MacMahon Holdings Ltd v McKenzie
[2018] WADC 28
•21 FEBRUARY 2018
MACMAHON HOLDINGS LIMITED -v- McKENZIE [2018] WADC 28
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 28 | |
| Case No: | APP:40/2017 | 8 NOVEMBER 2017 | |
| Coram: | O'NEAL DCJ | 21/02/18 | |
| PERTH | |||
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| PDF Version |
| Parties: | MACMAHON HOLDINGS LIMITED TIMOTHY McKENZIE |
Catchwords: | Workers' compensation Appeal Section 247 Workers' Compensation and Injury Management Act 1981 Question of law Whether 'a question of law is involved' |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 62, s 177, s 188, s 247 |
Case References: | Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 Balenzuela v De Gail (1959) 101 CLR 226 BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 Heppingston v Commissioner of Railways (1901) 3 WALR 63 Manonai v Burns [2011] WASCA 165 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Pollock v Wellington (1996) 15 WAR 1 Thomas v Chandler Macleod [2015] WADC 78 Velez Pty Ltd v Tudor [2011] WASCA 218 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
TIMOTHY McKENZIE
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR DAVIES
File No : A 34335 of 2016
Catchwords:
Workers' compensation - Appeal - Section 247 Workers' Compensation and Injury Management Act 1981 - Question of law - Whether 'a question of law is involved'
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 62, s 177, s 188, s 247
Result:
Application for leave to appeal dismissed
Representation:
Counsel:
Appellant : Mr J J Dyson
Respondent : Mr A Gunasekera
Solicitors:
Appellant : SRB Legal
Respondent : Tindall Gask Bentley Lawyers
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Balenzuela v De Gail (1959) 101 CLR 226
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Heppingston v Commissioner of Railways (1901) 3 WALR 63
Manonai v Burns [2011] WASCA 165
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Pollock v Wellington (1996) 15 WAR 1
Thomas v Chandler Macleod [2015] WADC 78
Velez Pty Ltd v Tudor [2011] WASCA 218
1 O'NEAL DCJ: This is an appeal pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (the Act) from a decision of an arbitrator of the Workers' Compensation Arbitration Service. By a decision delivered 26 April 2017 the arbitrator granted the application of the worker, Mr McKenzie, and ordered that weekly payments of compensation be reinstated.
Procedural background
2 A concise procedural background is set out at pars 1 - 9 of the learned arbitrator's reasons for decision:
• On 10 September 2012 Mr Timothy Robert McKenzie (applicant worker) was exiting the scraper that he had been operating at the Roy Hill Tailings Storage Facility when he rolled his right ankle on uneven ground.
• The applicant worker obtained a medical certificate for a right ankle injury that occurred by twisting it and, on 12 September 2012, made a workers' compensation claim for a workplace injury to his right ankle. By notice dated 17 September 2012 AAI Limited trading as GIO (GIO), the insurer of MacMahon Holdings Limited (MacMahon or, subrogated in these proceedings, respondent employer) notified the worker that liability was accepted for medical expenses. The incapacity was described as a 'STI right ankle' (respondent employer's book of documents (RBD), 298). By notice dated 9 October 2012 liability was accepted for weekly payments and medical expenses in respect of the applicant worker's 'STI right ankle' (applicant worker's book of documents (ABD) 128).
• Payment of weekly payments and medical expenses commenced. It is not in dispute that the applicant worker received gross remuneration of $13,864.39 ($9,524.39 net). Then on 20 November 2013 GIO issued a notice to discontinue weekly payments. The applicant worker did not respond to this notice and weekly payments were lawfully discontinued.
• By application for arbitration dated 26 July 2016 (Application) the applicant worker sought orders pursuant to s 62 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) for the reinstatement of weekly payments for incapacity from 18 November 2013 to present arising out of the work injury sustained on 10 September 2012.
• By notice dated 1 August 2016 this Application was accepted for arbitration.
• The Application was listed for conciliation. The period of conciliation ended without settlement. The certificate of outcome dated 29 June 2016 specifies, inter alia, that:
A conciliation conference was held on 15 June 2016.
The worker's representative confirmed that the worker was seeking weekly repayments of compensation from 2 March 2016.
Liability for the worker's claim in relation to his right knee, left ankle and hip is disputed by the employer.
Further, liability for any recurrence to his right ankle is also disputed.
