatively contemporaneous medical evidence was not sufficient to support a finding of injury to the right hip on 18 March 2007.
Appellant’s submissions in reply
The appellant filed no submissions in reply to the respondent’s Opposition.
Consideration
The challenge in Ground One is essentially to the fact-finding process undertaken by the Senior Arbitrator. Ground One asserts that there was available evidence which should have actually persuaded the Senior Arbitrator, in accordance with Department of Education & Training v Ireland,[3] that the appellant had actually suffered an injury to her right hip in the fall of 18 March 2007. This is based upon a review of the evidence from not only the appellant but also from three specific pieces of medical evidence from 2007 (Dr Baker’s certificate and report of 15 and 16 October 2007 respectively and Ms Greenaway’s physiotherapy plan dated 22 September 2007).
[3] [2008] NSWWCCPD 134 (Ireland).
In Raulston v Toll Pty Ltd,[4] Deputy President Roche stated the following general principles and authorities with regard to appeals:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[5]
[4] 2011 NSWWCCPD 25 (Raulston).
[5] Raulston, [19].
In Northern NSW Local Health Network v Heggie[6] Sackville AJA (Ward JA agreeing) after referring to Raulston said as follows:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”[7]
[6] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[7] Heggie, [72].
Therefore the task on appeal is one directed to the identification and correction of error. It is not a review at large of what the Arbitrator did or findings that the Arbitrator made. In the absence of error being identified and established, there is no warrant for intervention on appeal given the clear terms of s 352(5) of the 1998 Act.
The Senior Arbitrator in a detailed set of reasons reviewed the evidence and a number of authorities in deciding whether or not the appellant sustained an injury to her right hip.[8] The Senior Arbitrator correctly identified the task at hand. Noting that the respondent disputed that the appellant had injured her right hip in the fall of 18 March 2007, the Senior Arbitrator proceeded to determine that issue. The Senior Arbitrator identified the definition of injury in s 4 of the 1987 Act and referred to a number of cases dealing with injury and causation. The Senior Arbitrator then closely examined the evidence and in particular the medical evidence and whether or not there were contemporaneous complaints of injury to her right hip. In particular, the report of Dr Baker of 16 October 2007 was closely considered by the Senior Arbitrator,[9] noting that the appellant did not suggest that she actually hurt her right knee and right hip in the fall. The Senior Arbitrator has closely considered the medical evidence for complaints of injury to the right hip. It should be noted that this examination was done mindful of appellate authorities warning to be cautious when examining clinical notes of treating doctors.[10] With this admonition in mind, the Senior Arbitrator correctly reached the view that the medical notes of Dr Baker were of minimal probative value.[11]
[8] Clarke v State of New South Wales (Greystanes Disability Services) [2018] NSWWCC 272 (Reasons) [91]–[124].
[9] Reasons, [100].
[10] Reasons, [102]–[104].
[11] Reasons, [104].
The Senior Arbitrator also expressed dissatisfaction with the appellant’s statement which he considered had been “poorly drafted. It lacks details of specifics, has comments about symptoms in general terms and it places too much emphasis on the medical opinions of the treating doctors and what was said in their reports. The appellant refers to conversations that she had with her doctors but this is not corroborated in the medical evidence.”[12] No error has been identified with this approach.
[12] Reasons, [99].
The appellant points to the physiotherapy plan of Ms Greenaway dated 22 September 2007 in aid of this ground. This plan is not referred to in terms in this section of the Senior Arbitrator’s reasons, but that is of no moment. There is no history recorded by Ms Greenaway that the appellant had suffered an injury to her right hip in the fall on 18 March 2007. The treatment plan refers to “bilateral hip stabilisation” and no more. This evidence is not supportive of Ground One.
As described above, the Senior Arbitrator closely reviewed the appellant’s two statements and the medical evidence, and in particular the contemporaneous medical evidence, looking for complaints or reports of injury to the right hip. The appellant under Ground One alleges that there is corroboration of her allegation of injury in the medical records. The Senior Arbitrator’s analysis of the material was both careful and thorough whilst noting the warnings from appellate courts on the shortcomings of such clinical notes. The appellant asserted to the Senior Arbitrator, as it does under Ground One of this appeal, that medical records corroborated the appellant’s complaint of injury. The appellant bore the burden of proof in establishing that her right hip was injured in the fall on 18 March 2007. The Senior Arbitrator’s reasons leading up to [124] in a systematic way examine the evidence and reach a conclusion that the appellant did not suffer an injury to the right hip on 18 March 2007 as alleged. In terms of Ground One, the criticism is that the Senior Arbitrator should have been “actually persuaded” in accordance with Ireland. Paragraphs [89] and following in Ireland are then referred to. It is worthwhile examining the principles set out by President Judge Keating at [89] of Ireland.
