Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer - [2020] NSWWCCPD 36

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36
APPELLANT:	Gradan Bathrooms Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Robert Talbot
INSURER:	Workers Compensation Nominal Insurer
FILE NUMBER:	A1-1066/19
ARBITRATOR:	Ms J Toohey
DATE OF ARBITRATOR’S DECISION:	13 September 2019, amended on 1 October 2019
DATE OF APPEAL DECISION:	12 June 2020
SUBJECT MATTER OF DECISION:	Application to rely on fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501, alleged factual error: Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, ‘current work capacity’: Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, challenges to credit findings: Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; 112 ALR 641, Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
First Respondent:
Mr T Ainsworth, solicitor
HWL Ebsworth
Second Respondent:
Ms M Smith, solicitor
Brazel Moore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination dated 1 October 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Gradan Bathrooms Pty Ltd (the employer) operated a business on the Central Coast of New South Wales, carrying out waterproof testing, and associated repairs when leaks were detected. Robert Talbot (the worker) worked full-time for the employer from 3 January 2017. He visited the premises of customers who had issues with water leaks or penetration, tested for leaks, gave quotes, and arranged for contractors to perform remedial works. He carried out banking. He spent much of his time driving a company vehicle to customers’ premises.[1]
[1] Worker’s statement 24/5/18, [9], [13]–[17], Employer’s Reply (R1 Reply), p 160.
The worker suffered an injury on 7 February 2018. He had carried out an inspection and quote at a customer’s residence. He was parked on a steep incline on a day that was very windy. He stated that he climbed into the driver’s seat of his vehicle, placed the testing equipment, laptop computer and notebooks he had used onto the passenger’s seat, and applied pressure to close the driver’s door. He said the door swung violently towards him, striking his right elbow and crushing it against the door frame.[2] He said he reported the injury to the employer’s administration officer by telephone on the afternoon it happened.[3]
[2] Worker’s statement 24/5/18, [68]–[74].
[3] Worker’s statement 24/5/18, [99]–[100].
The worker said that he continued working after the incident. He saw his general practitioner Dr Arndt on 11 February 2018. An x-ray on 12 February 2018 did not show a fracture and he carried on working. The worker stated that Dr Arndt was uninterested in treating a workers compensation matter.
The worker furnished a resignation to Daniel Chojnacki, a director of the employer, by email on 5 March 2018.[4] The worker stated that Mr Chojnacki travelled to Sydney to discuss the resignation, and on about 21 March 2018, it was agreed on a handshake that he would not leave the employer.[5] The worker saw another general practitioner, Dr Kordi, on 24 April 2018 as the right elbow remained swollen and painful. The worker stated that on 24 April 2018 he told Mr Chojnacki that he was going to lodge a workers compensation claim, and later that day he received correspondence[6] from Mr Chojnacki that his earlier resignation was accepted. Dr Kordi arranged an ultrasound on 25 April 2018; he assessed the worker as unfit as he could not drive and lift.[7] The worker was requested to finish up on 26 April 2018.[8] The worker was off work from that time.
[4] R1 Reply, p 204.
[5] Worker’s statement 21/6/19, [68]–[70], Application to Admit Late Documents (AALD) 27/6/19, p 12.
[6] R1 Reply, p 202.
[7] Worker’s statement 24/5/18, [83]–[86], [92]–[95].
[8] R1 Reply, p 202.
It is not controversial that the employer did not, at the relevant time, hold a policy of workers compensation insurance for its liability under the New South Wales legislation. The worker made a claim against the Workers Compensation Nominal Insurer (the insurer),[9] which accepted liability and made payments of weekly compensation and medical expenses. The insurer issued a Notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act), dated 8 February 2019, requiring reimbursement from the employer of moneys the insurer had paid, in the sum of $57,562.86.[10] The employer, in these proceedings, seeks determination of its liability in respect of this payment pursuant to s 145(3) of the 1987 Act. On 3 April 2019, the Commission made orders giving the employer leave to join the worker as a party to the proceedings.
[9] R1 Reply, pp 152–155.
[10] Miscellaneous Application, pp 16–21.
An arbitration hearing was held on 31 July 2019 and 26 August 2019. Mr Macken appeared for the employer, Mr Saul for the insurer and Mr Young for the worker. Oral evidence was given by the worker, Mr Chojnacki and Mr Mineo. Mr Mineo was a friend of the worker, who the employer alleged had provided the worker with work subsequent to the injury. The various legal representatives addressed the Arbitrator, who reserved her decision. The Commission issued a Certificate of Determination dated 13 September 2019, and an Amended Certificate on 1 October 2019, both accompanied by reasons.[11]
[11] Gradan Bathrooms (t/as Megasealed Central Coast) v Workers Compensation Nominal Insurer (ICare) & Robert Talbot [2019] NSWWCC 303 (reasons).
The decision made findings in the worker’s favour on ‘injury’, substantial contributing factor, incapacity and the need for medical treatment as a result of the injury. The Arbitrator ordered that the employer reimburse the insurer the sum of $57,562.86 pursuant to s 145(4) of the 1987 Act. This appeal is brought against those findings and orders.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The employer, in its initial submissions in support of this appeal, submitted the appeal should be dealt with by way of an oral hearing. The reasons it gave in support of this submission were:
(a)    at that time a transcript of the arbitral proceedings was not available;
(b)    the proceedings, involving s 145 of the 1987 Act, were of “an unusual nature”, and
(c)    the employer sought leave to rely on fresh evidence on the appeal.[12]
[12] Employer’s submissions, [3].
The insurer and the worker both submit the appeal can be determined solely on the basis of the written material and that an oral hearing is unnecessary. The worker submits there is nothing unusual about the appeal. The worker submits an oral hearing is not necessary to deal with whether the Arbitrator’s findings on credit and incapacity were open to her. He submits the fresh evidence application is opposed and should not succeed.[13]
[13] Employer’s submissions, [4], worker’s submissions, [2.3].
The employer lodged further submissions on receipt of the transcript. In these it did not return to the topic of an oral hearing, but did submit that the Presidential member dealing with the appeal should listen to the recording of the evidence before the Arbitrator.[14] The absence of transcript is no longer a factor. The issues on the appeal are of a type that are regularly encountered. The employer has not identified what submissions it seeks to make regarding the fresh evidence that cannot be adequately addressed in writing. It addresses the fresh evidence in its written submissions.[15] Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, I am satisfied that the appeal can be determined on the basis of the 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.
[14] Employer’s further submissions, [5].
[15] Employer’s submissions, [5].

