Gosper v Pilbara Iron Company (Services) Pty Ltd - [2021] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GOSPER -v- PILBARA IRON COMPANY (SERVICES) PTY LTD [2021] WADC 47
CORAM:   LEMONIS DCJ
HEARD:   20 NOVEMBER 2020
DELIVERED          :   25 MAY 2021
FILE NO/S:   APP 53 of 2020
BETWEEN:   JOSES GOSPER
Appellant
AND
PILBARA IRON COMPANY (SERVICES) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKCOVER WA ARBITRATION SERVICE
Coram:   ARBITRATOR NUNN
File Number            :   A64434

Catchwords:

Claim by worker under the Workers' Compensation and Injury Management Act 1981 (WA) as a result of injuries allegedly suffered at work - Learned arbitrator dismissed worker's claim - Whether learned arbitrator found that it was necessary for worker to prove the date upon which he suffered his injuries - If so, did the learned arbitrator err in making such a finding - If the learned arbitrator did fall into error, can the dismissal of the claim be justified on other grounds

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr G P Bourhill

Solicitors:

Appellant	:	Not applicable
Respondent	:	Jackson McDonald

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

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BWS v ARV [No 2] [2021] WASCA 62
Royal Perth Hospital v Morris [2012] WADC 82

LEMONIS DCJ:

The appellant, Mr Gosper, was employed by the respondent, Pilbara Iron Company (Services) Pty Ltd (PICS).
Mr Gosper made a claim against PICS dated 5 July 2019 for compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) in respect of certain injuries he alleges he suffered in the course of his work.
PICS disputed the claim. Mr Gosper then made an application for arbitration dated 21 October 2019. The learned arbitrator dismissed Mr Gosper's application by written reasons delivered 30 July 2020.
Mr Gosper now appeals pursuant to s 247 of the Act against that dismissal. He requires leave to appeal and must establish that a question of law is involved to obtain that leave.
It is not in dispute that Mr Gosper suffered certain physical injuries. What is in dispute is whether those injuries fall within the characterisation of an injury as defined in the Act. The seminal issue on this appeal is directed to what a worker must prove in order to establish that they suffered a defined injury. In my view, for the reasons which follow, the learned arbitrator held that it was necessary for Mr Gosper to prove the date on which he suffered his injuries, and in that respect, the learned arbitrator fell into error.

Introductory matters

PICS employed Mr Gosper primarily as a machine operator. He also undertook other work, which included manual handling. Mr Gosper alleges that in the course of his employment he suffered injuries to his left shoulder, those injuries being a subacromial bursitis and a tear of the subscapularis tendon.[1] It is not in dispute that Mr Gosper had these injuries.
[1] Arbitrator's reasons [1].
Mr Gosper gave notification of his claim pursuant to s 178 of the Act by claim form dated 5 July 2019.[2] The claim form identified the date of injury as being 6 June 2019. The claim form was supported by a first certificate of capacity of Dr Patel dated 4 July 2019.[3] The description of the injury contained in the first certificate of capacity is as follows:[4]
2 year history of shoulder bursitis, not resolving with treatment. Orthopaedic referral and MRI shown tear. Heavy machine operator the likely cause of tear (injury date is the date of diagnosis of the tear by MRI)
[2] Consolidated book of documents, pages 74 - 75.
[3] Consolidated book of documents, pages 23 - 24.
[4] Consolidated book of documents, page 23.
Mr Gosper accepts that the date of 6 June 2019 is not the date on which he suffered the injuries. Rather, that date was selected as it was the date upon which the totality of the injuries was identified by an MRI. In that respect:
1.Mr Gosper had an ultrasound on 19 January 2019, when bursitis was identified and diagnosed.[5]
2.Mr Gosper then had an MRI on 6 June 2019 which confirmed the presence of the bursitis and identified the subscapularis tendon tear.[6]
[5] Arbitrator's reasons [43].
[6] Arbitrator's reasons [46].
In the arbitrator's reasons, the arbitrator focussed on the need for Mr Gosper to prove the date that the injuries occurred. Ultimately, the learned arbitrator found that a factual inquiry into the relationship between Mr Gosper's injuries and his employment cannot begin without knowing the date of injury.[7]
[7] Arbitrator's reasons [94].
Mr Gosper by his grounds of appeal raised four separate grounds. The pivotal ground is that the learned arbitrator erred by finding to the effect that Mr Gosper must first establish the date of his injuries. I am satisfied this ground falls within ground 3 of the grounds of appeal.
PICS says that when the learned arbitrator's reasons are understood as a whole, the learned arbitrator did not make such an error. Further, PICS says that if there was such an error, then the learned arbitrator's dismissal of Mr Gosper's claim is justified by reason of other findings made by the learned arbitrator. In this respect, PICS relies solely on the learned arbitrator's findings.[8]
[8] ts 34.