“The principles relevant to the discharge of the onus of proof were discussed in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (16 October 2008) (‘Nguyen’) where McDougall J (McColl and Bell JJA agreeing) said at [44]–[48]:
‘44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.
45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that ‘[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161–162, and Mason J (with whom Brennan J agreed) in the same case at 168.
46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.
47. In Malec vJC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
‘A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.’
48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.’”
As is clear from the above extract from Ireland, the Arbitrator “must feel an actual persuasion of the existence of that fact”. It is clear from a consideration of the Senior Arbitrator’s decision that he was conscious that there was no contemporaneous evidence of injury to the right hip. Indeed there was an absence of complaint and indeed even the appellant’s two statements were not strong on this point. Ultimately in paragraph [124] the Senior Arbitraor reached the following view:
“Bearing in mind the principles set out in Kooragang and Martin, and having regard to the evidence overall, I am not comfortably satisfied on the balance of probabilities that the applicant suffered an injury to her right hip in the fall on 18 March 2007.” (emphasis added)
The appellant has directed attention in submissions to the principles found in Ireland (extracted above) and then alleges that the Senior Arbitrator has erred in fact. The submission has not been developed to allege, for example, that the test adopted by the Senior Arbitrator was in fact incorrect. There is no attack upon the Senior Arbitrator’s finding that he was “not comfortably satisfied on the balance of probabilities”, although it might be said that the reference to Ireland is directing the reader’s attention to the correct standard of proof without then examining whether that standard had been applied to the present circumstance.
The distinction between the phrases “comfortably satisfied” and “actual persuasion” where there are competing hypotheses about the existence of a fact (in this case injury) have been considered by Deputy President Roche in Drca v KAB Seating Systems Pty Ltd.[13] In Drca Deputy President Roche held as follows:
“Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.
In light of the above errors, this part of Mr Drca’s claim must be re-determined. However, in light of Mr Drca’s application to rely on additional evidence on appeal, it is appropriate that, as a matter of fairness, this issue be re-determined by a different Arbitrator. This will enable both sides to tender such evidence as they consider appropriate.”[14]
[13] [2015] NSWWCCPD 10 (Drca).
[14] Drca, [103]–[107].
The issue of the phrase “comfortably satisfied” has also been recently considered by Deputy President Wood in Elsamad v Belmadar Pty Ltd.[15] In that case, the respondent to the appeal asserted that there was no distinction between the phrases “actual persuasion” and being “comfortably satisfied” and said that the appellant is “cavilling with semantics”.[16] The Deputy President considered the distinction between these two phrases at length.[17] The respondent’s submission that the difference was a matter of semantics was not accepted. In particular, at paragraph [138] the Deputy President found as follows:
“Had the Arbitrator decided she was comfortably satisfied of the occurrence of the injury, as the appellant submits, that would not amount to error. Having found she was not ‘comfortably satisfied’ is, however, a contrary consideration and indicates that the Arbitrator was applying a higher standard of proof than the circumstances required, which the appellant failed to meet.” (emphasis in original)
[15] [2019] NSWWCCPD 22 (Elsamad).
[16] Elsamad, [103].
[17] Elsamad, [130]–[138].
Elsamad and Drca are both consistent authorities which are to the effect that where the standard applied is that the Arbitrator was “not comfortably satisfied” that this is a relevant error of law as it applies a higher threshold test to the standard of proof.
I should say that in Elsamad, the appellant in that case advanced the appeal point as follows:
“error of law in failing to determine the question of injury on the balance of probabilities and instead applying a more onerous standard of proof (needing to be ‘comfortably satisfied’).”
The appeal point advanced in Elsamad appropriately identifies the error as an error of law and then specifies why. Ground One of this appeal incorrectly identifies the error as being one of fact. This is not correct and as a result the appeal ground as advanced by the appellant must fail.
However, Ground Three refers to the same authority, Ireland, and alleges that it was an error of law in terms of the test applied by the Arbitrator in deciding whether or not there was a frank injury to the right hip on 18 March 2007. For these reasons Ground Three is made out and this is further discussed beneath the Ground Three section (below).
