Forestry Commission of New South Wales t/as Forests NSW v Graham - [2014] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Forestry Commission of New South Wales t/as Forests NSW v Graham [2014] NSWWCCPD 73
APPELLANT:	Forestry Commission of New South Wales t/as Forests NSW
RESPONDENT:	Julie Graham
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-787/13
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	24 July 2014
DATE OF APPEAL DECISION:	11 November 2014
SUBJECT MATTER OF DECISION:	Section 4 of the Workers Compensation Act 1987; causation of injury; standard of proof; relevance of principles stated in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; 50 ALJR 720
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	SMK Lawyers
Respondent:	Turner Freeman
ORDERS MADE ON APPEAL:	1. The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 24 July 2014 are revoked. 2. The matter is remitted for hearing afresh by another Arbitrator. 3. No order as to the costs of the appeal. 4. The costs of the proceedings before Arbitrator Edwards are to follow the outcome of the determination following remitter.

INTRODUCTION

Ms Julie Graham was employed by Forestry Commission of New South Wales t/as Forests NSW (the appellant) as an Information Officer between 1999 and 2011. Ms Graham alleged that she received injury in the course of that employment following her transfer to premises known as building B at the appellant’s West Pennant Hills facility. That transfer occurred in March 2010 at which time Ms Graham was provided with a work station on the ground floor of that building.
In May 2011, Ms Graham completed an “Incident Recording” which concerned her alleged injury. That report included the following particulars which described the “incident cause”:
“Long term exposure to electromagnetic fields (EMF) and long term exposure to noise. The damage has been occurring over a 12 month period. I put in a request on Maintenance (Outlook) for someone to look at the effects of EMF or my concern over the air conditioning unit so close to me”.
The evidence is somewhat unclear, however it appears that Ms Graham consulted Dr Poulos, a general practitioner, in May 2011 who issued a WorkCover NSW Medical Certificate which certified Ms Graham’s unfitness for work between 19 May 2011 and 26 May 2011. That certificate particularised the manner in which the injury occurred as “sitting near to capital equipment noisy vibrations”. The diagnosis stated by Dr Poulos in that certificate was “tinnitus, cephalgia, vertigo, visual issues”. The management plan proposed by Dr Poulos in that certificate suggested that Ms Graham “move away from current work station to quiet setting”.
On 3 June 2011, Ms Graham presented a Workers Compensation Claim Form to the appellant and its insurer. The “injury details” provided in that form were “sitting at my desk answering the phone”. That claim form particularised injury to “head, ears, heart, nose”.
The appellant’s insurer wrote to Ms Graham on 26 May 2011 notifying her of its acceptance of “provisional liability for closed period”. Weekly payments of compensation followed that notification. In July 2011, Ms Graham accepted voluntary redundancy, at which time her employment with the appellant ceased. In that same month the insurer accepted ongoing liability. Compensation payments continued until liability was denied by the insurer on 5 September 2011.The insurer’s denial of liability was communicated in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The reason for declining further payments of compensation was stated as being:
“Your tinnitus, cephalgia, vertigo and visual issues injury is not a workplace injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) and/or s 9A of the 1987 Act.”
It is relevant to note that the insurer’s s 74 Notice included the following statement:
“Current research on the health impacts of noise, electric and magnetic fields indicates that levels recorded at the specified work desk should not cause adverse health effects to the staff.”
Ms Graham has not returned to employment since compensation payments ceased. A dispute arose concerning her entitlement to ongoing weekly payments and proceedings were commenced in the Commission in December of 2012. The injury alleged in Ms Graham’s application, filed with the Commission, was particularised as “tinnitus, vertigo, nausea, visual disturbance and headaches”, which had occurred by reason of “chronic exposure to electric and magnetic resonance”.
The matter was listed for conciliation and arbitration before Arbitrator Grahame Edwards on 4 June 2014. The matter proceeded to hearing and a Certificate of Determination, accompanied by a Statement of Reasons, issued on 24 July 2014. The Arbitrator made a finding that Ms Graham suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) and that her employment was a substantial contributing factor to that injury within the meaning of s 9A of the 1987 Act. The following orders are found in the Certificate of Determination:
“The Commission determines:
1. Respondent to pay the applicant weekly payments of compensation at the rate of $1,189.96 for the balance of the first 26 weeks of total incapacity for work from 5 September 2011 pursuant to section 36 of the unamended Workers Compensation Act 1987; thereafter at the statutory rate for a worker without dependants pursuant to section 37 of the unamended Workers Compensation Act 1987 to 31 December 2012 with such payments to be adjusted during that period in accordance with the provisions of the Workers Compensation Act 1987.
2. Respondent to pay the applicant’s reasonably necessary medical or related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.
3. Respondent to pay the applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010, I certify this matter as complex with a 30 per cent increase in costs otherwise available to the parties.”