Leave

Pursuant to s 247 of the Act, Mr Gosper requires leave to appeal. The circumstances in which leave is to be granted are set out in s 247(2). I do not consider s 247(2)(a) applies here as an amount of compensation is yet to be determined. Instead, I consider that s 247(2)(b) applies. That is, I am not to grant leave to appeal unless a question of law is involved. If it is established that the appeal involves a question of law, leave should be granted if in all the circumstances of the particular case it is in the interests of justice that there be a grant of leave.[9] A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been or might have been different.[10]
[9] Royal Perth Hospital v Morris [2012] WADC 82 [50].
[10] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15].
PICS by its counsel accepted that if the learned arbitrator found it was necessary for Mr Gosper to prove the date of injury, and I was to find the learned arbitrator erred in that respect, then such an error involves a question of law.[11]
[11] ts 38.
Before turning to the learned arbitrator's reasons, it is useful to first identify the nature of an injury which can be the subject of a claim under the Act.

Injury

The term 'injury' is defined in s 5 of the Act. Relevantly, for the purposes of this case, it means:
(a)a personal injury by accident arising out of or in the course of the employment …; or
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree …
The phrase 'personal injury' in (a) of the definition is not separately defined in the Act.[12]
[12] Section 5(3) does however provide that the phrase 'personal injury by accident' where used in the Act is a reference to an injury of a kind referred to in (a) of the definition of 'injury'.
The word 'disease' appearing in (c) and (d) of the definition is defined at s 5. It is defined very broadly and includes 'any physical or mental ailment'. There is no dispute in this case that the tear to Mr Gosper's tendon and Mr Gosper's bursitis are a physical ailment and thus a disease.
As can be seen from the definition of injury, there are many different ways that a worker can establish they have suffered an injury. The injury may:
(a)be a personal injury that arises by accident arising out of or in the course of employment;
(b)be a physical ailment contracted in circumstances where the employment was a significant contributing factor; or
(c)result from the recurrence, aggravation or acceleration of a pre‑existing physical ailment where the employment was a significant contributing factor to that recurrence, aggravation or acceleration.
The concepts engaged by the definition of injury may not always allow for the identification of the date when a particular injury occurred. The ability to ascertain that date depends on when, and how, the relevant injury became symptomatic. An obvious example is where a worker has a car accident in the course of their employment and suffers a fractured leg. The injury can be readily identified as having occurred as a result of the accident, which is then the date of the injury. However, of course, there are more nuanced examples. A particular injury may be present, but not manifest itself symptomatically, until a particular physical movement is undertaken. Also, the injury may itself be caused by an accumulation of activities, so it is not possible to discern with any precision when it occurred. Furthermore, the concept of acceleration of a pre-existing ailment within (d) of the definition may not be something which is immediately apparent to the person, so again it may not be possible to discern with any precision when the injury occurred.
I now turn to the learned arbitrator's reasons.