Ground One is not made out and is dismissed.
Ground Two
Appellant’s submissions
Ground Two alleges an error of law. This error relates to how the Senior Arbitrator dealt with the two statements of the appellant. It is submitted that the Senior Arbitrator drew adverse inferences to the appellant’s case in circumstances where the appellant did not give evidence and therefore had no opportunity of answering or meeting the inferences drawn.
The appellant also takes umbrage with the Senior Arbitrator’s statement that the appellant’s statement “was completed with the assistance of her solicitor in February 2018, some 11 years after her fall”.[18] The appellant states that the clear inference from this statement is that the appellant’s solicitor was “putting words into the mouth” of the appellant as the solicitor was “cognisant of the issues in the case and the importance of an early report of symptoms in the right hip”. The appellant complains that as this was never put to the appellant it was an inference that should have been rejected. The appellant refers to a passage in Taylor v J & D Stephens Pty Ltd[19] where Simpson AJA commented that it was a “matter of passing concern that such a finding, adverse to a claimant, could be made in the absence of any examination or cross-examination that might have given him an opportunity to explain the absence of any recorded complaints of symptomatology.”[20]
[18] Reasons, [98].
[19] [2018] NSWCA 267 (Taylor).
[20] Taylor, [84].
Respondent’s submissions
The respondent states that no error of law is identified. The respondent submits that the Senior Arbitrator was obliged to provide an assessment of the appellant’s evidence given the nature of the contest which disputed injury to the right hip. The respondent states that the Senior Arbitrator did not concern himself with whether or not the appellant was truthful, but had concerns about the reliability of the evidence. The respondent asserts that even if the appellant’s statement was accepted at face value, the burden of proof which resided with the appellant on the basis of her own evidence was not met.
Appellant’s submissions in reply
The appellant filed no submissions in reply.
Consideration
The appellant does not specify the nature of the error of law which has been made by the Senior Arbitrator. The submission was not developed so as to identify how the Senior Arbitrator is said to have erred in law. However a fair reading of the appellant’s submission with respect to Ground Two would suggest that the complaint under this ground relates to a failure to provide the appellant with procedural fairness. Namely, that before doubting the reliability of the appellant’s evidence, the appellant should have been given the opportunity to explain the contents of the statements in order to meet such inferences, hence the reference to Taylor.
This allegation, albeit made in an inelegant fashion, goes to the practice and procedure of matters before the Commission.
Before dealing with the authorities on this issue, it is worth examining the dispute that was being dealt with by the Senior Arbitrator. At the commencement of the hearing, counsel for the employer took objections to certain paragraphs of the appellant’s statements.[21] Counsel for the worker then addressed on what were known to be the two contentious issues, namely injury to the appellant’s right hip and right shoulder. Counsel for the worker specifically addressed on her credibility anticipating what the employer’s counsel was likely to submit.[22] During the hearing, as a result of an exchange between counsel for the worker and the Senior Arbitrator, the allegation of consequential injury to the right hip and right shoulder was advanced. It is clear that this case was always about whether the appellant had suffered an injury to her right hip and right shoulder either as a distinct frank injury or as a consequential condition. The respondent addressed its opposition to these allegations and pointed to problems with the evidence. Having heard these submissions, there was no application by the appellant’s lawyers for the appellant worker to give viva voce evidence. It is therefore clear that the issues in dispute were well known and the appellant worker had the opportunity to present her case and to present arguments with regards to these issues, including on her credibility, which were ultimately ruled upon by the Senior Arbitrator.
[21] Transcript of Proceedings (T), Clarke v State of New South Wales (Greystanes Disability Services) [2018] NSWWCC 272, Senior Arbitrator Capel, 31 October 2018, T 4–7.
[22] T 8.17–20.
Further, it is to be noted that the Senior Arbitrator has not gone so far as to making a finding of credit which was adverse to the appellant worker. Rather, the Senior Arbitrator considered that her evidence was unreliable due to the passage of years and the fact that it placed emphasis and reliance upon the medical records and opinions of treating doctors.[23] I accept that the distinction between an adverse credit finding and one of unreliability ultimately produces the same result for the appellant, namely that her version of events is not accepted. However it is clear that by the time the appellant produced the two statements that the Senior Arbitrator has referred to, the medical evidence and the lack of contemporaneous complaint of injury to the right hip was plainly apparent to the appellant and her legal adviser. Indeed the statements direct their attention to such passages of the medical material which were said to be supportive of the appellant’s complaint of injury. It is clear that this was known to be a live issue and the appellant in her two 2018 statements attempted to address it.
