Fairfield City Council v McBride - [2019] NSWWCCPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Fairfield City Council v McBride [2019] NSWWCCPD 28
APPELLANT:	Fairfield City Council
RESPONDENT:	Shaun McBride
INSURER:	Self-insured
FILE NUMBER:	A1-3903/18
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	20 December 2018
DATE OF APPEAL DECISION:	20 June 2019
SUBJECT MATTER OF DECISION:	Duty to give adequate reasons: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; error in fact-finding: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 20 December 2018 is revoked. 2. The matter is remitted for re-determination pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 Act by a different Arbitrator, consistent with these reasons.

INTRODUCTION AND BACKGROUND

Shaun McBride (the respondent) was employed by Fairfield City Council (the appellant) from about 1985 to 7 January 2005, in its waste disposal section. The Application to Resolve a Dispute registered on the respondent’s behalf in these proceedings (ARD) alleged 26 specific dates of injury, together with an allegation of injury based on the ‘disease’ provisions of the legislation, with an alleged deemed date being the last date of that employment. At the arbitration hearing the respondent eschewed reliance on any injuries prior to 1 July 1996.[1] As ultimately pursued, the claim was one for weekly compensation from 7 January 2005 to 30 June 2007, a general order for the payment of medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and also lump sum compensation in respect of injury to the right leg at or above the knee (this in respect of injury on 31 December 1996). The weekly claim was described as commencing from when the respondent was “made redundant from council in January of 2005”.[2]
[1] Transcript 22 October 2018 (T), T 6.5–20.
[2] T 8.23–26.
The matter was listed for arbitration hearing on 22 October 2018. Mr Morgan appeared for the respondent, and Mr Macken for the appellant. Neither party sought to adduce oral evidence; the parties’ legal representatives made submissions and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 20 December 2018, accompanied by 30 pages of reasons.[3] The matters in issue were described by the Arbitrator, in a way that is not the subject of criticism in this appeal,[4] as whether any of the alleged injuries occurred, whether there was any resultant incapacity, the extent of any incapacity, and whether there were any reasonably necessary medical expenses as a result of relevant injury.
[3] McBride v Fairfield City Council [2019] NSWWCC 19 (reasons).
[4] Reasons, [8].
The Arbitrator made a weekly award in the respondent’s favour from 7 January 2005 to 30 June 2007, a general order for the payment of s 60 expenses, and ordered referral of the lump sum claim to an Approved Medical Specialist (AMS) for assessment. This appeal is brought by the appellant against that award.

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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

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 submits an oral hearing should be held. It originally based this submission on two propositions. The first was that at the time of filing of the appeal a transcript of the arbitration hearing was unavailable. The second was that the appeal raised “difficult issues”, including as to procedural fairness and the procedure to be adopted should the appeal succeed.[5] The Commission furnished a copy of the transcript to the parties’ solicitors on 17 January 2019. The appellant lodged “Appellant’s submissions following receipt of transcript” dated 18 February 2019.[6] The appellant’s further submissions continue to submit an oral hearing should be held. The reasons given are to “properly address the large volume of material”, and to “properly address the disparity” between the “volume of evidence”, the “lengthy submissions” and “the limited reasons given by the Arbitrator”.
[5] Appellant’s submissions, [3].
[6] Appellant’s further submissions.
The respondent submits the appeal can be dealt with on the papers, there being sufficient information to deal with the matter without an oral hearing. It submits no further evidence has been lodged by the appellant on the appeal.
The appellant gives no indication of what further submissions it seeks to make orally, or why any such matters have not, and could not appropriately, be included in its written submissions. There is no necessary relationship between the volume of evidence and whether an oral hearing is appropriate, nor between the length of submissions and whether submissions are addressed adequately in a decision. The Commission has the benefit of transcript of the parties’ submissions (including those of the appellant) before the Arbitrator, additional to those lodged on this appeal. The appellant has not advanced any persuasive reasons for why an oral hearing is appropriate in the circumstances.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submission by the respondent 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.