The employer submits that it denies that the worker is incapacitated for work. If the worker is incapacitated for work, then any incapacity does not result from the 10 September 2012 injury …
• At the commencement of the final hearing on 26 April 2017 the applicant worker sought leave, which was granted, to amend the Application to seek weekly payments from 2 March 2015 (instead of 18 November 2013).
• The applicant worker's rate of pay had been calculated as being $2351.80 per week for the first 13 weeks of incapacity and $1355.40 per week for each subsequent week of incapacity paid (ABD 128). This calculation is not in dispute.
• At the time of his injury on 10 September 2012, the applicant worker had been earning substantially more working as a fly-in, fly-out (FIFO) worker in the mining industry (ABD 85 - 86).
3 By a decision dated 9 May 2017, the arbitrator found that the condition of the worker had changed in that, from 2 March 2015, he suffered a recurrence, aggravation or acceleration of a pre-existing condition. She found that the worker's accident on 10 September 2012 was a significant contributing factor to that circumstance, with an unbroken chain of causation between the September 2012 accident and the post-traumatic osteoarthritis the worker was suffering.
4 The arbitrator granted the worker's application pursuant to s 62 of the Act, finding that his condition warranted the reinstatement of his weekly payments from 2 March 2015.
5 By an appeal notice dated 6 June 2017 the appellant (MacMahon) commenced these proceedings, appealing those findings and that decision.
Factual background
6 The arbitrator accepted the worker as a truthful and reliable witness as to the surrounding facts and circumstances: at [36] and [41]. The following facts are taken from the worker's evidence and medical reports that were before the arbitrator.
7 The worker was born in August 1971. At the time of the hearing before the arbitrator he was 44 years old. He holds qualifications in welding and engineering. Since about 2005 he has been licensed to operate heavy equipment including scrapers, rollers, dump trucks, front end loaders and bobcats.
8 In about 2000 he stumbled over a hole in his yard that his dog had made. He injured his ankle and it required surgery. That was performed at Whyalla Hospital. As a result of that accident and the surgery he was away from work for three months. Thereafter he returned to work with no ongoing difficulty or treatment.
9 In 2005 he suffered a sprain to his ankle.
10 After recovery from the sprain until 2012 he had no difficulties with his right ankle.
11 From about mid-2011 he worked for MacMahon as a scraper operator. He worked as a fly-in fly-out worker, with four weeks on-site and one week at home. While on-site he would work 12 hours a day. Until 10 September 2012 he had no difficulty physically or otherwise in performing his job.
12 On 10 September 2012 at about 5.30 pm while getting out of a scraper that he was operating, he rolled his right ankle on uneven ground. His hope that the pain of that injury would be over after a night's sleep was disappointed. After about two hours work the next day he was unable to cope with the pain of the injury and he reported to his supervisor.
13 When the ankle injury failed to resolve with physiotherapy and light duties, the worker was referred by his GP, Dr Wren, to Professor Krishnan, an orthopaedic surgeon. That was in December of 2012.
14 On 23 January 2013 Professor Krishnan performed surgery on the worker's right ankle. There were some difficulties with the healing process. The ankle was in a plaster cast following the surgery and it became infected. Some further treatment was necessary to remove the flesh that had become infected.
15 After a time the worker began the process of rehabilitation including physiotherapy. He continued however to be certified unfit for work until 17 September 2013.
16 The worker's evidence was that pre-injury he was earning almost $3,600 net per week. After the initial 13 weeks at $2,351 per week, the compensation he was receiving for his injury dropped to $1,049 per week. His evidence was that:
I was always pushing for a clearance, but my doctor wanted to ensure that I wasn't cleared for work too soon and put into a scenario where my ankle would be aggravated. The ongoing financial stress of receiving workers' compensation payments, rather than my full pre-injury income, was starting to make things difficult for my family.
17 Although certified fit for alternative duties in mid-September 2013, MacMahon did not offer any such position to the worker.
18 The worker's evidence was:
In November 2013, due to the ongoing financial pressures and my desire to just get back to work, I asked Dr Krishnan to certify me fit for more duties. I had thought my recovery was progressing well and that I should test whether I could return to my pre-injury duties. If not, I had thought that MacMahon, being a large company, would be able to find me an alternative position. MacMahon's had told me that if I got a clearance, work would be available for me.
19 Despite getting his clearance certificate, on 25 November 2013 MacMahon's told the worker that there was no work for him.