THRESHOLD MATTERS

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

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

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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,[16] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[17] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[18]) to the nature of the appeal process 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’.”[19]
[16] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[17] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[18] [1996] HCA 140; 140 ALR 227.
[19] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[20] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[21]
“… 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.”[22]
[20] [2017] NSWWCCPD 5, [67].
[21] [2001] FCA 1833, [28].
[22] Raulston, [20].
In Northern NSW Local Health Network v Heggie[23] 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”.[24]
[23] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[24] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[25] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[26]
[25] [2020] NSWCA 54 (Hill).
[26] Hill, [20].

THE ARBITRATOR’S REASONS

References to the reasons are to those accompanying the Amended Certificate of Determination dated 1 October 2019.
The Arbitrator briefly described the nature of the proceedings, the issues between the parties, and the procedural background to both the proceedings and the arbitral hearing, in a fashion that is not the subject of dispute on this appeal.[27] The Arbitrator summarised the statement evidence of the worker and Mr Chojnacki.[28] In the course of this she referred to the oral evidence of these witnesses when being cross-examined.[29] She described the statement evidence of Mr Mineo and referred to his evidence in cross-examination.[30] She summarised the medical evidence.[31]
[27] Reasons, [1]–[15].
[28] Reasons, [18]–[46]
[29] Reasons, [43]–[46].
[30] Reasons, [47]–[49].
[31] Reasons, [50]–[78].
The Arbitrator referred to the worker’s evidence that he had no previous injury to his right elbow and said “the medical records indicate otherwise”. Records from Dr Arndt on 25 February 2008 referred to “painful right elbow since accident”. She noted reference to an employment injury on 28 October 2016. She referred to material from Dr Daoud that referred to injury to the “right shoulder and elbow and wrist”. The worker was hospitalised from 3 to 11 November 2016 for a “right forearm crush injury”. In an email on 11 November 2016 the worker described his arm as “too sore to use in any capacity”.[32]
[32] Reasons, [79]–[82].
The Arbitrator referred to bank statements produced by the worker. The statements were in the name of the worker’s wife. The Arbitrator referred to two deposits in June 2017, of $1,000 and $400, by MG Plumbing. This was a business name used by Mr Mineo. The Arbitrator noted the evidence of the worker and Mr Mineo that these payments represented reimbursement by Mr Mineo for repairs to a rental property that the worker rented from Mr Mineo.[33]
[33] Reasons, [83]–[84].
The Arbitrator summarised the submissions by the employer’s solicitor. Much of these went to whether the worker suffered injury as alleged. The finding of ‘injury’ in the worker’s favour is not challenged on appeal and those aspects do not require repeating. The Arbitrator noted a history of convictions for “Fraudulently Omit to Account” on 17 January 1983 in the Canberra Petty Sessions. She noted a submission on the employer’s behalf that it was such an offence that was now alleged by Mr Chojnacki against the worker. She noted a submission that the worker had not been honest in revealing prior injuries.[34]
[34] Reasons, [86].
The Arbitrator referred to Mr Macken’s submission that the worker did not refer to injury as a reason for resigning, did not consult a doctor before resigning and only claimed to be injured after resigning. He submitted the Arbitrator would not be satisfied there was any incapacity as a result of injury. He submitted the worker had experience in retail and similar lines of work that did not involve manual labour. His capacity to earn in suitable employment was undiminished. The Arbitrator should not award weekly compensation. The Arbitrator noted a submission that the explanation of payments of $1,000 and $400 into the account the worker operated was “unsatisfactory and unconvincing”. Mr Macken submitted there were unexplained internet deposits representing payments to the worker for carrying out work. Mr Macken submitted the recoverable medical expenses would not include costs associated with carpal tunnel treatment.[35]
[35] Reasons, [89]–[92].
The Arbitrator summarised the submissions of Mr Saul on the insurer’s behalf. The “reasonably complicated” workers compensation history did not affect the worker’s credit, his injury was well documented. The insurer, in meeting the claim, took account of all the medical evidence. This included the MRI scan evidence of “severe extenthopy [sic, enthesopathy] with high grade tear”. The insurer submits the employer’s position is effectively that the claim is fraudulent, “the Briginshaw standard of satisfaction would apply” to that allegation.[36]
[36] Reasons, [94]–[95], referring to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw).
The insurer submits the only prior injury to the right elbow was that in 2008, and the evidence does not show it was lateral epicondylitis. The injury in 2016 was “essentially, an injury to the right shoulder”. Mr Saul submitted ‘injury’ should be found, there was clear pathology, and the only submission to the contrary is one that the worker is not to be believed. He submitted the onus was on the employer to show that the injury was not sustained. If there was a finding of ‘injury’ in the worker’s favour, the onus was on the employer to show that payment of weekly payments and medical expenses was not appropriate.[37]
[37] Reasons, [95]–[99].
The Arbitrator summarised Mr Young’s submissions on the worker’s behalf. The fraud convictions in 1983 were matters of history, nothing is known about the details. Mr Chojnacki alleged fraud by the worker in November 2017. The only evidence was Mr Chojnacki’s complaint to the police. There was no evidence of fraud. Mr Young submitted the Arbitrator should accept Mr Mineo’s evidence that he did not employ the worker, and that the two payments in the banking records were reimbursement for payments made for work by others to the rented premises. On this topic, Mr Mineo’s evidence was “straightforward” and consistent with that of the worker. Mr Young submitted the worker’s evidence may have been “argumentative” but this did not detract from it.[38]
[38] Reasons, [104]–[105].
Mr Young submitted the bank account was in the name of the worker’s wife. If the employer submitted every payment into the account was for the worker’s benefit, the worker should have been asked about them. If payments into the account were to be considered income, this should have been put to the worker. He was not asked about the internet deposits. Mr Young submitted the deposits do not prove anything about the worker’s income or ability to earn. The worker’s evidence was that he answered the telephone for Mr Mineo “three or four times over about two months”. Mr Mineo said he did this as a favour to give the worker something to do.[39]
[39] Reasons, [106]–[107].
Mr Macken, in reply, submitted the onus of proof in such proceedings was “neutral”. It was akin to an inquisitorial process or a statutory assessment. The employer had no control over the payments that were made. He repeated submissions that the worker’s credit was unacceptable. He said Dr Bradshaw put few restrictions on the worker.[40]
[40] Reasons, [110]–[112].
The Arbitrator described the statutory background to the application pursuant to s 145(3) of the 1987 Act.[41] She referred to the decisions of the Court of Appeal in Raniere Holdings Pty Ltd v Daley[42] and Ballantyne v Workcover Authority of NSW.[43] She accepted the employer’s submission that her task was “akin to an inquisitorial process” or statutory assessment, and the employer did not bear an onus of proving the worker was not entitled to the compensation payments at issue.[44]
[41] Reasons, [113]–[117].
[42] [2005] NSWCA 121; 66 NSWLR 594.
[43] [2007] NSWCA 239 (Ballantyne).
[44] Reasons, [119].