PRELIMINARY MATTERS

Thresholds

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

On the papers

Both parties submit that the appeal can proceed to be determined on the papers as is permitted by s 354(6) of the 1998 Act. Having regard to practice directions numbers one and six and the documents before me, I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The manner in which argument is presented by the appellant gives rise to some difficulty. There are six errors enumerated at [5] of submissions which, it is said, have been committed by the Arbitrator. This paragraph is followed by a “factual” summary which relates to the conduct of the hearing before the Arbitrator and to the evidence admitted at that time (between [6] and [15] of submissions). There follows a summary of the Arbitrator’s reasoning which is the subject of criticism. These submissions do not, as is emphasised by Ms Graham in her submissions put in opposition to the appeal, address the individual allegations of error.
The appellant, in its submissions in reply, acknowledges to some extent, the difficulty which arises from the manner in which argument has been presented and an attempt is there made to focus on the alleged errors. The errors asserted at [5] are as follows:
“a.In finding the plaintiff suffered injury arising out of or in the course of employment.
b.In finding that Dr Poulos (the applicant’s treating general practitioner) had diagnosed the plaintiff with an injury.
c.In finding that there was a temporal condition [sic] between the symptoms of tinnitus, vertigo, nausea and headaches and injury arising out of or in the course of employment.
d.In finding that exposure to ELF radiation and noise emitting from the air conditioning units was an exposure capable of causing injury.
e.In failing to have regard to expert evidence of Doctors Scoppa, Rosen and Williams to the effect that the plaintiff had not suffered any injury.
f.      In finding that Dr Poulos, General Practitioner:
i.       Was of the view that the plaintiff’s employment caused injury to her;
ii.      If he did so, held appropriate expertise to offer such opinion.”
The appellant’s submissions, including those made in reply, assert errors of both fact and law.

THE ARBITRATION HEARING

The claim brought by Ms Graham was the subject of amendment when the matter came before the Arbitrator. The claim for weekly payments was limited to a claim in respect of the period 11 August 2011 to 31 December 2012. It was also made clear by counsel that Ms Graham no longer alleged injury being “visual disturbance” as alleged in her Application.
The Arbitrator recorded that the appellant disputed the occurrence of injury as alleged and that an assertion was made that the provisions of s 9A of the 1987 Act have not been satisfied. During the course of submissions the Arbitrator permitted the appellant to raise, as a further issue in dispute, the question of incapacity as alleged by Ms Graham.
The proceedings were recorded and a transcript (T) has been produced and made available to the parties. The Arbitrator identified the documentary evidence, which was voluminous, between T3 and T25. No oral evidence was adduced before the Arbitrator.