20 The worker continued to try to find a job, unsuccessfully, until his savings were exhausted. He managed to find work for about five weeks in the middle of 2014 as a plant operator and truck driver. His evidence was that he did not find any difficulties in this role which involved driving a truck,
as well as a few days of scraper work. I was predominantly performing duties which didn't require me to be on my feet. In late 2014 I was noticing increased pain and instability in my right ankle, so I contacted Dr Krishnan's office to make an appointment which was made for the end of January 2015. This appointment was later cancelled by Dr Krishnan's office and rescheduled for February 2015.
21 Professor Krishnan arranged for a further MRI scan. That took place on 2 March 2015. Following this, Professor Krishnan once again certified the worker unfit for work.
22 In his evidence the worker said: 'Subsequent to the development of my ankle injury I have noticed aching in my right knee, for which I again consulted Dr Krishnan'. As it turns out an MRI confirmed a tear in the worker's meniscus. The worker's belief with respect to the injury in his knee as well as some pain that he has developed in his hip was that the symptoms are related because he has had to favour his left leg, ankle and right hip on performing any basic day-to-day activities.
23 The arbitrator accepted that the worker was determined to try to get back to his pre-injury duties, and she accepted his account of his experience from the time of his ankle injury in September 2012. She also accepted that he had a genuine belief that the other symptoms that he had, for example in his right knee, left leg, left ankle and right hip were things that he genuinely believed were related to his right ankle injury for the reasons that he gave.
The medical evidence
24 The medical evidence that is at the centre of this appeal is found in the arbitrator's reasons from [45] – [65]:
45. In a letter dated 2 March 2015 to Professor Krishnan, Dr David Donovan at Benson Radiology wrote:
…
MRI RIGHT ANKLE
Summary
- Ankle osteoarthritis. Multiple chondral lesions including dominant medical talar lesion. When compared to December 2012 appearances are similar except that prominent bone marrow oedema around the subarticular talar changes has decreased Posterior subtalar chondromalacia osteoarthritis - when compared to the previous study. The peroneus longus tendon is normal.
Clinical:
Previous LCL reconstruction. Secondary osteoarthritis.
This is to inform you that Tim's right ankle injury is a result of the exacerbation of his previous WorkCover related injury. He has an MRI scan that shows that he has marked synovitis in the ankle joint and early osteoarthritis.
At this stage I feel he would benefit from an ultrasound guided Cortisone injection and I would be most grateful if you could facilitate this for him.
47. In a letter dated 15 May 2015 from Professor Krishnan to GIO to inform them that 'Mr McKenzie's ankle symptoms are related to his original injury and his current symptoms are as a result of an exacerbation of the underlying injury and the surgery' (ABD 21).
48. In a letter dated 19 September 2015 from Professor Krishnan to Tindall Gask Bentley Lawyers (ABD 11) Professor Krishnan wrote:
Thank you very much for your letter requesting a report on Mr Timothy McKenzie and for forwarding other appropriate materials and reports relating to the client.
In answer to your specific questions, the diagnosis of his current condition is one of post-traumatic secondary degenerative changes of Mr McKenzie's right ankle joint.
The feature [sic] treatment plan at this stage is for him to consider undergoing an ankle fusion.
[His] current symptoms are mainly pain and difficulty in weight bearing and associated ankle instability.
I am of the view that the workplace accident of 2010 [sic] is a significant contributor to his current ankle condition and the need for ongoing treatment.
The client at this stage does not have any stability for any of his pre-injury duties. He is suitable for sedentary duties only in light of his current ankle condition …
49. The applicant worker relied principally on the letter dated 2 November 2016 from Professor Krishnan to Tindall Gask Bentley Lawyers (ABD 135 – 136). In this report Professor Krishnan wrote:
Thank you very much for your letter requesting a supplementary report to assist you with your preparation of Mr McKenzie's Hearing at WorkCover WA.
I can confirm I have recently consulted Mr McKenzie in relation to his right ankle and right knee conditions.
In answers [sic] to your specific questions, I agree that Mr McKenzie is presently totally incapacitated for his pre-injury work as a mobile plant operator.
I do agree that this incapacity is permanent, in the sense that it is more likely than not to persist into the foreseeable future.
I can confirm that his incapacity is a direct result of the injuries Mr McKenzie sustained in the course of his employment on the date of the 10th of September 2012.
I agree that your client, Mr Timothy was totally incapacitated from his pre-injury work duties from 10th November 2013 until the 19th September 2015.