THE ARBITRATOR’S REASONS

The Arbitrator summarised the parties’ submissions before him.[7] He set out s 4 of the 1987 Act, and various authorities relevant to the proof of ‘injury’ and satisfaction of s 9A of the 1987 Act.[8]
[7] Reasons, [12]–[73].
[8] Reasons, [74]–[81].
The Arbitrator said he was “comfortably satisfied” that the injury to the right leg alleged to have occurred on 31 December 1996 “took place as alleged by the [respondent]”. He said that he had taken account of the medical evidence relied upon, the lay evidence and the relevant documents attached to the pleadings. He noted that the claim form dated 14 January 1997[9] was a “comparatively contemporaneous record of the alleged injury, together with an outline of the circumstances in which it occurred and the name of a witness”. It referred to the date of injury of 31 December 1996, it bore the appellant’s date stamp of 15 January 1997 and its letterhead. It accorded with the respondent’s evidence of the procedure for reporting workplace injuries. Having found ‘injury’ on 31 December 1996, the Arbitrator remitted the matter to the Registrar, for referral to an AMS to determine the degree of impairment resulting from the injury.[10] The Arbitrator also found there was a consequential condition involving the right knee and left leg, due to the effect of the injury of 31 December 1996 on the respondent’s “gait and movement”.[11]
[9] ARD, pp 134–5.
[10] Reasons, [82]–[83].
[11] Reasons, [86].
The Arbitrator said that “[i]n light of the documentation attached to the pleadings”, he accepted the respondent suffered injuries on 6 October 1998, 8 March 2000 (with an aggravation on 16 March 2000), 18 September 2000, 8 February 2001, 30 May 2001, 13 February 2002, 25 February 2003, 30 July 2003 and 6 February 2004. He said that each of these injuries was supported by contemporaneous records (incident reports and claim forms), that had the appellant’s date stamp acknowledging receipt, were referred to in the respondent’s statement, and were referred to in medical reports.[12]
[12] Reasons, [84].
The Arbitrator referred to the allegation of ‘disease’ injury, deemed to have occurred on 7 January 2005 (the last date of employment), involving the lumbar spine, cervical spine, knees, feet and upper extremities. He accepted that the respondent suffered those injuries, to which the ‘nature and conditions’ of employment with the appellant constituted a substantial contributing factor.[13]
[13] Reasons, [85].
The Arbitrator said that his findings on ‘injury’ involved preference of the opinion of Dr Bentivoglio in his reports dated 10 December 2015 and 24 March 2016. There was a long history, and Dr Bentivoglio had the benefit of multiple examinations since September 2009.[14]
[14] Reasons, [87].
Referring to arguments about whether the requirements of the ‘notice’ and ‘claim’ provisions of the 1998 Act were met, the Arbitrator referred to the contents of the respondent’s statement regarding the procedures he followed when he suffered an injury, and the documents in evidence going to notice of injuries. He said he did “not consider that the [respondent] made his claim out of time”.[15]
[15] Reasons, [88]–[89].
Dealing with the weekly claim, the Arbitrator noted that the weekly claim “predates in its entirety the 2012 amendments”. He referred to various authorities dealing with incapacity and assessment of weekly entitlement pursuant to the former s 40 of the 1987 Act, including Ric Developments trading as Lane Cove Poolmart v Muir[16] and Mitchell v Central West Health Service.[17] The Arbitrator determined the respondent’s probable earnings if not for injury to be $1,020 per week, by reference to his Notices of Assessment for the financial year 2003/2004, being the last full year worked by the respondent before his redundancy from the appellant. He determined the respondent’s actual earnings to be $750 per week from 7 January 2005 to 30 June 2005 (by reference to his statement), $334 per week from 1 July 2005 to 30 June 2006 (by reference to his Notice of Assessment), and $822 per week from 1 July 2006 to 30 June 2007 (by reference to his Notice of Assessment).[18] The Arbitrator said there was no discretionary basis to award less than the weekly loss based on these findings, and awarded the full arithmetical difference.[19]
[16] [2008] NSWCA 155; 71 NSWLR 593; 6 DDCR 339 (Muir).
[17] (1997) 14 NSWCCR 526 (Mitchell).
[18] Reasons, [122]–[130].
[19] Reasons, [131]–139].
The Arbitrator then dealt with what he described as “Issue Estoppel and Res Judicata”. The appellant relied on consent orders and admissions signed by the respondent on 21 March 2006, in previous proceedings between the parties. He described the appellant as bearing the onus of proving estoppel or res judicata. After reviewing a number of authorities,[20] the Arbitrator said that it was “entirely unclear which injury or injuries the consent orders and admissions” related to. He concluded the appellant had failed to discharge its onus on this issue.[21]
[20] Reasons, [140]–[152].
[21] Reasons, [153]–[154].
The Arbitrator also made a general order for the payment of expenses pursuant to s 60 of the 1987 Act.[22]
[22] Reasons, [155]–[156].

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[23] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[24] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[25]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(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’.”[26]
[23] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[24] (1966) 39 ALJR 505, 506.
[25] [1996] HCA 30; 140 ALR 227.
[26] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[27] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[28]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[29]
[27] [2017] NSWWCCPD 5, [67].
[28] [2001] FCA 1833, [28].
[29] Raulston, [20].
In Northern NSW Local Health Network v Heggie[30] Sackville AJA said:
“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.”[31]
[30] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[31] Heggie, [72].

