Jones v Ramsay Health Care Pty Ltd
[2019] WADC 97
•30 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JONES -v- RAMSAY HEALTH CARE PTY LTD [2019] WADC 97
CORAM: GETHING DCJ
HEARD: 22 MAY 2019
DELIVERED : 30 JULY 2019
FILE NO/S: APP 9 of 2019
BETWEEN: SARAH JONES
Appellant
AND
RAMSAY HEALTH CARE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR WALLBRIDGE
File Number : A49677
Catchwords:
Workers' compensation - Appeal from arbitration - Definition of 'injury by accident' - Whether arbitrator erred in law in relying on a medical report which contained hearsay
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 5
Result:
Leave to appeal denied
Representation:
Counsel:
| Appellant | : | Mr A J Stewart |
| Respondent | : | Mr A Vucak |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | Hall & Wilcox Lawyers |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378
Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Commonwealth v Ockenden [1958] HCA 37; (1958) 99 CLR 215
Director General of Department of Transport v McKenzie [2016] WASCA 147
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Fenton v J Thorley & Co Ltd [1903] AC 443
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317
Hoath v Chancery Nominees Pty Ltd [1982] WAR 269
Inghams Enterprises Pty Ltd v Beyene [2009] C14-2009
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Rodgers v Amcor Ltd [2018] WADC 134
The State of Western Australia v Liyanage [2016] WASC 12
Town of Mosman Park v Tait [2005] WASCA 124
Waite v Alcoa of Australia Ltd [2018] WADC 147
GETHING DCJ:
During the period the subject of the events in this appeal the appellant, Sarah Jones, was employed as a nurse with the respondent, Ramsay Health Care Pty Ltd. On 17 May 2017, the appellant fell at work. She says that she injured her back, an injury which she says was significantly exacerbated in a fall at home on 11 September 2017. The respondent says that she has not proven that she sustained an injury from the fall at work on 17 May 2017, and that the symptoms flowing from the fall at home are not causally related to the fall at work.
On 28 February 2018 the appellant filed an application for arbitration (Application) in relation to a claim for workers' compensation for the injury to her back on 19 May 2017 pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (WICMA).[1] By decision dated 9 January 2019 a WorkCover arbitrator (Arbitrator) dismissed the Application (Decision), in essence not being persuaded that the appellant sustained a compensable injury in the fall on 17 May 2017.
[1] The appellant filed an Appeal Book on 15 March 2019. I will refer to pages of the Appeal Book by the reference 'AB' and the page number. The description of the appellant's injury is at AB 139.
By appeal notice (Appeal Notice) filed 29 January 2019, the appellant appealed from the Decision. In essence, the appellant's case is that the Arbitrator incorrectly interpreted the phrase 'injury by accident' WCIMA s 5, which had the effect that the appellant had been denied the opportunity to have the Application heard according to law. The appellant also asserts that the Arbitrator erred in relying on, and preferring, the opinion of a consultant orthopaedic surgeon, Dr Wren over the medical evidence tendered by the appellant.
For the reasons which follow, the appellant has not established that the appeal involves a question of law, and should be denied leave to appeal.
Background facts
The background facts, at least from the appellant's perspective, are succinctly set out in the particulars to annexure A in the Application:[2]
[2] AB 145 ‑ 147 (with some material which is not of central relevance removed).
The applicant suffered an injury to her lower back ('the injury') in the course of her employment with the respondent on about 19 May 2017.
…
Between May and September 2017 the applicant experienced symptoms of back injury as a result of the injury. These symptoms resulted in the applicant being incapacitated for 2 shifts in May 2017.
On 10 September 2017 the applicant experienced a significant exacerbation of her symptoms including pain as a result of her injury. GP Dr Lee, attended the applicant's home and provided her with pain relief medication.
From 11 September 2017 the applicant attended her usual GP practice and saw Dr McCracken and Dr Allamby, who variously certified the applicant as unfit for work or fit for restricted work only, from 10 September 2017 for approximately 3 weeks.
Pursuant to s 178 and s 179 of the Workers' Compensation and Injury Management Act 1981 ('the Act') the applicant completed and lodged a workers' compensation claim with the respondent in relation to the injury, on or about the 11 October 2017 ('the claim').
On 13 October 2017, CGU for the respondent purported to issue a Form 3C Notice pursuant to s 57A(3)(c) of the Act, 'pending' liability for her claim.
Pursuant to s 57A(3)(b) the respondent's insurer ('CGU Insurance'), issued a Form 3B Notice dated 30 November 2017 stating that liability is disputed.
From late September 2017 until 23 November 2017 the applicant worked within medical restrictions imposed by her GP.
On 23 November 2017 the applicant experienced further significant back symptoms and has been certified unfit for work since that date.
On 21 December 2017 the applicant lodged a Form 100 in relation to the matters set out in paragraphs 1 to 11 above. The dispute was not resolved by the Conciliation Service, and a Certificate of Outcome was issued by Conciliation Officer Champion on 1 February 2018.
The relief sought is also set out in annexure A:[3]
[3] AB 145.
The applicant says that she suffered an 'injury' as defined in s 5 of the Act, and accordingly says that the respondent should in accordance with s 18 and Schedule 1 of the Act, pay to the applicant:
i.Weekly payments of compensation for incapacity from the date of injury and continuing for
•Total incapacity; alternatively
•Deemed total incapacity; alternatively
•Partial incapacity
calculated in accordance with clause 7 and clause 11 of Schedule 1; and
ii.All outstanding and continuing clause 17 and 19 expenses related to the injury.