[23] Reasons, [98]–[99], [155].
The appellant alleges that the manner in which the Senior Arbitrator dealt with this evidence suggests that the Senior Arbitrator inferred that the appellant’s solicitor was “putting words into the mouth” of the appellant. I do not consider that this is the correct inference to draw. Rather it was an accurate statement of what transpired in terms of the production of those statements. No inference adverse to the appellant’s solicitor arises.
The issue of cross-examination and the rules of procedural fairness are discussed in detail by the Court of Appeal in New South Wales Police Force v Winter.[24] The obligations of procedural fairness are discussed in Winter at [77]–[79]. In particular in Winter the Court of Appeal found as follows:
“The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case: Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 at [18]; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [65]; Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [85] per French CJ, [137] per Gummow, Hayne and Kiefel JJ; Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42], [63]. In the present case, that obligation was satisfied. The Respondent had the opportunity, until his counsel took an objection, of giving his account concerning the matters on which Mr Stanton's submissions ultimately succeeded. Further, no attempt was made to recall the Respondent to give evidence on those topics. When it was the Respondent's counsel who took objection to the question being opened up, the present case is quite different to what it would have been if the Arbitrator, unprompted, had refused to permit Mr Stanton to explore the topics he wished to raise.
Further, whether a litigant, who contends that there has been a breach of procedural fairness, was represented by counsel can be relevant to an assessment of whether there has been a breach of procedural fairness: 3D Scaffolding Pty Ltd v Commissioner of Taxation [2009] FCAFC 75 at [25] per Emmett, Kenny and McKerracher JJ.”[25] (emphasis in original)
[24] [2011] NSWCA 330; 10 DDCR 69 (Winter).
[25] Winter, [84]–[85].
I am satisfied that the issues in dispute before the Senior Arbitrator were well known to both parties, who were both represented by counsel. It was the appellant who bore the burden of proof of establishing those matters in dispute and I am satisfied that the appellant had every opportunity to be heard on the issues in dispute which were well known. In Halilovic v Paper Australia Pty Ltd,[26] it was held that a finding of credit adverse to the applicant could be made even absent the applicant being cross-examined. In Halilovic, the applicant was well aware of all of the disputed issues and the details of the case, and it was noted that it was open to him to give oral evidence before the Arbitrator.[27] In this case, there are no adverse credit findings. Rather, the Senior Arbitrator in fact does not doubt the appellant’s credibility but had concerns about the reliability of her evidence and in particular its lack of specificity.[28] As described above in paragraph [89], the appellant was aware that injury was in issue and sought to address it. No allegation of a lack of procedural fairness on this point can be made out.
[26] [2008] NSWWCCPD 80 (Halilovic).
[27] Halilovic, [82].
[28] Reasons, [99].
I do not read Taylor and in particular paragraph [84] thereof as establishing a binding decision which is to the effect that where an applicant’s credit is in issue before the Commission, that examination and cross-examination must always take place in such a case. I further do not read Taylor as overruling or creating an exception to Winter (described above). In Taylor, like in this matter, the lack of prior complaints by the appellant with respect to specific parts of the body was in issue.[29] However it is not clear from the decision in Taylor whether or not the issue regarding injury had been sufficiently joined prior to the hearing so as to satisfy the requirements of procedural fairness. In any event Taylor did not overturn the decision (below) due to a want of procedural fairness.
[29] Taylor, [69]–[70].
Additionally with respect to this ground, it should be noted that Practice Direction No 6 at [18], which deals specifically with appeals, advises practitioners that it is “not acceptable to merely allege that the Senior Arbitrator erred in law”. The complaint in Ground Two is seemingly a complaint regarding a want of procedural fairness. Namely, that before inferences adverse to the appellant were drawn, the appellant should have had an opportunity of being heard and cross-examined. This assertion should have been specified in terms and it is an unhelpful practice to leave it to the Commission on appeal to divine the actual argument being advanced.
Ground Two is not made out and is thus dismissed.
Ground Three
Appellant’s submissions
The appellant alleges under Ground Three that the Senior Arbitrator misdirected himself by applying the incorrect legal principles to this matter. The appellant alleges that the appropriate test to be applied was that as set out in Ireland rather than placing reliance upon Kooragang and Martin. The appellant asserts that Kooragang dealt with the question of what had “resulted from” a workplace injury and not whether the injury had occurred at all, which is the matter that is under examination in this case. Secondly, Martin it is submitted, dealt with two competing causes of injury and not whether injury had occurred at all. The appellant submits that Ireland is the appropriate authority and that the Senior Arbitrator should have directed himself to the question as to whether he had been actually persuaded that the appellant had suffered an injury to her right hip in the fall on 18 March 2007.
Respondent’s submissions
The respondent submits that the issue that was at large before the Senior Arbitrator was the causal nexus “if any” between the injurious event of 18 March 2007 and the pathology and/or symptomatology of the appellant’s right hip and right shoulder. The respondent submits that both Kooragang and Martin are each cases considering causation in the context of a workers compensation claim.
Appellant’s submissions in reply
The appellant filed no submissions in reply.
Consideration
Ground Three is a derivation of Ground One. Ground Three’s complaint is regarding the Senior Arbitrator’s finding that the appellant did not suffer an injury to her right hip on 18 March 2007, although Ground Three asserts that this was an error of law for the reasons described.
I have already discussed the Arbitrator’s approach to this issue in deciding Ground One. This ground, like Ground One, complains that the appropriate test to decide whether injury occurred was that as are described in Ireland and that the Senior Arbitrator should have been actually persuaded that the appellant suffered injury to her right hip on 18 March 2007.
This ground of appeal does not in terms take issue with the Senior Arbitrator’s finding that he “was not comfortably satisfied” on the balance of probabilities that the appellant suffered an injury to her right hip. Rather the appeal point is directed to the Presidential decision of Ireland and that the Senior Arbitrator ought to have been actually persuaded that the appellant suffered injury as alleged. As discussed above (in Ground One) this formulation by the Senior Arbitrator is in fact imposing a higher standard or burden of proof than the circumstances required and has been the subject of Presidential decisions in Drca and Elsamad. Even though the appeal point is not framed, as it was properly framed in Elsamad, the error of law exists and the appeal point sufficiently takes issue or at the very least identifies a concern about the Senior Arbitrator’s approach to proof so as to succeed on this ground.
It is necessary that this discrete matter be remitted, pursuant to s 352(7) of the 1998 Act, to a different Arbitrator for redetermination. This will enable the parties to properly articulate the legal principles regarding the standard of proof as described in this decision. Further, and in fairness to the respondent given the manner in which this appeal point has been pursued, the respondent should have the opportunity to address on this matter.
Ground Four
Appellant’s submissions
The appellant alleges that the Senior Arbitrator erred in fact in finding that the appellant did not suffer consequential conditions of her right hip and/or right shoulder. The appellant relies upon her statement which refers to the onset of pain in her right shoulder after the operation by Dr Walsh to her left hip on 16 November 2009. The appellant attributes this pain to her use of crutches post-operatively. The appellant also deposed to problems with her right hip noting that her altered gait had been commented upon in the treating medical reports. The appellant relies upon the opinions of Dr Giblin regarding consequential conditions to her right hip and right shoulder which the appellant says were supported by concession from Dr Panjratan in his report of 13 April 2017 that the appellant could have developed secondary problems in her right hip. The appellant therefore states that there was evidence available to the Senior Arbitrator and that he erred in failing to find the appellant suffered consequential conditions to her right hip and right shoulder.
Respondent’s submissions
The respondent submits that Ground Four simply attacks the ultimate conclusion without attempting to identify error.
The respondent submits that the appellant’s own statements give no support to the medical theories advanced on her behalf. The respondent states that the appellant’s evidence “as to when that occurred and effect, if any, on her shoulder are essential ingredients in making out [the] prima facie case” and in the absence of this evidence, that the Senior Arbitrator was bound to find as he did. The respondent states that the appellant’s statements do not contain basic factual information which could be used to support the medical theory now being advanced on her behalf.
Appellant’s submissions in reply
The appellant filed no submissions in reply.
Consideration
Ground Four, like Ground One, alleges a factual error. Like Ground One, Ground Four also does not specify precisely the factual error that the Senior Arbitrator is said to have committed under this ground. The submission is not developed so as to state how the Senior Arbitrator erred. Rather the submission points to a number of pieces of evidence and states that the Senior Arbitrator ought to have found differently.