The Arbitrator referred to doubts about the veracity of a claim the worker previously made on Boral. Dr Hitchen had doubted that claim. Material from Boral indicated allegations of dishonesty were made against the worker. The Arbitrator said the convictions for fraud offences in 1983 tended “to underline a history of questionable conduct”. She said the worker’s “claims and evidence should be approached with considerable caution”. An allegation that the worker concocted his injury was “serious”.[45] She quoted from the reasons of Dixon J in Briginshaw.[46] She said:
“I must feel an actual persuasion of the facts that give rise to Mr Talbot’s entitlement to compensation and be reasonably satisfied, on the balance of probabilities, that he suffered injury, and resulting incapacity and need for treatment. A finding that, in effect, Mr Talbot has fabricated the incident and resulting injury would require a high degree of satisfaction, and not reasonable satisfaction based on ‘inexact proofs, indefinite testimony, or indirect inferences’.”[47]
[45] Reasons, [120]–[122].
[46] Briginshaw, 361–362.
[47] Reasons, [124].
Whether the worker sustained injury as claimed was a live issue at the arbitration hearing. The Arbitrator discussed the evidence relevant to ‘injury’, including the medical evidence, at length.[48] She summarised the arguments on both sides.[49] She concluded she was satisfied on the probabilities that the worker “sustained the injury he claims on 7 February 2018”.[50] The Arbitrator then dealt with s 9A of the 1987 Act. She referred to some authorities on the section and the matters set out in s 9A(2) of the 1987 Act. She noted the parties had not specifically made submissions on the section. She concluded the worker’s employment “was a substantial contributing factor to his lateral epicondylitis”.[51] The Arbitrator’s findings on ‘injury’ and ‘substantial contributing factor’ are not challenged on this appeal.
[48] Reasons, [125]–[138].
[49] Reasons, [139]–[140].
[50] Reasons, [141].
[51] Reasons, [142]–[147].
The Arbitrator then dealt with whether there was total or partial incapacity as a result of the injury. She set out the relevant definitions from s 32A of the 1987 Act. She said there was no medical evidence that supported the worker’s return to pre-injury duties during the period of weekly compensation at issue. She then dealt with whether the worker was fit for ‘suitable employment’ within the definition of that term.[52] She said the relevant period of weekly compensation the subject of the s 145 certificate ran from 4 May 2018 to 21 February 2019. Dr Kordi certified there was no capacity for employment over the period. Dr Bradshaw, orthopaedic surgeon, operated on the worker’s right lateral epicondyle on 24 January 2019. Dr Bradshaw reported on 28 June 2019 that the worker “should have been able to undertake at least some workplace activities”. The Arbitrator noted that the only report of Dr Bradshaw in evidence during the period in question, referring to workplace capacity, was dated 21 June 2018. She noted that Dr Bradshaw’s comments about post-surgery capacity were “not relevant for present purposes”.[53]
[52] Reasons, [148]–[150].
[53] Reasons, [152]–[157].
The Arbitrator referred to an assessment by Dr Walls on 14 November 2018. Dr Walls described the worker as “essentially fit for one handed activity only” and “probably unsafe to drive”. The worker was right hand dominant. Dr Walls at the time thought him fit for “telephone work, some light paperwork and the like”.[54]
[54] Reasons, [158]–[159].
The Arbitrator said there was “some force” in the employer’s submission that the worker had experience in retail and sales positions, which did not involve repetitive physical activities or lifting, the activities which Dr Bradshaw recommended against. The Arbitrator discussed the nature of the restrictions placed on the worker by Drs Bradshaw and Walls, and the worker’s right-hand dominance. She said the opinions of those doctors were “in very general terms”. She said that Dr Walls saw the worker only once. Dr Bradshaw did not, in positive terms, indicate what activities the worker was capable of. The Arbitrator referred to “the undisputed seriousness of the injury”. She noted Dr Kordi’s certificates. Dr Kordi saw the worker over the relevant period on 13 occasions, on average every two to three weeks. He was in a position to assess the worker “at regular, frequent intervals”. She preferred Dr Kordi’s assessment that during the relevant period there was no capacity for employment.[55]
[55] Reasons, [160]–[163].
The Arbitrator referred to the bank statements. She said the account was a joint one in the names of the worker and his wife. It was reasonable to assume that “something like half of the entries relate to his wife”. There were “internet transfers” with no evidence regarding their meaning. The Arbitrator accepted the evidence of the worker and Mr Mineo that deposits of $1,000 and $400 were “reimbursements for work done on the rental property”. They occurred “some months before the relevant period”. The Arbitrator referred to evidence from Mr Chojnacki that Mr Mineo had said the worker worked for him “when work was available”. The Arbitrator described an arrangement between the worker and Mr Mineo, that the worker would take calls and pass on messages to Mr Mineo, as somewhat “pointless”. On the other hand, Mr Mineo said he wanted to give the worker something to do while he was off work. The Arbitrator found Mr Mineo to be “a credible witness”. She accepted the evidence of the worker and Mr Mineo. Evidence of the worker taking those telephone calls did not amount to evidence of a capacity for suitable employment and did not outweigh the medical evidence.[56]
[56] Reasons, [164]–[165].
The Arbitrator referred to an SMS message from the worker to Mr Chojnacki saying he was to start a new job in May (2018) at double the pay he had been receiving. She described this as at odds with his visits to Dr Kordi around that time, and said there was no evidence the worker earned income at that rate. The internet transfers were not at that rate. The Arbitrator said the message did not evidence actual capacity for employment. She said the totality of the evidence supported a finding on the probabilities that the worker had no current capacity for employment from 4 May 2018 to 21 February 2019. She said there was no dispute as to the rate or amount of the weekly benefit paid, and the employer was liable to reimburse the full amount.[57]
[57] Reasons, [166]–[167].
The Arbitrator made orders going to the liability for medical expenses and found the employer liable to reimburse the insurer the amount claimed in the s 145 certificate. These matters are not the subject of specific attack on this appeal.
The Certificate of Determination issued on 13 September 2019 as amended on 1 October 2019 set out the Arbitrator’s determination:
“1.     [The worker] sustained an injury to his right elbow on 7 February 2018 arising out of or in the course of his employment with the [employer].
2.     [The worker’s] employment was a substantial contributing factor to his injury.
3.     As a result of his injury, [the worker] had no current work capacity from 4 May 2018 to 21 February 2019 and required medical treatment as a consequence of his injury.
4. [The employer] is liable to reimburse the Workers Compensation Nominal Insurer (iCare) the sum of $57,562.86 pursuant to section 145(4) of the Workers Compensation Act 1987 being the sum of weekly benefits compensation and reasonably necessary medical expenses paid to [the worker].”

