He v Glemaro Pty Ltd
[2016] NSWWCCPD 48
•23 September 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | He v Glemaro Pty Ltd [2016] NSWWCCPD 48 | |
| APPELLANT: | Huazhen He | |
| RESPONDENT: | Glemaro Pty Ltd | |
| INSURER: | Employers Mutual NSW Limited | |
| FILE NUMBER: | A2-9325 /13 | |
| ARBITRATOR: | Mr J Harris | |
| DATE OF ARBITRATOR’S DECISION: | 27 April 2016 | |
| DATE OF APPEAL DECISION: | 23 September 2016 | |
| SUBJECT MATTER OF DECISION: | ‘Relevant’ evidence – rule 15.2 Workers Compensation Rules 2011, section 55 Evidence Act 1995; raising an argument for the first time on appeal – application of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481; failure to cross-examine – application of the rule in Browne v Dunn (1893) 6 R 67 in the Commission; alleged errors in fact finding; entitlement to weekly compensation – section 33 Workers Compensation Act 1987 – Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Young and Muggleton |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination dated 26 April 2016 is confirmed. | |
INTRODUCTION
This appeal essentially consists of challenges by an unsuccessful worker to factual and credit findings made by an Arbitrator.
BACKGROUND
Huazhen He (the appellant) suffered injury on 27 February 2012 when she fell on stairs, in the course of her employment with Glemaro Pty Ltd (the respondent). The matter was the subject of a previous appeal decision, Glemaro Pty Ltd v He [2015] NSWWCCPD 17 (He [No. 1]). The procedural history of the matter up to 3 March 2015 was set out in that decision.
In He (No. 1), Keating P granted leave to the respondent to dispute an allegation of injury to the central nervous system, which the appellant had added by way of amendment. The matter was remitted to Mr Perrignon, arbitrator, for further hearing. Mr Perrignon subsequently recused himself, with the consent of the parties, for reasons unconnected with the subject matter of the case. The matter was then allocated to another arbitrator, and was referred to an Approved Medical Specialist (AMS), Dr Boyce, neurologist, by way of a general medical dispute.
Dr Boyce, in a Medical Assessment Certificate (MAC) dated 13 August 2015, said that the appellant did not have a condition, or impairment, of the central nervous system.
The appellant ultimately proceeded on the basis that she suffered accepted injury on 27 February 2012 to her neck, lumbar spine and left wrist. She discontinued allegations of injury to other body parts or systems, including the central nervous system. On 4 December 2015 the matter was referred, by consent, to an AMS, for assessment of whole person impairment in respect of the cervical spine and lumbar spine. A MAC of Dr Boyce, dated 17 February 2016, certified that the appellant suffered “0%” whole person impairment in respect of each of those body parts.
The matter was listed for arbitration hearing before Mr Harris (the Arbitrator) on 21 April 2016. Ms Dulhunty of counsel appeared for the appellant, and Mr Halligan of counsel for the respondent. There were no applications to adduce oral evidence, the matter proceeded on the written material, and counsel addressed. Given the MAC dated 17 February 2016, which was binding (s 326 of the Workplace Injury Management and Workers Compensation Act 1998 [the 1998 Act]), the Arbitrator entered an award in the respondent’s favour on the claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
There was an issue regarding the appellant’s entitlement to weekly compensation from 27 July 2013 (the date to which voluntary payments were made). The basis of the calculation of any such entitlement, beyond 1 September 2015 (when the appellant was deemed to have been transitioned pursuant to cl 17 of Schedule 8 of the Workers Compensation Regulation 2016 (the Regulations) (previously cl 17A of the Workers Compensation Regulation 2010 [the 2010 Regulations]) was in issue. The appellant also sought a general order pursuant to s 60 of the 1987 Act.
THE ARBITRATOR’S DECISION
The Arbitrator reserved his decision, and gave his reasons orally on 26 April 2016.
The Arbitrator noted that the following matters were agreed between the parties:
(a) the appellant was an ‘existing recipient of weekly payments’ within the meaning of Sch 6 Pt 19H of the 1987 Act;
(b) the appellant was paid her full entitlement to weekly compensation and medical expenses up to and including 26 July 2013;
(c) the “relevant rate” for any weekly award, pursuant to either s 40 of the previous provisions, or ss 36, 37 and 38 of the provisions amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act), was $721.24 per week;
(d) the appellant injured her neck, lumbar spine and left wrist in the subject accident;
(e) the respondent had not made a ‘work capacity decision’ in respect of the appellant’s entitlements from or after 1 September 2015;
(f) there should be an award for the respondent on the claim pursuant to s 66 of the 1987 Act, consistent with the MAC dated 17 February 2016, and
(g) surveillance evidence tendered in the proceedings depicted the appellant.
The Arbitrator recited the issues and summarised the parties’ submissions. He referred to the history recorded by Dr Bruce, an orthopaedic surgeon qualified by the respondent’s insurer, of the appellant’s “current symptoms”, in his report dated 23 July 2014. The Arbitrator described aspects of the history as “grossly inconsistent with the surveillance” (reasons at T10.13–26). He referred to Dr Bruce’s supplementary report dated 14 August 2014, in which he commented on the surveillance (reasons at T13.27–17.10). He noted that Dr Bruce changed his opinion in his second report, saying that “the aggravation had now ceased” (reasons at T17.13–4).
The Arbitrator said that he had “concerns” regarding whether there was a breach of cl 44 of the Regulations (previously cl 49 of the 2010 Regulations), in the number of neurological reports tendered. He said that “as neither counsel referred to Dr Mellick’s report … I will not be referring to it in my reasons”. He referred to the report of Dr Rushworth, a neurosurgeon qualified by the respondent’s insurer, dated 11 December 2012, in which the doctor commented on surveillance material. The Arbitrator noted the doctor’s opinion that the “surveillance DVD does not show any physical incapacity” (reasons at T23.12–3).
The Arbitrator referred to an argument advanced on the appellant’s behalf, that in applying cl 17A of Sch 8 of the 2010 Regulations, the entitlement period is calculated without reference to payments of weekly compensation which predated 1 September 2015 (reasons at T25.15–24). The Arbitrator described this as “essentially the same point that was argued and rejected by Roche DP in Kilic” (reasons at T26.21–2). He said that he applied the principles in Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37, at T26.25–8 of his reasons saying:
“… on the interpretation of clause 17A, the number of weeks paid prior to 1 September 2015 count towards the period in which the applicant has an entitlement to weekly compensation from 1 September 2015.”
On this basis, any weekly entitlement from 1 September 2015 fell within the third entitlement period. The Arbitrator, in his reasons at T27.16–8, applied Lee v Bunnings Group Limited [2013] NSWWCCPD 54, saying:
“Accordingly I have no jurisdiction to make a finding under section 38 from 1 September 2015, until the insurer had conducted a work capacity decision.”