Ms Graham’s evidence

In a statement dated 3 December 2013, Ms Graham, who had been employed by the appellant since 1999, stated that following a move to building B in West Pennant Hills, which took place according to other evidence in March 2010, she occupied a workstation at the north east end of the building on the ground floor. Within weeks of moving into that area she could “feel something very different and annoying, which was difficult to work with”. Her main duty was to answer the 1300 inquiry phone line for Forests NSW and she was on the telephone and the computer most of the day. Ms Graham began to feel dizzy at certain times of the day. She experienced “wavy headaches” and had difficulty concentrating. Within months of commencing at that workstation, Ms Graham found she could not sleep at night and that she experienced ringing and burning in her ears. She had a general feeling of being unwell, unsettled and agitated. Ms Graham began to feel muddled at work and could not think straight. She became frustrated as her work became overwhelming. Her duties were exactly the same as her duties performed for the appellant during the previous 11 years at the previous location.
Ms Graham became very dizzy and “felt sick from vertigo” and she would have to “sit up straight all night to avoid lying down”. If she was to lie down she would start spinning and felt sick in the stomach and was caused to vomit.
Ms Graham repeatedly told her supervisor, Ms Joanna Bodley, that she was experiencing dizziness and called Ms Bodley over to her workstation. Ms Bodley responded by saying that “something was going on”, but that she did not know what it was. A report was made to the building manager and a request was made by Ms Graham to have some tests done. Ms Graham was told that the matter was “not my problem”.
The workstation occupied by Ms Graham was described by her in that statement as follows:
“Directly in front of me where I sat, behind a thin wall housed a huge air-conditioning unit for the building, to the left of me housed the building’s Commander phone & computer equipment station, upstairs was the finance department and directly above my head in the ceiling were large quantity of thick electrical & computer cables. It is also noted that the ceilings of this building on the ground level was very low (just making standards), so the distance between the ceiling and I was very noticeable. The door leading outside to the left of me went past the Air-conditioning unit, the noise was deafening and when this door was opened I could not hear a caller on the phone.
This door was not in the original plans when the building was renovated from a ply mill to an office and this door was never meant to be there as well as the back wall I sat next to was originally only planned for book shelves. In addition to the above equipment, on my desk was a double screen computer, the hard drive, the Efptos machine, the phone, right next to me sat the office photocopier, fax and virtually behind me was another computer and photocopier. Every part of my body was exposed to EMF.”
Ms Graham stated that during May 2011 she reported to her supervisor that her pain and discomfort was “getting too bad”. On 19 May 2011, Ms Graham visited Dr Poulos, a local general practitioner and reported her symptoms. Dr Poulos issued a WorkCover NSW Medical Certificate.
Ms Graham’s fellow worker, Mr Wayne Mackey, suggested that Ms Graham contact Ms Rachel Bidder “as she had suffered the same symptoms”. Other evidence establishes that Ms Bidder occupied Ms Graham’s workstation in 2008.
There are two reports in evidence prepared by Dr Con Poulos, general practitioner, dated 27 November 2013 and 20 April 2014. In the first report, Dr Poulos reports that he was consulted by Ms Graham on 19 May 2011 at which time she reported experiencing insomnia, dizziness, vertigo, nausea, headaches, visual disturbances and ear burning. Ms Graham also reported that:
“pain was travelling up at the front of her skull into her head causing her poor moods…potential depression. She was too frightened to lie down of [sic] a night, in turn causing insomnia.”
Dr Poulos issued a WorkCover NSW Medical Certificate in respect of an absence of one week from work. That Certificate, referred to at [3] above, makes reference to the physical circumstances of Ms Graham’s workstation at the appellant’s premises. Dr Poulos further reported that he treated Ms Graham on a monthly basis thereafter and that after her move from the “offending workstation” improvement in her health occurred. That report records that Ms Graham “maintained that if she was exposed to situations of high electronic fields, her symptoms would return”. Dr Poulos further records that Ms Graham “had recurring tinnitus, visual issues and headaches, chronic fatigue, vertigo and nausea, with exposure to EMF’S”. Dr Poulos expressed the view that it would be prudent for Ms Graham to “avoid any future positions that involve computer work, mobile phones, wireless products or in the vicinity of mobile stations and towers”.
The second report of Dr Poulos records that Ms Graham continued to consult Dr Poulos following her departure from employment with the appellant. Dr Poulos noted that Ms Graham had moved to “a quiet rural setting” and that there had been improvement concerning her symptoms of tinnitus, vertigo, nausea and headaches. Dr Poulos acknowledged that he was aware of the tests conducted by the appellant at the former work place occupied by Ms Graham. Dr Poulos also acknowledged the “normal findings of Doctors Scoppie [sic, Scoppa] and Williams, and Precision Hearing, support the notion of no abnormal findings”. The report includes a notation that Ms Graham had worked for the appellant in various capacities between 1999 and the date of her departure “without health issues until moved to another building within the State Forestry Commission”. Dr Poulos acknowledged his awareness of Ms Graham’s “previous MVA in 2004”. The concluding paragraphs of the report are as follows:
“The transfer to another work site brought this lady in contact with 2 large office capital equipments close to her work station. I am led to believe the constant emission of noise by these electronic cabinets caused this person’s symptoms of headaches, nausea, tinnitus, dizziness, ear causalgia, poor sleep, and anxiety. I was told that her request to be moved to another work site was turned down.
This lady mentioned a previous employee of the State Forestry Commission had been exposed to the large noise emitting electronic machines and suffered similar symptomatology. I am told this lady made no worker’s compensation claim, but left due to the disturbing noise symptoms causing her distress. Much has been written by various experts on E.M.R. and causing health issues.
Despite my patient being tested with no abnormal findings, her symptoms are real and injurious. She has not made a full recovery and continues to suffer symptoms intermittently.”
Ms Graham tendered eight medical certificates issued by Dr Poulos. Those certificates are dated between 19 May 2011 and 30 September 2012. Each of those certificates, excluding the last, are Workcover NSW Medical Certificates. The content of the first certificate issued in May 2011 is noted at [3] above. The balance of the WorkCover Certificates particularise the manner in which the injury occurred as being “Exposure to EMR” or “chronic exposure to noise, EMR” or some slight variance. Reference is made to “EMR” in each of the certificates which followed the issue of the May 2011 certificate.
Ms Graham tendered a document which appears to be printed copies of a powerpoint presentation made by Dr Bruce Hocking, specialist in occupational medicine, which took place at a World Health Organisation Seminar on EMF Hypersensitivity in Prague in 2004.
A report by Dr David Rosen, neurologist, dated 19 February 2014, addressed to Dr Poulos is in evidence. Dr Rosen recorded a detailed history in that report of Ms Graham’s physical circumstances at her workstation and her development of vertigo, insomnia, nausea, vomiting and tinnitus. Dr Rosen noted that Ms Graham had:
“formed the opinion that her symptoms were attributed to something in her office environment. This view was reinforced by the fact that the symptoms remitted when she was away from the office for lengthy periods, when she took long service leave that year, and further reinforced when she discovered that a former employee who occupied the same position in her office had the same symptoms.”
Dr Rosen’s summary appearing at the foot of this report noted that Ms Graham presented with relapsing and remitting symptoms of brief, provoked, intermittent vertigo and non-specific headaches and tinnitus which she attributed to the effects of electromagnetic radiation (EMR) at her work place. Dr Rosen proceeded to state:
“I explained to [Ms Graham] that I was happy to provide a neurological opinion as her treating Neurologist but that I was unwilling to shed light on the causation of her alleged work-related condition with respect to the role electromagnetic radiation in her particular case because that would require a more detailed assessment of the available information and was unlikely to have any practical bearing on the treatment of her condition.
The diagnosis is consistent with benign paroxysmal positioning vertigo (BPPV) associated with tension headache. Tinnitus is probably idiopathic and incidental. There is nothing to suggest Meniere’s disease or brainstem pathology. BPPV is currently in remission.
[Ms Graham] has been told she has ‘radiation residue’ in her body as measured by Ms Elena Dihel remedial Masseuse using a BICOM optima machine and is being treated to remove this. (It is very unlikely that this testing therapy is supported by any valid medical or scientific evidence according to currently accepted standards of medical evidence and the claims made for the utility are therefore likely to be unfounded and the safety of any proposed therapy likely to have been unevaluated.) Nevertheless [Ms Graham] ‘believes’ in this therapy”.