Decision of the Arbitrator
The Arbitrator provided written reasons for decision.[4] There was an initial issue of fact as to whether on 19 May 2017 the appellant fell at work or at home. The Arbitrator resolved this in favour of the appellant, finding that the appellant slipped and fell on a wet floor while working at the Joondalup Health Campus.[5] The respondent did not challenge this finding in the appeal.
[4] AB 171 ‑ 192. I will refer to paragraphs of the decision as 'Decision [#]'.
[5] Decision [17] – [21].
The primary question identified by the Arbitrator was whether the appellant suffered a physiological change that can be said to establish a 'personal injury by accident' for the purposes of the WICMA. Given the nature of the challenge to the Decision, it is instructive to quote in full the relevant part of the Decision:
33.Ms Jones attended her general practice on 30 May 2017 and saw Dr Allamby.
34.Dr Allamby's examination notes record tenderness at Ms Jones's glutei insert and upper pelvic brim with some tenderness at her right sacroiliac joint on springing.
35.Dr Allamby's treatment notes recorded await recovery and if injury did not settle, Ms Jones was to return for review within 3 ‑ 4 weeks.
36.Dr Allamby's recorded impression of Ms Jones's injury was muscle and sacroiliac sprain.
37.There is no record in Dr Allamby's consultation note of pain to the lower back; rather it appears tenderness was observed in the right buttock area.
38.Following this consultation, Ms Jones states she continued to experience intermittent lower back pain and discomfort with episodes where her symptoms worsened.
39.After 30 May 2017 Ms Jones did not reattend her general practice and continued working until 10 September 2017.
40.On 10 September 2017 Ms Jones suffered severe back pain following an incident at home when she went to pick up an empty saucepan. Ms Jones states she leant over to reach an empty sauce pan and felt immediate severe pain to her lower back. As the pain did not subside, Ms Jones arranged to see a locum doctor, Doctor Rebecca Lee, that same day.
41.The following day, on 11 September 2017, Ms Jones attended her general practice and saw Doctor Catriona McCracken who referred Ms Jones for a CT scan.
42.On 29 September 2017, Ms Jones was referred for an MRI scan.
43.On 12 February 2018 Ms Jones saw Mr Brad Sowman, an orthopaedic surgeon.
44.Mr Sowman's report dated 21 February 2018, recorded that Ms Jones had an injury to her back having had a fall at work in May 2017 and since that time has had low back pain with pain radiating down her leg.
45.There is no mention in Mr Sowman's report of the incident at home on 10 September 2017 or reference to Dr Allamby's recorded examination note of 30 May 2017.
46.Mr Sowman diagnosed Ms Jones with prolapsed discs at L4/5 and L5/S1 level of her lumbar spine causing narrowing in the lateral recess, couples with some facet joint arthritis, and that this was the cause of Ms Jones's lower back and leg pain.
47.Mr Sowman noted his diagnosis was consistent with her injury and a fall, as well as an element of pre‑existing arthritic change. With respect to the arthritic change, Mr Sowman's opinion was that had been exacerbated by the fall, given that she had no symptoms prior.
48.Ramsay Health Care engaged a consultant orthopaedic surgeon, Mr Michael Wren, who initially reviewed Ms Jones's relevant medical records and provided a report dated 17 April 2018. Subsequent to this review, Mr Wren examined Ms Jones, taking a detailed history from Ms Jones at the time, and produced a second report dated 19 July 2018.
49.In Mr Wren's opinion, Dr Allamby's recorded examination note of the attendance on 30 May 2017 was a diagnosis of tenderness of the gluteal insertion and upper pelvic rim and right sacroiliac joint.
50.Mr Wren opines that the injury as recorded by Dr Allamby was most likely a soft tissue injury to the right buttock and pelvic area that was relatively minor in nature.
51.Mr Wren based this opinion on the fact that Ms Jones did not have to re attended her general practice after 30 May 2017 and continued working.
52.Mr Wren accepted that Ms Jones, retrospectively, reported her work duties were causing some lower back discomfort.
53.For there to be a personal injury by accident pursuant to s 5(1)(a) of the Act, I need to be satisfied to the requisite standard that there was a definite or distinct physiological change or physiological disturbance, which if not sudden, is at least identifiable. Waite v Alcoa of Australia Ltd [2018] WADC 147 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
54.In respect of the work fall that occurred on 19 May 2017, the central issue in this matter is whether Ms Jones suffered a personal injury by accident at that time.
55.The diagnosis closest in time to the incident of 19 May 2017 is contained in Dr Allamby's consultation notes of 30 May 2017 and in his letter to Ramsay Health Care clarifying those notes about the history of the fall.
56.In these materials, Dr Allamby states Ms Jones reported being sore (pain) and on examination he observed tenderness at the glutei insert on upper pelvic brim (right buttock and pelvic region), some tenderness on right sacroiliac joint springing, with his diagnosis being muscle and joint sprain. Dr Allamby noted the visit was for muscle strain. It is not recorded in the consultation notes that Ms Jones complained of back pain.
57.Mr Wren's medical opinion of what was recorded by Dr Allamby in the consultation note of 30 May 2017, is that the complaint by Ms Jones was suggestive of pain in right buttock region rather than back pain.
58.Mr Wren's opinion is that Ms Jones had suffered a soft tissue injury to her lumbar spine as a result of the fall on 19 May 2017 with minor on-going symptoms, as evidenced by a single attendance with Dr Allamby about a week and a half after the fall, and a return to her normal work duties.