The Arbitrator said that, consistent with the submissions of the parties, he had formed his own views on the DVD surveillance (reasons at T36.10–2). He noted that some of the surveillance was of poor quality, however:
“… some of the surveillance was clear and clearly inconsistent with the applicant’s portrayal of her problems. I note the surveillance is inconsistent with a number of histories reported to doctors who examined the applicant.” (at T36.30–37.1)
The Arbitrator referred to specific examples of inconsistencies. He referred to the AMS’s reference, in the MAC dated 17 February 2016, to raising the surveillance films with the appellant and her husband, and being told that they were “false or the films being taken when the husband was in the toilet”. The Arbitrator described the explanation as “not creditable” and one that “reflects poorly on her credit” (reasons at T38.2–8). The Arbitrator, in his reasons at T39.25–9, said:
“My opinion of the surveillance, as I have said, accords most closely with that formed by Dr Bruce. Some of what is shown in the surveillance (such as the use of the left hand) completely contradicts the histories given to the various doctors.”
The Arbitrator referred to the opinion of Dr Abraszko, that she did not believe “the C6/7 disc protrusion was of any consequence to the complaints of pain” (reasons at T39.32–5). He said he accepted this “as it is basically the only treating opinion in the case” (reasons at T39.34–40.1). He said the appellant’s case was “based upon what is described as a musculoligament strain of the neck and the low back” (reasons at T40.2–3).
The Arbitrator at T40.5–17 of his reasons said:
“The applicant's complaints therefore of pain are based on an absence of pathology, in circumstances where there are gross inconsistencies in the applicant's evidence. The applicant is required to prove her case on the balance of probabilities. In this case, there is clearly conflicting medical opinion and, on what I have seen in the surveillance, surveillance that is inconsistent with the manner in which the applicant has portrayed herself to doctors on numerous occasions. On my view of the surveillance, it does not show a person being in great pain or with great restrictions of movement. On this basis I am not prepared to accept the applicant as a witness of truth.”
The Arbitrator, in his reasons at T41.3–5, concluded:
“I am not satisfied on the balance of probabilities that the effects of any injury continue from or after 27 July 2013.”
The Arbitrator made an award for the respondent in respect of both the claim for weekly payments and the claim pursuant to s 60 of the 1987 Act. A Certificate of Determination consistent with the Arbitrator’s reasons was issued on 27 April 2016.
GROUNDS OF APPEAL
The issues set out in the in the grounds of appeal (which the document describes as “Errors made”) are whether the Arbitrator erred in:
(a) failing to objectively consider the DVD’s, and giving them too much weight;
(b) failing to identify errors in Dr Bruce’s report dated 14 August 2014;
(c) preferring the report of Dr Bruce dated 14 August 2014, over those of Dr Costa dated 22 September 2014 and Dr Conrad dated 18 September 2014;
(d) making the findings which he did about the appellant’s “physical abilities, capacity to perform the duties of a process worker and entitlement to benefits”;
(e) failing to consider and apply the Court of Appeal decision in Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161(sic), and
(f) considering irrelevant material
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Section 352(5) of the 1998 Act applied from 1 February 2011. In Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 (Uelese) Roche DP dealt with the nature of appeals pursuant to s 352 of the 1998 Act, at [92] saying:
“As the Commission has attempted to explain in dozens of decisions, and as s 352(5) makes express, appeals against a decision by an Arbitrator are not a ‘review or new hearing’. Nor are they a rehearing. They are restricted to the identification and correction of error. Arbitrations are not a trial run where the parties can await the outcome and then decide to run new issues on appeal.”
I should note that the respondent made a concession, based on the decision in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290 (Al Othmani), that a Presidential member is entitled to “conduct his own review and reach his own conclusions”. The Presidential appeal in that case was conducted before the commencement of s 352(5): Al Othmani at [36]–[37]. The nature of the ‘review’ process, applicable in Al Othmani, was different to the appeal process in s 352 in its current form. The current appeal is not a ‘review’.
In Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 Roche DP at [19] dealt with the establishment of error in Presidential appeals, since the commencement of section 352(5):
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr(1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140 [sic,30]; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”
THE SIXTH GROUND – CONSIDERATION OF IRRELEVANT MATERIAL
It is convenient to deal with this ground at the outset, as its resolution will be relevant to consideration of some of the other grounds.
The Appellant’s Submissions
The “irrelevant material”, in the appellant’s submission, is the two MAC’s of Dr Boyce, dated 13 August 2015 and 17 February 2016. There are two submissions on this ground, which possibly are intended to be raised in the alternative.
Firstly, the appellant submits that the MAC’s were “irrelevant as they were not obtained in relation to the question of capacity for weekly benefits and, if the Appellant is found not to be entitled to weekly benefits beyond 31 August 2015, both reports were obtained outside the compensable period for weekly benefits” (emphasis in original). This submission appears to be that the MAC’s were “irrelevant”, and accordingly should not have been considered by the Arbitrator.
Secondly, the appellant then submits that the Arbitrator “placed too much weight” on the MAC’s. The appellant proffers two reasons for this. These are:
(a) they “were obtained for claims that were abandoned”, and
(b) Dr Boyce “displayed a clear and unreasonable bias against the Appellant that has unreasonably prejudiced her claim”. The prejudice is said to be demonstrated by the Arbitrator’s reliance on the MAC’s (the reasons at T41 and 42).
The Respondent’s Submissions
The respondent simply submits:
“Nothing has been advanced to engage the Presidential member in any adverse analysis of the AMS report of Dr Boyce.”
Discussion
The appellant’s submissions on the sixth ground of appeal contain no reference to the Workers Compensation legislation, or to any authority. Provision for ‘Medical Assessment’ is contained in Ch 7, Pt 7 of the 1998 Act. The appellant’s submissions do not take issue with the proposition that each of the MAC’s was a ‘medical assessment certificate’ within the meaning of s 325 of the 1998 Act. Section 325(4) provides:
“An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.”
Section 326 of the 1998 Act provides:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Each of the MAC’s was issued in the current proceedings, following referrals made in the current proceedings. They clearly were assessments “in proceedings before … the Commission”. That dated 17 February 2016 was a referral to assess permanent impairment in respect of the cervical spine and the lumbar spine. It was “conclusively presumed to be correct” in respect of the matters set out in s 326(1). As to any other matters in the two MAC’s, they constitute “evidence (but not conclusive evidence)”. In this regard the AMS is a competent witness.
Rule 15.2 of the Workers Compensation Commission Rules 2011 provides that “evidence should be relevant to the facts in issue and the issues in dispute”. The relevance of the MAC’s does not turn on the purpose for which they were obtained.