I agree that Mr McKenzie is totally incapacitated for other jobs which might be described as reasonably within his sphere of labour market opportunity. His injuries will impact directly on manual labour intensive work.
I hope this report supplies you with the information you require…
50. Professor Krishnan's assistant advises by letter dated 13 April 2017 (ABD 264) that after 19 November 2013, the applicant worker saw Professor Jegan on 13 February 2015, 2 March 2015, 13 April 2015, 27 April 2015, 1 June 2015, 7 September 2015, 14 September 2015 and 23 August 2016.
51. Relevantly, in the medicate certificate dated 2 March 2015 Professor Krishnan certified the applicant worker totally unfit for work from 2 March 2015 to 2 May 2015 (ABD 81 - 82). In the medical certificate dated 27 April 2015 Professor Krishnan certified the applicant worker totally unfit for work from 13 May 2015 to 13 July 2015 (ABD 83).
52. The applicant worker's alternative submission was that, based on the medical opinion of Dr Philip Haynes, consultant occupational physician, the applicant worker is partially incapacitated (and entitled to weekly payments for total incapacity because there is no suitable employment).
53. In a letter dated 19 September 2015 from Dr Haynes to Tindall Gask Bentley Lawyers (ABD 137) Dr Haynes wrote:
… Subsequently he had returned to South Australia and consulted a GP in Kadina. He was sent for further x-rays and MRI scanning of the right ankle. He went on to be referred to orthopaedic surgeon, Professor Krishnan and the surgery was performed in January 2013. Mr McKenzie noted some improvement.
In December 2014 Mr McKenzie reported increasing pain and instability in the right ankle. He has been reviewed by Professor Krishnan and he was advised that surgical fusion of the ankle was required.
Mr McKenzie had also reported pain and clicking in the right knee and he had been diagnosed with a tear of the medical meniscus of the right knee. Arthroscopic surgery to the knee had been suggested by Professor Krishnan. Liability had not been accepted by the Workers' Compensation insurer.
Mr McKenzie had also reported aching in the right hip and left ankle.
I note that Mr McKenzie had undergone previous reconstruction surgery to the right ankle following an injury in 2000 and he stated that he made a full recovery.
MRI scanning of the right ankle on 2 March 2015 was reported as showing osteoarthritis with multiple chondral lesions. Bone marrow oedema had decreased, but osteoarthritis had increased. There were post-surgical changes.
It was my opinion that Mr McKenzie's right ankle condition was not stable for the purposes of permanent impairment assessment because surgery to the ankle had been recommended…
The further extensive documentation provided was not helpful in regard to the responses to your questions.
In response to the questions contained in your letter dated 13 October 2016:
- 1. Can you confirm that our client's current right ankle condition results from his workplace injury in 2012 and subsequent surgery in 2013?
I am not able to state that Mr McKenzie's right ankle condition is entirely related to the workplace injury of 10 September 2012 because he did report a prior reconstruction of the ankle and he is likely to have had at least some ongoing osteoarthritic changes after such a procedure. From the history provided to me by Mr McKenzie, however, I consider that the symptoms occurring since 2012 were substantially related to the reported inversion injury of 10 September 2012. Similarly, surgery undertaken in 2012 is likely to have been the cause of ongoing symptoms.
2. You note in your abovementioned report that you are unable to state definitively that our client's right knee, right hip and left ankle symptoms are specifically related to our client's right ankle work injury on 10 September 2012. However, can you confirm that regardless, our client is totally incapacitated as a result of his 2012 work place injury and its consequences?
I am not able to state that Mr McKenzie is 'totally incapacitated'. I note that, in fact, he had been cleared by Professor Krishnan to resume his normal work duties and he had applied to the employer to return to work. In my opinion, Mr McKenzie does have partial capacity for work duties where he could avoid prolonged standing and walking and any squatting, kneeling, or lifting of more than 10kg. He would also need to avoid repetitive climbing of ladders or stairs. I would not consider him totally incapacitated.
I trust the foregoing meets your requirements…
… I was able to view the original x-ray right ankle 6 November 2012 identifying good joint spaces but the presence of loose body medially and also laterally.
I confirm the report of Fragmentation around the tip of the lateral malleolus consistent with old change probably related to the first surgery around about 2000.