59.Mr Wren's opinion needs to be considered with Mr Sowman's opinion and the diagnosis of prolapsed discs, which in Mr Sowman's opinion was consistent with the fall at work. The basis for Mr Sowman's opinion however does not take into account the incident that occurred at home on 10 September 2017.
60.Mr Wren's opinion is that following the 19 May 2017 incident it seems most likely that Ms Jones had a soft tissue injury to the lumbar spine.
61.Ms Jones relies on the expert report of Mr Sowman, however, his report does not address the issue of what injury is said to have occurred on 19 May 2017, other than Ms Jones having had a fall at work and subsequently had lower back pain with pain radiating down her leg.
62.Mr Sowman's report is incorrect in that the radiating pain down Ms Jones's leg was not reported until after the incident at home on 10 September 2017.
63.Further, Mr Sowman's opinion of the injury being prolapsed discs in the lumbar spine being consistent with a fall, does not take into consideration the incident of 10 September 2017.
64.The diagnosis of Dr Allamby, which is the only medical note concerning the complaint following the fall on 19 May 2017, and before the incident at home on 10 September 2017, was of muscle and sacroiliac joint sprain. This note does not record a complaint by Ms Jones of back pain or radiating leg pain.
65.To arrive at an independent assessment of the conflicting expert opinions I need to consider the basis of those opinions. See Clarke v Ramsay Health Care Australia [2017] WADC 117, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and Pollock v Wellington (1996) 15 WAR 1.
66.Considering the detailed explanation of the basis of Mr Wren's opinion and the detailed history he took from Ms Jones, I prefer the opinion of Mr Wren as to the issue of what, if any injury, can be said to have been suffered by Ms Jones following her fall at work on 19 May 2017.
67.The evidence as I find it foes no higher than establishing a possibility that Ms Jones suffered a soft tissue injury to her lumbar spine, which was minor in nature, in the work‑related incident.
68.I am not satisfied on a balance of probabilities that Ms Jones has established that it was more likely that not that she did sustain an injury by accident in respect of her prolapsed discs when she fell at work on 19 May 2017. Waite v Alcoa of Australia Ltd [2018] WADC 147.
69.I am not satisfied to the requisite standard that there was a definite or distinct physiological change or physiological disturbance, which if not sudden, is at least identifiable that occurred on 19 May 2017 such that Ms Jones can be said to have suffered a personal injury by accident for the purposes of s 5(1)(a) of the Act.
The Arbitrator went on to determine that, if he was wrong about whether the appellant suffered a personal injury by accident:
(a)any injury which the appellant was suffering from was not causally connected to her employment, nor did it arise out of her employment at the relevant time;[6]
(b)the appellant had a pre-existing disease, being a disc degenerative disease affecting her lumbar spine at the L4/L5 and L5/S1 level;[7]
(c)the appellant sustained either an aggravation or acceleration of the pre-existing disease;[8]
(d)the work place fall on 19 May 2017 may have contributed to the aggravation or acceleration of the appellant's pre-existing disease;[9]
(e)however, any such contribution was not significant.[10]
[6] Decision [99].
[7] Decision [105].
[8] Decision [110].
[9] Decision [119].
[10] Decision [137].
In relation to this last finding the Arbitrator determined:
137.I find that the connection between the work fall on 19 May 2017 and the identified prolapsed discs after the incident on 10 September 2017 to be so attenuated that any causative connection has been broken such that I am not satisfied on a balance of probabilities that the work fall was a contributing factor to a significant degree such that Ms Jones has established that she has suffered an injury pursuant to section 5(1)(d) of the Act: Coles v P & O Ports Ltd [2002] WASCA 157.
In conclusion, the Arbitrator found:
138.I find that Ms Jones fell at work on 19 May 2017 and that as a result of this fall, she possibly suffered a soft tissue injury to her lumbar spine. I am not however satisfied that this injury amounted to a personal injury by accident for the purposes of the Act.
139.If I am wrong about this and Ms Jones did suffer a personal injury by accident and that injury was prolapsed discs at L4/L5 and L5/S1 of her lumbar spine, I am not satisfied that the injury was causally connect or arose out of her employment.
140.I did find Ms Jones was suffering from a pre‑existing disease, being a disc degenerative disease affecting her lumbar spine at the L4/L5 and L5/S1 level, and that the work place fall may have contributed to the aggravation or acceleration of this pre‑existing disease. However, I was not satisfied on a balance of probabilities that the work fall played a significant contributory part in the recurrence, aggravation or acceleration of this pre‑existing disease.
141.Accordingly, I find that Ms Jones has not satisfied me on a balance of probabilities that following the work fall on 19 May 2017 she suffered an injury for the purposes of either s 5(1)(a) or s 5(1)(d) of the Act.
142.Ms Jones has not proved on a balance of probabilities that she has suffered a compensable injury and as such it is not necessary for me to consider the issues of incapacity or statutory expenses. Accordingly, I find Ms Jones has not suffered a compensable injury pursuant to the Act and is not entitled to weekly payments of compensation and payment of statutory expenses from the date of injury.
For these reasons, the Arbitrator dismissed the Application.[11]
[11] AB 192.
The District Court Appeal
In the Appeal Notice the appellant seeks an order that the Decision be quashed and that the Application be remitted to a different arbitrator for determination according to law.
The appellant filed submissions in support of the appeal dated 6 May 2018 (Appellant's Submissions). The respondent filed submissions in opposition to the appeal dated 15 May 2018 (Respondent's Submissions).