The Evidence Act 1995 (the Evidence Act) does not apply to proceedings in the Commission, however it is a useful reference, providing a “guide to the determination of the weight to be given to certain evidence”: Liverpool City Council v Trovato [2004] NSWWCCPD 15 at [32]–[33]. In Byrom v Inghams Enterprises Pty Limited and Spectrum Employment Services[2008] NSWWCCPD 67 O’Grady DP referred to Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 and South Western Sydney Area Health Service v Edmonds[2007] NSWCA 16; 4 DDCR 421. The Deputy President at [80] said:
“Whilst it is clear that the Commission is not bound by the rules of evidence (section 354(2) of the 1998 Act) it is clear, having regard to the terms of Rule 15.2 and having regard to the observations of McColl JA cited above, that a proper approach to evidentiary material by the Commission would entail reasonable and appropriate regard to established principle concerning questions of admissibility and weight of evidence.”
In Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 (Hancock) Beazley JA (Giles and Tobias JJA agreeing) at [83] said of evidence in the Commission:
“In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.”
Consistent with the above passage, the challenges in this ground go to the weight to be given to the MAC’s, rather than whether they should have been considered at all.
Section 55 of the Evidence Act provides:
“55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.”
The submission that the MAC’s were irrelevant, as they were obtained “outside the compensable period for weekly benefits”, is contrary to the appellant’s submission at the arbitration hearing, that the Commission could make an ongoing award for weekly compensation in the circumstances. However, the appellant’s counsel did submit, at the arbitration hearing, that the MAC dated 17 February 2016 was only relevant to weekly entitlement in 2016. On this basis it was put that “you don’t really need to look at” that MAC, if “payments on any view cease on 31 August [2015]” (T57.4–58.5).
The Arbitrator specifically rejected this submission, in his reasons at T36.4–8, where he said:
“I don’t agree with the submission that the MAC is only relevant as to the situation in 2016. Dr Boyce’s views clearly comment on credibility issues that the applicant must face in an assessment of the medical evidence.”
It is appropriate that I have regard to s 55 of the Evidence Act, in considering the appellant’s submission that the MAC’s were not relevant. The medical opinion in the MAC’s, if accepted, clearly could rationally affect proof of facts at issue in the proceedings. The relevance of the medical opinion in the MAC’s is made clear from the Arbitrator’s consideration of them.
The Arbitrator’s reasons, at T28.28–30.11, referred to the MAC dated 13 August 2015. The “present symptoms” recorded on that occasion were persistent retarded thinking, memory problems, dizziness and headache. The Arbitrator referred to “a number of tests” carried out by Dr Boyce, which led the doctor to conclude that there was “gross inconsistency of presentation”. The Arbitrator referred to Dr Boyce’s conclusion that there was “no abnormality of the central nervous system”.
The appellant’s credit was in issue, and was relevant to facts in issue going to whether there was ongoing incapacity, its extent and duration, and whether any incapacity resulted from the employment injury. The relevance of the MAC dated 13 August 2015, consistent with the test described in s 55(1) of the Evidence Act, is plain. Amongst other things, it went to the acceptability of the appellant’s evidence and complaints.
The appellant’s weekly claim was based, to a significant extent, on her complaints relating to her cervical spine and her lumbar spine. In the second MAC dated 17 February 2016, Dr Boyce was required to assess permanent impairment in respect of the cervical spine and the lumbar spine, resulting from the appellant’s injury. The Arbitrator’s reasons dealing with this document were at T30.13–34.15. He referred to the “present symptoms” recorded by Dr Boyce, being “recurrent pain all over, but particularly in her head, in her neck, in her back, in her arms and legs”.
The MAC dated 17 February 2016, in its ‘Summary’, dealt with Dr Boyce’s views on the appellant’s diagnosis, presentation, and the extent of any current abnormality in the cervical and lumbar spine. Dr Boyce concluded that the appellant had suffered “soft tissue musculoligamentous sprains” to the cervical and lumbar areas. He regarded her presentation as inconsistent. He said he could find “no significant abnormality” in these areas.
The Arbitrator’s reasons referred extensively to the second MAC. By way of example, the diagnosis was clearly relevant to whether there was incapacity for work after 26 July 2013, resulting from the employment injury. Dr Boyce’s views were not favourable from the appellant’s point of view, but there is no basis to conclude that they were irrelevant.
The relevance is not affected by the fact that weekly compensation was held to only be potentially available up to 31 August 2015. It is not affected if the referrals were in respect of heads of claim ultimately abandoned by the appellant. I also note that the appellant’s submission on this aspect is inaccurate, the lump sum claim in respect of the cervical spine and the lumbar spine was not abandoned. The claim pursuant to s 66 of the 1987 Act remained before the Arbitrator at the arbitration hearing. An award for respondent on the lump sum claim was entered, without argument to the contrary, on the basis of the binding MAC dated 17 February 2016.
The appellant also submitted that the AMS “displayed a clear and unreasonable bias against the Appellant that has unreasonably prejudiced her claim”. An argument to this effect was not made at the arbitration hearing. There is no evidentiary material put on or referred to, which is said to support what is a serious allegation. There is no argument in submissions relevant to an allegation of bias, beyond the simple assertion of its existence. There are no specific submissions going to what should flow, if the allegation was made out. Dr Boyce’s opinion, which was adverse to the appellant’s case, does not establish that he was biased. It is a submission that should not have been made.
The sixth ground of appeal fails.
THE FIRST GROUND – CONSIDERATION OF THE SURVEILLANCE EVIDENCE
The Appellant’s Submissions
The appellant makes a number of specific submissions about the contents of the surveillance material in the DVD’s. These are that such evidence:
(a) did not objectively demonstrate whether her pain was easily aggravated;
(b) did not contain objective evidence of the weights of the bags she lifted and carried;
(c) did not demonstrate her squatting;
(d) did not demonstrate the distances walked by the appellant. This was accompanied by a submission that the appellant’s walking was “slow and uneven”;
(e) did not show unrestricted bending, and the appellant’s knees were bent (there was reference to Northern Co-operative Meat Company Limited v Bennett [2008] NSWWCCPD 34 at [151]), and
(f) did not demonstrate neck movement “beyond her assessed restrictions”, and some such movements were accompanied by “stiff upper body movement”.
The appellant submits that the Arbitrator failed to have regard to these matters, put by way of “example”, and placed too much weight on the surveillance evidence, and erred in failing to find there was “an ongoing partial incapacity”.
The Respondent’s Submissions
The respondent, in respect of each of the grounds set out at (a) – (d) of [20] above, makes the same submission. It submits that those grounds, and supporting submissions, do not advance an argument to demonstrate that the Arbitrator “got anything wrong”. Rather the appellant seeks to have a Presidential member substitute his own observations and assessments for those of the Arbitrator. The respondent refers to the passage from Uelese quoted at [26] above.