Reasons for decision

The learned arbitrator in the background section of his reasons set out the nature of Mr Gosper's roles with PICS. He referred to Mr Gosper's role largely consisting of driving heavy mobile plant, and when not doing so, him being engaged in other roles, which included manual handling.[13]
[13] Arbitrator's reasons [25(c)].
The learned arbitrator noted that it was not agreed between the parties how often Mr Gosper worked in these roles or the extent of the manual handling duties required in them.[14] The learned arbitrator did not resolve this dispute.
[14] Arbitrator's reasons [25(c)].
The learned arbitrator also set out the history of Mr Gosper's medical health. He referred to:
1.Mr Gosper suffering from severe headaches and neck pain in 2018,[15] and that Mr Gosper was off work between April and late October/early November 2018 for these conditions.[16]
2.Mr Gosper's evidence that he suffered from shoulder pain for about two years but had considered this was a feature of his neck pain and not a separate injury.[17]
[15] Arbitrator's reasons [25(d)].
[16] Arbitrator's reasons [25(d)(iii)].
[17] Arbitrator's reasons [37].
Mr Gosper was cross-examined as to the activities he usually undertook at home.[18] He agreed with the proposition that the sorts of duties he carried out at home required shoulder movement. However, this was the extent of the cross-examination. He was not cross‑examined on the frequency or intensity of such movements, or their proximity to the points in time when the bursitis and torn tendon were diagnosed. The learned arbitrator did not refer to this evidence in his reasons.
[18] Arbitration hearing ts 43 - ts 44.
The learned arbitrator set out the evidence regarding Mr Gosper experiencing shoulder symptoms and said there was varying evidence on this point.[19] The learned arbitrator said that the evidence suggested the earliest indication of the presence of a shoulder condition independent of Mr Gosper's neck complaints is from late 2018.[20]
[19] Arbitrator's reasons [53].
[20] Arbitrator's reasons [63].
In respect of the more recent medical assessments undertaken, the learned arbitrator noted that:
1.On 19 January 2019, after Mr Gosper had returned to work, he had an ultrasound on his left shoulder. This identified the subacromial bursitis and bursal impingement, but no other abnormal pathology.[21]
2.On 6 June 2019, Mr Gosper had an MRI on his left shoulder. This confirmed the presence of bursitis and also identified a high-grade partial tear of the subscapularis tendon.[22]
[21] Arbitrator's reasons [25(e)].
[22] Arbitrator's reasons [25(f)].
In terms of the analysis undertaken by the learned arbitrator of Mr Gosper's claim, a consistent theme was the importance of identifying the date of the alleged injuries. In this respect:
1.In the introduction, the learned arbitrator stated that uncertainty exists as to the precise date of Mr Gosper's alleged injuries. The learned arbitrator stated that accordingly, he was unable to determine when those injuries might have occurred and as a result, he was unable to form a view as to what circumstances and events might have caused these injuries.[23]
2.The learned arbitrator expressed the view that he first needed to determine what the relevant date of injury is.[24]
3.The learned arbitrator expressed the view that the inquiry as to the events which caused the injury can 'only be conducted once the date of injury is identified'.[25]
4.The learned arbitrator referred to the evidence not assisting him in identifying what the relevant date of injury of the bursitis might be.[26]
5.The learned arbitrator referred to his difficulty in identifying the symptoms which related to the relevant conditions frustrating his ability to identify a date of injury in respect of the bursitis.[27]
6.In identifying the possible classification of injury within the definitions in the Act, the learned arbitrator set out that this requires a date to be identified as to when the disease was contracted or became symptomatic.[28] He held that he was unable to identify any possible date of injury in respect of the bursitis.[29]
7.The learned arbitrator then concluded:[30]
Accordingly, absent an ascertainable date of injury I am unable to determine what facts I ought have regard to in order to determine Mr Gosper's case in regards to the bursitis.
8.In relation to Mr Gosper's torn tendon the learned arbitrator concluded that:[31]
Accordingly, although the period in which Mr Gosper might have torn his subscapularis tendon is narrower than the possible date range in which he began suffering from his bursitis, absent an ascertainable date of injury I am unable to determine what facts I ought have regard to in order to determine Mr Gosper's case in regards to the tendon tear.
[23] Arbitrator's reasons [3].
[24] Arbitrator's reasons [8].
[25] Arbitrator's reasons [10].
[26] Arbitrator's reasons [54].
[27] Arbitrator's reasons [55(f)].
[28] Arbitrator's reasons [59].
[29] Arbitrator's reasons [67].
[30] Arbitrator's reasons [68].
[31] Arbitrator's reasons [90].
In conclusion, the learned arbitrator found as follows:
92.There is no dispute that Mr Gosper suffered from shoulder pathology, including a torn subscapularis tendon and shoulder bursitis.
93.However, in my opinion, in failing to articulate or lead evidence that might support findings as to when he first suffered these injuries Mr Gosper has failed to prove that it is more likely than not that he has suffered an injury caused by his employment.
94.This is because no factual inquiry into the relationship between these injuries and his employment can begin absent knowing what evidence is to be assessed. Such an inquiry requires a starting point. That starting point is the date of injury.
Given these findings, the learned arbitrator said that it was not necessary to address the evidence of Mr Gosper's duties whilst on site or the time he spent on site.[32]
[32] Arbitrator's reasons [95].
The learned arbitrator also referred to the requirements of s 178 of the Act which requires, amongst other things, a person claiming compensation to identify the date and place of where the injury occurred.[33]
[33] Arbitrator's reasons [26] and [27].