GROUNDS OF APPEAL

The employer raises the following grounds of appeal:
(a)     Error of the Arbitrator in the determination and assessment of the question of the [worker’s] work capacity in the relevant period. (Ground No. 1)
(b)     Error of the Arbitrator in the assessment and consideration of the evidence in particular relating to capacity (but also relating to the credit of the witnesses). (Ground No. 2)
(c)     Error of the Arbitrator in determining the matter on a basis not put to or by the parties. (Ground No. 3)

LEGISLATION

Section 145 of the 1987 Act provides:
“145 Employer or insurer to reimburse Insurance Fund
(cf former s 18C (21)–(26))
(1)     The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)     The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that—
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may—
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)     The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7)     An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”

APPLICATION TO RELY ON FRESH EVIDENCE

The employer seeks leave to rely on fresh evidence on this appeal, pursuant to s 352(6) of the 1998 Act, which provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 relevantly provides:
“Fresh evidence, additional evidence
14. Fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against will only be accepted on appeal with the leave of the Presidential member (s 352(6) of the 1998 Act). Leave will not be granted unless the Presidential member is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) that failure to grant leave would cause substantial injustice in the case.
15. If a party seeks to rely on fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against they must provide:
(a) a schedule of the fresh, additional or substituted evidence;
(b) a copy of the fresh, additional or substituted evidence;
(c) a brief outline of the fresh, additional or substituted evidence;
(d) the reasons why the fresh, additional or substituted evidence was not in the proceedings before the Arbitrator, and
(e) submissions on why the fresh, additional or substituted evidence should be admitted or rejected on appeal.”

The fresh evidence

The fresh evidence involved appears to be a print-out of a page from an internet search, from a site that describes itself as “app.pricefinder.com.au”. On its face, the document gives an address of a property, the owner’s name, an estimated price range and two transactions in the property’s sales history (by price and date). For convenience I will refer to it as the ‘sale document’. It is attached to the employer’s Application to Appeal. The employer has made no attempt to comply with Practice Direction No 6. I infer this document represents a copy of the fresh, additional or substituted evidence on which it seeks leave to rely. Contrary to the Practice Direction there is no schedule describing what it is. There is no brief outline of the document. The employer’s submission appearing below describes, to an extent, the submission the employer seeks to make on the basis of the sale document. The submission states the document could not reasonably have been obtained before the arbitration. It makes no submission about why this is so.
An initial point that should be made is that there is nothing that supports the authenticity or probative value of the document. Documents downloaded from the internet can range from documents of a persuasive and serious nature to documents that are of little or no probative value. Frequently the source of a document will help to indicate its probative value, for example documents from a government authority with responsibility for record keeping, a respected dictionary or an academic source. Allsop P in Onesteel Reinforcing Pty Ltd v Sutton referred to r 15.2 of the Workers Compensation Commission Rules 2010 (now 2011) which provides that “evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions”. His Honour stated:
“The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material …”.[58] (excluding citations)
[58] [2012] NSWCA 282, [2]–[3].
As a matter of practice, if parties seek to rely on material from the internet, the probative value of which is not readily apparent on its face, accompanying submissions should include sufficient information about its provenance to permit the Commission to assess whether the material is “satisfactory, in the probative sense”. As the other parties have not, in their submissions on this appeal, questioned whether the sale document has probative value within the terms of r 15.2, I will proceed on the basis this is not an issue.

Employer’s submissions

The employer submits that the worker and Mr Mineo gave evidence before the Arbitrator that payments made by MG Plumbing (Mr Mineo’s business), to the worker, related to work done on a property leased by the worker from Mr Mineo. The employer submits that the fresh evidence is “property transaction information” in respect of the leased property, that shows the payments were made after the property was sold by Mr Mineo on 3 May 2017. The employer submits the evidence is relevant as it goes to the credit of the worker and Mr Mineo. The employer submits the evidence was not available and could not reasonably have been obtained before the arbitration.[59]
[59] Employer’s submissions, [5].

Insurer’s submissions

The insurer opposes the employer’s application for leave. It submits the evidence was available or could reasonably have been obtained before the proceedings. It submits there is no injustice to the employer if the application is refused, but there would be injustice to the insurer if it succeeded. It submits the insurer and the worker have not had an opportunity to respond to the fresh evidence.[60]
[60] Insurer’s submissions, [6].

Worker’s submissions

The worker opposes the employer’s application to rely on fresh evidence. The asserted sale of Mr Mineo’s rental property (on 3 May 2017) predated the relevant period of weekly compensation (4 May 2018 to 21 February 2019) by a year. The worker submits the employer has given no satisfactory explanation of why the fresh evidence could not have been available before the arbitration. The worker submits that if the application succeeds, the worker would need to put on fresh evidence in reply by himself and Mr Mineo. Any oral hearing proceeding on that basis would amount to a re-hearing.[61]
[61] Worker’s submissions, [2.3(c)].

Consideration

In CHEP Australia Ltd v Strickland[62] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[62] [2013] NSWCA 351; 12 DDCR 501 (Strickland).