GROUNDS OF APPEAL

Some of the grounds do not appropriately identify the basis on which they are made. They are expressed in the following terms:
(a)    Error of fact in determining the issues of injury. (Ground No. 1)
(b)    Errors of fact and law in determining weekly compensation. (Ground No. 2)
(c)    Error of law in determining the matter on a basis not put by or to the parties. (Ground No. 3)
(d)    Error of law in failing to give any adequate reasons and in particular, in failing to properly engage with the conflicting evidence. (Ground No. 4)

GROUND NO. 1: ERROR IN DETERMINING ‘INJURY’

GROUND NO. 4: FAILING TO GIVE ADEQUATE REASONS

There is overlap between these grounds. The appellant’s attack on the ‘injury’ findings revolves to a considerable extent around the Arbitrator’s reasons, and whether he considered various matters in dealing with ‘injury’. The respondent’s submissions on Ground No. 1 submit that the two grounds are “intertwined” and that it is necessary to consider the entirety of the Arbitrator’s reasons. It is convenient to consider these grounds together.

Appellant’s submissions

The alleged injury on 31 December 1996, to the respondent’s right leg, was the one that involved most of the parties’ attention in submissions. Dr Bentivoglio had opined that the respondent required “a right total knee joint replacement”. The respondent’s counsel, in submissions, described this as the “index injury”, and the one “causing him the most grief”.[32] The alleged error in dealing with the injury on 31 December 1996 is addressed in the appellant’s further submissions, lodged following provision of the transcript. The appellant submits that, although there are “general and generic observations” in the reasons at [74] to [81], the Arbitrator’s reasoning regarding this specific injury is found solely in his reasons at [82]. The appellant submits it made submissions relying on medical evidence from multiple doctors whose views were inconsistent with this finding of injury. It submits it relied on a lack of contemporaneous evidence of this injury in clinical records, and in the material from Dr Walker who treated the right knee. It submits a statutory declaration indicated workers compensation payments for this injury were made by another insurer, on risk before 30 June 1996. The appellant submits the effect of this evidence was that the respondent could not discharge his onus of proving this injury, or “medical causation”. The finding was against the weight of the medical and other evidence.[33]
[32] T 7.21–26.
[33] Appellant’s further submissions, [3]–[4].
Addressing the Arbitrator’s finding of multiple frank injuries (see [12] above) the appellant submits the reasons did not identify “any proper basis for determining each of the alleged injuries”. Injury involves identification of an incident, and the pathology resulting from it. The Arbitrator simply accepted these injuries on the basis of notification forms, assuming the incidents must have resulted in ‘injury’. The appellant submits none of the evidence relied on by the Arbitrator identifies what pathology resulted from any incident. It submits the Arbitrator did not direct his attention to any other evidence to identify pathology. [34]
[34] Appellant’s submissions, [9]–[10].
Dealing with the finding of a ‘disease’ injury, the appellant submits the finding required consideration of the identity of the last employer for whom the respondent carried out relevant work. It submits there was no basis for the finding of 7 January 2005 as the deemed date of injury. The deemed date should be the date of the first period for which weekly payments were claimed (16 October 1989 according to the ARD), or the date of the claim for compensation (variously submitted by the appellant to be 5 April 2017,[35] 1 May 2017[36] or 25 June 2018[37]). On this basis, the appellant submits the deemed date would fall within the period of risk of the insurer on risk prior to 30 June 1996 (Allianz) or with one of the employers for which the respondent worked after the appellant.[38]
[35] ARD, p 105.
[36] ARD, p 110.
[37] ARD, p 190.
[38] Appellant’s further submissions, [5]–[7].
The appellant’s submissions on the adequacy of the Arbitrator’s reasons refer to “the numerous issues in dispute and the large volume of material”. It submits the reasons do not permit it to understand the basis of the determinations. By way of example, the appellant refers to the reasons at [84], which deal with a number of specific dates of injury, saying the injuries are “referred to in the [respondent’s] statement, which is uncontested and referred to in various medical reports attached to the pleadings”.[39] It submits there is “no indication of what medical reports are referred to, the diagnosis or pathological condition which is said to have resulted from each incident nor the basis on which the Arbitrator has accepted some injury to the [r]espondent worker on any one or other of the dates referred to”.[40] The appellant refers to the reasons at [85], which deal with the allegation of a ‘disease’ injury.
[39] Reasons, [84].
[40] Appellant’s submissions, [14].

Respondent’s submissions

The respondent submits it is necessary to read the Arbitrator’s reasons as a whole. In his reasons at [75] the Arbitrator referred to the decision of Castro v State Transit Authority (NSW),[41] which is authority that ‘injury’ requires a “sudden or identifiable pathological change”. This clearly demonstrated an awareness on the Arbitrator’s part that a finding of ‘injury’ involved the existence of pathological change. The Arbitrator’s findings on ‘injury’, in his reasons at [82] and [84], were premised on the presence of pathological change to the relevant body parts. Additionally, the Arbitrator’s finding on these injuries was not based simply on there being notification of the relevant injuries, the Arbitrator indicated that he accepted the opinion of Dr Bentivoglio in making his findings on ‘injury’.[42]
[41] [2000] NSWCC 12, 19 NSWCCR 496 (Castro).
[42] Respondent’s submissions, [7]–[11].