There was evidence of early osteoarthritic change with osteophytic lipping, the posterior aspect of the talus and anterior aspect of the tibia. Stress views confirmed only mild tilting of the talus within the ankle mortise on inversion views.
Significance of this suggests that there had been no major ligament disruption as a result of the subject incident but probably an aggravation of an early osteoarthritic change with the formation of a loose chondral fragment (the loose bodies).
MRI Scan – Right Ankle (2 March 2015): This indicates osteoarthritic change with multiple chondral lesions including a dominant medial talar lesion stating that when compared to the December 12 appearances this is similar except that the prominent bone marrow oedema around the subarticular talar changes has decreased.
Post surgical changes are noted at peroneus brevis which was a new finding (the significance of this is that it would appear that Dr Krishnan had used the peroneus brevis tendon for some form of reconstruction; however, I note that there was a suture anchor present prior on the plain x-ray. There is stated to be further forward chondral fissuring of the lateral talus which indicates that there has been some progression of the osteoarthritic change).
…
Diagnosis is post traumatic osteoarthritis, right ankle.
Possible impairments are unilateral muscle atrophy, diagnosis based and range of motion.
PROPORTION OF PERMANENT IMPAIRMENT DUE TO ANY PREVIOUS INJURY THAT WAS NOT ASYMPTOMATIC
There is no measurement of the previous injury. This was symptomatic in that he required surgery for that.
MMI has not been achieved. He requires intervention at this stage.
- QUESTIONS:
1. After your examination of Mr McKenzie do you consider current condition to be caused by or contributed to a significant degree by the employment which ceased in October 2012?
I consider that the current condition was contributed to by employment October 2012 but that the contribution was not significant.
The grounds for my conclusion are that some 10 to 15 years post the original injury Mr McKenzie would have developed osteoarthritic change and he would appear to have had an appropriate treatment for the aggravation of September 2012 to the extent the he was fit enough to return to pre-injury duties.
- 2. Can you identify any other contributing facts and comment on their significance in relation to the employee's current condition.
The only other contributing factors are the natural progression of the condition…
55. In his report dated 30 November 2016 Phillips reiterates his opinion as to causation. Also in his report dated 30 November 2016 Mr Phillip states, in relation to the issue of the applicant worker's capacity (RBD, 211):
14. Do you agree with the assessment of capacity offered by Dr Haynes in his report dated 26 October 2016? Please explain your answer.
I am not quite sure what I am being asked to agree.
15. In your opinion, does the claimant have a capacity to return to his pre-accident employment duties as an operator at the hours he worked prior to 10 September 2012, or on a reduced/restricted duties basis, specifying which?
Based on my examination findings, I consider that he does have that capacity with the use of an ankle support.
56. The nature of the applicant worker's injury, symptoms and the resulting currently relevant diagnosis are clear. The medical experts all essentially agree. Professor Krishnan describes the currently relevant diagnosis as 'post-traumatic secondary degenerative changes of Mr McKenzie's right ankle joint' and elsewhere as 'osteoarthritis'. Dr Phillips describes the applicant worker's condition as post-traumatic osteoarthritis. Dr Haynes opinion is consistent with this. I find that the applicant worker is now suffering from post-traumatic osteoarthritis in his right ankle.
Does the post-traumatic osteoarthritis result from the accident on 10 September 2012?
57. There is a difference of opinion amongst the medical experts as to whether the accident on 10 September 2012 materially contributed to the post-traumatic osteoarthritis the applicant worker is now suffering in his right ankle.
58. The respondent employer submitted that, in considering this question, it is critical that it is apparent from the letter dated 1 February 2013 from Professor Krishnan to Dr Gregory Wren (RBD, 179) that it was the lateral ligament that was injured by the applicant worker on 10 September 2012. Further, it is submitted, Mr Phillips explains that it appears from post surgical changes that the peroneus brevis tendon was used for the reconstruction (RBD, 203); and according to the respondent employer, the applicant worker has not proved the nature and extent of the injury.
59. A google search does indeed reveal that the ankle ligament comprises a number of parts that the peroneus brevis tendon is a separate part of the ankle.
60. These submissions, and other submissions made by the respondent employer, test the applicant worker's case. However, whether and what, if anything, I can conclude is determined by the medical evidence before me. Secondly, if the peroneus brevis tendon was used by Professor Krishnan, it was presumably used to repair the ligament injured on 10 September 2012. I reach no conclusions in this regard.