The Senior Arbitrator reviewed firstly the legal principle to be applied in this task[30] before undertaking a detailed and lengthy analysis of the evidence. The Senior Arbitrator closely examined the evidence regarding the appellant’s use of crutches and alleged altered gait.
[30] Reasons, [125]–[126].
It is asserted by the appellant that the only medical evidence dealing with this question were the opinions of Dr Giblin. Dr Giblin’s opinion was the subject of review by the Senior Arbitrator.[31] The Senior Arbitrator clearly referred to and was aware of Dr Giblin’s opinion that the appellant had “compensatory soft tissue symptoms affecting her right hip and shoulder”.[32]
[31] Reasons, [138]–[143].
[32] Reasons, [141].
However, the Senior Arbitrator then questioned this view when he said “how they were compensatory and how they developed was not disclosed. In my view, this presents a flaw in his report and raises issues regarding his opinion”.[33] The Senior Arbitrator goes on to state as follows:
“Dr Giblin did not record how the applicant developed symptoms in her right hip and right shoulder. He did not obtain a history from the applicant that she had an altered gait caused by her left hip injury and that as a consequence of this, she developed symptoms in her right hip. He observed that she had an unsteady gait, but he did not describe it as an altered gait. Further, Dr Giblin did not record a history that as a result of using crutches in 2009 and 2010, the applicant developed symptoms in her right shoulder. Such a history is crucial before one can accept the doctor’s conclusion on any causal nexus.”[34]
[33] Reasons, [141].
[34] Reasons, [143].
It is not true to say, as is asserted by the appellant under this ground, that Dr Giblin’s opinion had to be accepted. Indeed the Senior Arbitrator made reference to established authorities regarding the receipt of expert evidence[35] before coming to the conclusion that Dr Giblin’s opinion on this issue could not be accepted.
[35] Reasons, [142].
Further, it is not true to state that Dr Giblin’s opinion was supported by concessions from Dr Panjratan. Dr Panjratan’s opinion was the subject of close consideration by the Senior Arbitrator in this section of the reasons.[36] The Senior Arbitrator notes:
“Whilst it is true that Dr Panjratan expressed the view that the applicant may have developed some secondary problems in her right hip related to her left hip, this is only a brief comment about the possibility of a causal relationship without drawing a conclusion one way or the other.”[37]
[36] Reasons, [146]–[148], [151].
[37] Reasons, [147].
And further:
“Dr Panjratan expressed an opinion which appears to be largely as an afterthought, without any explanation. His opinion carries as much weight as that of Dr Giblin, whose views I have rejected.”[38]
[38] Reasons, [151].
As stated above in respect to Ground One, Raulston requires that actual factual error be identified. It must be shown that the Senior Arbitrator was wrong. In this case, the appellant has submitted that there was only one doctor whose opinion touched upon the question of consequential injury, Dr Giblin, and the implication is that the Senior Arbitrator was bound to accept it, there being no other evidence. It is also said that Dr Panjratan supported this view. This submission is incorrect. Factually it is incorrect for the reasons outlined (above) but the Senior Arbitrator has carefully weighed the opinion of Dr Giblin and for the reasons identified, accorded it little or no weight. This is not a factual error.
However on this issue, the Senior Arbitrator’s ultimate decision can be found in paragraph [156] of the Reasons set out below:
“In the circumstances, I am not comfortably satisfied on the balance of probabilities that the applicant has discharged the onus of establishing that she sustained an injury to her right hip on 18 March 2007, or that she developed a consequential condition in her right hip and right [shoulder] as a result of the accepted injuries to her back, neck, left shoulder and left hip. Accordingly, there will be an award for the respondent.”
For the reasons described above with respect to Ground Three, the legal test which has been applied by the Senior Arbitrator at Reasons [156] is a legal error. The appellant has taken no issue nor has it advanced any appeal point with respect to this error. However given that I have remitted Ground Three for redetermination, for the reasons described therein, and the same error is existent with respect to the legal test applied with respect to Ground Four, I remit Ground Four to another Arbitrator for redetermination in accordance with this decision.
Hochbaum submissions
The final decision in this matter was made by the Senior Arbitrator on 17 December 2018. An appeal against that decision was filed on 11 January 2019. Consequent upon the decision, an assessment with an Approved Medical Specialist was appointed for 22 February 2019 although this was subsequently cancelled at the request of the appellant.