Referring to the finding of a ‘disease’ injury, the respondent notes the allegation involved a significant amount of material, and events spanning over 20 years. The Arbitrator’s reasons at [85] identified that his finding was based on the respondent’s statement, and the medical and other evidence before the Commission. The Arbitrator’s finding was that liability for the ‘disease’ injury should be borne by the appellant. He specifically found that the substantial contributing factor to the ‘disease’ injuries was the “nature and conditions of his employment with the [appellant]”. The respondent also submits that, in submitting there should have been different deemed dates of injury implicating another insurer or employer, the appellant was treating the appeal as if it was a review or a re-hearing, which is impermissible.[43]
[43] Respondent’s submissions, [12]–[15].
Dealing with the reasons, the respondent submits that reasons do not need to be lengthy or elaborate,[44] and the requirement in s 294(2) of the 1998 Act is for “a brief statement … setting out the Commission’s reasons for the determination”. For the ground to succeed, it is necessary that inadequacy of the reasons disclose “that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application”.[45] The respondent submits that, when the reasons are read in their entirety, “the Arbitrator has provided sufficient reasons that clearly articulated his path of reasoning which led him to his ultimate conclusion”. The Arbitrator noted the submissions that were made and the evidence that was lodged. His reasons were “sufficient”. He was not obliged to pick apart each of the submissions and pieces of evidence, and state why it “did not lead him to reach a finding that he did not reach”.[46]
[44] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale), 433.
[45] NSW Police Force v Newby [2009] NSWWCCPD 75, [149].
[46] Respondent’s submissions, [31]–[35].

Legislation

Section 4 of the 1987 Act, in its form as at 7 January 2005 (the date of the Arbitrator’s finding of a ‘disease’ injury) relevantly provided:
“4     Definition of ‘injury’ (cf former s 6 (1))
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”
The definition was amended by the Workers Compensation Legislation Amendment Act 2012 (2012 Amending Act), and thereafter the provision required that employment be the “main contributing factor” to the contraction or aggravation etcetera of a ‘disease’ injury (subcls (i) and (ii) of s 4(b)). The form of the definition quoted in the reasons at [74] is that applicable to injury subsequent to relevant commencement of the 2012 Amending Act.
Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1)     If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)     A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3)     If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
Rule 15.6 of the Workers Compensation Commission Rules 2011 provides:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”