The power to admit fresh or additional evidence is therefore concerned with evidence that, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous.[63]
[63] Heggie, per Sackville AJA (Basten and Ward JJA agreeing), [66].
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd[64] said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)
[64] [2015] NSWWCCPD 10 (Drca), [28].
Mr Mineo stated that he was the “sole owner and operator MG Plumbing Contractors trading as ‘Budget Care Bathrooms’”, a business he operated from 1998. He stated that in 2010, he and his wife rented a rental property they owned to the worker and the worker’s wife. The couples had been friends since then. Mr Mineo stated that he had not employed the worker, given him money for professional work or labour, or lent money to him. The worker never asked him for money.[65] Mr Macken, when cross-examining Mr Mineo, asked him why MG Bathrooms paid the worker “a thousand dollars in June of 2017”. Mr Mineo responded that he “did pay him when we replaced the garage roller door on the rental property”. He said he had reimbursed the worker for the roller door, for which the worker had paid a thousand dollars.[66]
[65] Mr Mineo’s statement 8/8/19, [7]–[8], [13]–[14], [17], AALD 19/8/19, pp 1–2.
[66] Transcript 26/8/19 (T2), T2 5.29–6.21.
Mr Macken then asked Mr Mineo why MG Plumbing paid the worker “another $400 on the 26 June 2017?” Mr Mineo said he could not recall. When asked “why would MG Plumbing pay him when you rent him the property?” Mr Mineo responded: “It was for repairs on the property, would be for repairs”. Mr Macken then put to Mr Mineo that his “statement is false” and that he was paying the worker “either as a contractor or an employee”, which Mr Mineo denied.
Mr Macken cross-examined the worker along similar lines:
“Q. So Guy Mineo made payments to you as a resident of his property?
A. When we had things that needed – required to be done to the property he would reimburse us.
Q. Right. And those payments would come from Guy Mineo?
A. Of course, he was our landlord.
…
Q. Right. Well, if you made payments to him and he made payments to you, you would pay Mr Mineo through the real estate agent and he would pay you, wouldn’t he, if he had to reimburse you for anything?
A. No, we had a very close friendship/relationship where we would sometimes have works done and he would reimburse us more directly.
Q. What works?
A. Well, one was we had some doors that needed adjusting, we had a roller door that had to be replaced, we had a window that needed replacing and that was all taken care of and Mr Mineo made sure that we were reimbursed out of pocket expenses for those.
Q. Can you remember how much he paid you?
A. No.
Q. You can’t remember how much he paid you for the window? Was the window a big job?
A. No, there were no jobs that were over three or $400, that mark or maybe the roller door may have been more than that but they were very - - -
Q. How much was the roller door, do you think?
A. I can’t recall. That could’ve been probably the most expensive.
Q. Well - - -
A. It would’ve been.
Q. Well, have a guess at how much you think it was?
A. Probably around a thousand dollars.”[67]
[67] T2 23.29–24.2, 24.24–25.22.
It will be observed the two payments on which Mr Macken cross-examined were in June 2017. The internet print-out on which the employer seeks to rely relates to a property at East Gosford. The print-out describes that property as being most recently sold on 3 May 2017. It is an address at which, according to various medical and claim documents in the material, the worker previously resided. The apparent use the employer seeks to make of the fresh evidence is to argue that payments by Mr Mineo to the worker in June 2017 could not represent reimbursement of expenses on the rental property, as it was disposed of before that date. It should be noted the alleged payments by Mr Mineo, and the sale of the property, occurred well before the relevant injury on 7 February 2018. This disputed evidence did not go in any direct way to proof of the worker’s earnings, or ability to earn, during the period of incapacity at issue.
The employer clearly approached the cross-examination of the worker and Mr Mineo on the basis the two payments in June 2017 were relevant. It was raised in cross-examination, with some vigour, with both of them. It was put to both of these witnesses, on the strength at least in part of the two payments, that their evidence was false.[68] It was known before the arbitration hearing that the worker and Mr Mineo were friends, and that the worker and his wife had rented Mr and Mrs Mineo’s rental property since 2010.[69] It was known to those who inspected the banking records that the payments of $1,000 and $400 were made in June 2017.The relevant injury occurred on 7 February 2018, about six months after the last date when the property, according to the sale document, changed hands.
[68] T2 6.31–33, 32.10–18.
[69] Mr Mineo’s statement, [13]–[14], AALD 19/8/19, p 2.
The employer has made no submissions going to why the fresh evidence, assuming it was otherwise admissible, could not with reasonable diligence have been obtained for use at the arbitration hearing. Without other explanation, there is no suggested reason why such an internet search could not have been carried out just as readily, at little or no cost, before the arbitration as subsequently. One is left to speculate. The employer carries the onus of establishing that the discretion should be exercised in its favour. It may be the employer’s argument that it could not have known until after the arbitration that such evidence would be relevant. This is not a self-evident truth. Given the nature of the attack the employer sought to make on the evidence of the worker and Mr Mineo, it arguably would have represented nothing more than diligent preparation. That does not need to be further explored, as the employer has not sought to rely on that submission.
It should also be noted, as the worker submits, that the employer did not, after this evidence was given by the worker and Mr Mineo, seek an adjournment to further explore the matter.[70] To simply perform an internet search, of an address that appears frequently in documents in the medical and claims files, would on its face have involved little in the way of delay.
[70] Worker’s submissions, [2.5(a)].
It follows that the employer has not succeeded in bringing itself within the first of the two threshold questions identified in Strickland.
This leaves the second threshold question, whether failure to grant leave would cause substantial injustice. This involves, consistent with Strickland and Heggie, a consideration of whether the evidence would cause a different result to emerge, whether it would be likely to demonstrate that the Arbitrator’s decision was erroneous.
The employer, dealing with its application for leave, refers to the evidence of the worker and Mr Mineo that the payments of $1,000 and $400 “related to work done on the property”. It submits “those payments were made after the property had been sold by Mr Mineo”. It submits the relevance of the evidence is that “it goes to the credit of the [worker] and Mr Mineo”.[71] The sale document does not identify Mr Mineo as a party to the sale on 3 May 2017. In the absence of evidence to the contrary, it could be reasonably inferred that the sale of the property, on its face the first since 2010, involved Mr Mineo. The date of 3 May 2017 is not identified with precision. It may have been the date of settlement. It may have been the date when the sale was registered by a government or local government body. For the purpose of the leave application I will assume nothing turns on this.
[71] Employer’s submissions, [5].
The employer’s application, based on the second of the threshold questions, relies on the proposition that the evidence is relevant to the credit of the worker and Mr Mineo. The worker and his wife were tenants in the property from 2010. The couples were friends. Based on the sale document the sale occurred in May 2017 and the sums of $1,000 and $400 were paid to the bank account used by the worker and his wife in June 2017. It would not be surprising if, in such circumstances, adjustments were made between the worker, his wife and Mr Mineo as landlord, of moneys that had been expended previously, when the settlement proceeds became available. The worker made a submission to this effect on this leave application.[72] This is not to say that this occurred. There is no evidence that it did. The point is that whether there was any reasonable explanation, for the payments occurring fairly shortly after the alleged sale date, was unexplored on the evidence because it was not raised.
[72] Worker’s submissions, [2.8.10(c)(i)].
Credit issues were raised in the case, which it was necessary for the Arbitrator to resolve. She resolved the issue regarding ‘injury’ in significant part by reference to contemporaneous evidence.[73] She described the evidence of the worker, regarding why he worked on after seeing Dr Arndt, as “plausible” and said that she accepted it.[74] The Arbitrator’s finding on ‘injury’ is not the subject of attack on this appeal. The Arbitrator dealt with the issue of incapacity in large part by reference to the medical evidence.[75] Dealing with the bank statements, the Arbitrator said she found the oral evidence of the worker and Mr Mineo “consistent and plausible”.[76]
[73] See the discussion in the reasons, [139]–[141].
[74] Reasons, [138].
[75] See the discussion in the reasons, [150]–[163].
[76] Reasons, [164].
The second of the threshold questions “does not direct attention to possibilities or potential outcomes”. The test is not satisfied “if the evidence is compelling and might have influenced the outcome”. In this appeal it cannot be concluded that exclusion of the fresh evidence ‘would cause’ (emphasis added) substantial injustice (see the passage from Strickland quoted at [49] above). The submission that the fresh evidence is “clearly relevant” as it goes to credit is insufficient to satisfy the second threshold question in the test in s 352(6) of the 1998 Act, as explained in Strickland.
It follows that the employer’s application to rely on fresh evidence is rejected.
I additionally note that the application under s 352(6) is a discretionary one. The worker submits, correctly, that if the fresh evidence were admitted it would probably be necessary for the worker to be placed in a position to put on evidence from himself and Mr Mineo in reply.[77] This would be associated with delay. I also note the use the employer seeks to make of the evidence goes only to credit. It is not directly relevant to a matter in issue between the parties. These matters would militate against the grant of leave, even if one of the threshold questions in Strickland was satisfied.
[77] Worker’s submissions, [2.5(b)].