If written reasons for an Arbitrator's decision under WICMA pt XI in respect of a dispute are given to a party to the dispute, a party may, with the leave of the District Court, appeal to the District Court against the decision.[12]
[12] WCIMA s 247(1).
The Appeal Notice was filed within 28 days after the day on which the written reasons for the Decision were given to the appellant, as required by WCIMA s 249(4).
The present appeal is not one in which an amount of compensation is in issue. Accordingly, the relevant restriction on the grant of leave is that 'the District Court is not to grant leave to appeal unless … a question of law is involved'.[13] 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'.[14] Further, an appeal may 'involve' a question of law where an error of law, or an error of mixed law and fact, is involved.[15] 'An error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them, but no error of law is involved in making a wrong finding or inference of fact on the evidence'.[16] An error of fact alone is insufficient.[17]
[13] WCIMA s 247(2)(b).
[14] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (Pullin JA, with whom Buss & Wheeler JJA agreed) (Brady).
[15] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [36] (judgment of the court); Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31] (judgment of the court); Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 [15]; Brady [3].
[16] Erceg [31]; Brady [5].
[17] Erceg [31]; Brady [5].
The position in the present appeal is in contrast to an appeal in which an amount of compensation is in issue where the prerequisites are more detailed:[18]
[18] WCIMA s 247(2)(a).
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie …
This suggests that in the present appeal, it is sufficient for there to be a question of law involved, and there is no specific additional requirement based either on the financial significance of the amount in issue or the public interest. However, these matters will still be of general relevance to the exercise of the discretion to grant leave.[19]
[19] Inghams Enterprises Pty Ltd v Beyene [2009] C14-2009, page 33 (Commissioner McCann).
There is thus no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[20]
[20] Brady [20]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16] (Buss JA, with whom Wheeler and Pullin JJA agreed).
The parties were content to have the issue of whether the appellant should be granted leave to appeal determined with the substantive hearing. Where this occurs, the appropriate approach is to deal with the question of leave after considering the merits of the proposed grounds of appeal. The court will then be in a position to either grant leave and uphold or dismiss the appeal, or refuse leave to appeal.[21]
[21] Brady [14].
Except as provided by WCIMA pt XIII or WCIMA s 267, the appeal is to be conducted in accordance with the rules of court of the District Court.[22] As no leave has been granted otherwise, the appeal is to be conducted on the basis of the evidence before the Arbitrator.[23]
[22] WCIMA s 247(5).
[23] WCIMA s 247(6).
The appeal is to be by way of review of the decision appealed against.[24] This is in contrast to the criminal injuries compensation appeal jurisdiction in which the court is to decide the application 'afresh'.[25] Nor is the appeal a hearing de novo.[26] An 'appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator'.[27] It is not a necessary precondition to the conduct of a review that the error of law has been held to have occurred.[28] Rather, if some question of law is 'involved', the whole decision appealed from is open to review and not merely the question of law.[29] The review is to be a 'real review'.[30] It is not limited to pure questions of law.[31] Correction of errors of law is the court's 'principal, but not only, task'.[32] However, the appellant must show a 'proper basis' for disturbing the decision such as error of 'fact, law or logic'.[33] Unless the 'review' persuades the court that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.[34]
[24] WCIMA s 247(5).
[25] Criminal Injuries Compensation Act 2003 (WA) s 56(1).
[26] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Wheeler JA, with whom Pullin & Buss JJA agreed).
[27] Erceg [33]; Pacific IndustrialCo [20], [26].
[28] Pacific Industrial Co [25].
[29] Pacific Industrial Co [18].
[30] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (French CJ, Bell, Keane, Nettle & Gordon JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow & Kirby JJ); Pacific Industrial [21] – [25]; Sotico Pty Ltd v Wilson [2007] WASCA 112 [46] (Pullin JA).
[31] Pacific Industrial Co [18].
[32] Pacific Industrial Co [25].
[33] Erceg [33]; Pacific IndustrialCo [26].
[34] Pacific Industrial Co [20] – [26].
What issues arise for determination?
The question of law identified in the Appeal Notice is whether 'the Arbitrator correctly interpreted the definition of "injury" in s 5 of the Workers' Compensation and Injury Management Act 1981 (WA)'.
The Appeal Notice identifies three specific grounds of appeal:
1.The Arbitrator erred in law in wrongly interpreting and/or applying the provisions of s.57A(3), 57BA and 57A(5) of the WCIMA.
2.The Arbitrator erred in law in wrongly interpreting, and/or wrongly applying the definition of injury in s.5 of the WCIMA.
3.Alternatively, the Arbitrator erred in law in relying upon, and preferring, the medical reports of Dr Wren dated 17 April 2018 and 19 July 2018 when those reports were hearsay, and accordingly inadmissible, and/or unreliable, and hence inadmissible in that:
i.Dr Wren did not base his opinions on the correct facts or history; and/or
ii.Dr Wren was biased in his opinions as result of being commissioned by the respondents insurer, and/or
iii.Dr Wren was not make available to be cross‑examined on his reports; and/or;
iv.Dr Wren expressed opinions and conclusions in response to wrong questions asked of him by the insurer and/or their solicitors and in particular, questions which had no relationship to, and/or misstated the correct legal tests set out in the WCIMA.
At the hearing of the appeal on 22 May 2019 counsel for the appellant did not press grounds of appeals 1 and 3(i), (ii) and (iii).[35]
[35] ts 14 – 15 (22 May 2019).
Based on the Appeal Notice, the written submissions filed and the submissions at the hearing, three issues arise for determination:
•Did the Arbitrator make an error of law in relation to the definition of 'injury' in WCIMA s 5?