Consideration

The cases run by the parties

The claim ultimately pursued by the respondent was based on the various pleaded injuries after 1 July 1996, including an allegation of injury by way of ‘disease’ on the “[l]ast date of employment” (relying on both limbs of the definition in s 4(b) of the 1987 Act). The weekly claim pursued was one from 7 January 2005 to 30 June 2007 (see [1] above). The respondent described a procedure where, on the date an injury was suffered with the appellant, it was reported to a supervisor, an entry was completed in the injury book, and two forms (a claim form and an incident report form) were completed and submitted. The respondent said he had followed this procedure in respect of the various injuries alleged.[47]
[47] T 9.27–10.1.
Dealing with the injury on 31 December 1996, the respondent’s counsel referred to a claim form dated 14 January 1997.[48] The document referred to an ankle injury (it did not nominate whether the right or left) on 31 December 1996, and to an aggravation on 7 January 1996 (sic).
[48] ARD, pp 134–135.
The respondent argued that the injury occurred on 31 December 1996; if the correct date was one year earlier (having regard to the recorded date of aggravation) it would have occurred before the appellant became a self-insurer.[49] The respondent’s counsel referred to the respondent’s evidence about the consequences and treatment of this injury. This involved a full-length cast and also problems in the left leg.[50] Reference was made to a statutory declaration of Mr Tallis (a physiotherapist involved in a practice that treated the respondent) dated 30 September 2014,[51] and to a certificate of Dr Doust dated 8 January 1997.[52] The certificate referred to a fractured left ankle in an injury on 31 December 1996, and certified incapacity from 31 December 1996 to 29 January 1997. The respondent’s counsel submitted that, notwithstanding the reference to the left ankle, “the remainder of the document is consistent with everything else you’ve seen which is rest, Plaster of Paris, black [sic] splint”.[53] He submitted the respondent’s evidence was “confirmed by the documentary material”.[54] He submitted the respondent’s evidence was that his right leg was “never the same after that fracture and his ankle and knee had deteriorated as a consequence”.
[49] T10.33–12.2.
[50] T 12.3–14.10.
[51] Application to Admit Late Documents dated 15 October 2018 (AALD 15.10.18), pp 1–4.
[52] ARD, p 80.
[53] T 17.27–31.
[54] T 17.33–34.
The respondent’s counsel referred to the evidence of Dr Bentivoglio.[55] He submitted that Dr Bentivoglio turned his mind “most acutely to issues associated with the right lower limb”. He referred to Dr Bentivoglio’s recorded history of the right ankle injury. He referred to Dr Bentivoglio’s “numerous consultations with [the respondent] and the deterioration in the [respondent’s] right lower extremity over that period”. He urged that the doctor’s opinion should be accepted.[56]
[55] T 18.10–24.
[56] T 22.19–23.23.
The s 74 notice of dispute issued by the appellant’s solicitors[57] raised the following:
[57] ARD, pp 111–112.
(a)    whether the respondent suffered injury as alleged;
(b)    in respect of the alleged injury on 31 December 1996:
(i)whether it caused any medical condition;
(ii)whether s 9A was satisfied;
(iii)whether it caused permanent loss;
(c)    if injury was suffered, whether it was a ‘disease’ process, and whether the appellant was the last relevant employer, and
(d)    whether the ‘notice’ and ‘claim’ provisions of the legislation were satisfied.
The appellant, in its Reply, adopted the above, and additionally sought leave to add as an issue whether there was a defence on the basis of “estoppel by conduct”, having regard to the four prior sets of proceedings between the parties.
The appellant’s solicitor, making submissions about the right knee condition, referred to an incident on 15 February 2001, describing it as the “only incident” recorded by Dr Bentivoglio which described injury to the right knee. The history was of three days off work, and the knee swelling but slowly settling.[58] The appellant submitted (correctly) that an incident on 15 February 2001 was not pleaded in the ARD. The appellant submitted that Dr Bentivoglio attributed the right knee condition to “that incident”, and to the extent that the s 66 claim was predicated on that, it fails.[59] Dealing with the alleged incident on 31 December 1996, the appellant submitted that the history recorded by Dr Conrad referred to the respondent attending Fairfield Hospital for treatment. The appellant’s solicitor submitted that if the respondent “wanted to prove that this incident happened and when”, there would be evidence from Fairfield Hospital about treatment for the fractured leg.[60] (I could see no such history in Dr Conrad’s report, there was such a history recorded by Dr Potter.[61])
[58] ARD, p 37, referred to at T 29.24–31.
[59] T 30.11–15.
[60] T 30.24–28.
[61] Reply, p 4.
The appellant made submissions about the evidence of Mr Tallis, which described treatment at a physiotherapy practice in about 1996/97, with reference to accounts being paid by Allianz (an earlier insurer of the appellant). The appellant’s solicitor, in submissions, described Allianz, the previous insurer of the appellant, as being on risk before 1 July 1996.[62] The appellant’s solicitor submitted that accurate records of payments and treatment “may still be held” by Allianz. He said “I’m sure Allianz has records”. He submitted the other histories were given “many, many years later in most cases, but you won’t find a single contemporaneous record to it”. He submitted the “best evidence would be evidence from Fairfield Hospital where the [respondent] attended”. He submitted that the evidence would not support a finding of injury to the right leg on 31 December 1996. The appellant submitted the contemporaneous evidence from the certificate of Dr Doust dated 8 January 1997 (see [38] above) referred to the left ankle, not the right.[63]
[62] T 32.8–9.
[63] T 31.9–32.20.
The appellant’s solicitor submitted there were “huge tracks” of time, after 31 December 1996, when the respondent did not make complaints about the right knee to his general practitioners.[64] He submitted the respondent carried out his “full normal pre-injury employment” until he was made redundant in 2005. He submitted that the clinical records showed “nothing contemporaneous” by way of complaints until “about 2011”.[65] The appellant’s solicitor referred to a Centrelink medical certificate from Dr Di Mascio (of Fairfield District Medical Centre) dated 17 January 2017, which referred to “Severe osteoarthrosis knees, cervical spine”, giving a date of onset of 15 July 2011.[66] He referred to entries in the clinical notes of Dr Di Mascio on 12 and 13 June 2011[67] and 25 February 2014.[68] In the earlier of these, the respondent was recorded complaining of a twisting injury to the right knee when he slipped at home.[69] The second of these recorded a complaint when the respondent experienced a flare up of pain in the right knee at home, getting up from the couch.[70] The appellant submitted the entries in June 2011 were the first reference in the clinical records, to right knee problems, from when the available records commenced in 2002.[71]
[64] T 33.25–34.4.
[65] T 34.30–34.
[66] AALD 4.10.18, p 106.
[67] Reply, p 267.
[68] AALD 4.10.18, p 165.
[69] T 46.16–23.
[70] T 36.2–37.11.
[71] T 47.11–30.
The appellant’s solicitor made submissions about an observation report dated 10 October 2005, which referred to observations on various days from 22 September 2005 to 5 October 2005. The observations demonstrated the respondent working with his then employer Toll, including carrying out deliveries.[72] It was submitted the demonstrated activities showed “no lack of capacity of any kind”, and no entitlement to weekly compensation around that time.[73] It was submitted that Dr R Smith, reporting on 11 April 2005, described the respondent as “fully fit without restriction”, and Professor Ehrlich reported on 5 April 2005 that the respondent was “fit for work, such as he was doing formerly”.[74]
[72] Reply, pp 121–128.
[73] T 39.10–17.
[74] T 40.2–9.
The appellant’s solicitor also made submissions based on documents headed “Admissions” and “Agreed Facts” signed by the respondent on or about 21 March 2006, in connection with the settlement of earlier proceedings between the parties, no. 3814 of 2005. These documents were submitted to be inconsistent with the presence of economic incapacity resulting from employment injury.[75] The appellant’s solicitor also referred to the multiple qualified doctors on which he relied.[76] The appellant submitted that if, contrary to its position, the alleged injury in December 1996 did occur, the evidence did not support the proposition that any problem in the right knee resulted from that injury.[77] The appellant submitted the respondent should fail on all issues.[78]
[75] T 40.21–41.31.
[76] T 48.20–49.12.
[77] T 49.24–28.
[78] T 49.32–50.5.