By letter dated 21 May 2019, the appellant’s solicitors advised this Commission that the appellant, Ms Christine Clarke, had passed away on 21 February 2019. As referred to above and in response to an application by the appellant’s solicitors, I have substituted the Executor as the appellant in this matter.
By Direction dated 12 June 2019, the parties were asked for submissions as to whether the death of the appellant altered any of the orders sought by the appellant or any other orders which might be made by the Commission in this matter.
Since this Direction was issued, I have received submissions from both parties.
The appellant submitted as follows:
“The Applicant has already been awarded a combined 20% WPI in regards to the cervical spine, lumbar spine, left lower extremity (left hip), left upper extremity (Left shoulder) and Scarring and we were seeking additional WPI in respect of injuries to her right hip and right shoulder.
We will submit that President Phillips’ decision in RSM Building Services v Hochbaum [2019] NSWWCCPD 15 is incorrect. We say Section 39(2) of the Workers Compensation Act 1987 is a factual question, whether the worker was more than 20% when payments stopped. Just because the assessment has not been carried out under section 65 does not take away from that fact. That submission is bolstered by the situation in this case in which an assessment could not be carried out on a dead person.
If the Applicant is successful on the Appeal, the only assessment really in play is Dr Giblin and if the applicant gets over the threshold the estate can preserve its rights.”
This submission does not engage with the Direction although it seems to be implicit that it is the appellant’s legal adviser’s view that the death of the appellant worker has not affected her rights. This submission does however raise the recent Presidential decision of Hochbaum[39] which I will address below.
[39] RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15 (Hochbaum).
The respondent filed submissions in response to the Direction and these are dated 20 June 2019. The respondent submits that the death of the worker renders the appeal futile. The respondent submits that even if the Senior Arbitrator’s determination was set aside, there is no remedy available to the Executor. The respondent makes submissions regarding the effect of Hochbaum and counters the submission made by the appellant that it was incorrectly decided. The respondent asserts that in the ordinary course, a Presidential member would be bound to follow an established authority and that no argument has been advanced why there would be any departure from this principle. Secondly, the respondent states that the attempt to distinguish the authority due to the death of the worker is misconceived. The respondent asserts that any entitlement to weekly compensation to which the worker may have been entitled died with her.
The Senior Arbitrator decided this matter on 17 December 2018. I decided the appeal in Hochbaum on 18 April 2019.
Consequently and unsurprisingly there was no argument about the application of Hochbaum before the Senior Arbitrator, indeed there was no argument about the effect that s 39 might have upon the appellant worker’s case before the Senior Arbitrator. This issue has been raised by the appellant in response to a direction for submissions about the effect (if any) the appellant’s death on 21 February 2019 may have had on any order that might be made.
Four grounds of appeal have been advanced by the appellant in this matter, none of which takes issue with Hochbaum or indeed raises the issue of s 39 at all. Again this is not surprising because the matter had not been argued before the Senior Arbitrator.
The only matters on appeal before me are those constituted by the four grounds that I have dealt with. The power on appeal is that as provided for by s 352(5) of the 1998 Act and is limited to the correction of error. The Senior Arbitrator did not decide any issue pertaining to s 39 of the 1987 Act as it was not argued before him. By definition, no error in approach could therefore arise. These four grounds have been decided and there is thus no power to decide any further question pertaining to the Hochbaum decision or indeed the construction of s 39 of the 1987 Act.
Given that I have remitted aspects of this matter back to another Arbitrator for redetermination, the parties are at liberty to make such submissions as they see fit with respect to Hochbaum and s 39 of the 1987 Act.
CONLCUSION
This appeal has succeeded in part in that Grounds Three and Four have been made out. Those matters will be remitted to another Arbitrator for redetermination.
DECISION
I substitute Christopher McGlinn, Executor of the Estate of the late Christine Anne Clarke, as the appellant in this matter.
Orders four and five of the Senior Arbitrator’s Certificate of Determination of 8 November 2018 are revoked, otherwise the Certificate of Determination of 8 November 2018 is confirmed. Order four of the Certificate of Determination of 17 December 2018 is revoked.
The matter is remitted to another Arbitrator for redetermination in accordance with this decision of the outstanding issues as to whether the appellant suffered injury to her right lower extremity (hip) on 18 March 2007 and whether the appellant suffered a consequential injury to her right lower extremity (hip) and right shoulder.
Judge Phillips
PRESIDENT
1 July 2019
25
0