The respondent submits that the Arbitrator was required “to decide which evidence is acceptable”, and this he did. He concluded that he could not accept the appellant as a witness of truth. The respondent submits that the Arbitrator referred to specific evidence, which entitled him to draw legitimate but adverse inferences about the appellant’s credit. The following were referred to by way of example:
(a) the appellant’s complaints about holding a meal bowl (T39.12);
(b) the appellant’s neck and back movements (T37.25–38.24);
(c) the appellant’s failure to explain herself regarding inconsistencies (T39.4), and
(d) the inconsistencies identified in Dr Bruce’s opinion (T39.25).
Appellant’s Submissions in Reply
The appellant submits that she does not seek to bring the appeal by way of a hearing de novo or a rehearing. She does not rely on inadequacy of reasons. Rather she submits there were identified errors.
The appellant submits that as she was not cross-examined, “any adverse finding about her credit must be unsafe particularly in view of the fact that the Appellant does not speak English and is illiterate”. The Arbitrator’s findings are based in part on credit, and “it follows that the Arbitrator’s determinations are also flawed”.
The appellant also submits that the MAC’s are not relevant and it was an error to consider them. The Arbitrator’s determinations are also flawed as the MAC’s formed part of the basis of them.
Discussion
The Credit Finding
Factual findings, going to potential inconsistencies between the other evidence and the surveillance evidence, and the appellant’s credit, were fundamental to the Arbitrator’s decision. It is convenient to deal with the appellant’s submissions in reply, going to the availability of the credit finding, at this point.
The appellant, in reply, submits that in the absence of cross-examination, any adverse finding about her credit must be unsafe. It is submitted that this is so “particularly in view of the fact that the Appellant does not speak English and is illiterate”. The appellant refers to no authority in support of this proposition.
The appellant made no submission to this effect to the Arbitrator at the arbitration hearing, nor in the submissions in her Amended Application to Appeal. The submission was first made in her submissions in reply. A party is ordinarily bound by its conduct of a case at first instance and cannot, on appeal, “raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so” (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally) at [7], see also Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [98]).
Additionally, the practice of raising new issues, in submissions in reply, has been described by Roche DP as “improper”: NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [30], VolkswagenFinancial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13 at [14].
It is inappropriate that the appellant be permitted to raise this new argument for the first time in her submissions in reply, it not being raised at first instance. This is sufficient to dispose of this submission.
I will deal with the argument in any event, in case I am wrong in the view I have formed regarding whether it can be raised.
The appellant was present at the arbitration hearing on 21 April 2016 “with her husband and an interpreter”; she was represented by her solicitor and counsel (T1.22–4). It is apparent that the appellant does not have adequate English Language skills. Dr Bruce’s report dated 23 July 2014 recorded that the appellant “speaks Mandarin and has no English speaking capability whatsoever”.
Dr Rushworth recorded a history that the appellant was “totally illiterate, and apart from her own name could not read or write in Chinese”.
There is no right to cross-examine in the Commission: Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [37]. In New South Wales Police Force v Winter [2011] NSWCA 330 Campbell JA (Giles JA and Handley AJA agreeing) at [77]–[85] dealt with the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn), and principles of procedural fairness, in the context of the Commission. His Honour, at [81], referred to and applied the following passage from his decision in West v Mead [2003] NSWSC 161; 13 BPR [24,431]:
“98 The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.
99 Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case.”
In Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 Roche DP at [56], relying on Daw v Toyworld Pty Ltd[2001] NSWCA 25; 21 NSWCCR 389, said that the rule in Browne v Dunn “does not require that matters about which notice has already been given be put in cross-examination”.
The material exchanged between the parties, prior to the arbitration hearing, included the surveillance investigation reports and the associated DVD’s. It included the report of Dr Fulop dated 12 September 2012, which stated that the appellant’s complaints were “not consistent with recent video surveillance which shows her to be extremely active, travelling in car, walking, shopping, bending, lifting etc.” It included the reports of Dr Rushworth, the second of which, dated 11 December 2012, included the following three passages:
“I also agree with Dr Fulop that there seems to be an exaggeration of symptoms and disability portrayal.”
“I have reviewed the surveillance report and watched the DVD. I agree that it shows her performing all the stated activities, without any apparent difficulty.”
“The surveillance DVD does not show any physical incapacity.”
The material exchanged included the report of Dr Bruce dated 14 August 2014. It described the appellant, in the surveillance footage and reports, as having “much better function in her back than she describes”. Dr Bruce made similar comments about the appellant’s neck function. He said of the appellant’s description of her performance of household duties:
“The surveillance footage and reports contradict this statement. It was apparent that she has good function and is able to bend over, carry heavy bags of vegetables, walk reasonable distances and carry shopping.”
Dr Bruce’s report dated 14 August 2014 included the medical opinion, ultimately accepted by the Arbitrator:
“The surveillance footage indicates that her cervical spine and lumbar spine are in much better condition than was apparent at the time of assessment. There are still probably residual symptoms from her pre-existing degenerative changes but overall I would assess that her work injury has caused temporary aggravation of pre-existing cervical spondylosis and lumbar spondylosis and the aggravation has now ceased.”
The evidence in the matter included the two MAC’s of Dr Boyce, which were in existence before the arbitration hearing was conducted. The MAC dated 17 February 2016 included the following under the heading “Consistency of presentation”:
“The only thing about Ms He’s presentation that is consistent is her inconsistency. Particularly, both her and her husband denying the surveillance tapes which show her carrying out many activities which she claims she cannot do. These were brought to her attention on several occasions and on each occasion they were described as being false or the films being taken when the husband was in the toilet.”
The respondent made it clear, during the running of the arbitration hearing, that credit was in issue (T39.22–5).
The material served by the respondent, prior to the arbitration hearing, put the appellant on notice of the case that the respondent was presenting. I do not accept that there was procedural unfairness, in the Arbitrator forming the view which he did on the appellant’s credit, in the absence of cross-examination. I cannot see that this conclusion is affected by the fact that the appellant apparently does not speak English, and is probably not literate. She was in possession of a grant of “legal assistance from the Independent Legal Assistance and Review Service (ILARS)” (the Application at Part 1.3). She was represented by both a solicitor and counsel, and had the assistance of an interpreter at the arbitration hearing.
The submission that the MAC’s should not have been considered, as they were irrelevant, has already been considered above in the discussion going to the sixth ground of appeal.
The appellant’s submissions, on the credit finding, would not, if appropriately raised, succeed on their merits.