GROUNDS NOS. 1 AND 2

The employer deals with Grounds Nos. 1 and 2 together. I will adopt the same approach.

Employer’s submissions

The employer says the Arbitrator accepted the evidence of capacity in the certificates of Dr Kordi, the general practitioner. It submits Dr Kordi’s opinion in this regard was a “bare ipse dixit”. It submits Dr Kordi’s opinion is “inconsistent with the other medical evidence”. It submits the opinion is inconsistent with what the worker said in his message in May 2018, saying he was to start a new job in May 2018 at “double the pay”.[78]
[78] Employer’s submissions, [8]–[10].
The employer submits the evidence from Dr Bradshaw and Dr Walls was “more considered” than that of Dr Kordi. The evidence of those doctors was that the worker had a capacity for employment with restrictions. The worker had experience in sales and worked without restriction until his resignation. There should have been a finding that no weekly compensation was payable.[79]
[79] Employer’s submissions, [11].
The employer referred to the bank records and the items marked “internet transfer”. It submits there was no evidence actually dealing with these payments. It submits it was not open to the Arbitrator to draw the inference at [164] of the reasons, that in the joint account “something like half of the entries relate to [the worker’s] wife”.[80]
[80] Employer’s submissions, [12].
The employer’s supplementary submissions essentially raise the same points, but with transcript references.

Insurer’s submissions

The insurer submits the findings made by the Arbitrator were available to her on the evidence.[81]
[81] Insurer’s submissions, [11].
The insurer submits the issue was whether the payments made were “compensation in accordance with this Act” (s 145(5) of the 1987 Act), referring to Ballantyne. The insurer submits there was no evidence or submission that payments made to the worker, which the insurer sought to recover, were not compensation pursuant to the 1987 Act. The insurer submits the appeal generally must fail.[82]
[82] Insurer’s submissions, [24].
The insurer alternatively submits that if the Arbitrator was required to consider what liability resulted from an injury, the employer did not raise a dispute pursuant to s 33 of the 1987 Act (effectively conceding at least partial incapacity). This was sufficient for the Arbitrator to reach her decision.[83]
[83] Insurer’s submissions, [25].
The insurer alternatively makes submissions on the basis that the Arbitrator was required to make a work capacity decision. The insurer submits the employer’s argument is that the worker intended to perform work, had previous sales type experience, and was said by various doctors to have the capacity to perform work with restrictions. The insurer submits the employer’s argument is that the Arbitrator should have reached a different conclusion as to work capacity. This, it is submitted, is the wrong question. The question is whether her decision was available on the evidence. The insurer submits that if the worker had limited capacity for work, there was no evidence of the ability to earn in suitable employment. It submits the onus was on the employer, if it asserted there was current work capacity at any relevant time, to identify such suitable employment.[84]
[84] Insurer’s submissions, [26]–[31].
The insurer submits a rebuttable presumption was created by the insurer’s acceptance of liability and payment of compensation. If the employer sought to rebut the presumption, it needed to adduce evidence of an actual and quantifiable ability to earn. There was no such evidence.[85]
[85] Insurer’s submissions, [31].
The insurer refers to the employer’s submissions on credit. It submits the employer points out alleged inconsistencies but does not identify error of fact, law or discretion. It was the function of the Arbitrator to assess the credibility of the witnesses.[86]
[86] Insurer’s submissions, [33]–[34].

Worker’s submissions

The worker refers to the Arbitrator’s finding of total incapacity during the relevant period; the Arbitrator carefully considered the statutory definitions in s 32A of the 1987 Act and the available medical evidence. The employer is critical of the Arbitrator’s reliance on Dr Kordi’s certificates. The Arbitrator also referred to the opinion evidence of Drs Bradshaw and Walls. She had difficulty with the views of Drs Bradshaw and Walls, as both of these doctors found evidence of significant injury and failed to indicate the extent of any capacity for work. This was contrasted with Dr Kordi, who assessed the worker regularly during the period and assessed him as having no current work capacity. The Arbitrator’s analysis was thorough, was open to her, and did not involve error.[87]
[87] Worker’s submissions, [2.8.5]–[2.8.8].
The worker’s submissions refer to the attacks on the credit of the worker and Mr Mineo. The worker submits the Arbitrator’s findings were open on the evidence. She dealt with the employer’s various submissions on credit issues. She found Mr Mineo to be “credible” and accepted the evidence of he and the worker. The Arbitrator referred to the worker’s SMS message sent around 26 April 2018 (this is the message referred to at [36] and [68] above). She said there was no evidence the worker ever earned at that rate. The Arbitrator queried whether the message may have been bravado. She said there was no evidence to suggest the worker gained employment during the relevant period.
The bank statements were in the name of the worker’s wife. The employer did not seek to distinguish between deposits for the worker and those for his wife. The worker, referring to Ballantyne, submits the Arbitrator’s function was to determine, on the probabilities, whether the payments of compensation made were in accordance with the Act. There was not an onus on the worker to disprove that each internet deposit was to him for work done. There was no evidence that the “internet deposits” were income. [88]
[88] Worker’s submissions, [2.8.9]–[2.8.10(c)].

Consideration

The insurer makes its submissions on these grounds on alternative bases.[89] The distinctions that the insurer draws are not completely clear. They appear to be based on what the author drew from the decision in Ballantyne. The third of the alternative bases deals with the weekly payments on the basis that the Arbitrator needed to be satisfied the periods and rates at which weekly compensation was paid were appropriate. This was the basis on which the Arbitrator approached the matter. It also is consistent with how counsel for the parties, including the insurer, dealt with the matter before the Arbitrator. Having made submissions on ‘injury’ the insurer’s counsel said “the question then becomes capacity”.[90] He submitted to the Arbitrator:
“So that is the case and you have to assess it to determine whether the weekly compensation payments.. (not transcribable 1:28:28).. are appropriate and with great respect, they are, and indeed, having made those payments in good faith in response to the claim and supported by some medical evidence my client’s entitled to have those payments reimbursed.”[91]
[89] Insurer’s submissions, [24]–[26].
[90] T2 61.12.
[91] T2 62.9–15
The transcript of some of what follows is affected by difficulties in transcription. There is reference to “PIAWE” and the appropriate figure for that calculation, which would be consistent with proof of the weekly entitlement.[92] It is appropriate to deal with the issue on the same basis as that on which the parties conducted the arbitration hearing.
[92] T2 63.34–64.11.
The employer’s submissions in support of Grounds Nos. 1 and 2 essentially constitute an attempt to re-argue points that it argued unsuccessfully at the arbitration hearing. Such an approach is inconsistent with the principles that govern appeals pursuant to s 352(5) of the 1998 Act (see [13] to [17] above). The various factual errors that the employer seeks to establish are not made out in any event, for reasons that follow.
The employer raises the Arbitrator’s preference for the opinion on work capacity of Dr Kordi, over the views of Drs Bradshaw and Walls. The Arbitrator’s reasons summarised, at length, the evidence from Dr Kordi,[93] Dr Bradshaw[94] and Dr Walls.[95] The Arbitrator quoted the relevant definitions in s 32A of the 1987 Act, dealing with ‘work capacity’ and ‘suitable employment’.[96] Evidence from those doctors relevant to work capacity was additionally set out at [151]–[159] of the reasons. She noted Drs Bradshaw and Walls considered the worker had “some capacity”.
[93] Reasons, [56]–[61].
[94] Reasons, [62]–[74].
[95] Reasons, [75]–[78].
[96] Reasons, [148]–[149].