Analysis

Mr Gosper's appeal

I will commence by addressing s 178 of the Act. Section 178(1)(a) provides that proceedings for recovery under the Act of compensation for an injury are not maintainable unless the requisite notice as set out in s 179 of the Act has been given. Section 178(2)(c) requires that notice to state:
the date and place at which the injury occurred …
Furthermore, s 178(1)(b) requires that the claim for compensation with respect to such injury is made within 12 months from the occurrence of the injury. The failure to make a claim within that 12 month period is not however fatal to a worker's claim. Section 178(1)(d) provides that a failure to make the claim within time is not a bar to the claim if there is no prejudice to the employer, or the failure was occasioned by mistake, absence from the State, or other reasonable cause.
I do not consider the requirements of s 178 mandate that a worker must prove the date the injury occurred in order to succeed in their claim. Rather, in my view, the purpose for the requirements in s 178 is to ensure sufficient detail is given to an employer, within sufficient time, to enable the employer to assess the claim made. Understood in this way, the requisite notice achieves procedural fairness. The notice procedure also provides an employer with some degree of certainty as to the extent of the claims it faces, although not the same degree of certainty which a strict limitation period provides.
Furthermore, in my view, there is no absolute requirement that a worker must prove the date that they suffered the relevant injury in order to demonstrate the existence of an injury within the definition at s 5 of the Act. It must be remembered that definition is directed to the cause of the injury, not the date it is suffered. Once it is accepted that a worker has suffered an injury, how that injury was caused very much depends upon the circumstances. In some cases, the cause (and date) of injury will be readily apparent; in others it will not.
Where the cause is not readily apparent, as was the case here, proof of the cause will most likely depend upon the overall circumstances. This is what is commonly known as a circumstantial case. As the Court of Appeal recently observed in BWS v ARV [No 2]:[34]
In considering a circumstantial case all the circumstances are to be considered and weighed in deciding whether the relevant inference is made out. The evidence is not to be looked at in a piecemeal fashion.
[34] BWS v ARV [No 2] [2021] WASCA 62 [56].
With a circumstantial case, those matters which are relevant to an assessment as to how an injury occurred include the nature of the work activities carried out by the worker, and the use made by the worker of the injured body part in their personal life. So, for example, if a worker was using the injured body part at work much more frequently and intensely compared to their personal life, that may well be a persuasive factor pointing to it being more likely that the injury resulted from, or was contributed to by, those work activities.
Accordingly, in my view, the extent to which the work undertaken by Mr Gosper involved the use of his left shoulder, and the intensity and duration of such use, are relevant circumstances in assessing Mr Gosper's claim. So is an assessment of the activities Mr Gosper was undertaking in his personal life. These are not peripheral matters. The learned arbitrator did not make any findings regarding such activities.
PICS submitted that although the learned arbitrator's reasons for decision were not expressed as well as they could be, what the reasons in effect reveal is that the learned arbitrator had not been able to identify any point in time that he could then relate employment as being a cause of the injuries.[35]
[35] ts 26.
However, in my view, as I have explained above, the consistent theme in the learned arbitrator's reasons was that it was necessary for Mr Gosper to prove the date of injury for each of the two identified injuries. The learned arbitrator, in his conclusion, makes clear that in his view the starting point for his assessment is the date of the injury and without that, there can be no factual inquiry in relation to the injury suffered and its possible connection to Mr Gosper's employment.