Ms Graham tendered a copy of correspondence signed by Ms Elena Dihel. Ms Dihel is a certified bioresonance therapist who has treated Ms Graham “for radiation residue and her sensitivity to mobiles and mobile towers, including electromagnetic fields”. Ms Dihel utilises a Bicom machine. Ms Dihel stated that Ms Graham was responding to treatment.
A copy of the decision of Deputy President Constance of the Administrative Appeals Tribunal of Australia in McDonald v Comcare [2013] AATA 105 (28 February 2013) was tendered in evidence by Ms Graham. That decision concerned a work injury dispute, the facts of which are similar to the matters raised in the present matter. The relevance of that decision and, in particular, the probative value, if any, of the evidence to which the Deputy President referred has not been addressed by the parties.
Ms Graham tendered a copy of a document published by the World Health Organisation, the United Nations Agency, entitled “Establishing a Dialogue on Risks from Electromagnetic Fields” (the WHO publication). That document was published in 2002. The exhibit as tendered is a very poor quality photocopy and is mostly illegible. In the circumstances, a clean and legible copy of the document was, on this appeal, substituted within the Commission’s file with the consent of the parties. A large number of qualified scientists and medical practitioners are identified in that document as having contributed to its preparation. That document contains material relevant to, what is stated in the foreword as being, “public concern over the possible health effects from electromagnetic fields (EMF)”. The document contains a helpful glossary and some relevant scientific terms are defined in the text of the document. Some detail of the document is addressed in the course of discussion below.
There is a statement in evidence signed on 22 November 2013 by Ms Rachel Bidder, an employee of the appellant who occupied the workstation at building B in 2008 which was subsequently occupied by Ms Graham. Ms Bidder stated that vibrations from nearby air conditioning units could be felt on a bench top at that place. It was further stated:
“In June 2008 I suffered a bout of vertigo one night. I lost my balance and had to hold onto the wall to remain upright.
I then began to hear very loud noises in my ears which later became a high pitched ringing, like a cicada. Lack of sleep due to these noises meant that I was constantly tired and irritable. I saw an Ear, Nose and Throat Specialist and had a scan done of my head to ascertain whether there was a tumour, but the results were clear. The diagnosis was Tinnitus.
There was also noise emanating from the airconditioning plant in the cavity between the ceiling and the floor above the Photogrammetry Section. The combined noise and conflicting sound waves from the airconditioning units outside the building and the noise emanating from the airconditioning plant within the ceiling cavity, caused me to suffer severe ear discomfort.
I had to move from my Section to an office at the other end of the building. This brought immediate relief at work.
For months I had put up with the discomfort and annoyance, so I wrote a letter to Human Resources on the 3^rd December 2008 and suggested that no one else be made to sit at that end of the building.
No one from HR got back to me.
When a relocation of staff occurred, [Ms Graham] sat at the desk where I used to sit. I later found out that she also began to suffer from Tinnitus.
I have suffered from Tinnitus for 5 years now. It affects concentration, sleep and mood as the noise is constant and irritating.”
A statement by Mr Lindsay Nicks, dated 26 November 2013, was tendered in evidence. Mr Nicks states that he witnessed Ms Graham complaining to her supervisor and other staff that she was dizzy and experiencing wavy headaches at a time when he was working nearby Ms Graham’s workstation. Mr Nicks observed Ms Graham and her supervisor, Ms Bodley, at the workstation and recalls that Ms Bodley said, “yes, something is going on over here, I am not sure what, it could be the lighting, staring at the white wall, who knows”. Mr Nicks stated that Ms Graham replied “that she was sure it was the electromagnetic fields from the air conditioner, the phone system and other equipment and the very low ceilings”. Mr Nicks stated that he had known Ms Graham for ten years while working for the appellant and that he had found her “honest, hardworking, easy to get on with and dedicated to her role as information officer.”
The “Incident Recording” dated 19 May 2011 and the compensation claim form dated 3 June 2011, noted at [2] and [4] above respectively, were in evidence.

The appellant’s evidence

An Occupational Hygiene Assessment dated June 2011, prepared by Noel Arnold & Associates at the request of the appellant, is in evidence. The scope of the assessment conducted at Ms Graham’s former workplace was stated at [3] of that document as follows:
“The purpose of the non ionising radiation and noise assessment was to undertake the following:
§Asses the non ionising radiation levels generated by electronic equipment being used in proximity to the workstation of the involved employee;
§Assess the noise levels generated by the air-conditioning unit at the workstation of the involved employee; and
§Make recommendations for the ongoing management of non ionising radiation levels and noise in proximity to the workstation.
Results obtained were compared with established occupational exposure standards in order to assess the adequacy of current control measures. A report was produced to compare the results with established guidelines and make recommendations to ensure compliance with relevant legislation.”
The results of the assessment were stated in the course of discussion in that report as demonstrating that noise findings were “well below the Occupational Exposure Standard of 85dB(A). All peak results were below the peak exposure standard of 140 dB(C)”. That report also records that levels of ELF radiation (both magnetic and electric field components) were well below the non-occupational exposure standards of 1000mG for magnetic fields and 5000 V/m for electric fields. I note in passing that it is not apparent as to whether testing was conducted for high frequency or radio frequency fields (which are included in the WHO publication definition of EMF).
A report of Dr Brian J Williams, ear nose and throat surgeon, dated 27 February 2013, is in evidence. Dr Williams examined Ms Graham at the request of the appellant. A history of tinnitus, vertigo and dizziness experienced by Ms Graham is recorded in that report. An audiogram conducted by Dr Williams demonstrated nil per cent total binaural hearing impairment. Dr Williams expressed the opinion that Ms Graham demonstrated no signs of vestibular dysequilibrium.
The clinical records of Dr Poulos’ practice are in evidence. Those records appear to date back to 1991 and include a record of treatment in respect of injuries received in a motor vehicle accident received in 2004. Symptoms complained of by Ms Graham following that motor vehicle accident included some notations of dizziness. Ms Graham was attended by various members of that practice.
Correspondence dated 19 December 2013 from Noel Arnold & Associates to the appellant’s insurer is in evidence. That document addresses criticism made by Ms Graham of the methodology of the earlier assessment conducted by that organisation. Ms Graham had emphasised that the assessment was conducted at 8.00am on a Monday morning, a time before many employees were present; that the air conditioning fans were taken away and replaced a few days prior to the test, and a printer next to her former workstation was taken away. Those matters are discussed in the correspondence and a conclusion is stated that “the criticisms raised by [Ms Graham] are unlikely to have had a significant effect on the outcomes of the findings.”
The appellant tendered a report of Dr Joseph Scoppa, ear nose and throat physician and medico legal consultant, dated 20 December 2013 which had been prepared at the request of Ms Graham’s solicitors. Dr Scoppa had examined Ms Graham in that month at which time a history of onset of dizziness, headaches, burning ears, vertigo, tinnitus and ear symptoms during her employment with the appellant was recorded. Dr Scoppa conducted a pure tone audiological evaluation which demonstrated the existence of no hearing loss. Dr Scoppa noted that tinnitus impairment had been assessed in accordance with the WorkCover Guides at nil per cent. It was noted in that report that the cause or causes of Ms Graham’s symptoms had not been established and it would be important to exclude vestibular migraine as a possible cause or contributing cause.
A large volume of clinical records and a statement by Ms Graham concerning the 2004 motor vehicle accident are in evidence.
A report dated 4 March 2014, prepared by Mr Michael Egan, chiropractor, is in evidence. Mr Egan treated Ms Graham in relation to the matter of the motor vehicle accident in 2004. At that time her complaints included lower back pain and vertigo, exacerbated by neck flexion and extension. Mr Egan notes in that correspondence that the vertigo was fully resolved by 22 March 2005. The opinion is expressed by Mr Egan that the “current episode of vertigo is unrelated to her previous motor vehicle accident in 2004”. Mr Egan’s clinical notes are in evidence. It is to be noted that those notes are illegible.
The appellant tendered a number of documents relating to a procedure known as bioresonance therapy which involves the use of a Bicom device. This is the device utilised by Ms Dihel.
The appellant tendered correspondence which had been forwarded by the insurer and the appellant’s solicitors to Dr Poulos requesting information concerning his treatment of Ms Graham. That correspondence, it is not disputed, was not answered by Dr Poulos.
There is a file note of the appellant’s solicitors in evidence relating to unsuccessful efforts to secure the attendance of Ms Dihel for cross examination before the Arbitrator.