Alleged Deficiencies in the Evidentiary Weight of the Surveillance Evidence
The appellant’s submissions on the First Ground refer to a number of matters going to the weight of the surveillance material. These are:
(a) the film does not “demonstrate objectively whether or not the appellant’s pain is easily aggravated” (emphasis in the original);
(b) there is no objective evidence of the weight of any of the bags which the appellant lifted or carried;
(c) the appellant does not perform a squat;
(d) there is no evidence of the distances which the appellant walked;
(e) the appellant’s walking was “slow and uneven”;
(f) bending by the appellant is not unrestricted or sustained; she bends her knees when bending, and
(g) neck movements are not beyond the appellant’s “assessed restrictions and some are accompanied by stiff upper body movement”.
The above are submissions going to the evidentiary weight that should be ascribed to the surveillance material. It was submitted by the appellant’s counsel at the arbitration hearing that bags being carried by the appellant in the DVD looked “all fairly light stuff, she’s not carting around 10 or 15 kilos of potatoes or something like that” (T21.5–9). The appellant had an opportunity to make submissions about the content of the DVD.
At the arbitration hearing the Arbitrator observed that the DVD had been served, “because the applicant’s doctors have seen it” (T18.22–5). He later said that he would obviously have to look at the DVD, and neither party objected to this course (T20.31–4). It was agreed that the person depicted in the DVD was the appellant (T16.6–9). The Arbitrator said that he would “look at the DVD and I can form my own conclusion”, a course to which the parties agreed (T27.13–29).
The appellant’s counsel stated that she had “only seen the photographs” (T18.18), and that she did not “actually have a copy of it [the DVD]” (T20.28). The appellant’s solicitor was present at the arbitration hearing (T1.23), and it was not suggested that the DVD had not been served by the respondent.
It is raised in passing, in the appellant’s submissions on this appeal, that her counsel was not in possession of the DVD “prior to the determination of the Arbitration”. Assuming that a copy of the DVD, although served, was not furnished by the appellant’s solicitor to her counsel, I cannot see that this affects the respective legal positions of the parties. I note that no application for an adjournment, or time, was made on this basis at the arbitration hearing.
The parties were aware, at the arbitration hearing, that the Arbitrator would watch the DVD and form his own view (as he must) of its evidentiary weight and significance. The appellant’s counsel made submissions on the DVD, referring to reports of Dr Conrad, dated 18 September 2014 (T16.11–17.15) and Dr Costa dated 22 September 2014 (T17.19–18.32). She also submitted on Dr Bruce’s report dated 14 August 2014 (T21.1–24). All of these medical reports commented on the DVD and surveillance reports.
The respondent’s counsel made submissions on the DVD, saying that it “demonstrates great fluid movement, a capacity to lift, a capacity to go about her day-to-day affairs in a stark and unrestricted manner” (T41.5–7). He said it was “inconsistent with the complaints that are recorded in some of the histories to the doctor” (T41.13–4). He referred to the views of Dr Rushworth (T44.30–45.21), Dr Bruce (T53.26–31), Dr Boyce (T41.15–44.13) and Dr Fulop (T47.15–31).
Thus the Arbitrator had the parties’ submissions about what the DVD showed, and also bodies of medical evidence on both sides, dealing with its significance.
The appellant relied on a report of Dr Conrad dated 18 September 2014, which commented on the DVD. I will not repeat its contents. In general terms, it described the appellant as walking slowly with a limp. It said that her bending from the waist was less than 90 degrees. It described the shopping bags that the appellant carried as “light”. Dr Conrad concluded “[a]ll of the activity is sedentary and well within the capabilities that I would ascribe to her having seen her and examined her on the 11th June 2014.”
The appellant relied additionally on a report of Dr Costa dated 22 September 2014, which (in part) commented on the DVD. Dr Costa said there “is certainly nothing significant in these tapes to change my opinion”. He commented that symptoms could fluctuate depending on day-to-day pain level and medications.
The respondent relied on a primary report from Dr Bruce dated 23 July 2014. The history described left sided neck pain which varied and was “unpredictable”. There was a history that “holding a meal bowl in her left arm could cause very severe pain”. Dr Bruce recorded a history of “chronic aching in her low back, particularly if she sits for too long. Squatting or bending aggravates the pain”. Dr Bruce’s history continued:
“Questioning appeared to reveal that it was constant pain but was easily aggravated by physical activity or any activity that required bending or stooping.”
On the topic of household duties Dr Bruce recorded a history:
“She carries out virtually none of the household duties. Very occasionally she carries out very light work, such as washing the dishes, when her symptoms are less severe. She grows and waters flowers. However, she carries no cleaning or significant household duties because she ‘cannot bend over’. All household duties are carried out by her husband or daughter.”
Dr Bruce commented on the DVD in a report dated 14 August 2014. He said the history that “holding a meal bowl in her left arm could cause very severe pain” was “not true and is an exaggeration”. He said “[t]he footage shows frequent squatting and bending and lifting”. He said the appellant’s previous description of her back pain was “an exaggeration”. Dr Bruce said the DVD contradicted the appellant’s previous description of her restricted household duties. She “has good function and is able to bend over, carry heavy bags of vegetables, walk reasonable distances and carry shopping”. He considered the appellant’s back and neck movements were greater than when he examined her.
I should note at this point that Dr Bruce’s statement that the DVD showed “frequent squatting” is inaccurate. I have viewed the DVD twice. The appellant’s submission that it does not demonstrate squatting is correct.
The respondent relied on reports of Dr Rushworth. In the report dated 19 September 2012 he recorded:
“Mrs He has pain in the head, neck, and whole spine every day – ‘all body’.
She has dizziness and headache.
She cannot hold things, and drops things more with her left hand than her right.
She has pain in both knees.”
And:
“In the home, she is able to cook dinner every night. She spends her days walking or watering the flowers and vegetables.”
Dr Rushworth’s report dated 11 December 2012 commented on the DVD, which he said he had viewed. The respondent also relied on a report of Dr Fulop dated 12 September 2012, who commented on the DVD (see the passages from these two doctors quoted at [70] above). The MAC dated 17 February 2016 contained Dr Boyce’s opinion that there were inconsistencies between the appellant’s complaints and the activities in the surveillance (see [73] above).
The Arbitrator said that he had viewed the DVD twice, and some of it was “clearly inconsistent with the applicant’s portrayal of her problems” (Reasons T36.30–2). He referred to a number of these inconsistencies in his reasons at T37.4–12. They included the appellant’s history to Dr Bruce about holding a meal bowl in her left hand, her history to Dr Bruce that she could not bend over, and the neck and back movements she demonstrated to Dr Bruce. He said the surveillance on 29 July 2012 “showed generally good movement of the neck”. He said the “surveillance also showed fluid low back movement such as the bending over, at the fruit bin” (reasons at T.37.23–30).
Some of the matters set out at [78] above consist of assertions that the surveillance DVD did not objectively prove things such as the weight of the bags lifted by the appellant, the distances which she walked, and whether her pain was easily aggravated. As a matter of common sense this is true.
