Issa v CCS Couriers Pty Ltd - [2024] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ISSA -v- CCS COURIERS PTY LTD [2024] WADC 32
CORAM:   GILLAN DCJ
HEARD:   12 MARCH 2024
DELIVERED          :   Ex tempore
PUBLISHED           :   15 MAY 2024
FILE NO/S:   APP 49 of 2023
BETWEEN:   RAYMOND JOSEPH ISSA
Appellant
AND
CCS COURIERS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR MELVILLE
File Number            :   A115870 & A117476

Catchwords:

Workers' compensation - Appeal from decision of arbitrator - Order for repayment of weekly payments - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

There will be leave to appeal on grounds 1 and 3.
The appeal will be allowed.
The decision of the arbitrator with respect to s 71 application will be set
aside and the matter remitted to the WorkCover WA Arbitration Service
for a further determination.
The respondent is to pay the appellant's costs of the appeal.

Representation:

Counsel:

Appellant	:	Mr J R Clyne
Respondent	:	Mr N F Morrissey & Mr L E M Bayly

Solicitors:

Appellant	:	Simon Walters
Respondent	:	HWL Ebsworth Lawyers (Perth)

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

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
D'Orsogna Ltd v Zhang [2019] WADC 73
Leighton Contractors v Withers [2011] WACC DC9-2011
Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744
Moyes v Ensco Australia Pty Ltd [2022] WASCA 104
Osgood v Wham [2007] WASCA 178
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147

GILLAN DCJ:

[This decision was delivered extemporaneously on 12 March 2024 and edited from the transcript.]

These are my reasons ex tempore for deciding the appeal. I reserve the right to edit the reasons for grammatical errors in the event that it is necessary to do so in order for these reasons to be formally published.
This appeal arises from a decision of Arbitrator Melville made 5 September 2023 after arbitration. The appeal is brought pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA), which I will refer to as the Act.
The appeal is from the decision pursuant to s 71 of the Act to require repayment of weekly workers' compensation payments made in the period between 2 September 2022 and 5 September 2023, the date of the decision.

Background

It is convenient to set out a little background of relevant facts and findings by the arbitrator, which are uncontested, for the purposes of the appeal. On 20 November 2018 the appellant who is a worker for the purposes of the Act, was injured in a road traffic accident while he was employed as a courier driver by the respondent.
The appellant lodged a workers' compensation claim form dated 26 November 2018, liability was accepted pursuant to s 57(3)(a) of the Act and weekly compensation payments commenced.
In January 2020 the appellant was reviewed by Dr Tan who then expressed the opinion that there had been a full recovery following the motor vehicle accident. Dr Tan also expressed reservations, which are unnecessary for me to set out, about the appellant and the veracity of his claim to still be suffering the effects of the injury.
That seems to have set in play a further series of reviews, so that the appellant was reviewed further by Dr Tan in October 2020. There were a series of reviews by other medical practitioners at the request of the respondent through to about March 2022.
And, in addition, video surveillance of the appellant was obtained it seems in September and October 2020 and in May 2021. There were, as would be expected, medical reviews of the appellant at the appellant's request as well.
Eventually the respondent gave notice pursuant to s 61 of the Act to the appellant of the respondent's intention to discontinue his weekly payments of compensation. And on the basis that the appellant had made a full recovery from his work‑related injury.
That notice advised the appellant that if he disputed the employer's right to discontinue the payments he could within 21 days from the service of notice apply for an order of an arbitrator that the weekly payments not be discontinued.
The appellant accordingly commenced an application pursuant to s 61 of the Act. The appellant's application prompted an application by the respondent pursuant to s 62 of the Act for a review of the weekly payments and that the weekly payments be retrospectively discontinued from 7 May 2021 or such other day the arbitrator saw fit.
The respondent also applied pursuant to s 71 of the Act for orders the worker repay the weekly payments that were made as and from 7 May 2021 or such other date as the arbitrator saw fit.
Since each of the appellant's and respondent's applications had at their heart the issue of whether the appellant was fit to resume his pre‑injury employment, the applications were listed to be heard together and the arbitration came on for hearing on 18 and 19 July 2023.