•Did the Arbitrator make an error of law in relying upon, and preferring, the medical reports of Dr Wren dated 17 April 2018 and 19 July 2018?
•Should the appellant be given leave to commence the appeal?
Did the Arbitrator make an error of law in relation to the definition of 'injury' in WCIMA s 5?
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.[36] As the plurality of the High Court observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[37]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text … The language which has actually been employed in the text of legislation is the surest guide to legislative intention … The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision…, in particular the mischief … it is seeking to remedy.
[36] Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [26] (French CJ, Hayne, Keifel & Bell JJ); Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] – [47] (Buss P, with whom Murphy JA and Beech J agreed) (McKenzie).
[37] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ) (references omitted); Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); McKenzie [45] – [48].
Further, 'the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions'.[38]
[38] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J); McKenzie [48].
Finally, in interpreting legislation, the court is required to prefer a construction that would promote the purpose or object underlying the legislation (whether that purpose is expressly stated in the written law or not) over a construction that would not.[39]
[39] Interpretation Act 1984 (WA) s 18.
The starting point for present purposes is WCIMA s 18(1) which provides that if 'an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1'.
The word 'injury' is defined in WICMA s 5 to mean (so far as it is relevant):
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or …
…
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree … .
There is a wealth of case law on the phrase 'personal injury by accident' in the various worker's compensation jurisdictions in Australia. The authorities are referred to in the decision of the High Court in Military Rehabilitation & Compensation Commission v May.[40] The issue before the court was the definition of 'injury' in the context of the Safety, Rehabilitation and Compensation Act 1998 (Cth). That legislation relevantly defined 'injury' to mean 'an injury … suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment …'.
[40] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 (May).
The plurality, French CJ, Kiefel, Nettle and Gordon JJ made the following observations which are apposite:[41]
45.'Injury' in para (b) is used in its 'primary' sense … [I]f something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of the word …
46.That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee … It may be, for example, the breaking of a limb, … the breaking of an artery, … the detachment of a piece of lining of an artery, … the rupture of an arterial wall … or a lesion to the brain… Each would be described as an 'injury' in the primary sense.
47.However … 'suddenness' is not necessary for there to be an 'injury' in the primary sense … A physiological change might be 'sudden and ascertainable' … A physiological change might be 'dramatic' … The employee's condition might be a 'disturbance of the normal physiological state' … That an 'injury' in the primary sense can arise, and can be described, in a variety of ways does not mean that 'suddenness' is irrelevant … '[S]uddenness' is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease … But it is the physiological change – the nature and incidents of that change – that remains central.
48.That an 'injury' in the primary sense can arise, and be described in a variety of ways was recognised by Gleeson CJ and Kirby CJ in Kennedy Cleaning… when their Honours stated:
[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word.
[41] May [45] – [48] (references and footnotes omitted; italics in original).
Justice Gageler agreed with the plurality, but delivered separate reasons, observing:[42]
75.More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to 'getting hurt' (an injury might be constituted by nothing more than 'something going wrong within the human frame itself, such as the straining of a muscle of the breaking of a blood vessel' …) but that suffering an injury involves something more than merely 'becoming sick' … An injury, it has long been repeatedly explained, is some definite or distinct 'physiological change' or 'physiological disturbance' for the worse which, if not 'sudden', is at least 'identifiable' … The universality of that explanation has been questioned, … and the comment has fairly been made that 'a distinct physiological change is not itself an expression of clear and definite meaning' … The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.
[42] May [75] (footnotes omitted).
In May, the respondent served in the Royal Australian Air Force (RAAF) before being discharged. The respondent undertook a series of vaccinations in the course of his employment. He said that he suffered a series of adverse reactions to these vaccinations. He later claimed that as a result of the vaccinations he suffered from fatigue, illnesses, dizziness and low immunity. He applied for compensation in respect of these symptoms. The initial decision‑maker had not been able to connect the respondent's claimed symptoms with his RAAF service, and denied his claim. He was found not to have suffered a physical injury amounting to a sudden or identifiable physiological change. The initial decision was ultimately upheld by the High Court.
In Waite v Alcoa of Australia, Troy DCJ applied the decision in May in the context of the definition of 'injury' in WCIMA s 5.[43]
[43] Waite v Alcoa of Australia Ltd [2018] WADC 147 [143] – [146] (Troy DCJ).
There is a difference between the definition of 'injury' in WCIMA and that in Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) considered by the High Court in May. This is that there is no requirement in the latter for the injury to have occurred 'by accident'. Rather, 'injury' was relevantly defined to mean 'an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment'.[44] However, given the long history in the authorities of the definition of 'injury' referred to and relied on in May in other workers' compensation contexts which do refer to 'injury by accident', I do not consider that this distinction has any significance for the purposes of the present appeal.
[44] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1); May [41].
In Fenton v J Thorley & Co Ltd, [45] Lord MacNaghten held that the expression 'accident' qualifies the word injury, and is used 'in the popular and ordinary sense of the word as denoting an unlooked‑for mishap or an untoward event which is not expected or designed'.
[45] Fenton v J Thorley & Co Ltd [1903] AC 443, 448 (Lord MacNaghten, with whom Lords Shand and Davey agreed; Lords Robertson (452) and Lindley (453) delivered judgments in similar terms).
In Hetherington v Amalgamated Collieries of WA Ltd, Latham CJ applied Lord MacNaghten's definition.[46] His Honour went on to observe that:[47]
since this decision, it has not been necessary to show, first, that something to be described as an accident happened, and secondly, that something else, namely, an injury, was brought about or caused by that accident. If the injury is of the character described, it is an accidental injury and is an injury by accident within the meaning of the Act.
[46] Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317, 325 (Latham CJ).
[47] Hetherington, 325.
In relation to the requirement that there be an 'accident' the plurality of the High Court in Commonwealth v Ockenden observed:[48]
[A] physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
[48] Commonwealth v Ockenden [1958] HCA 37; (1958) 99 CLR 215, 223 - 224 (Dixon CJ, Fullagar and Taylor JJ); Hoath v Chancery Nominees Pty Ltd [1982] WAR 269, 271 (Wickham J).
For present purposes, three principles may be drawn from the authorities which I have discussed, as well as from a comprehensive summary of the authorities set out in the judgment of Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic.[49] The first is that the expression 'personal injury by accident' in WCIMA s 5 is a compound expression. The second is that the term 'injury' denotes that there must be some definite or distinct physiological change or physiological disturbance for the worse, which, if not sudden, is at least identifiable. The third is that the use of the term 'accident' denotes the unexpected nature of the events which constitutes the injury.
[49] Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41, 43 - 44 (Toohey J).
The appellant submits that the Arbitrator 'confused the question of what constitutes a personal injury by accident under the WCIMA with the issue of whether the appellant worker was incapacitated as a result of that injury'.[50]
[50] Appellant's submissions, par 28.
In my view, it is readily evident that the Arbitrator in the passages which I have quoted above [8] correctly interpreted the phrase 'personal injury by accident' by reference to the decisions in May and Waite[51] and purported to apply the phrase so defined.[52]
[51] Decision [53].
[52] Decision [69].
The appellant has not satisfied me that the Arbitrator made an error of law in the manner in which the word 'injury' in WCIMA s 5 is defined.
Did the Arbitrator make an error of law in relying upon, and preferring, the medical reports of Dr Wren dated 17 April 2018 and 19 July 2018?
Reports of Dr Wren
On 17 April 2018, Dr Michael Wren, a consultant orthopaedic surgeon, prepared a report after reviewing Ms Jones' contemporaneous medical reports and radiographic reports.[53] In preparing this report, Dr Wren had not physically examined Ms Jones. Dr Wren concluded the following:[54]
The physical examination findings recorded an initial consultation were of tenderness of the gluteal insertion and upper pelvic rim and right sacroiliac joint (right buttock and pelvic region) and it is most likely that a soft tissue injury to the right buttock and pelvic area occurred in that incident.
[53] AB 73 – 79.
[54] AB 77.
In relation to the incident that occurred on 10 September 2017, Dr Wren opined that:[55]
An abrupt and severe change in symptoms occurred when bending to pick up a pan 16 weeks after the reported work incident, with development of severe pain and a muscle spasm in the lumbar region and development of new symptoms radiating into both lower legs. Whilst there is some retrospective recollection of some niggling discomfort following the incident four months earlier, the nature of the presentation and new symptoms suggest that the incident at home on 10 September 2017 was a separate and distinct new event.
I do not believe that there is any significant indication that the above onset of back (rather than buttock) pain and bilateral sciatic referred symptoms was connected to the incident four months earlier where buttock pain was present.
[55] AB 77.
Dr Wren's opinion regarding the disc bulge at the L4/5 level was:[56]
The disc bulging at the L4/5 and L5/S1 levels are likely degenerate in nature. There are no radiographic features to suggest disc rupture and as such the disc bulging is not likely the result of a specific isolated injury, but more likely of a pre‑existent degenerate condition with acute exacerbation of an underlying degenerate condition related to the incident at home on 10 September 2017.
[56] AB 78.
With regards to Ms Jones' treatment needs, Dr Wren noted:[57]
The acute development of severe low back pain and bilateral leg pain is September 2017 resulted in new treatment… The need for treatment appears to relate directly to the home incident of 10 September 2017 rather than the work incident of May 2017. It is not certain whether there has actually been any progression of an underlying pre‑existent degenerate condition, but the development of acute symptoms in September 2017 is likely related to acute flare-up of pain from that underlying degenerate disc disease.
[57] AB 78.
The appellant visited Dr Wren for a consultation on 18 July 2018. He prepared a report dated 19 July 2018, which included a detailed history from the appellant.[58] That history included the following as to what occurred in the period after the incident on 19 May 2017:[59]
Gradual worsening of symptoms of pain in the right buttock and low lumbar area are reported to have occurred over next week and a half. [The appellant] continued to undertake her usual rostered shifts. She reports that if she had had a busy shift at work, she was aware of increased level of symptoms. She specifically was aware of symptoms when twisting to her right side when showering to wash her back …
…
[The appellant] continued working over the next three‑and‑a‑half months. She reports during this time she was aware of ongoing pain and discomfort in the right lower lumber area which remains largely unchanged, neither better nor worse. She continued to report that she more commonly experienced discomfort after a busy shift at work and less discomfort when she was not working or relatively inactive.
[58] AB 92 - 103.
[59] AB 94 - 95.
The appellant described to Dr Wren what occurred on 8 ‑ 10 September 2017:
Ms Jones reported that on Friday 8 September 2017 (2 days prior to the incident when bending to pick up a pot at home) she had completed a morning shift at work (finishing mid‑afternoon). That evening she reports that her back was considerably more uncomfortable than it had been over the previous number of months. She found it particularly uncomfortable to stand in an upright fashion and found it more comfortable to position herself flexing forwards at the waist when sitting or standing because it felt more comfortable to do so.
By the following day, Saturday 9 September 2017 she reports that her back symptoms had returned to their 'normal uncomfortable level'.
FURTHER INCIDENT, SUNDAY, 10 SEPTEMBER
At approximately 11:00 am on Sunday 10 September 2017, Ms Jones bent forwards slightly into the right side to pick a pot from a lower shelf level from an open shelf of a kitchen island at home. She experienced intense pain and a 'ping' sensation in the right lower lumbar area which she described as feeling like a hot poker stabbing into her, slightly to the right side of the midline. Pain was so severe that her legs collapsed on her and she fell to the floor.
Ms Jones was assisted by her husband who attempted to get her to her feet but it took approximately ten minutes to do so because every time she attempted to change position, she would develop a stabbing pain in the lumbar area. In addition to the pain in the low back area, she describes a shooting sensation of dragging and throbbing feeling in both legs radiating as far as the ankles. She did not notice any numbness as such at that time.
After approximately ten minutes, Ms Jones was able to get to her feet with assistance and with considerable difficulty managed to get herself to bed. She lay on the bed for several hours and took pain relief. Initially the pain was reported to be 10/10 in severity but over a period of three hours reduced slightly to about 8/10 severity. Initially Ms Jones was unable to void when going to the toilet but when her pain diminished, she did regain the capacity to pass urine.
Ms Jones called an after‑hours GP service who attended and provided non-steroidal anti-inflammatory injection, analgesics and diazepam.
As to the appellant's current symptoms, Dr Wren reported:
Current symptoms are of back pain and bilateral leg symptoms. Back pain is of a constant nature which fluctuates in severity. Leg symptoms are intermittent. Leg symptoms are described more as an unusual sensation or a strange feeling in the legs rather than appreciated as pain as such.
Leg symptoms tend to occur when back pain is more severe. Leg symptoms will be felt predominantly in the buttocks and posterolateral thighs initially but if symptoms become more severe, radiation occurs distally in both legs as far as the feet into the soles of the feet.
In general, both back and leg symptoms tend to be less intrusive with resting and with light activity and more commonly become greater with physical tasks.
Some positions and tasks particularly tend to exacerbate symptoms such as mopping the floor or of postures where the spine is in extension. Because of this, Ms Jones feels that she cannot swim because the back tends to arch backwards and that aggravates her symptoms. When standing she tends to be more comfortable when leaning slightly forwards. Standing is reported to be more comfortable than sitting or lying.
Apart from the initial period of difficulty passing urine during the acute episode of severe back pain on Sunday 10 September 2017, there have been no other symptoms of sphincter disturbance.
Dr Wren carried out, and reported, a detailed physical examination. He also reviewed the radiographic investigations, as well as the history of medical consultations and reviews. He concluded:
On the basis of information available to me, in retrospect, it seems most likely that the incident of 19 May 2017 resulted in a soft tissue injury to the lumbar spine with minor ongoing symptoms which resulted in a single attendance at her general practitioner but no further re‑attendance, until a separate and new incident occurred on Sunday, 10 September 2017, when bending to pick up a pot. It is likely that a new injury occurred at that time but without major demonstrable disc prolapse. It is possible the situation may have changed since that time on that basis I believe it would be worthwhile considering repeat imaging in case disc prolapse has occurred in the interim since last imaging in October 2017.
Dr Wren was specifically asked whether his consultation with the appellant altered his diagnosis, to which he responded that it had not.[60] He was further asked:[61]
[60] AB 100 -101.
[61] AB 101.
9.Has your consultation with Ms Jones caused you to alter your diagnosis of Ms Jones' injury sustained as a result of the workplace incident on 19 May 2017. Please provide reasons for your response detailing the nature and significance of any inconsistencies noted.
The consultation today has not altered my diagnosis of the workplace incident of May 2017.
10Has your consultation with Ms Jones caused you to alter your opinion on whether:
(a)the incident that occurred at home on 10 September 2017 was a separate and distinct incident with its own separate pathology;
The consultation has not changed my opinion with regard to the separate and distinct incidence of the home incident of 10 September 2017.
(b)the incident that occurred at home on 10 September 2017 was in any way connected to the workplace injury that occurred on 19 May 2017.
It is not possible, in retrospect, to definitively determine whether the incident of 10 September 2017 had any relationship to the work incident of 19 May 2017. It is possible that there may have been a disc injury which was minor and not recognised as significant either in terms of symptoms reported ongoing by Ms Jones at that time and potentially could have been exacerbated in the home incident of 10 September 2017. A causal relationship between the two incidents, however, is very tenuous.
11.Whether, in your opinion, Ms Jones has completely or partially recovered from any injuries sustained on 19 May 2017? If she has only partially recovered, what is your prognosis in relation to Ms Jones' complaints and symptoms and any further recovery?
Whilst Ms Jones had a degree of ongoing back discomfort after the work incident of 19 May 2017, it was relatively minor and not significant enough to re‑attend her general practitioner and did not prevent her from undertaking her work duties although was still causing her some discomfort. I feel that the predominant ongoing symptoms now relate to that of the separate incident of 10 September 2017.
Dr Wren then went on to opine about the appellant's fitness for work and future treatment needs, issues which are not germane to the appeal.
Issues arising in ground of appeal 3
For ease of reference, ground of appeal 3 is that:
3.Alternatively, the Arbitrator erred in law in relying upon, and preferring, the medical reports of Dr Wren dated 17 April 2018 and 19 July 2018 when those reports were hearsay, and accordingly inadmissible, and/or unreliable, and hence inadmissible in that:
…
ivDr Wren expressed opinions and conclusions in response to wrong questions asked of him by the insurer and/or their solicitors and in particular, questions which had no relationship to, and/or misstated the correct legal tests set out in the WCIMA.
Based on the written and oral submissions made by the appellant, and framing the issues in the context of the appeal regime, three issues arise for determination in relation to ground of appeal 3:
•Were Dr Wren's reports inadmissible on the ground that they contained hearsay?
•Were Dr Wren's reports inadmissible on the ground that they were unreliable?
•Did the Arbitrator err in law in preferring the opinion of Dr Wren?
Were Dr Wren's reports inadmissible on the ground that they contained hearsay?
The framework of evidence being inadmissible is not an appropriate one in the context of an arbitration under the WICMA.[62] This is because, even if Dr Wren's reports did contain inadmissible hearsay, the Arbitration would not have erred in law taking them into consideration as the Arbitrator is not bound by the rules of evidence.[63] Rather, it was open to the Arbitrator to 'inform himself on any matter as the arbitrator thinks fit'.[64] This is subject to an obligation to comply with the rules of natural justice or procedural fairness.[65] The appellant does not assert that, in relying on Dr Wren's reports, the Arbitrator failed to comply with the rules of natural justice.
[62] Treby [73], [75].
[63] WICMA s 188(2)(a).
[64] WCIAM s 188(3).
[65] WCIMA s 188(1), 'except to the extent that [the WCIMA] authorises, whether expressly or by implication, a departure from those rules'.
It is open to the appellant to assert an analogous submission to the effect that the Arbitrator erred in law in taking Dr Wren's reports into account as there was no proper factual basis for those reports.[66] At common law, an expert report is not admissible unless the expert proves by admissible means the facts on which the opinion is based or explicitly states the assumptions on which the opinion is based (so that the tribunal of fact can assess whether those facts have been proven by other admissible evidence).[67]
[66] Treby [73].
[67] Town of Mosman Park v Tait [2005] WASCA 124 [63] (McLure JA); Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, 87 ‑ 88 (Mason ACJ, Wilson, Brennan, Deane & Dawson JJ).
It is instructive to analyse Dr Wren's report using the approach adopted by the Court of Appeal in Treby in relation to the report of a consultant neurosurgeon.[68] Dr Wren was given and referred to the radiological investigation of the appellant. It is apparent that he made his own assessment as to the significance of that report. He had examined the appellant (his clinical observations in any event not being hearsay).[69] He took a history the accuracy of which was not challenged. He is a consultant orthopaedic surgeon. He was expressing an opinion within the field of his expertise. His report obviously had probative value. It was a matter for the Arbitrator as to what weight he afforded Dr Wren's report in the context of all the medical evidence. The proposition that the Arbitrator was precluded, as a matter of law, from giving Dr Wren's opinion any weight is untenable.[70]
[68] Treby [59] – [60].
[69] Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364, 365 ‑ 366 (King CJ, with whom Matheson and Bollen JJ agreed); The State of Western Australia v Liyanage [2016] WASC 12 [53] (Hall J).
[70] Treby [60].
I do not consider that the Arbitrator erred in law in relying on Dr Wren's opinion on the basis that there was no proper factual basis for it.
Were Dr Wren's reports inadmissible on the ground that they were unreliable?
The basis of unreliability as set out in the grounds of appeal appears to be that Dr Wren:
expressed opinions and conclusions in response to wrong questions asked of him by the insurer and/or their solicitors and in particular, questions which had no relationship to, and/or misstated the correct legal tests set out in the WCIMA.
I have set out the key questions asked of Dr Wren above [54], along with extensive extracts from his reports. In essence, Dr Wren was asked to opine on:
(a)what, if any, injury the appellant sustained as a result of the fall on 19 May 2017;
(b)whether the incident which occurred at home on 10 September 2017 was a separate and distinct incident with its own separate pathology; and
(c)whether the incident that occurred at home on 19 September 2017 was in any way connected to the workplace injury that occurred on 19 May 2017.
Given the context of WCIMA s 18 and the definition of 'injury' which I have referred to above, these questions were entirely appropriate, indeed essential, to the proper determination of the Application.
I do not consider that the Arbitrator erred in law in taking into account the opinion of Dr Wren on the basis that he was asked the wrong questions.
Did the Arbitrator err in law in preferring the opinion of Dr Wren?
In Brady, Pullin JA referred with approval to the following passage from the judgment of Kirby P in Azzopardi v Tasman UEB Industries Ltd:[71]
If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another.
[71] Brady [5]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 (Kirby P).
So the Arbitrator did not make any error of law in preferring the opinion of Dr Wren.
Should the appellant be given leave to commence the appeal?
The construction of a statute, including the meaning to be attributed to individual words or phrases used, is a question of law.[72] So in that sense, the first ground of appeal involves a question of law. However, the Arbitrator made no error of law in defining the phrase 'injury by accident' in WCIMA s 5. So there was no error of law material to the Decision, and thus the first ground of appeal does not involve a question of law for the purposes of WCIMA s 247(2)(b).[73]
[72] Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395 - 398 (judgment of the court); Rodgers v Amcor Ltd [2018] WADC 134 [47] (Gething DCJ).
[73] Brady [15].
As to the second ground of appeal, having determined that the Arbitrator did not err in law in relying on, and preferring, the opinion of Dr Wren, I am not the view that this ground of appeal likewise does not involve a question of law.
The appropriate final order is that the appellant be denied leave to appeal.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
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