The words “heavy” and “reasonable” are common adjectives. They do not purport to depict a particular weight or distance. They are relative terms, with imprecise meaning, which may vary depending on the circumstances. The terms are impressionistic. They are not critical to Dr Bruce’s opinion, which was not dependent on the bags the appellant lifted containing any specific weight, or the appellant walking any particular distance.
In the context of Dr Bruce’s reports, the doctor changed his opinion on the basis of inconsistencies which he identified, between the appellant’s complaints and presentation on examination, and her activities when observed, outside a clinical environment.
Dr Bruce commented on a number of specific areas of activity shown in the DVD, which he regarded as inconsistent with his examination and history. He said the DVD showed a “considerable amount of bending and stooping”. This was inconsistent with the complaint that there was “constant” pain in the back, which was “easily aggravated by physical activity or any activity that required bending or stooping”. Dr Bruce considered the level of functioning was inconsistent with a complaint that the appellant carried out “virtually none of the household duties”. Dr Bruce specifically referred to his findings of movement, on examination of the appellant’s neck and back. He said that these were “an under-estimation” compared with the movements depicted in the DVD. He said the appellant’s active back movements were “much greater than was revealed on examination”.
The Arbitrator, in his reasons at T38.32–39.8, discussed the absence of an explanation from the appellant to deal with “the inconsistencies”. The only explanation she gave was that recorded by Dr Boyce, which was that “they were false or they were taken when her husband was on the toilet”.
The matter proceeded before the Arbitrator, with it being formally conceded that the DVD showed the appellant. The appellant’s response, when Dr Boyce raised the issue of the DVD surveillance with the appellant, is described above. The Arbitrator said the response was “not creditable” and one that “reflects poorly on her credit” (T37.32–38.2-8). That conclusion was clearly open to the Arbitrator, and it is a statement with which I agree.
Other matters set out at [78] above go to what was depicted in the DVD. It is said that the appellant’s walking was slow and uneven, her bending was not unrestricted or sustained, her neck movements were not outside her assessed restrictions and were accompanied by stiff upper body movement. The submissions made by the appellant on this issue are basically consistent with the reports of Dr Conrad and Dr Costa, commenting on the surveillance DVD. The basis on which the Arbitrator preferred the views of other doctors, to those of Dr Conrad and Dr Costa, is further discussed below in dealing with the third ground of appeal.
The Arbitrator’s views on the surveillance DVD are referred to and quoted at [14]–[17] above. I have viewed the DVD twice. The view the Arbitrator formed, of the activities depicted in the DVD, was well open to him. Although Dr Bruce made an error in his reference to frequent squatting, there is no indication that this was crucial to the opinion formed by Dr Bruce, which the Arbitrator accepted. Dr Bruce referred to a number of inconsistencies which led him to change his opinion, after viewing the DVD surveillance. Dr Bruce’s views did not stand alone. They were generally consistent with the views of Dr Rushworth, Dr Fulop, Dr Smith and Dr Boyce.
The Arbitrator’s views on what was depicted in the DVD, and his subsequent acceptance of medical evidence which was contrary to the case presented by the appellant, was open on the evidence. Applying the principles set out in Raulston quoted at [28] above, the appellant has not demonstrated that the Arbitrator’s decision was wrong.
The first ground of appeal fails.
THE SECOND GROUND – ALLEGED ERRORS IN DR BRUCE’S THIRD REPORT
Dr Bruce reported three times in the matter. His report dated 23 July 2014 dealt with his examination of the appellant on that date. He thought the appellant’s injury to the right shoulder had resolved, but the injury to her cervical spine and lumbar spine had not. There was “contribution from pre-existing degenerative changes”, but also from “the injury to her spine which occurred when she fell down stairs at work on 27 February 2012”. In a supplementary report of the same date he assessed the appellant as suffering 11 per cent whole person impairment, in respect of her cervical spine and lumbar spine, resulting from the employment injury.
Dr Bruce’s third report, dated 14 August 2014, commented on the surveillance DVD taken on 29 and 31 July 2012, and the surveillance reports dated 14 and 23 July 2014. The report dated 14 August 2014 referred to “exaggeration” by the appellant. Dr Bruce changed his opinion. He concluded there was no whole person impairment as a result of the injury. He said the appellant’s cervical and lumbar spondylosis had been temporarily aggravated by the work injury, and the aggravation “most likely ceased about 12–18 months after the time of the injury”. He concluded that the appellant suffered from one per cent whole person impairment, but this was “due entirely to her pre-existing degenerative changes”, there was “0% Whole Person Impairment related to her work injury”.
Appellant’s Submissions
The appellant’s submissions identify alleged errors in Dr Bruce’s reports, and then assert error on the Arbitrator’s part in failing to recognise these errors of Dr Bruce.
The first of these is in the initial reports dated 23 July 2014. The appellant submits that Dr Bruce assessed the appellant’s right upper extremity (shoulder) at “0%”, when it was not one of the body parts claimed.
The appellant then submits that Dr Bruce described bags lifted by the appellant in the DVD as “heavy”, when there was no objective evidence of their weight. Similarly, Dr Bruce is said to have erred in referring to the appellant walking “reasonable distances” in the absence of evidence of the distances walked. The appellant also refers to Dr Bruce’s description of “frequent squatting” when the DVD does not show squatting.
Respondent’s Submissions
The respondent’s submission referred to above, relating to the first ground, also applies to this ground, that is, there is no argument that the Arbitrator actually “got anything wrong”. The respondent submits that the appellant is simply seeking to “re-argue the scope and weight of the surveillance video”.
Discussion
The Right Shoulder Assessment
The original Application to Resolve a Dispute was lodged on 10 December 2013. It did not include a claim pursuant to s 66 of the 1987 Act. Dr Conrad, in his report dated 11 June 2014, assessed 21 per cent whole person impairment, based on impairments in respect of the central nervous system, cervical spine, lumbar spine and upper extremity right shoulder. The decision of Keating P in He (No. 1) recorded at [12]:
“By letter dated 13 June 2014, Ms He claimed lump sum compensation pursuant to s 66 of the 1987 Act in respect of a 21 per cent whole person impairment which included eight per cent whole person impairment in relation to an alleged injury to the central nervous system. The body parts comprising the claim were unspecified, however, a copy of Dr Conrad’s report of 11 June 2014 was attached.”
Dr Bruce’s initial report, dealing with whole person impairment, was dated 23 July 2014. His supplementary report of that date stated “In view of Dr Conrad’s assessment, her right shoulder was also assessed.” There is an Amended Application to Resolve a Dispute, dated 28 August 2014, which inserts a claim in respect of 21 per cent whole person impairment in respect of the cervical spine, the lumbar spine, the central nervous system and “Upper Extremity (Right Shoulder)”. Consent Orders dated 4 December 2015 referred the claims pursuant to s 66 in respect of the cervical spine and the lumbar spine to the AMS for assessment. The Consent Orders noted that the allegations of injury to the right shoulder and central nervous system were discontinued.