Some principles governing the adequacy of reasons

In Pollard v RRR Corporation Pty Ltd[79] McColl JA (Ipp JA and Bryson AJA agreeing) summarised a number of the authorities dealing with the duty to provide adequate reasons.[80] In Tudor Capital Australia Pty Limited v Christensen[81] McColl JA (Macfarlan JA agreeing) described these principles as “well known”.[82] It is unnecessary to recite all of her Honour’s summary, but it is helpful to refer to some of the principles identified. I have referred in some detail to the issues identified by the parties in their submissions at first instance, as it is relevant to what was required of the Arbitrator’s reasons. McColl JA In Pollard observed that “[t]he extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[83] Her Honour said:
“The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.”[84]
[79] [2009] NSWCA 110 (Pollard).
[80] Pollard, [56]–[67].
[81] [2017] NSWCA 260 (Christensen).
[82] Christensen, [387].
[83] Pollard, [58].
[84] Pollard, [59].
Her Honour said that “[b]ald conclusionary statements should be eschewed”,[85] referring to Goodrich Aerospace Pty Limited v Arsic.[86] Her Honour referred to Waterways Authority v Fitzgibbon,[87] saying:
“Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses …”.[88]
[85] Pollard, [64].
[86] [2006] NSWCA 187; 66 NSWLR 186, [28].
[87] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (Fitzgibbon), [130]–[131].
[88] Pollard, [66].

Discussion

A considerable part of the parties’ submissions went to the alleged frank injury to the right leg on 31 December 1996. Could the respondent establish that he suffered such an injury? If so, did it occur on the date alleged or at some earlier date? Was any such injury to the right or the left ankle? Was there a causal relationship between an injury at that time to the right ankle and the condition of the right knee? The Arbitrator set out a summary of the appellant’s submissions dealing with this allegation of injury, in some detail, in his reasons at [46] to [55]. The appellant submits there are “general and generic observations” at [74] to [81] of the reasons. It submits the actual reasoning dealing with the alleged injury on 31 December 1996 is to be found solely in the reasons at [82].
This argument by the appellant is essentially correct. The reasons at [74] to [81] set out general principles, dealing with proof of ‘injury’ and the satisfaction of s 9A of the 1987 Act. Some of the discussion would be relevant to the issues in the current matter (see, for example, the reference to Castro in the respondent’s submissions on this appeal, noted at [29] above). Some would not be. The discussion in this passage of the reasons is not specific to the evidence or submissions made in the current matter. The reasoning specific to the alleged injury on 31 December 1996 appears at [82] of the reasons, which in its entirety reads:
“Insofar as the alleged injury to the [respondent’s] right leg on 31 December 1996, I am comfortably satisfied the injury took place as alleged by the [respondent]. In so finding, I have taken into account the medical evidence relied upon by the parties, the lay evidence and the relevant documents attached to the pleadings. In particular, I note the Compensation Claim Form dated 14 January 1997 which is attached to the Application at page 134. That document provides a comparatively contemporaneous record of the alleged injury, together with an outline of the circumstances in which it occurred and the name of a witness to the incident. It is dated January 1997 and bears a date of injury of 31 December 1996. It also bears the [appellant’s] date stamp of 15 January 1997 and the [appellant’s] letterhead. As such, the document accords with the [respondent’s] evidence concerning the procedure for reporting workplace injuries whilst he was in the employ of the [appellant] and his version of events surrounding the circumstances of injury.”
The reference to the finding being based on the medical evidence, the lay evidence, and the documents attached to the pleadings does not assist. This obviously includes all the evidence relied on by both parties as supporting their respective positions. The respondent’s statement identified the injury as being on 31 December 1996, involving a “right leg fracture”, when he stepped into a pothole.[89] The reasoning on whether the injury occurred as alleged, in the above passage of the reasons, largely depends on the claim form referred to. The parties made different arguments based on the claim form.[90] It was dated 14 January 1997. There were various references to the date of injury which were crossed out. Under “Injury details” the date of injury was given as “31/12/96”. Where the address of the place of injury should have been inserted, the words “Aggravation occurred 7/1/96” appear. The injury was described as “Fracture ankle”, not identifying whether the left or right ankle was injured.
[89] Respondent’s statement dated 9 November 2017, [25], ARD p 99.
[90] ARD, pp 134–135.
The appellant pursued an argument that the reference to an aggravation on 7 January 1996 suggested the true date of injury was 31 December 1995. If accepted, this would have placed the date of injury at a point before the appellant became a self-insurer, and involved an insurer not joined into the current proceedings. The merits of this argument were not discussed in the reasons. Additionally, the claim form did not identify which ankle was injured. A medical certificate of Dr Doust, dated 8 January 1997,[91] gave the date of injury as “31/12/96”, the diagnosis as “Fracture L ankle” (emphasis added), and the treatment as “Rest and POP back splint”. The certificate certified the respondent unfit from 31 December 1996, to be reviewed on 12 January 1997. The appellant’s submissions relied on this certificate.[92] If accepted, this argument was potentially fatal to the respondent’s case, that a fracture of the right ankle occurred on 31 December 1996, ultimately resulting in more widespread complaints in the right leg, including the knee. The analysis in the reasons at [82] does not deal with this issue of which ankle was injured, nor does it refer to the certificate of Dr Doust, which was direct evidence that the injury was to the left ankle.
[91] ARD, p 80.
[92] T 32.13–20.

Both parties made submissions before the Arbitrator dealing with a statutory declaration of Christopher Tallis dated 30 September 2014.[93] Mr Tallis described himself as being, from 1994 until 2000/2001, the “accounts manager” of a physiotherapy practice called “Bronwyn Tallis Physiotherapy and Sports Injury Centre”. He said the respondent received physiotherapy treatment from Bronwyn Tallis in “approximately 1996/1997”, for not more than a year, and that all practice records had since been destroyed. He described himself as relying on memory. He said the respondent’s accounts were “taken care of through the council’s insurance company for Workers Compensation”, and suggested an accurate account may still be held in the “Insurance company offices of ‘Allianz Insurance’, formerly known as ‘MMI Insurance’”. He said the respondent’s “right lower leg was bound in a plaster cast ending just below the knee”. He said the physiotherapist Bronwyn Tallis “was quite angry regarding the poor application of the cast”, and demanded that it be “re-set correctly & for it to encase the whole leg”.
[93] AALD 15.10.18, pp 1–4.
The respondent’s counsel made submissions about Mr Tallis’s declaration, describing it as “confirming the [respondent’s] recollection with respect to the difficulties associated with the treatment”.[94] The appellant’s solicitor submitted it was “very critical evidence”. He referred to the reference to payment of accounts being made by Allianz, as being consistent with the appellant’s argument that the correct date of any such injury was not 31 December 1996, but some earlier date before the appellant became a self-insurer.[95]
[94] T 12.18–14.10.
[95] T 30.30–31.31.
It will be observed that Mr Tallis’s evidence offered some support to the appellant regarding the date of alleged injury, and some support to the respondent regarding the injury being to the right leg. It will also be observed that there was potentially some room for doubt regarding its reliability, given that the declaration was made in 2014, nearly 18 years after the events described, in the absence of any records, based on memory. The reasons referred to the submissions dealing with Mr Tallis’s declaration, by the respondent’s counsel (at [21] to [22], and [71]), and by the appellant’s solicitor (at [47]). The reasons do not otherwise deal with the evidence of Mr Tallis. The analysis dealing with the injury on 31 December 1996 is silent regarding what significance, if any, was attached to the evidence of Mr Tallis.
Whether the respondent suffered injury to his right ankle on 31 December 1996 as alleged was a matter “critical to the contest between the parties”.[96] There was competing evidence supporting the parties’ contrary positions. It was necessary that the Arbitrator “‘enter into’ the issues canvassed and explain why one case is preferred over another” (see the passage from Pollard quoted at [47] above). The failure to engage with the parties’ competing cases involved error. The absence of appropriate analysis, regarding why the respondent’s case was preferred over that of the appellant, was consistent with the fact-finding process having miscarried (see the passage from Pollard quoted at [48]). There was error in the failure to give adequate reasons. In the circumstances, this was consistent with the fact-finding process having miscarried.
[96] Pollard, [58], citing North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442.
This is appealable error. For reasons which appear below, it is appropriate that the matter be remitted for re-hearing before another Arbitrator.
There were difficulties with the fact-finding process involving the other allegations of injury. In the circumstances, these can be dealt with briefly. The allegations of ‘injury’ based on the ‘disease’ provisions are at [85] of the reasons, which reads as follows:
“The [respondent] also claims he suffered injuries to his lumbar spine, cervical spine, left and right lower extremities (knees), both feet and both upper extremities as a result of the nature and conditions of his employment with the respondent, with a deemed date of injury of his last date of employment, which Mr Morgan identified at the hearing as 7 January 2005. In support of these alleged injuries, the [respondent] relies on his statement and the medical evidence attached to the pleadings. Doing the best I can, having regard to all the evidence presented in this matter, I accept the [respondent] suffered those injuries and that the nature and conditions of his employment with the [appellant] was a substantial contributing factor to those injuries.”
The respondent suffered from a number of pathologies affecting the various body parts the subject of the ‘disease’ allegation.[97] These parts were alleged to have been the subject of multiple frank incidents, in addition to any contribution from the ‘nature and conditions’ of the respondent’s employment. The general thrust of the appellant’s medical case was that the multiple alleged complaints were constitutional in nature, and not work related, other than on a temporary basis. The ‘disease’ finding was in the most general of terms, and failed to differentiate between the two limbs of the definition of ‘injury’ in s 4(b) of the 1987 Act, which were pleaded in the alternative.
[97] See Dr Bentivoglio’s report dated 10 December 2015, ARD, pp 36–44, particularly at pp 41–42.
The ARD alleged 25 specific injuries, additional to the ‘disease’ allegation and the injury on 31 December 1996, discussed above. Ultimately no reliance was placed on those injuries alleged to have occurred prior to 1 July 1996 (when the appellant became a self-insurer), which removed seven of those allegations. In the reasons at [84], the Arbitrator accepted the occurrence of ten of these alleged injuries. He described these accepted injuries as being “supported by contemporaneous records attached to the Application, namely Incident Reports and Claim Forms”, which had the appellant’s date stamp, acknowledging receipt. He said the injuries were referred to in the respondent’s statement, which was “uncontested”, and in various medical reports attached to the pleadings. Findings were not made in respect of the balance of the alleged frank incidents that post-dated 1 July 1996.
There was a large body of competing medical evidence in the matter. In those sections of the reasons containing an analysis of the issue of ‘injury’, at paragraphs [82], [84], [85], [86] and [87], there was a single reference to any specific medical evidence, to that of Dr Bentivoglio at [87], briefly summarised at [14] above. The only proffered reason for a preference for Dr Bentivoglio’s opinion was that he had seen the respondent on multiple occasions, in a medico-legal context. This was a valid consideration, but it did not adequately explain why the appellant’s medical case was rejected.[98]
[98] Pollard, [59], [61].
The reasons dealing with the allegations of injury based on the ‘disease’ provisions, and the various frank incidents that were relied on, did not comply with the duty to give reasons. It involved error in the fact-finding process of the kind identified in Fitzgibbon.[99]
[99] Fitzgibbon, [130]–[131] (per Hayne J); see also Pollard, [66].
Grounds nos. 1 and 4 of the grounds of appeal are upheld. It is unnecessary that the remaining grounds be dealt with.

DISPOSITION OF THE APPEAL

The appropriate course is that the matter be remitted pursuant to s 352(7) of the 1998 Act, for re-determination by a different Arbitrator.
The Arbitrator’s task was made more difficult than usual by the lengthy history in the matter, the way in which it was pleaded, and the bulk of material relied on by the parties. The ARD pleaded 27 injuries. A number of these were not pursued as they predated the appellant’s period of risk as a self-insurer. A number of the remaining pleaded injuries appeared to have little relevance to the relief sought. The respondent should lodge an amended ARD in which it pleads only those injuries that are genuinely relevant to the claim that is made and the relief sought. It is unnecessary to plead injuries simply because they were at some point the subject of report or notice to the appellant, during the respondent’s long career. The complexity and bulk of the matter should not be inappropriately increased by reliance on unnecessary injuries.
Reports from ten medico-legal practitioners are attached to the appellant’s Reply. These include a psychiatrist and an ear nose and throat surgeon. The number of forensic medical reports that can be used by a party is restricted by Pt 9 of the Workers Compensation Regulation 2016 (the Regulations). Although each party is restricted to one such report pursuant to cl 44(1) of the Regulations, this may vary depending on whether a worker has been treated by specialists with different qualifications, whether supplementary reports are obtained, and whether reports have been obtained for the purpose of proving or disproving an entitlement in respect of another claim or dispute. In some circumstances, a report otherwise precluded by the provisions of cl 44 may be admitted as to history, with the doctor’s opinion not being considered.[100] Before the re-determination in the matter, the parties should consider the provisions of cl 44, and to the extent that the number of forensic reports relied on by the appellant exceeds what is permitted by the clause, the appellant should elect which reports it seeks to rely on. If there is any issue between the parties regarding compliance with cl 44, this should be identified by the parties prior to the re-determination, so that it can be dealt with efficaciously.
[100] McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96; 9 DDCR 420, [37], Waldron v Agrimac International Pty Limited [2016] NSWWCCPD 35, [111], [122]–[123].
There was a reference in clinical notes before the Arbitrator, to which the parties did not specifically refer, to a consultation on 4 January 1997.[101] It was not the subject of submissions or discussion on this appeal, and I have not had regard to it for the purposes of dealing with this appeal. It may be relevant to the issues.
[101] ARD, p 64.

DECISION

The Arbitrator’s decision dated 20 December 2018 is revoked.
The matter is remitted for re-determination pursuant to s 352(7) of the 1998 Act, by a different Arbitrator, consistent with these reasons.

Michael Snell

DEPUTY PRESIDENT

20 June 2019