The Arbitrator set out her reasons for preferring the views of Dr Kordi. She said she had a difficulty with the opinion of Dr Bradshaw, who did not specify what he thought the worker might be capable of and “did not indicate the extent of any capacity in either report”. Dr Bradshaw said the worker had “very severe” pain and a “high degree” of functional impairment.[97] The Arbitrator noted Dr Walls saw the worker only once, described a “very significant injury” and considered the worker fit for one-handed activity, avoiding use of his dominant right arm. The doctor suggested telephone work or light paperwork.[98] The Arbitrator referred to Dr Kordi’s close involvement in the worker’s treatment over the relevant period of weekly payments, assessing him every two to three weeks. She said the opinions of Drs Bradshaw and Walls regarding work capacity were “in very general terms without indication of the actual extent of capacity”.
[97] Reasons, [161].
[98] Reasons, [162].
The Presidential decision in Wollongong Nursing Home Pty Ltd v Dewar[99] is regularly applied in the Commission, dealing with issues regarding whether or not workers are “able to return to work in suitable employment” within the meaning of s 32A of the 1987 Act. In that matter Roche DP said:
“Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment [in s 32A]. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
And:
“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.[100] (emphasis added)
[99] [2014] NSWWCCPD 55 (Dewar).
[100] Dewar, [60] and [63].
The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity. The Arbitrator did not specifically refer to Dewar, but her reasoning, and the basis of her rejection of Drs Bradshaw and Walls on this point (see [85] above) was consistent with the application of these accepted principles.
The employer, on appeal, makes an additional submission that the opinion of Dr Kordi amounted to a ‘bare ipse dixit’.[101] Dr Kordi’s views on capacity were in the form of a bare ipse dixit to the extent that the pro forma WorkCover certificates provided[102] essentially called for such an approach. There was some other information that the pro forma document called for and Dr Kordi filled out the certificates appropriately. This included how the injury related to work, diagnosis, and whether there was any current capacity for employment. The certificates were not the only material from Dr Kordi. The doctor’s initial correspondence to the insurer dated 24 May 2018, which dealt with the nature of the injury, was in evidence, as were the doctor’s clinical notes.[103] It was appropriate that material from the doctor be read as a whole.[104] The material from Dr Kordi, including his certificates, had probative value. A decision regarding whether a worker had ‘current work capacity’ was to be made on the whole of the evidence.[105] On the evidence as a whole, it was open to the Arbitrator to accept the opinion of Dr Kordi that there was ‘no current work capacity’.
[101] See generally, South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [130]–[132].
[102] Insurer’s Reply, pp 101–142.
[103] Insurer’s Reply, pp 9–10, 18–26.
[104] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [92].
[105] Dewar, [49].
The employer’s point, about the message from the worker regarding another job, was argued before the Arbitrator and rejected for short reasons, which were properly available, at [166] of the reasons.
The employer’s argument regarding the banking records and items marked “internet transfer” was dealt with and rejected by the Arbitrator. The Arbitrator correctly observed that there was no evidence as to the meaning or source of these transfers, or for whose benefit the payments were made.[106] The worker submits correctly that there is no evidence the transfers were income.[107] The worker’s counsel at the arbitration hearing conceded that payments from the employer appeared in the banking records, and submitted “… if Mr Macken wished to show that every deposit was for the worker then, with respect, he should’ve asked that”.[108]
[106] Reasons, [164].
[107] Worker’s submissions, [2.8.10(b)].
[108] T2 70.19–24.
The employer submits the inference referred to in the reasons at [164], that it was reasonable to infer that “something like half” of the entries in the banking records related to the worker’s wife, was unavailable.[109] This rather misses the point. The Arbitrator at [164] referred to the lack of evidence regarding what the transfers were. The worker’s submission that there was no evidence these entries referred to income of the worker is correct.
[109] Employer’s supplementary submissions, [8].
The employer submits there was no submission by a party to support the finding at [166] of the reasons.[110] This appears to relate to the Arbitrator’s suggestion that the worker’s reference in a message, to a job that paid double what he had been receiving, may have been “bravado”. This was simply conjecture on the Arbitrator’s part. It did not constitute a finding. It had no bearing on the result. The Arbitrator’s finding, which was available on the evidence overall, was that she was not persuaded this reference in the message represented “actual capacity for employment”.
[110] Employer’s supplementary submissions, [9].
The Arbitrator referred to the worker’s evidence as “consistent and plausible”.[111] The employer challenges the credit finding regarding both the worker and Mr Mineo. The worker and Mr Mineo both gave evidence and were cross-examined. The Arbitrator accepted what they said. In Devries v Australian National Railways Commission, the plurality said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”[112] (excluding references)
[111] Reasons, [164].
[112] [1993] HCA 78; 177 CLR 472; 112 ALR 641, [10].
In Fox v Percy the plurality said:
“In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”[113] (excluding footnotes)
[113] [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, [28].
The way in which I am required to deal with challenges to credit findings, pursuant to s 352(5), must be constrained to at least the same extent as the Court of Appeal, in which an appeal is dealt with on the basis of rehearing.[114] I am required to comply with the principles in the above authorities. The employer’s submissions on the credibility findings have made no attempt to address these established principles regarding such a challenge. The submission that I should listen to the recording of the evidence of these witnesses, with a view to forming my own view on credibility as opposed to that of the Arbitrator who saw and heard the witnesses,[115] is inconsistent with authority. The employer’s submissions do not constitute a viable attack on the Arbitrator’s conclusions regarding the credit of the worker and Mr Mineo. They are rejected.
[114] See Hill, referred to at [17] above.
[115] Employer’s supplementary submissions, [6].
Grounds Nos 1 and 2 fail.

GROUND NO. 3

Employer’s submissions

The employer submits the Arbitrator formed a favourable view of the credit of the worker and Mr Mineo where no such submission was made by any party. The only submission made on the topic was by the employer, who attacked their credit.
The employer submits the inference at [164] of the reasons (see [91] above) was not the subject of submissions to that effect. It submits the inference at [166] of the reasons (see [92] above) was not the subject of submissions.[116]
[116] Employer’s supplementary submissions, [7]–[9].

Insurer’s submissions

The insurer submits that the discussion at [164] and [166] of the reasons went to submissions made by the employer. The employer was seeking to demonstrate that the various entries in the bank statements represented evidence of earnings or an ability to earn. The employer argued the statement in the SMS message about double the pay represented evidence of ability to earn. The Arbitrator rejected these arguments by the employer; she was not satisfied the evidence supported such findings. The insurer submits the Arbitrator’s findings were not inconsistent with the arguments made by the insurer and the worker, that there was no current work capacity during the relevant period.[117]
[117] Insurer’s submissions, [38]–[41].

Worker’s submissions

The worker submits the employer misconceives the nature of the s 145 proceedings and the Commission’s role. It submits the various issues raised by the employer of fraud, and the factual and medical evidence going to the incapacity findings, were “comprehensively addressed”.[118]
[118] Worker’s submissions, [2.8.13]–[2.8.15].

Consideration

The submissions going to the reasons at [164] and [166] of the reasons are addressed in the consideration of Grounds Nos. 1 and 2 above. The Arbitrator rejected arguments made by the employer, dealing with the probative force of the banking records and the SMS message going to whether there was current work capacity. It was apparent from the evidence overall, and the conduct of the case overall, that the insurer and the worker did not concede there was current work capacity, contrary to the employer’s submission. The Arbitrator was under no obligation to accept the employer’s submissions on the matters dealt with at [164] and [166] of the reasons.
It was inherent in the overall conduct of the case that the insurer and the worker did not concede the employer had succeeded in its attack on the worker’s credit. The insurer’s counsel, dealing with the ‘injury’ issue, described the employer’s attack on the worker’s case as “speculative and circumstantial”. He referred to the employer’s stance that the worker “just can’t be believed about anything he says”, saying “but the doctors have accepted him and he clearly has pathology”.[119] The worker’s counsel submitted the worker’s credit would be accepted on ‘injury’.[120] Dealing with the employer’s allegation of fraud, the worker’s counsel submitted “what at best Mr Macken’s been able to produce is entirely speculative”.[121] Dealing with the employer’s submissions about the banking records, the worker’s counsel was critical of the employer’s position, when it had not cross-examined the worker on the basis that every deposit was for the credit of the worker.[122]
[119] T2 59.25–29.
[120] T2 68.1–4.
[121] T2 68.24–25.
[122] T2 70.22–24.
Following addresses at the arbitration hearing by counsel for the insurer and the worker, the employer’s solicitor addressed at length in reply,[123] in a fashion that repeatedly raised issues of credit. This was consistent with the employer conducting the hearing, after submissions by the other parties, on the basis that the worker’s credit remained a live issue.
[123] T2 74.30–82.32.
Ground No. 3 fails.

CONCLUSION

All of the grounds of appeal have failed. The appeal does not succeed.

DECISION

The Arbitrator’s determination dated 1 October 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

12 June 2020