The parties’ submissions

Submissions put on behalf of each party have been recorded in the transcript and have been summarised by the Arbitrator in the course of his Reasons (at [66] and [67]). In the circumstances it is not intended to attempt a detailed summary of matters raised in those submissions.
The thrust of Ms Graham’s argument as presented before the Arbitrator was that her symptoms had come on at her workplace at which time she experienced noise, vibration and electromagnetic radiation. Counsel submitted that it was known that there were “electromagnetic towers nearby” (at T31). Ms Graham’s complaints concerning symptoms, it was argued, were corroborated by the evidence of Mr Nicks. The evidence of Ms Bidden concerning her experience when working at that workstation “supported” the case presented by Ms Graham. Counsel accepted that the “constellation of symptoms” experienced by Ms Graham had not been “the subject of a definitive diagnosis”. Reliance was placed upon the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) in support of a submission that “symptoms alone can constitute an injury”. Counsel placed reliance upon the temporal nexus between the onset of symptoms and presence at the workplace, and the evidence that symptoms had abated when Ms Graham was away from the workplace. The argument appears to have been advanced that such matters established a causal connection between attendance at the workplace and the onset of the symptoms. It was put by counsel that it was clear that Dr Poulos “accepts the causal connection as perceived by [Ms Graham] in that he issued Worker’s Compensation Certificates in which, to the question ‘is employment a substantial contributing factor to the injury?’, he has ticked ‘yes’.”
Ms Graham’s counsel argued that the noise tests conducted on behalf of the appellant were “irrelevant” given that the claim is not one in respect of industrial deafness. In relation to the testing of radiation, it was put that the only measure conducted was in respect of non-ionising radiation. That submission was not developed, nor was the relevance of ionising and non-ionising radiation addressed in the course of submissions. The timing and physical circumstances of the tests formed the basis of criticism of the manner in which the assessment was conducted. In relation to the evidence of Dr Williams, counsel stated in submissions that “that evidence…simply does not address the issue. He conducts an audiogram and says there is no occupational hearing loss. No one said there was. He records a complaint of tinnitus and it would seem that he doesn’t dispute that [Ms Graham] in fact suffers from tinnitus”. It was put that Dr Williams’ failure to determine any permanent impairment in respect of the tinnitus is explained on the basis that the WorkCover Guides require antecedent proof of hearing loss.
It was argued that the 2004 motor vehicle accident in which Ms Graham was involved and consequential symptoms had no relevance to the present facts.
Counsel appearing on behalf of the respondent opened submissions by characterising the symptoms complained of by Ms Graham as “bizarre” and by asserting that the evidence did not establish that there was a “link” between employment and the conditions suffered by Ms Graham. It was put that no weight should be ascribed to the evidence of Ms Bidden, given that it was not known what the circumstances were concerning preparation of her statement, and there was no evidence concerning relevant background facts, including Ms Bidden’s state of health. Counsel argued that there was no expert opinion linking symptoms with the workplace and it was put that the evidence of noise levels being deafening would not be accepted.
Counsel emphasised the absence of “expert opinion that would link these symptoms… to anything that’s occurred in the workplace”.
Counsel made reference to the suggested role of electromagnetic radiation. It was argued that Ms Graham “must prove on the balance of probabilities…that this constellation of symptoms is resulting from both the noise…and radiation”. It was put that the expert report prepared on behalf of the appellant establishes that the level of radiation at the relevant workstation “is so minute that they are everyday type levels that you would expect, when you use a phone or computer…”. The expert evidence in the appellant’s case was, it was argued, that the levels of radiation detected did not “come anywhere near close to being injurious in any way, shape or form.” It was put that the evidence of Dr Poulos, found in his two reports, was “noncommittal, completely noncommittal, in respect of the critical issue in this case, which is causation”.
Counsel noted that there was no diagnosis of Ms Graham’s symptoms, and it was argued that the Arbitrator would not be satisfied “that these symptoms that are complained of, necessarily are real”. It was further argued that the WHO publication which is in evidence does not advance Ms Graham’s case. It appears to have been argued that the evidence concerning the “link” between the workplace and the onset of symptoms constitutes mere conjecture. Counsel noted the evidence of Dr Jennings who had examined Ms Graham concerning symptoms causing difficulty with her vision. Dr Jennings expressed the view that her ocular symptoms were caused by a posterior vitreous detachment which, in that practitioner’s view, was “not an unexpected development at her age”. It was put that there should be an award in favour of the appellant.