It is clear, from the above sequence of events, that a claim was made on 13 June 2014, based on Dr Conrad’s assessment dated 11 June 2014, for 21 per cent whole person impairment, which included 4 per cent in respect of the “upper extremity right shoulder”. It is clear that Dr Bruce assessed whole person impairment, as it was requested in the insurer’s “additional questions” (his supplementary report dated 23 July 2014 at the first page). It is clear that Dr Bruce assessed whole person impairment in respect of the “upper extremity right shoulder” as it was part of Dr Conrad’s assessment, on which the lump sum claim was based. The appellant subsequently amended the Application to Resolve a Dispute to add claims pursuant to s 66 (including for the right shoulder), then later withdrew the right shoulder allegation.
The appellant submits that Dr Bruce failed in his report dated 23 July 2014, to assess the appellant’s “left arm or wrist”, but assessed the right shoulder which was “not one of the body parts for which the Appellant is making a claim”. The submission is that the Arbitrator erred in that he “had not noticed this error”.
It is apparent that Dr Bruce assessed those components of Dr Conrad’s assessment (cervical spine, lumbar spine and right shoulder) which fell within his area of expertise, as an orthopaedic surgeon. The right shoulder was assessed by Dr Conrad and fell within the 21 per cent permanent impairment assessment. The left arm or wrist did not. I am quite unable to detect what error Dr Bruce allegedly made in this regard. It follows I am quite unable to detect a basis on which the Arbitrator erred in failing to notice it.
Other Matters Raised Going to the Second Ground
The submissions at [11], [12], [14] and [15] of the appellant’s written submissions repeat submissions made in support of the first ground. They are dealt with in the Discussion dealing with the first ground of appeal.
The appellant’s attack on appeal is concentrated on the opinion of Dr Bruce. It is true that the Arbitrator accepted the evidence of Dr Bruce. Dr Bruce was not alone. His views on the surveillance material were essentially supported by the opinions of Dr Rushworth, Dr Fulop, Dr Smith and Dr Boyce.
The appellant also makes various specific submissions, going to the DVD and the extent to which it is inconsistent with other evidence, at [17]–[34] of her submissions. These are submissions that could and should have been made at the Arbitration hearing, if they were to be relied upon. They are made for the first time on appeal. In those circumstances, the Arbitrator did not deal with those submissions. The appellant should not be allowed to raise those matters now, on appeal (Metwally at [7]). Additionally, it is not an error to fail to deal with something that was not raised (Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 per McColl JA at [30]).
Again, applying the principles set out in Raulston quoted at [28] above, the appellant has not demonstrated that the Arbitrator’s decision was wrong.
The second ground of appeal fails.
THE THIRD GROUND – PREFERRING THE OPINION OF DR BRUCE
The Appellant’s Submissions
The appellant submits that Dr Bruce’s report dated 14 August 2014, and his opinions, were flawed. It follows, in the appellant’s submission, that the competing evidence from Dr Conrad and Dr Costa should have been preferred to that of Dr Bruce.
In support of this argument, the appellant additionally submits that Dr Costa, as the doctor with the “ongoing long term care” of the appellant, was “best placed to assess the Appellant’s activities on the film and whether those activities fall within the Appellant’s stated and assessed restrictions or not”.
The Respondent’s Submissions
The respondent repeats its submission that the appellant has not demonstrated that “the Arbitrator as the tribunal of fact got anything wrong”.
Discussion
The appellant’s submissions on this ground, at [36] and [38], are predicated on an assumption that Dr Bruce’s report dated 14 August 2014 had “errors and flaws”, “flawed opinions and conclusions”. No further submissions are put to support this conclusion, which accordingly relies on acceptance of the appellant’s submissions to this effect, going to the first and second grounds of appeal. The first and second grounds of appeal failed, for reasons given above. It follows that the third ground, to the extent to which it relies on the above conclusion about Dr Bruce’s report, also fails.
There is an additional submission, that Dr Costa, as the appellant’s treating general practitioner, was better placed than other medical witnesses in the case, to assess the appellant’s activities in the DVD, and whether they were inconsistent.
Dr Costa’s report dated 22 September 2014 dealt with the DVD evidence. It also dealt at some length with the reports of Dr Bruce. Dr Costa referred to the assessment by Dr Bruce of the appellant’s right shoulder (which was in his reports dated 23 July 2014). Dr Costa said that the appellant’s “main complaints are of left shoulder and upper limb injury”. Dr Costa conjectured that “Dr Conrad may have mislabelled the left shoulder with the right in his report”, thus misleading Dr Bruce, who assessed only the “less affected right shoulder”.
I do note the material in evidence includes a radiology report addressed to Dr Costa dealing with an x-ray and ultrasound of the right shoulder, performed on 6 June 2012. It mentions mild bursitis and mild impingement. It is mentioned in Dr Conrad’s report dated 11 June 2014 and Dr Bruce’s report dated 23 July 2014.
Dr Costa’s report dated 22 September 2014 dealt at length with the methodology of whole person impairment, and the extent to which deduction for previous injury or pre-existing condition or abnormality (s 323 of the 1998 Act) was appropriate. This is of limited relevance to the appeal before me, the claim pursuant to s 66 of the 1987 Act having been concluded on the basis of the binding MAC of Dr Boyce dated 17 February 2016. That aspect of the claim is not the subject of appeal.
Dr Costa said that he had seen the DVD and there was “nothing in the video surveillance which would cause me to change my opinion as to her injuries and her continuing disabilities and her fitness for work as a packer”.
The appellant’s submission, that Dr Costa’s opinion should have been preferred due to his status as a treating doctor with the ongoing long term care of the appellant, was a submission going to the weight of evidence, and which medical evidence should be preferred by the tribunal of fact. It is a submission which, if it were to be made, should have been made to the Arbitrator. It was not. It is not a submission which, on appeal, seeks to identify appealable error on the Arbitrator’s part.
It follows that the third ground of appeal fails.
The Arbitrator gave a specific reason for preferring the opinion of Dr Bruce, on the significance of the surveillance material. The Arbitrator referred to Dr Bruce’s reports, and to the doctor’s views on the consistency (or lack of it) of the surveillance material (reasons at T8.30–17.26). The Arbitrator, after viewing the DVD, said that in his view the surveillance “shows the applicant having a considerable range of movement, consistent with what Dr Bruce states in his further report”. The Arbitrator then referred to reports on which the appellant’s counsel had addressed from Dr Conrad, Dr Costa, Dr Abraszko and Dr Rushworth (reasons at T17.28–24.30).