In my view, the learned arbitrator made an error of law in finding that because Mr Gosper could not identify when he first suffered his injuries, Mr Gosper had failed to prove that it is more likely than not that he suffered an injury caused by his employment.[36] As I have explained, I do not regard the Act as mandating that a worker must establish the date of injury in order to establish their claim. Furthermore, in a circumstantial case such as this, that the date of injury is not readily identifiable is a relevant circumstance, however it is not a circumstance that is determinative of Mr Gosper's claim.
[36] While the arbitrator expressed his findings throughout the reasons in differing language, this is the ultimate finding as appears at [93] of the arbitrator's reasons.
Accordingly, in my view, Mr Gosper has made out his appeal and it is in the interests of justice that he be granted leave to appeal. I now turn to PICS's contention that the learned arbitrator's decision can be upheld on other grounds.

PICS's notice of intention to take part in the appeal

PICS's notice of intention identified other grounds for upholding the learned arbitrator's reasons as follows:
There was no evidence or insufficient evidence to allow the learned Arbitrator to find that [Mr Gosper] had sustained an injury as defined in the [Act].
As this was explored during the course of argument, PICS's counsel made clear that PICS relied on the learned arbitrator's findings as to the evidence as set out in the reasons.[37]
[37] ts 36.
There are obvious limitations to the learned arbitrator's findings. First, the learned arbitrator did not make any findings regarding Mr Gosper's work duties. Second, the learned arbitrator did not make any findings regarding the nature of Mr Gosper's personal activities outside of work.
As I have explained, Mr Gosper's activities at, and away from, work are relevant circumstances in an assessment of his claim. For me to now conclude that the learned arbitrator's dismissal of Mr Gosper's claim is still justifiable by reference to the learned arbitrator's other findings, is to assess a circumstantial case with only part of the relevant pieces being in place. That is the antithesis of a circumstantial case.
I will start by considering the position in respect of the tear of the tendon.