THE ARBITRATOR’S DECISION

The Arbitrator summarised the nature of Ms Graham’s claim, following which he identified the issues in dispute as concerning the question of injury; whether employment was a substantial contributing factor to the injury, and incapacity for work as a result of injury. The Arbitrator proceeded to briefly summarise the evidence which was before the Commission. That summary included (at [55]) the statement that “Dr Poulos is of the opinion that Ms Graham’s symptoms were caused by the emission of EMF”. The Arbitrator summarised submissions put on behalf of each party.
The Arbitrator proceeded to make his findings which commence at [68] of his Reasons. At the outset the Arbitrator rejected the appellant’s submission that Ms Graham’s symptoms or complaints to Dr Poulos were “bizarre”. It was accepted that the symptoms of vertigo caused by the motor vehicle accident sustained by Ms Graham had “resolved by the time Ms Graham was seen by the chiropractor in March 2005”. Having regard to matters recorded in the documentary evidence, the finding was made that “the medical condition of vertigo had resolved by November 2004”. With respect to the complaints of dizziness following the motor vehicle accident, the Arbitrator accepted Ms Graham’s submission that the clinical records show “no complaint about dizziness after 9 January 2007, until 26 May 2009”. The Arbitrator proceeded to find that it was likely that symptoms of dizziness complained of in May 2009 “related to, or were in connection with, a biopsy and colonoscopy”.
The Arbitrator proceeded to state that Ms Graham had been attending the same medical practice for over 20 years, and had been a patient of Dr Poulos for many years. Following a summary of Dr Poulos’s evidence, the Arbitrator stated:
“I am of the view that Dr Poulos had a proper foundation to base his opinion upon that [sic] Ms Graham was exposed to noise and EMR or ELF resulting in injury”.
The Arbitrator expressed his view that the history as given by Ms Graham to Dr Poulos “represented a fair climate of [sic] the opinion expressed in his report”. It was later (at [93] and [94]) stated by the Arbitrator as follows:
“Dr Poulos has diagnosed Ms Graham with the medical conditions of ‘headaches, nausea, tinnitus, dizziness, causalgia, poor sleep and anxiety’.
In my view, Dr Poulos has based his opinion upon proper foundations to opine a causal link for connection between Ms Graham’s symptoms and the ELF of [sic] radiation”.
The Arbitrator made a further finding that he was “satisfied on balance there is a causal link between the exposure to noise emitting from the air conditioning units and complaints of tinnitus”.
The Arbitrator, having made the findings noted immediately above, proceeded to, again, consider the question of causation of injury. The Arbitrator’s further reasoning concerning this question is to be found between [99] and [110] of Reasons as follows:
“99. The question of causation in common law and workers compensation is a commonsense test (see Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 and Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi [2006] NSWCA 358).
100. What is required is a commonsense evaluation of the causal chain which is a question of fact and must be determined by applying a common sense approach to the facts of each particular case (see Zinc Corporation v Scarce (1995) 12 NSWCCR 566 at 530 per Clarke JA).
101. I agree with Mr McManamey’s submission that it is not necessary that Ms Graham prove that her injury was caused by exposure to noise (no claim for industrial or boilermaker’s deafness) or ELF of radiation where it is possible to identify as a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which she was exposed in the performance of her duties and to which she would not otherwise have been exposed (Semlitch).
102. As the High Court held in [Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; (1976) 50 ALJR 720 (Fernandez)], a tribunal of fact can determine a scenario regarded by expert medical evidence as being possible to be made out on the balance of probabilities having regard to the whole of the evidence.
103. Dr Poulos did not in my view express his opinion on the basis of a possibility that there was a causal link between Ms Graham’s symptoms and the injurious event (see Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 and approved of by Deputy President Roche in Spicer Axle Australia Pty Limited v Merza [2007] NSWWCCPD 148).
104. Dr Poulos said that Ms Graham’s ‘symptoms are real and injurious’. In my view, Dr Poulos was expressing his opinion on the balance of probabilities that Ms Graham’s symptoms and medical condition was the result of an injury ‘arising in the course of employment’ with the respondent.
105. The term ‘arising out of’ involves a causal element and is to be inferred from the facts as a matter of commonsense (see Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd [2009] NSWCA 324; 7 DDCR 75 (Badawi).
106. Mr McManamey submitted that there was a temporal connection between the medical conditions as diagnosed by Dr Poulos and the employment with the respondent.
107. President Keating in Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97 at [99] (Van Wessem) said the phrase ‘arising in the course of employment’ refers to a temporal relationship between the injuries and the employment and a causal connection is only relevant to injuries ‘arising out of employment’.
108. Van Wessem was the subject of an appeal to the Court of Appeal ([2011] NSWCA 214). The Court at [29] said that ‘being in the course of employment is temporal, whilst being a substantial contributing factor is causal. There must be evaluation of the strength of the causal linkage between the employment and the injury’.
109. I am of the view that there is a temporal connection between the medical conditions as diagnosed by Dr Poulos and the exposure to ELF radiation and noise emitting from the air-conditioning units arising in the course of employment with the respondent.
110. I find on the balance of probabilities that Ms Graham suffered an injury within the meaning of s 4 of the unamended 1987 Act for the reasons I have given.”