The arbitrator's decisions

The arbitrator found on the s 62 application by the respondent that the appellant had suffered either a soft tissue injury to the lumbar spine or an aggravation of pre‑existing degeneration, which caused him pain and incapacity immediately after and, no doubt, as a consequence of the accident.
The arbitrator further found that the appellant was fully recovered and fit for work in his pre‑accident work as a delivery driver by the time he was reviewed by Dr Tan on 15 January 2020 or he had been left with minor intermittent discomfort in his back, which did not and does not prevent him from working in that capacity. Accordingly, the arbitrator dismissed the appellant's s 61 application.
Neither the decision pursuant to s 62 or the decision pursuant to s 61 of the Act are the subject of any appeal.
With respect to the application pursuant to s 71 the arbitrator ordered the repayment of weekly payments for the period after 2 September 2022. I am advised, and I accept, that the amount required to be repaid is $36,877.86. It is this decision which is the subject of the appeal.
In his reasons the arbitrator first of all set out that he proceeded pursuant to s 71(1) of the Act, which reads as follows:
(1)Where WorkCover WA, the employer, or the insurer has paid compensation or expenses to a worker or dependent and that person was not lawfully entitled to that payment or to any part of the amount of that payment, WorkCover WA, the employer, or the insurer, as the case may be, may apply for an order of an arbitrator that compensation or expenses so paid be refunded, and an arbitrator has jurisdiction to hear and determine such an application and, subject to subsection (3), to make any order in relation thereto or any part thereof as the arbitrator considers appropriate in the circumstances.
I am told, and I accept, that subsection (1) is the only subsection of s 71 that is relevant to my consideration of the matter today.
The arbitrator then adopted the interpretation of s 71(1) addressed by Commissioner McCann in the case of Leighton Contractors v Withers[1] as endorsed and expanded upon by Davis DCJ in D'Orsogna Ltd v Zhang.[2]
[1] Leighton Contractors v Withers [2011] WACC DC9-2011.
[2] D'Orsogna Ltd v Zhang [2019] WADC 73.
There her Honour said:[3]
[3] D'Orsogna Ltd v Zhang [22].
The relevant factors (and this is my summary) include, but are not limited to:
(a)whether the worker obtained other paid employment whilst unlawfully receiving weekly payments;
(b)whether the evidence (such as surveillance footage) reveals that the worker engaged in such strenuous activities as to establish that the worker's presentation to the certifying practitioners was fraudulent;
(c)whether the worker went out of his or her way to maximise the effects of his disability;
(d)whether there was malingering by the worker;
(e)the past or present physical condition of the worker;
(f)the past or present economic or financial condition or circumstances of the worker;
(g)compassionate grounds, such as hardship to the respondent and the scant chance of recovery, although compassionate considerations must be weighed against the fact that the worker received money for which there was no entitlement; and
(h)the employer's own conduct.
The arbitrator found that his discretion to make an order under s 71 was enlivened by his finding that the appellant had been fit to resume his employment from 15 January 2020.
Given that weekly payments are only payable in circumstances where a worker is unfit to perform the duties of his employment, the arbitrator said:
It followed that once a worker is found to be fit to resume his employment the appellant was therefore not lawfully entitled to weekly payments.
The arbitrator then addressed the considerations referred to in D'Orsogna Ltd v Zhang. In summary he found as follows:
1.That there was no evidence the appellant engaged in paid employment while unlawfully receiving weekly payments.
2.The surveillance video footage showed the appellant was fit to return to work. The surveillance video was inconsistent with the appellant's presentation to the doctors who examined him and that was intentional. The appellant's presentation in clinical examinations was not genuine and he provided inaccurate histories.
3.The arbitrator accepted that the appellant was unsophisticated, and uneducated and did not have highly developed communication skills but found that he was able to understand questions and did not provide adequate explanation for his professed lack of memory of events. Therefore, he found the appellant knew what he was doing when he was examined by the doctors and providing his history.
4.The arbitrator concluded that the appellant did not want the doctors to know the real state of his health because he had concerns this would affect his entitlements to compensation. I note here that notwithstanding those findings the arbitrator has, in my view deliberately, not found that the appellant was acting fraudulently in his presentation to certifying practitioners, or that the appellant was going out of his way to maximise the effects of his disability or that the appellant was malingering.
5.With respect to the past or present economic or financial condition or circumstances of the appellant and the hardship to the appellant: the arbitrator found he had been provided with no evidence from the appellant as to his or his family's financial position. Accordingly, the arbitrator could not make any findings that the appellant would suffer any significant financial hardship. The arbitrator noted that the appellant had no dependent children and although married the arbitrator had no information from the appellant as to the degree of dependency of the appellant's wife, if any, or her financial position.
6.The learned arbitrator also noted that there was some reference in the medical reports to a mortgage and he could find from that the appellant had an ownership interest in the appellant's home. However, given his concerns about the veracity of the appellant he was reluctant to put much weight on the evidence that the appellant had a mortgage. I pause here to note, that in my view the arbitrator's reference to evidence is a reference only to comments in the medical reports that refer to a mortgage.
7.The arbitrator went on to say that if the property was mortgaged the arbitrator said he had no evidence of the amount of the mortgage, any interest rate thereon, or the rate of repayments. The arbitrator commented that the fact of property ownership could equally be said to demonstrate capacity in the appellant to repay what he had received so far freeing up any future income for the payment of living expenses rather than being faced with using that income to repay compensation to the respondent.
8.With respect to the past or present physical condition of the appellant: the learned arbitrator noted the appellant has a serious heart condition and non-insulin dependent diabetes, which may compromise his ability to work in the future, and to meet his liabilities, but the arbitrator, said he could see nothing in the evidence that justified not ordering repayment of part of the compensation on the grounds of compassion.
9.Turning then to the employer's conduct: the arbitrator noted that the respondent had taken no steps to cease payments to the worker even though it had in its possession, by September and October 2020, the surveillance videos and a report of Dr Tan from November 2020 where the videos were shown to Dr Tan and where the opinion was expressed that the appellant was objectively fit to return to his work. The respondent nevertheless took no steps to cease payments to the appellant for a further period of some years.
10.In conclusion, the arbitrator found that having regard to the appellant's ill health and its potential effect on his future ability to work and the employer's lack of action to cease weekly payments, he exercised his discretion to order repayment solely from 2 September 2022, which was the date of the notice of intention to cease payments was given to the appellant.