Tendon tear

The learned arbitrator found that the best he could conclude is that the tear occurred sometime between the ultrasound on 19 January 2019 and the MRI on 6 June 2019.[38] Accordingly, he accepted there was a tear and that it occurred over an approximate five and a half month period. There is therefore a fixed period in which the tear occurred.
[38] Arbitrator's reasons [89]; see also [25(e)] and [25(f)] regarding the precise date of the ultrasound and the MRI.
The learned arbitrator found that:[39]
… there is no evidence of any significant change in Mr Gosper's symptoms of shoulder pain which might serve to differentiate between the symptoms he experienced as a result of the bursitis and any symptoms he experienced as a result of the tear to his subscapularis tendon that might serve to highlight when the tear occurred.
[39] Arbitrator's reasons [76].
The learned arbitrator also referred to the report from Dr Patel dated 12 December 2019 which stated that:[40]
… there is no clear triggering injury that resulted in his shoulder injury.
[40] Arbitrator's reasons [74]; consolidated book of documents, pages 56 ‑ 57.
The learned arbitrator also found that Mr Gosper's submission that there was an identifiable incident that caused the tear is not a submission consistent with the evidence.[41] This finding however must be looked at in the context of the preceding paragraphs, namely [84] and [85] of the reasons, where the learned arbitrator refers to a closing submission made by Mr Gosper that the tendon was caused by an accident over the period 6 March 2019 to 13 March 2019.
[41] Arbitrator's reasons [87].
That there was no significant change in Mr Gosper's symptoms, and that there was no evidence of any particular incident which caused the injuries, are matters which are relevant to an assessment whether or not Mr Gosper could establish the tear in his tendon was an injury within s 5. However, in my view they do not compel the result that the tear did not constitute an injury within the s 5 classification.
The injury occurred over a fixed period of five and a half months. With due respect to PICS, in my view, the nature of work undertaken by Mr Gosper over that period, its intensity, duration and the extent it involved the use of his left shoulder, must be a relevant circumstance in the assessment of Mr Gosper's claim. The same applies to Mr Gosper's personal life, although the evidence in that respect is limited.
A pertinent example of the difficulties associated with proceeding in the manner in which PICS suggests is illustrated by Dr Patel's report dated 12 December 2019.[42] As the learned arbitrator noted, Dr Patel said in that report there is no clear triggering injury that resulted in the shoulder injury.[43] However, Dr Patel also said:
In view of his work as a Heavy Machine Operator and the absence of any strenuous activities in his personal life, both [Mr Gosper] and I agreed that the new injuries were likely to be a work‑related injury and at this stage [Mr Gosper] decided to open a Worker's Compensation claim for this injury.
…
Mr Gosper reports no significant strenuous or repetitive activities in his personal life, but both represent significant aspects of his work role. This, together with absence of any acute injury in both his occupational and personal life, lead to my conclusion that, on consideration of the available information, his shoulder injury was likely to have developed as a result of, or within the course, of his employment.
[42] Consolidated book of documents, pages 56 - 57.
[43] Arbitrator's reasons [74].
This analysis by Dr Patel, irrespective of whether Dr Patel's conclusions are correct, illustrates how a worker's activities at work, and in their personal life, are relevant factors in the assessment of a circumstantial case.
In written submissions, PICS submitted that the learned arbitrator held that he was unable to conclude that Mr Gosper had led sufficient evidence to prove that the tendon tear was an injury within the definition of injury in the Act.[44] However, this finding by the learned arbitrator followed immediately after his finding that:[45]
… absent an ascertainable date of injury I am unable to determine what facts I ought have regard to in order to determine Mr Gosper's case in regards to the tendon tear.
[44] Paragraph 22 of PICS's written submissions; arbitrator's reasons [91].
[45] Arbitrator's reasons [90].
Therefore, the finding to which PICS refers was predicated on the earlier finding that without there being an ascertainable date of injury, the learned arbitrator was unable to determine what facts he ought have regard to determine Mr Gosper's case. Accordingly, the finding to which PICS refers is not one that arises from a review by the arbitrator of the entirety of the relevant evidence.
As an alternative submission, PICS submitted that the finding on which it relies:[46]
… could have been reached in any event as a result of a consideration of the totality of the evidence, (see paragraph 9 above) which did not allow any identification of an event or events in the course of the employment which would or could have caused the tendon tear.
[46] Paragraph 23 of PICS's submissions.
For this submission to succeed, PICS would need to demonstrate that the dismissal of Mr Gosper's claim was justified by the totality of the evidence.
The submission relied on the evidence referred to at par 9 of PICS's submissions. The material aspects of par 9 seem to be that:
1.Mr Gosper was not able to identify an activity or activities which have materially contributed to his injury.[47]
2.Mr Gosper did not give evidence about any particular task or tasks that he was required to perform which he identified as causing his shoulder injury.[48]
[47] Paragraphs 9.2, 9.4, and 9.5 of PICS's submissions.
[48] Paragraph 9.8 of PICS's submissions.
There does appear to be a tension between PICS's reliance on the matters referred to in par 9 of the submissions, and PICS's concession in oral argument that its contention point arose from the learned arbitrator's findings, not the evidence.[49] However, for present purposes, it does appear that the matters which I have set out at [59] above are consistent with the learned arbitrator's findings.[50]
[49] ts 36.
[50] See arbitrator's reasons [56].
In any event, the matters referred to at par 9 of PICS's submissions only address part of the evidence in the arbitration. They are directed to Mr Gosper not being able to identify any particular task or activity which caused his injuries. However, this does not address what Mr Gosper's work activities were in an overall sense, compared to the activities in his personal life.
While the matters which PICS raises are relevant circumstances in the consideration of Mr Gosper's case, they are not determinative. For PICS to succeed on its contention point, it would need to demonstrate that matters pertaining to Mr Gosper's work and personal life could not affect a finding as to whether he suffered an injury within the meaning of the Act. For the reasons already explained, such matters must be relevant to the issue of what caused Mr Gosper's injuries and thus are capable of affecting the ultimate question as to the cause of his injuries.
For these reasons overall, in my view, the finding that the tear in Mr Gosper's tendon was not an injury within the characterisation of s 5, is not sustained by the limited findings which the learned arbitrator otherwise made.
Accordingly, PICS's contention is not made out in respect of the torn tendon.

Bursitis

In my view, the position regarding the bursitis is not as clear, given there is not a defined period within which that injury was suffered.
Similarly to the position in relation to the torn tendon, in written submissions, PICS referred to the learned arbitrator's finding that he was unable to conclude that Mr Gosper had led sufficient evidence to prove that the bursitis is an injury within the definition of injury in the Act.[51] However, this finding by the learned arbitrator followed immediately after his finding that:[52]
… absent an ascertainable date of injury I am unable to determine what facts I ought have regard to in order to determine Mr Gosper's case in regards to the bursitis.
[51] Paragraph 16 of PICS's written submissions; arbitrator's reasons [69].
[52] Arbitrator's reasons [68].
Therefore, the finding to which PICS refers was predicated on the earlier finding that without there being an ascertainable date of injury, the learned arbitrator was unable to determine what facts he ought have regard to determine Mr Gosper's case. Accordingly, the finding to which PICS refers is not one that arises from a review by the arbitrator of the entirety of the relevant evidence.
As an alternative submission, PICS submitted that the same finding:[53]
… could have been reached on the basis that the evidence in total did not allow the Arbitrator to find that any such injury (bursitis) had been caused in circumstances that met the definition of 'injury' required under the Act.
[53] Paragraph 17 of PICS's submissions.
In support of this submission, PICS again referred to those matters set out at par 9 of their submissions.
As I have explained in respect of the torn tendon claim, for this submission to succeed, PICS would need to demonstrate that the dismissal of Mr Gosper's claim in respect of his bursitis was justified by an assessment of all of the evidence. However, the learned arbitrator did not consider all of the evidence.

Furthermore, Mr Gosper made the following submission at the appeal hearing:[54]
If it's in the same shoulder, I think one does support the other, that there was something going on there. But I think they're related. I know I've got them as possibly two separate identities, but to have them in the same shoulder - no bursitis, never had a history of bursitis in any other joints.
[54] ts 39.
In my view, if an arbitrator found that the activities undertaken by Mr Gosper at work were a significant contributing factor to the torn tendon, then this may be a relevant circumstance in assessing the cause of the bursitis, depending on the ultimate finding made as to the location of such injuries. To explain, that one particular injury is caused by work activities, may be a relevant circumstance in assessing whether a second injury to a similar part of the body was also caused by those same activities.
Overall, when regard is had to the limited findings made by the learned arbitrator, and the potential for a nexus between the causes of the torn tendon and the bursitis, in my view the dismissal of the bursitis claim is not sustained by the limited findings made by the learned arbitrator.
Accordingly, for these reasons, I do not allow the contention point in respect of the bursitis claim.

Additional matter

For completeness, I should address one final matter, which concerns the workplace at which Mr Gosper says he suffered the alleged injuries. The claim form identifies the relevant address as being the Brockman 2 mine site.[55] However, as Mr Gosper made clear during the appeal hearing, his position is that he suffered the injuries while working at the Brockman 4 mine site.[56] This is where he spent the predominant amount of his time at work. As I understand it, Mr Gosper designated Brockman 2 in the claim form as that was where he was working when the MRI was undertaken on 6 June 2019, which was then the date he included (wrongly) in the claim form as the date of injury.
[55] Consolidated book of documents, page 74.
[56] ts 9, 11.

Conclusion

For these reasons, I grant Mr Gosper leave to appeal and allow his appeal. I propose to order that the matter be referred for determination by a different arbitrator.
I will hear from the parties as to whether any order for costs ought be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Judge Lemonis
21 MAY 2021