The Arbitrator proceeded to consider the application of s 9A of the 1987 Act to the facts as found. The appellant had argued that the probability was that the injury “if found, would have happened anyway, even if [Ms Graham] had not been at work or had not worked for the respondent”. In putting that argument, the appellant had relied upon the provisions of s 9A(2)(d), that the use of devices such as mobile phones and computers were “a way of life” and that Ms Graham’s symptoms would have come on independently of her attendance at work. That argument was rejected by the Arbitrator. A finding was made that “the causal link or connection between the onset of the symptoms and the employment was real and of substance, and that there was no other hypothesis for the cause of the [sic] them” (at [123] of Reasons). A finding was made that employment was a substantial contributing factor to Ms Graham’s injury within the meaning of s 9A of the 1987 Act (as it stood before the 2012 amendments).
The question as to the extent of Ms Graham’s incapacity was addressed by the Arbitrator. A finding was made that Ms Graham was “totally unfit for work at all relevant times as a result of her injury up to 31 December 2012”. The orders as noted at [8] above were then made.

DISPOSITION OF THE APPEAL

The manner in which Ms Graham’s case was presented and argued before the Arbitrator has, in my view, given rise to considerable confusion as to relevant facts and some uncertainty as to those principles relevant to resolution of the dispute. In the circumstances, I consider that an analysis of the allegations, evidence and argument concerning the question of injury is required before addressing those matters raised on appeal.
The Arbitrator had before him a claim in which injury was alleged to have been causally related to Ms Graham’s exposure to long term (exceeding 12 months) noise and electromagnetic fields (EMF).
The symptoms associated with the alleged injury, as diagnosed by Dr Poulos, were stated in his first certificate as being “cephalgia [ie headache], vertigo, visual issues”. In his report dated 27 November 2013, Dr Poulos, as noted at [23] above, stated that Ms Graham’s symptoms on 19 May 2011 were “insomnia, dizziness, vertigo, nausea, headaches, visual disturbances and ear burning”.
The injury alleged by Ms Graham in her claim form was particularised as involving her “head, ears, heart, nose”. In the application before the Arbitrator the injury was described, after amendment, as “tinnitus, vertigo, nausea and headaches”. The manner in which the injury occurred was described as “chronic exposure to electric and magnetic resonance” (no mention of noise). The term EMF appears to have been substituted in the Commission documents, the evidence and by the Arbitrator and counsel with a variety of terms including the last mentioned “magnetic resonance”, “EMR” (Dr Poulos and Dr Rosen), and “ELF” radiation (the Arbitrator at [77] of Reasons and elsewhere).
The allegation concerning the harmful effects of exposure to EMF have been, as stated in the WHO publication, “a topic of scientific interest since the late 1800’s and have received particular attention during the last 30 years” (at page 1).
The most helpful evidence before the Arbitrator describing EMF is to be found in the WHO publication (at page 1). EMF, it is stated, occur in nature and, also, may be man-made. Relevant to the present facts, that document contains a statement describing the nature of “man-made” EMF exposure as follows:
“EMF can be broadly divided into static and low-frequency electric and magnetic fields, where the common sources include power lines, household electrical appliances and computers, and high-frequency or radiofrequency fields, for which the main sources are radar, radio and television broadcast facilities, mobile telephones and their base stations, induction heaters and anti-theft devices.” (emphasis in original)
The WHO publication distinguishes EMF from “ionising radiation”. The latter is stated to be radiation found in the upper part of the electromagnetic spectrum, such as gamma rays given off by radioactive materials, cosmic rays and x-rays (ionising radiation is not further considered in that publication). The evidence in the present case does not implicate such ionising radiation. Ms Graham’s allegation, it seems, was that the sources of EMF at her workstation were the items of equipment described in her statement noted at [20] above. That equipment, having regard to the WHO publication evidence, might emit only non-ionising radiation.
Counsel’s submissions as to the occurrence of injury sought to implicate “the noise and vibration of the air conditioning units…a constant impost upon her that whenever the door was open the noise was deafening”. Also implicated, it was argued, were the office equipment and the “nearby” electromagnetic towers. Reliance concerning proof of injury was thus placed upon the temporal connection between Ms Graham’s presence at the workstation and the appearance of the symptoms. The occurrence of symptoms at the workplace, it was put, was corroborated by Mr Nick’s evidence.
It may be seen that, fundamental to Ms Graham’s case, was the assertion of a temporal connection between exposure to noise and EMF at work and the onset of the symptoms noted by Dr Poulos. Ms Graham argued that the decision of the High Court in Semlitch was authority for the proposition that “symptoms alone can constitute an injury” (at T33–34). That argument was restated (at T34–35) when it was put that the onset of symptoms and the manner in which they “seem to wax and wane in accordance with [Ms Graham’s] exposure to this particular workplace… are sufficient for [the Arbitrator] to be satisfied that there is in fact an injury as described by the High Court in [Semlitch] and by Roche DP in [Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly)]”. Counsel again submitted that having regard to the timing of onset of Ms Graham’s symptoms, and the experience “of people being placed in this particular corner…[the Arbitrator] would be satisfied that the temporal connection is sufficient to establish a causal connection” (at T35).