Grounds of appeal

The grounds of appeal in this matter are:
1.The learned arbitrator erred in finding that the appellant would suffer no financial hardship if a s 71 order was made, when there was no evidence to support such a conclusion.
2.The learned arbitrator failed to take into account the appellant's other comorbidities and their effect on the appellant's fitness to work when the s 71 order was made.
3.The learned arbitrator erred in finding the appellant had a capacity to repay, when there was no evidence to support such conclusions.

The law

Turning now to the law. Under s 247 of the Act a party may, with the leave of the District Court, appeal against the decision of an arbitrator. Leave may not be granted unless a question of law is involved: s 274(2)(b) of the Act.
An appeal 'involves' a question of law if the decision maker whose decision is under appeal has made an error of law or an error of mixed fact and law.[4]
[4] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
Further, a decision will not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[5]
[5] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond Media case).
A finding of fact by an arbitrator in the absence of any supporting evidence is a question of law, and whether there is evidence of a fact is also a question of law.[6]
[6] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19]; Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744.
As has been made clear in BHP Billiton Iron Ore Pty Ltd v Brady and the Bond Media case,[7] an error of law is not made merely by an arbitrator finding a fact wrongly or on a doubtful basis, or by an arbitrator preferring one version of the evidence or one set of inferences over another version of the evidence or set of inferences. So long as the inference is reasonably open, even if that inference appears to have been drawn as a result of a illogical reasoning, there will be no error of law.
[7] Bond Media case (356).
If a question of law is involved, then the grant of appeal lies in the discretion of the court, and once leave to appeal is granted, the appeal is conducted by way of a real review of the decision. It is not a hearing de novo and there must be a proper basis for disturbing the decision under challenge.
Of course, in this case it is accepted by the respondent that if I were to find that there is an error of law and grant leave to appeal, then the matter could be remitted to the Arbitration Service, however, the respondent says that I ought to undertake that real review.
And in comparison, the appellant says that I should undertake the real review but what I should do is dismiss the application altogether.
When I am considering this matter I need to keep in mind that a decision under s 71 involves a very broad discretion to make any order considered appropriate in the circumstances enshrined in that section and it is not limited to the factors that were outlined by her Honour, Davies DCJ, and appropriately adopted by the arbitrator in this case.
I was referred to the Court of Appeal in Osgood v Wham[8] where the Court of Appeal said:
In respect of decisions involving discretionary judgments, such as the instant case, there is a strong presumption in favour of the correctness of the decision appealed from an appellate court will be reluctant to set it aside and less convinced is clearly wrong.
(citations omitted)
[8] Osgood v Wham [2007] WASCA 178 [80].
The Court of Appeal also went onto say:[9]
[9] Osgood v Wham [80].
In the light of these propositions, Heydon JA, as he then was, in Micallef v ICI Australia Operations Pty Ltd at [45], distilled the limited circumstances in which a discretionary judgment might be overturned, as being:
When it is demonstrated that the decision maker:
a.made an error of legal principle;
b.made a material error of fact;
c.took into account some irrelevant matter;
d.failed to take into account, or gave insufficient weight to, some relevant matter; or

e.arrived at a result so manifestly unreasonable or unjust as to suggest that one of the foregoing … had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

Turning now to the disposition of this matter. In my view an error of law is demonstrated in this matter in the learned arbitrator's decision that there was no evidence from the appellant as to his family's financial position.
It is fair to say that the evidence before the learned arbitrator was not fulsome, indeed it could be described as scant. But it is wrong to say there was no evidence. The appellant's evidence before the arbitrator included the appellant's book of documents (Exhibit 6) and at document 8, in that exhibit is a document headed, 'Applicant's supplementary statement'. It is to be found at pages 296 and 297 of the Appeal Book.
In that document the appellant says, in summary:
1.His highest level at school was Year 10. He did not hold any other trade certificates. He went straight from school to work and he has not stopped working unless he has had to.
2.His first job was as a caravan assembler and then he was a glazier for approximately 20 years before becoming a truck driver and a courier driver.
3.He has not worked since the accident, the subject of the claim, and has lost a great deal of money 'when you add it up'. When he was working, he was on at least $1,000 whereas the $772 per week he receives is low.
4.He has a home loan, which he is now struggling to pay. He was on Centrelink for a short time and is struggling to make ends meet and he had to go to the ANZ Bank and ask for a three and a half month relief from paying his home loan.
I note the appellant's school record, lack of formal qualifications and work experience was confirmed in his evidence‑in‑chief at the arbitration: Appeal Book, pages 78 - 84.
There was additionally, evidence in re‑examination that the appellant's wife was not the best most days. She has two slipped discs, so the appellant helps her out in the house doing housework. But I note that the appellant did not seek to rely on this evidence.

It is of note that the tender of document 8 was a part of the appellant's book of documents before the learned arbitrator. The document was initially objected to by the respondent.[10] But the appellant was then cross‑examined on that document and at the respondent's request it was tendered as part of Exhibit 6.
[10] See ts 19 (18 July 2023) which is Appeal Book, par 77.
The respondent did not cross‑examine the appellant as to the evidence in that document that he had lost a lot of money 'when you add it up', that the weekly payments were low, lower than he had received when he was working and that he was struggling to pay his home loan, he was struggling to make ends meet on Centrelink, and that he had asked for relief from paying his home loan.
I accept what the Court of Appeal said in Moyes v Ensco Australia Pty Ltd[11] to the effect that a judge does not have to accept evidence that is not the subject of cross‑examination and that evidence is merely a relevant factor to be weighed and evaluated.
[11] Moyes v Ensco Australia Pty Ltd [2022] WASCA 104.
But that is not what happened here. The learned arbitrator has completely overlooked that there was evidence of any kind touching on the point in question. There was evidence I reiterate, not strong evidence, not objective evidence, and not a lot of evidence, but there was evidence that touched on that point.
It is clear that when I read [172] where the learned arbitrator said he had been provided with no evidence from the worker as to his family's financial position and that he could not make any finding that the appellant would suffer significant financial hardship, that the learned arbitrator was not taking into account the evidence that was contained in document 8, Exhibit 6.
When the learned arbitrator went on to talk about there being no information from the worker as to the degree of dependency of his wife or of her financial position that was also untrue. There was some evidence in the re‑examination of the appellant.
And where the learned arbitrator was speaking in [173] that there was a reference in the medical reports to a mortgage that he was not taking into account the evidence relevant to the mortgage in document 8, Exhibit 6.
In my view there has been a failure to take into account the evidence referred to in [46] and [47] in reaching the conclusion expressed at [176] of the arbitrator's reasons, and that error is an error of law.
I am not, however, persuaded that there is an error of law in the alleged ground 2 of the appeal. On a proper reading of [174] and [176] of the learned arbitrator's reasons he did take into account that the appellant has a serious heart condition and a non‑insulin dependent diabetes and that those conditions could compromise his ability to work into the future.
The learned arbitrator weighed those health risks and the contribution to the employer's own failure to take more timely action in reaching a conclusion about how much of the weekly payments should be repaid.
Accordingly, it is clear to me by the fact that the arbitrator said he reached no conclusion that there would be any significant financial hardship and the fact that it was not referred to in evidence, that the question of financial hardship would have been of importance to him in reaching his decision. And so, accordingly, I grant leave to appeal based on the two errors of law that I have identified.

Review of the decision

Having granted leave it is my view, however, that this matter should be remitted to an arbitrator for a decision properly taking into account all of the available evidence. I reach that decision for two reasons.
Firstly, because it may be that the decision ultimately to be reached will be inextricably linked to the findings on credibility, which, as I have said, fall short of findings that there has been fraud or that the appellant deliberately acted to maximise the effects of his disability or that he was a malingerer.
Secondly, the parties' written and oral submissions on the evidence do not descend in my view to the degree of particularity that would be required about all of the evidence for me to fairly reach a decision on that point.
So the orders will be:
1.There will be leave to appeal on grounds 1 and 3.
2.The appeal will be allowed.
3.The decision of the arbitrator with respect to s 71 application will be set aside and the matter remitted to the WorkCover WA Arbitration Service for a further determination.
4.The respondent is to pay the appellant's costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AP
Associate
14 MAY 2024