The Arbitrator referred to various inconsistencies between the appellant’s complaints and the activities in the DVD (reasons at 36.22–39.17). He said (at T39.25–6) “My opinion of the surveillance, as I have said, accords most closely with that formed by Dr Bruce.” Dr Conrad commented on the DVD in his report dated 18 September 2014. In that report Dr Conrad set out his observations on what the DVD showed. In his ‘Opinion’ he described the appellant as:
“… walking slowly with a slight limp and getting in and out of cars and doing shopping where the maximum bending that she does is probably flexion of lumbar spine of no more than 70 degrees. There is no strenuous activity displayed by Mrs He.”
I have viewed the DVD. It was open to the Arbitrator to conclude that Dr Bruce’s view, of what was demonstrated in the DVD, was factually more accurate than that of Dr Conrad, even allowing for Dr Bruce’s reference to squatting. This entitled Dr Bruce’s view on that topic to greater weight (see generally, Hancock at [82]–[83]). The Arbitrator’s conclusion in this regard does not demonstrate error.
I also note that, whilst the Arbitrator said that he gave “a great deal of weight to the opinion of Dr Bruce” (reasons at T42.5–8), he examined “the totality of the evidence” (reasons at 39.31), and also gave “a degree of weight to the opinion of the Approved Medical Specialist, Dr Boyce, who obviously has formed an unfavourable opinion of the applicant” (reasons at T42.10–4).
For these further reasons, the third ground of appeal fails.
THE FOURTH AND FIFTH GROUNDS – FINDINGS ON INCAPACITY AND WEEKLY ENTITLEMENT
The fourth ground of appeal is that the Arbitrator erred in his findings on the appellant’s physical abilities, capacity for employment and weekly entitlement. The fifth ground is related, it is that the Arbitrator failed to appropriately apply Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 71 NSWLR 593; 6 DDCR 339 (Muir). (The appellant’s grounds of appeal refer to the Court of Appeal decision, but the reference given is to the Presidential decision in Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161. The appellant’s submissions at [57] appear to refer to both the Presidential decision, and that in the Court of Appeal.)
The Appellant’s Submissions
The appellant submits that the DVD does not establish that the appellant could work as a process worker in her pre-accident employment. The appellant was not given an opportunity to explain her activities in the film to Dr Bruce, she was not asked what medication she had taken when the film was exposed. The respondent made weekly payments from when the initial DVD was exposed (in July 2012) until 26 July 2013. This involved acceptance of at least partial incapacity over that period. Nothing really changed to justify the cessation of payments. It is submitted the Arbitrator erred in not awarding ongoing weekly compensation from 27 July 2013.
Submissions on the fifth ground refer to the appellant’s age, education, illiteracy, lack of English language skills and physical limitations. The appellant submits that the Arbitrator “did not consider the availability of work”, for someone in the appellant’s “particular circumstances”. At [60]–[61] it is submitted on the appellant’s behalf:
“60. Even if the Appellant were fully fit the fact remains that she was injured at her work with the Respondent and she would realistically be most unlikely to find employment on the open labour market.
61. Accordingly, it is submitted that there should be a finding that the Appellant does have a residual incapacity that is compensable by weekly benefits and the payment of medical expenses from 27 July 2013.” (emphasis in the original)
The Respondent’s Submissions
The respondent submits that the appellant is seeking “to re argue a case that was, or should have been argued below”.
The respondent submits that the Arbitrator referred to Muir in his reasons at pages 35–6. It submits, on the meaning of ‘incapacity’, that it has been “held to be the reduced earning capacity of a worker in the open labour market reasonably accessible to the worker as a result of his or her injury”. Reference was made to Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 (Yacob), in addition to Muir.
Discussion
The fourth and fifth grounds are essentially misconceived. The Arbitrator’s findings are summarised above, at [9]–[19]. He noted Dr Bruce’s revised opinion, in his final report, that the effects of the aggravation of degenerative changes had “now ceased”. He regarded the surveillance as being “inconsistent with a number of histories”. The Arbitrator accepted the opinion of Dr Abraszko, a treating neurosurgeon, that the C6/7 disc protrusion, was not “of any consequence to the complaints of pain” (reasons at T39.32–40.3).
The Arbitrator reasoned that the appellant’s case was based on “a musculoligament strain of the neck and the low back”. He said:
“The applicant’s complaints therefore of pain are based on an absence of pathology, in circumstances where there are gross inconsistencies in the applicant’s evidence. The applicant is required to prove her case on the balance of probabilities. In this case, there is clearly conflicting medical opinion and, on what I have seen in the surveillance, surveillance that is inconsistent with the manner in which the applicant has portrayed herself to doctors on numerous occasions. On my view of the surveillance, it does not show a person being in great pain or with great restrictions of movement. On this basis I am not prepared to accept the applicant as a witness of truth.” (reasons at T40.5–17)
The Arbitrator said, of the appellant’s left wrist and hand, “there just doesn’t seem to be anything wrong with that body part” (reasons at T40.30–1). He then continued:
“In respect of the neck and the back, I am not persuaded on the balance of probabilities that the applicant has any ongoing problems, as a result of the injury, from the date of the claim for weekly compensation in July 2013. Accordingly, I am not satisfied on the balance of probabilities that the effects of any injury continue from or after 27 July 2013.” (reasons at T40.33–41.5)
The Arbitrator made a formal finding, at [1] in the Certificate of Determination dated 26 April:
“I find that the effects of any injury to the left hand/wrist, cervical spine and lumbar spine had ceased by 26 July 2013.”
A worker’s entitlement to weekly compensation, at its most fundamental, is based on s 33 of the 1987 Act, which reads:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.” (emphasis added)
In Williams v Metropolitan Coal Co Ltd [1948] HCA 8; (1948) 76 CLR 431 Starke J at [20] said:
“Compensation is not payable for the injury but for the loss of power to earn caused by the injury, that is, for incapacity for work which results from the injury.’
The above passage was quoted and applied in Yacob. It follows that, if there is not incapacity resulting from a relevant employment injury, weekly compensation is not payable. The Arbitrator made a specific finding that the appellant had not discharged her onus of proving that the effects of the relevant injury continued beyond 26 July 2013, the date to which liability was voluntarily accepted by the respondent.
The appellant’s submissions, going to the fourth ground, deal with whether there was incapacity, in a physical sense, beyond 26 July 2013. The submissions going to the fifth ground go to the assessment of weekly compensation, in respect of any such incapacity. Neither of these issues was engaged. The Arbitrator’s finding, quoted at [145] above, was not a finding on ‘incapacity’, but rather a finding on causation.
The fourth and fifth grounds fail.
DECISION
The Arbitrator’s determination dated 26 April 2016 is confirmed.
Michael Snell
Deputy President
23 September 2016
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