The appellant’s challenge to the Arbitrator’s finding of injury

The appellant’s argument challenging the finding of injury is perhaps more lucidly stated under the heading “Ground 2” found in its Submissions in Reply. Whilst that Ground makes reference to the Arbitrator’s challenged finding that Dr Poulos had “diagnosed [Ms Graham] with an injury”, the submissions address the Arbitrator’s reasoning which appears at [101] of his Reasons (noted at [60] above).
It is apparent, in my opinion, that the Arbitrator has at [101] of Reasons misstated, to an extent, the argument advanced which placed reliance upon Semlitch. The Arbitrator’s description of the argument appears not to reflect the issue in the present matter but rather that raised in Semlitch, that is, aggravation etc. of a disease occasioned by “some incident or state of affairs to which [Ms Graham] was exposed in the performance of her duties, and to which she would not otherwise have been exposed” (cf Semlitch per Kitto J, at 632–633).
The appellant is correct, in my opinion, to assert in argument that Semlitch is not authority which supports “the proposition that the presence of symptoms [at work] can in certain circumstances be sufficient to establish injury” (submissions in reply at [3]).
The facts in Semlitch concerned a worker who suffered from chronic schizophrenia. As a result of a work injury when lifting a heavy weight the worker suffered muscular strain and was paid compensation. She later claimed compensation in respect of incapacity resulting from a delusional condition brought on by the incident. Her allegation was that the delusions were the result of an aggravation, acceleration, exacerbation or deterioration of the pre-existing schizophrenia (s 6 of the former Workers Compensation Act 1926, the predecessor to s 4(b)(ii) of the 1987 Act).
The argument advanced by the employer in Semlitch was that the delusion causing incapacity was not proven to be, as summarised by Kitto J (with whom Taylor and Owen JJ agreed) [at 633], “anything more than an effect, or a symptom, or a manifestation of the underlying mental disease”. The argument asserted that on the evidence “the disease itself, as distinguished from the particular delusions to which it gave rise from time to time, was not made any worse by the [lifting incident]”.
The employer’s argument in Semlitch was rejected. The proper conclusion on the evidence, as reasoned by Kitto J, was that the disease had been exacerbated by the lifting incident. The decision affords no support for Ms Graham’s argument. Nothing stated in Kelly, a matter concerning an alleged consequential loss, supports that argument.
In my view the Arbitrator has erred in two respects. Firstly he had, as earlier mentioned, misstated the argument advanced by, it seems, treating the injury alleged as being an aggravation of a disease (s 4(b)(ii) of the 1987 Act). Secondly, having found merely a temporal nexus between the manifestation of symptoms and attendance at work, he had found injury caused by the exposure alleged, in circumstances where the issues, as stated by Mason J in Fernandez, “stand outside the realm of common knowledge and experience” (at 724E) (see also observations by Herron CJ in EMI (Australia) Ltd v Bes [1970] WCR114 (Bes) (at 119)) .
The technical or scientific issues raised by Ms Graham’s allegations concerning noise and EMF exposure required, in my opinion, something more than mere proof of a temporal connection between attendance at work and the onset of symptoms to permit a finding of injury within the meaning of s 4 of the 1987 Act. It follows that Ms Grahams’ submission on this appeal that “this is the very type of case in which the existence of the injury is established by the symptoms as the possible causation of the injury and its pathology is not well understood” must be rejected.
Having regard to the state of the evidence, the substantive issue before the Arbitrator was the question of the standard of proof as to causation. Such proof may or may not be made out by the evidence presently before the Commission. Regrettably that issue has had little attention in submissions either before the Arbitrator or on this appeal. That standard is conveniently to be found in the statements of Herron CJ in Bes (at 119) at that point in his Honour’s judgment earlier referred to where the following appears:
“…it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable.”
Whilst the Arbitrator touched upon the subject of the standard of proof in the course of his Reasons (at [102]), his reference to the decision of Fernandez was not accompanied by any analysis of the evidence leading to any relevant conclusion on the issue of causation. The Arbitrator had earlier noted (at [65(y)]) that counsel appearing on behalf of Ms Graham had placed reliance upon the decision of Fernandez, however my examination of the transcript does not reveal any such reference. The only mention of that authority as recorded is made by the Arbitrator (at T53) during exchanges with the appellant’s then counsel. The absence of any other reference to that decision may well be explained by the fact that the transcript is not complete, given the frequent notations found that the sound recording was “not transcribable”.
The matters raised immediately above must be considered given my view that the errors identified at [78] above require that the Arbitrator’s decision be revoked on this appeal. That circumstance has the consequence that there is no need to consider the other complaints raised by the appellant each of which, as expressed, address the issue of injury.
The question remains as to what course should be adopted following that revocation. Whilst it is desirable and in accordance with legislative intent that, if possible, a new decision be made on appeal, I have reached the view that there are a number of impediments, including the matters raised immediately above, concerning argument advanced by the parties which do not permit that course.
I consider that an appropriate order should provide for the matter to be remitted to a different Arbitrator for hearing afresh. Appropriate orders appear below.

DECISION

The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 24 July 2014 are revoked.
The matter is remitted for hearing afresh by another Arbitrator.

COSTS

No order as to the costs of the appeal.
The costs of the proceedings before Arbitrator Edwards are to follow the outcome of the determination following remitter.

Kevin O'Grady
Deputy President

11 November 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE