Lilyvale Hotel Pty Limited t/as the Shangri-La Hotel v Bradley

[2016] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lilyvale Hotel Pty Limited t/as The Shangri-La Hotel v Bradley [2016] NSWWCCPD 62
APPELLANT:	Lilyvale Hotel Pty Limited t/as The Shangri-La Hotel
RESPONDENT:	Joseph Matthew Bradley
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-1629/16
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	21 June 2016
DATE OF APPEAL HEARING:	29 November 2016
DATE OF APPEAL DECISION:	22 December 2016
SUBJECT MATTER OF DECISION:	Whether injury to worker’s left shoulder, the existence of which was undoubted and accepted by the medical evidence for both parties and further accepted by that medical evidence a disease, was the subject of aggravation, acceleration, exacerbation or deterioration in the course of his employment; whether the employment was the main contributing factor to the aggravation acceleration exacerbation or deterioration of a disease; s 4(ii)(b) of the Workers Compensation Act 1987; whether the appellant was the last employer of the worker in an employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease ; s 16(1)(b) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	Oral

REPRESENTATION:	Appellant:	Mr G Barter instructed by Kaden Boriss
Respondent:	Mr F Austin instructed by Taylor and Scott Lawyers
ORDERS MADE ON APPEAL:	1.   The Arbitrator’s determination of 21 June 2016 is confirmed.

BACKGROUND

1. This appeal concerns the application of ss 4 and 16 of the Workers Compensation Act 1987 (the Act) to the facts surrounding the causation/aggravation, acceleration, exacerbation or deterioration of a rotator cuff condition to the respondent worker’s left shoulder. It was common ground upon the medical evidence that this involved at least a full thickness supraspinatus tear apparent upon MRI in 2003, in the context of a history of left shoulder symptoms then present for some years. Employment with the appellant did not begin until February 2004. It ceased in 2012. Throughout the whole of that time and indeed his relevant working life, the respondent was a painter and decorator whose work necessarily involved repeated use of both hands and arms including such use at above shoulder height.

2. The respondent, having left the employ of the appellant, thereafter worked for a time as a self-employed painter and decorator and also for a brief period was employed by another employer. Having determined to undergo surgery to his left shoulder of a type that had been recommended in 2003 he claimed compensation from the appellant. It seems to be accepted that the claim was made on 30 April 2015. It is accepted that the date of the claim for compensation is the deemed date of injury.

3. On 12 June 2015 the appellant served a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the respondent’s claim. The notice specifically put in issue whether there had been an injury to his left shoulder during the course of his employment with the appellant for the purposes of s 4 of the Act. Alternatively it asserted that his employment with the appellant was not a substantial or the main contributing factor as required by s 9A. The notice further asserted that if the worker were found to have suffered a work related injury, the injury was a disease and that his employment with the appellant was not the last employment to have aggravated etc. the disease.

4. Those proved to be the contentious issues raised in answer to the claim, but the s 74 notice also denied liability upon the basis of alleged failure to provide notice of injury in accordance with s 61 of the 1998 Act and to make a claim for compensation in accordance with s 261 of that Act. (This point was abandoned upon the appeal, having been decided against the appellant by the Arbitrator.)

5. The respondent registered an Application to Resolve a Dispute with the Commission on 1 April 2016 alleging, in the alternative, injury through the nature and conditions of his employment with the appellant between 17 February 2004 and 12 June 2012 and aggravation etc. of a disease of gradual process in reliance on ss 15 and/or 16 of the 1987 Act.

6. The appellant’s Reply filed on 22 April 2016 confirmed that the grounds of dispute were those appearing in the s 74 notice.

The arbitral proceedings

1. The proceedings came before Arbitrator Sweeney for conciliation and if necessary arbitration on 16 June 2016. Conciliation was unsuccessful and it was necessary to proceed to hearing of the arbitration on that day.

2. The hearing involved the reception in the respondent’s case of his written evidentiary statements and medical and other documentary evidence without cross-examination of him or any medical practitioner or other witness. The medical evidence comprised reports from the treating orthopaedic surgeon, Dr Goldberg, a qualified orthopaedic surgeon, Dr Bodel, and some of the clinical notes and records of the respondent’s treating general practitioners including medical reports. The evidence adduced by the appellant was the reports of a qualified orthopaedic surgeon, Dr Pillemer and the clinical notes, records and reports of the respondent’s treating general practitioners in more complete form than those put into evidence by him.

3. Upon that material, and as abovementioned without oral evidence by way of evidence of any witness under cross-examination (or oral evidence otherwise), the legal representatives of the parties addressed the learned Arbitrator. He reserved his decision briefly and gave reasons for judgment on 21 June 2016 which, although no doubt aided by some notes compiled after addresses had concluded, were essentially extemporary.

4. He began his reasons by mentioning (see transcript of the recorded reasons T1.31-34) that the respondent’s case was one of “… a disease and that the disease was aggravated by his employment …”. As his reasons later demonstrate, and as shall be returned to herein, he decided the case by reference to that allegation. In doing so, he decided the case in accordance with the way the parties had presented it. Notwithstanding the allegation of injury as distinct from “disease injury”, what was advanced was a case of the latter.

The arbitrator’s decision

1. In the course of his reasons the learned Arbitrator, having noted the issues raised in the s 74 notice, went on to review the evidence at p 3 and the following pages of the transcript of his reasons. He noted that the direct evidence was not comprehensive and that given the sketchy nature of the respondent’s evidence (as I would describe it), it was necessary to have regard to “the medical histories and the like” to “ascertain some matters that should … have been contained in the [respondents] primary evidence, that is his written statements”. I take this to mean that the Arbitrator was relying on the respondent’s statements and that other material in arriving at his findings of fact, and that the findings should be understood to involve the drawing of inferences from such direct and other relevant material as he had before him.

2. In this regard the arbitrator’s review of the evidence drew attention to some gaps and inconsistencies arising from comparison of the respondent’s written evidentiary statements with parts of some of the medical histories and some parts of the general practitioner’s notes. But such features of the evidence were not made the subject of an attack upon the respondent’s credit, neither, it would seem, in the sense of the honesty of his evidence nor its reliability if taken to be honest: see T8.11 and T15.11 of the transcript of the reasons.

3. The Arbitrator’s review of the evidence begins on page 3 of the transcript of the recorded reasons. It includes a number of findings of fact which I understand for the most part to be inferences drawn by him from the evidentiary material he was reviewing.  I shall set them out as follows, with some comment thereon:

   (a)     the respondent was a painter and decorator throughout his adult life;

   (b)     that work involved repetitive use of his left arm and use of both arms at or above shoulder height;

   (c)     he saw Dr Goldberg, orthopaedic surgeon, at the referral of his then general practitioner, on 4 February 2003, about his left shoulder, and gave Dr Goldberg a history of left shoulder symptoms of some ten years duration ie commencing in the early to mid-1990s;

   (d)     Dr Goldberg was of the opinion, or may have been of the opinion, that the respondent’s left shoulder symptoms were related to his work as a painter and decorator. (This in my opinion understates the effect of Dr Goldberg’s report of 17 September 2014. Although it is true that the second paragraph on the first page is equivocal as to whether a possible connection between the shoulder trouble and the work of a painter and decorator is the opinion of the doctor or the respondent, I think the first paragraph under the heading “OPINION” on the second page, introduced by “DIAGNOSIS”, makes it clear that Dr Goldberg’s view was that both the respondent’s right and left shoulder rotator cuff tears were causally connected with his work as a painter and decorator.);

   (e)     MRI examination in February 2003 disclosed the tear of the respondent’s left rotator cuff and Dr Goldberg accordingly advised surgery by way of arthroscopic repair, this being the type of surgery which is the subject of the respondent’s present claim for compensation;

   (f)      in 2006 the respondent again saw Dr Goldberg, this time because of right shoulder symptoms. He is right-hand dominant and felt the need to accept Dr Goldberg’s advice to submit to surgical repair of his right shoulder in order to keep working;

   (g)     the respondent informed Dr Goldberg in 2006 that he still had left shoulder trouble and that he could not afford to have surgery to repair it. Dr Goldberg remained of the view that the respondent should have surgery to his left shoulder and that without it there was likely to be deterioration;

   (h)     the respondent did not undergo left shoulder surgery and continued working, and

   (i)      on 12 June 2012 the respondent tendered his resignation to the appellant and ceased work with the appellant about four weeks later, thereafter becoming a self-employed painter and decorator with the exception of a period between 6 October and 30 November 2015 when he was employed by a company known as Dukes Homes.

4. Against that background of evidence and factual finding the learned Arbitrator identified the issues to be resolved in the determination of the respondent’s claim: see p 7 and the following pages of the transcript of reasons.

5. The first of these was whether there was relevant injury. The learned Arbitrator was of the view that an inference of injury, probably by way of aggravation of a disease as a result of the respondent’s occupation as a painter, was overwhelming. He based that view chiefly upon the opinion of Dr Pillemer, extracted in part at T7of the transcript of the reasons, although he also noted that Dr Goldberg’s opinion was to the same broad effect: T8. He indicated that he took Dr Pillemer’s view that “… the nature and conditions of [the respondents] work would have been an aggravation and acceleration or deterioration of the disease process …” as a reference to the nature of the respondent’s work “overall”. In my view the context of the Arbitrator’s conclusion about the aggravating work clearly shows that “overall” means the respondent’s work as a painter and decorator throughout his adult working life, not the scope or range of his duties as a painter and decorator at any particular time or during any particular period in his adult working life. The Arbitrator’s finding involves a further unstated and implicit finding that the respondent’s work throughout his adult life was as an employee rather than a self-employed person, and I think that that is not only how he should be understood but that that approach should be accepted as justified. The only reference to a period of work in the respondent’s working life as self-employment was in relation to the period commencing when he left the appellant, punctuated as it was by the brief time at Dukes Homes, and there does not seem to have been any suggestion that his work as a painter and decorator before entering the employ of the appellant was not performed as an employee. (It is convenient to mention here that upon the oral argument of the appeal it was accepted that the case should be treated as one in which the respondent’s adult working life as a painter and decorator was a working life as an employee and that the appeal should be dealt with on that basis.)

6. Next, the Arbitrator identified whether the respondent’s employment as a painter and decorator was the main contributing factor to the aggravation etc. of the disease process so as to satisfy the language of s 4 of the Act as amended in 2012, as an issue requiring determination.

7. He noted a submission for the appellant that there could be other factors relevant to the aggravation of the disease process in the respondent’s left shoulder, but rejected that submission by reference to the evidence of Dr Pillemer which was that there were no factors apart from the nature and conditions of the respondent’s work which made any contribution by way of aggravation. He made it clear that the reference to “employment” in this connection was to the respondent’s employment “overall” ie the physical work performed throughout his adult working life: see T10 and T11 of the transcript of the reasons.

8. The learned Arbitrator then identified what he thought was the most difficult issue in the case, namely “… whether the (appellant) was the last relevant employer of the (respondent) for the purposes of s 16 of the 1987 Act”: transcript of reasons, T11.13.

9. He began his consideration of this issue with the remark that the evidence on it was “… far from clear”: transcript of reasons, T11.27. He added that there was no direct evidence on it: T11.30. He returned to a submission for the appellant that there was no evidence that the respondent “… was symptomatically worse at the time that he ceased work in 2012 than he had been in 2003, before he started his employment with the [appellant]”. This was clearly a submission, and a mention of it by the Arbitrator, against the background of s 16(1)(b) of the 1987 Act, which provides that compensation in the case of an injury which consists in the aggravation etc. of a disease is payable by the employer who last employed the worker in employment that was a substantial contributing factor to that aggravation etc.

10. Repeating that the point was difficult owing to the absence of evidence, the Arbitrator, plainly by inference from such evidence as was actually before him, held that the respondent had “… probably just established, on the balance of probabilities, that there was a symptomatic aggravation of his left shoulder during the course of his employment with the (appellant) and that it can, therefore, fairly be said that the employment with (the appellant) was a substantial contributing factor to the aggravation, acceleration, exacerbation, etc, of a disease”: T12.8-15. He went on to say, at T12.26-33:

    “By and large, I would conclude that, if [the respondent] was worse symptomatically at the time that he left the employment with the respondent in comparison with his position when he commenced employment, then that would be prima facie evidence at least that (the respondent’s) condition had been the subject of employment which was a substantial contributing factor to the aggravation etc.”

11. The Arbitrator then went on to extract four matters from the evidence upon which he relied for the inference he drew, namely the following:

    (a)     First, the respondent’s history to Dr Bodel that he ceased work with the appellant “because he could not cope”. The Arbitrator said that that was not powerful evidence but was suggestive of some worsening of the respondent’s condition: T13.2-6;

    (b)     Secondly, that upon ceasing work, the respondent saw his general practitioner and set about attempting to have the surgery Dr Goldberg had proposed many years before. The Arbitrator said that this was not overwhelming evidence but was suggestive of some worsening: T13.8-13;

    (c) Thirdly, that the notes of the respondent’s general practitioner’s practice suggests some worsening, but the Arbitrator said that that was not “… of itself entirely persuasive”: T13.13-.15. He went on to refer to an entry in the notes of 29 September 2011 as relevant, but this must be an error and the consultation of 22 September must have been intended. Not only are the notes of that consultation in accordance with the reasons at T13.18-.27, the Arbitrator immediately goes on to refer to a consultation on 24 September (T13.31) as though it came later in time. He followed that (T14.4) with reference to a consultation on 29 September 2011, which reference is accurate as to what is noted. It is convenient to record here that upon the appeal both parties accepted that the reference had to be to be the consultation of 22 September 2011.) Then there is a brief reference to a further consultation of 11 November 2011: T14.19. The Abitrator regarded that evidence as “moderately persuasive in terms of the nature of the employment”: T14.22. This can only rationally be a conclusion that he was “moderately persuaded” that the nature of the employment was a substantial contributing factor to the aggravation etc. of the left shoulder disease for the purposes of s 16(1)(b);

    (d)     Fourthly, the Arbitrator went back to an earlier reference to another part of the evidence of Dr Pillemer which he, the Arbitrator, made at p 7.29-34 of the transcript of the reasons. Dr Pillemer’s view, accurately extracted from his report of 21 July 2015, at p 8 thereof under the heading “24. Do you consider there is to be any deduction for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality?” The doctor said, for the purposes of assessing Whole Person Impairment (WPI) that the aggravation of the respondent’s disease from his employment with the appellant caused one per cent WPI. The Arbitrator remarked, correctly, that there was no question of compensation for WPI before him. But it seems that in the context of a submission to him by the appellant that if the work with the appellant could only add to his WPI by one per cent, there was no substantial aggravation, the Arbitrator nonetheless took Dr Pillemer’s view or concession that there was a small augmentation of the WPI through the work with the appellant as one of the matters, taken with the preceding three, that tipped the balance in favour of the respondent.

12. Finally, the Arbitrator went on to deal with what can be called the technical defences raised in reliance upon ss 61 and 261 of WIM Act and rejected them. As noted above, the appellant does not press this aspect of the matter on this appeal.

13. On 21 June 2016, the Arbitrator issued a Certificate of Determination in the following terms:

    “The determination of the Commission in this matter is as follows:

1.       The applicant suffered injury to his left shoulder namely aggravation and exacerbation of pre-existing rotator cuff disease which notionally occurred on 30 April 2015 as a result of the nature of his employment as a painter prior to that date.

2. The respondent was the last employer to employ the applicant in employment that was a substantial contributing factor to the aggravation or acceleration of the rotator cuff disease in accordance with section 16 of the 1987 Act.

3.       The need for rotator cuff surgery is reasonably necessary as a result of the injury in paragraph 1 above.

4. As the injury is deemed by section 16 to have happened at the time the worker made the claim for compensation namely 30 April 2015 the claim is not nullified by operation of sections 61 or 261 of the 1988 Act.

5.       Order the respondent to pay the costs of and incidental to the proposed surgery in accordance with section 60 of the 1987 Act.”

THRESHOLD MATTERS

1. Neither party contends that the requirement as to time in s 352(4) and the provision in respect of the monetary threshold in s 352(3) of the 1998 Act are not met in this case. There is no threshold matter to rule upon before considering whether to proceed to determine the appeal.

FRESH EVIDENCE

1. Neither party applied to adduce fresh evidence upon the appeal.

SUBMISSIONS ON APPEAL

1. Paragraphs 4, 5 and 6 of Part B of the appellant’s submissions set out the grounds in principle of the attack upon the Arbitrator’s decision. Paragraphs 5 and 6 put what seem to me to be the challenges developed later in the written submissions and in the oral argument. They are as follows:

   “5 The Appellant appeals against the … determination insofar as the Arbitrator found that the Respondent worker suffered injury within the meaning of s 4(b)(ii) of the 1987 Act.

   6 The Appellant appeals against the … determination insofar as the Arbitrator found that the Appellant employer was the last employer to employ the Respondent worker in employment that was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”

2. In para 1c on page 3 of its written submissions the appellant conceded “… that the pathology from which the Respondent Worker is suffering is in the nature of a disease”.  This is in effect a concession that the case was a disease case and the concession is properly made. Both parties on appeal have treated it as a case of a disease allegedly relevantly aggravated.

3. The appellant in its written submissions put that the Arbitrator’s decision was erroneous in fact and law, but, as refined and condensed in oral argument the appellant’s ultimate position was that the decision was erroneous in fact. The points advanced by the appellant in this regard were:

   (a) that the evidence did not justify the conclusion that the respondent’s employment was the main contributing factor to the aggravation etc of his shoulder disease. Thus there was no “injury” for the purposes of s 4(b)(ii);

   (b) that in any event, to the extent that there was any aggravation, the respondent’s employment with the appellant was not a substantial contributing factor to the aggravation etc within the meaning of s 16(1)(b) of the 1987 Act.

   (c)     that the simple passage of time was a material causal factor which essentially ousted the effect, if any, of the respondent’s employment. In this connection the appellant specifically challenged what the learned Arbitrator said on page 10 of the transcript of his Reasons, namely:

   “While Mr Barter suggested almost by way of hypothesis the possibility of other factors in this case he did not point to any evidence of other factors which contributed to the aggravation of the disease or, for that matter, the acceleration or deterioration of the disease.”

   It was stressed that the simple effluxion of time was put by the appellant as a factor adversely affecting the respondent’s shoulder position and reliance was placed both upon the evidence of Dr Goldberg and the obvious proposition that the passage of time involves some use of the shoulders by any person.

   (d)     that because the full thickness supraspinatus tear was in existence in 2003 before the respondent commenced work with the appellant, it plainly followed that the disease process was already so well established that it could hardly have thereafter been the subject of “substantial aggravation” by the employment with the appellant. Emphasis was placed upon this as a powerful piece of evidence negativing the argument that
   s 16(1)(b) was satisfied;

   (e)     that in addition to the foregoing points, because the claim was one for the recovery of medical expense pursuant to s 60, actual causation as called for by that section needed to be made out by the respondent and was not made out. There could be no doubt that the relevant aspect of the disease to which the treatment would be directed was the tear. It would be surgically repaired. It was present and in need of repair on the evidence of Dr Goldberg in 2003 before the employment with the appellant began. Specific reliance was placed upon views expressed by Dr Pillemer in his report of 21 July 2015 on pp 4 and 7 where the doctor dealt with the fact that the tear existed at least in 2003 or even perhaps much earlier, and

   (f)     that even if there were a symptomatic worsening of the respondent’s condition over the course of his employment with the appellant, that of itself did not amount to an aggravation etc of the disease. Albury City Council v Gunton [2011] NSWWCCPD 68 (Gunton), paras [161]-[164] was relied upon in this regard.

4. As to the respondent’s submissions, I think it is fair to say that with one additional matter put orally and to which I shall shortly refer, the respondent both in his written submissions and in argument contended that the Arbitrator’s decision was correct in the terms in which it was expressed. That is to say, the Arbitrator fell into no error in finding that the respondent’s employment as a painter and decorator over the whole of his working life as such was the main contributing factor to aggravation etc. of the disease and fell into no error in finding that his employment with the appellant was a substantial contributing factor to the aggravation etc. As to the latter proposition, the learned Arbitrator’s conclusion as to symptomatic worsening was correct for the reasons he gave for it i.e. the evidentiary matters outlined above in para [21] furnished sufficient support for the finding.

5. The added matter put in oral argument went to the appellant’s discrete point as to lack of evidence of causation to make out a case of causation for the purposes of s 60 independently of the arguments about the failure to enliven sections 4(b)(ii) and 16(1)(b). Counsel for the respondent made it clear that his primary position was that if injury for the purposes of s 4(b)(ii) were made out and “substantial aggravation” for the purposes of s 16(1)(b) also made out, then the necessary “injury” for the purposes of s 60 was made out as well. However he sought leave at the conclusion of the oral argument to send me a decision which he said supported the proposition, upon which he also relied, that the test of causation for the purposes of s 60 was a “common sense” one and that it was satisfied upon the evidence here. Causation in that sense having been canvassed in the oral argument, he sent me without any further submission, so as not to require any competing submission from the appellant, the decision of Roche D-P in Murphy v Allity Management Services Pty Limited (2015) NSWWCCPD 49 (Murphy). I have considered that decision and will deal with it briefly hereunder.

DISCUSSION AND FINDINGS

1. At the outset it should be said that in my view the learned Arbitrator committed no error of law and correctly directed himself as to the elements of ss 4(b)(i) and 16(1)(b) of the 1987 Act. In particular he referred to Cant v Catholic Schools Office (2000) 20 NSWCCR 88 and Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313, directing himself in accordance with them in what I think was an entirely unexceptionable fashion. The former of these cases is more directly presently relevant, but the latter gives useful guidance.

2. This means that this appeal is in truth concerned with whether or not the learned Arbitrator made a material factual error or factual errors. I think that counsel for the appellant correctly accepted in argument that that is the real position. Indeed his most emphatic point, that the respondent’s shoulder condition had advanced to the stage of having a full thickness tendon tear before he began working for the appellant, was a factual one which was said to deny the operation of either of the relevant sections of the 1987 Act.

3. The Arbitrator clearly recognised that the first step in his decision-making process was to make a factual decision as to whether section 4(b)(ii) was satisfied. Directing himself, in my opinion correctly, that the question of fact on this topic was whether or not the respondent’s work throughout his working life as a painter and decorator had been the main contributing factor to the aggravation of his shoulder disease, he found as a fact that that was so. This finding was an unequivocal one, expressed as an overwhelming inference. It is not necessary for me to say whether he was correct to regard the inference as overwhelming. I am satisfied that there was abundant support for it in the evidence of Dr Pillimer and Dr Goldberg to which the Arbitrator referred and upon which he relied. Nor do I think there can be any doubt about the correctness of the Arbitrator’s view that whilst every day activities on the part of any person involves some use of the shoulders, prolonged work as a painter and decorator involves much greater stain on them. Put another way, the appellant has not persuaded me that the Arbitrator’s finding of fact that s 4(b)(ii) was enlivened in the respondent’s favour involved error. With particular reference to what I think amounts to the focal point of the appellant’s argument, the factual conclusion that the overall nature of the respondent’s working life as a painter and decorator was the main aggravating factor in respect of his shoulder disease is not called into question by the undoubted radiological fact that a full thickness tendon tear was in existence in 2003.

4. Much the more difficult question, as the learned Arbitrator himself frankly acknowledged, was whether the evidence enlivened s 16(1)(b) in the respondent’s favour. In this connection it is quite plain from the reasons of the Arbitrator that he so found by a narrow margin. His decision amounts to saying that he thought that the scales on this issue were weighed down in the respondent’s favour, but by the barest measure.

5. In evaluating the factual decision of the learned Arbitrator to the effect that the appellant was the last employer of the respondent in employment that was a substantial contributing factor to the aggravation etc of his shoulder disease, and keeping in mind that the analysis must relate to the period prior to the deemed date of injury on 30 April 2015, I direct myself in accordance with the decision of Roche D-P in Raulston v Toll [2011] NSWWCCP 25, especially paras [19]-[21]. This passage of the Deputy President’s reasons is squarely concerned with the proper approach to evaluating findings of fact upon an appeal like the present. It is squarely based upon appellate authority from superior courts including the High Court. In my opinion the Deputy President’s analysis is clearly correct.

6. That analysis comes to this: where a finding of fact is under scrutiny, the enquiry at bottom comes to whether or not the finding was fairly open to the fact-finder (here Mr Sweeney), upon the evidence. That another Arbitrator may well have taken a different view on the same evidence is not sufficient to overturn the finding: it means only that the question is one on which minds could legitimately differ. The finding should only be interfered with if the proper conclusion is that it is clearly wrong.

7. Taking that approach, which I repeat I believe to be the clearly correct one, and following Roche D-P in Raulston, the view I have come to is that although there is much to be said for the arguments that were persuasively and forcefully put for the appellant, and although the margin in favour of the correctness of the learned Arbitrator’s conclusion is indeed a narrow one, it is not possible to say that his decision was not open on the evidence. I do not think it is necessary to rehearse the evidence upon which he relied at this point in these reasons. I have adverted above in some detail to the four matters of fact which emerged in the evidence upon which the Arbitrator relied for his conclusion that the respondent had made out a case of substantial contribution to the aggravation etc. of his shoulder disease by his employment with the appellant. I do not think it can fairly be said that the evidence furnished inadequate support for that conclusion, or for the anterior conclusion upon which it really depended, namely that there had been symptomatic worsening of the respondent’s shoulder condition throughout his employment with the appellant. In saying this I have not overlooked the force of the argument that by 2003 the respondent’s shoulder disease was well advanced, having got to the point of involving a full thickness tendon tear. But once it is accepted that there was a proper evidentiary foundation for a conclusion of substantial contribution to the diseased condition by the employment with the appellant, that fact cannot be regarded as compelling a contrary conclusion.

8. So far as the appellant’s reliance on Gunton (supra) is concerned, with all respect I think that case offers no real support for the appellant’s argument. The opening words of para [162] of the learned Deputy President’s reasons in that case, one of the paragraphs upon which the appellant placed reliance, makes it clear that the question is ultimately factual. Moreover the brief extract from Commonwealth v Beattie (1981) 53 FLR 191; 35 ALR 369 at 378, referred to in para [161] of Gunton reinforces the factual nature of the question.

9. The appellant’s argument as to the operation of s 60 remains. I understood it to be that findings favourable to the respondent in respect of ss 4(b)(ii) and 16(i)(b) did not conclude these proceedings in his favour. A further hurdle presented itself to him, namely the need to show that the reasonable necessity for the medical treatment (which was accepted in the sense that surgery to repair the tear was agreed to be reasonably necessary) needed to be shown to result from “injury”. As abovementioned, the point emphasised here by the appellant was that the tear existed before it began to employ the respondent. Also as abovementioned, the respondent’s primary position was that if the Arbitrator’s findings in his favour under the earlier sections were correct, then “injury” for the purposes of s 60 had been established. This was because the word “injury” in s 60 bore the meaning given to that term in s 4 of the Act. In a disease injury case like the present, satisfaction of s 4(b)(ii) meant proof of “injury” for the purposes of s 60. Then satisfaction of s 16(1)(b) identified the employer obliged to pay. To that submission as an alternative the respondent added reference to Murphy (supra) and to the common sense test of causation.

10. In my opinion whilst reference to Murphy is misconceived, that case being one of frank injury rather than “disease injury”, the respondent’s primary argument is correct. The finding in the respondent’s favour of “injury” satisfies s 60, and the finding in his favour under s 16(1)(b) identifies the appellant as the employer liable to pay.

11. For these reasons in my opinion that the Arbitrator’s decision should be confirmed.

ORDER

1. The Arbitrator’s determination of 21 June 2016 is confirmed.

Larry King SC
Acting Deputy President

22 December 2016