61. The applicant worker submitted that this is a case of the recurrence, aggravation or acceleration of a pre-existing disease where the employment was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree. Further, it was submitted, the respondent employer accepted (by its notice dated 17 September 2012) liability in respect of an aggravation of a pre-existing condition – given that the 2000 right ankle event and consequential surgery was disclosed by the applicant worker – [and the weight of medical evidence establishes that the 10 September 2012 injury is a material contributing cause of the disease now suffered by the applicant worker.]
62. I accept this submission.
63. The weight of the medical opinion is that 10 September 2012 injury is a material contributing cause of the post-traumatic osteoarthritis in the applicant worker's right ankle. Professor Krishnan expresses the opinion that 'the workplace accident of 2010 is a significant contributor to his current ankle condition.' In the context of the totality of Professor Krishnan's reports, I conclude that Professor Krishnan is referring to the 10 September 2012 injury. Similarly, Dr Haynes expresses the opinion that 'the symptoms occurring since 2012 were substantially related to the reported inversion injury of 10 September 2012. Similarly, surgery undertaken in 2013 is likely to have been the cause of ongoing symptoms.'
64. Mr Phillip does not agree. He is of the opinion that 'the current condition was contributed to by employment October 2012 but that the contribution was not significant.'
65. I attribute most weight to the opinion of Professor Krishnan who is the applicant worker's treating surgeon. Professor Krishnan's opinion is not detailed. Ideally one report would capture the detail of his reasoning. However, this is a jurisdiction in which disputes are to be resolved in a timely way with costs to the parties being minimised. It is clear from the totality of the correspondence by Professor Krishnan in evidence what his opinion is and that it is based on the MRI on 2 March 2015. Given Professor Krishnan's qualification and that he is the applicant worker's treating surgeon (and therefore knows the applicant worker most intimately), on a relatively simple issue such as this, little explicit articulation is required.
The statutory context
25 Part XI of the Act establishes a system of dispute resolution which, at least in theory, was intended to be simpler, quicker, and cheaper than traditional litigation. One of the cornerstones of that process is the way that an arbitrator is bound to conduct hearings and entitled to receive evidence:
188. Practice and procedure, generally
(1) An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2) The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —
(a) is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(c) An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(3) An arbitrator may —
(a) receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b) adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(4) To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
26 The following provisions of the Act, summarised in my decision in Thomas v Chandler Macleod [2015] WADC 78 are also relevant here:
14 Section 62 of the Act provides as follows:
(1) Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2) An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.
…
36 The objects of the Act are set out at s 3:
'3. Purposes
The purposes of this Act are -
(a) to establish a workers' compensation scheme for Western Australia dealing with —
(i) compensation payable to or in respect of workers who suffer an injury; and
(ii) the management of workers' injuries in a manner directed at enabling injured workers to return to work; and
(iii) specialised retraining programs for injured workers; and
(iv) ancillary and related matters;
and
(b) to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and
(c) to provide for the resolution of disputes under this Act; and
(d) to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.'
'… to provide a fair and cost effective system for the resolution of disputes under this Act that -
(a) is timely; and
(b) is accessible, approachable and professional; and
(c) minimises costs to parties to disputes; and
…
(e) in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.'
38 Consistently with those objectives, the Arbitration Rules 2011 made pursuant to the Act, provide that parties may be represented by legal practitioners or lay representatives. At arbitration hearings, unless an arbitrator grants leave, any medical evidence of a medical practitioner must be given in writing. Leave must not be granted 'unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick'.
39 Pursuant to r 57(1): 'If a party proposes to adduce oral evidence from a witness …' then among other things a detailed statement of the witness must be provided in advance as well as a statement of the reliance that the party intends to place on the evidence.
…
41 An arbitrator may be required to give a decision in writing, but s 213(4) provides:
'The reason for an arbitrator's decision —
(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so;
(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so;
(c) need not canvas all the evidence given in the case; and
(d) need not canvas all the factual and legal arguments or issues arising in the case.'
42 The common law requires decision makers to provide adequate reasons to give effect to any right of appeal, to enable a court to determine whether or not an appealable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27].
43 The question as to whether the content of the reasons of the decision maker is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised: Wainohu v New South Wales [2011] HCA 24; (2011) 278 ALR 1 [55] – [56] (French CJ) and (Kiefel J).
44 In Velez Pty Ltd v Tudor [2011] WASCA 218 Murphy JA writing for the court reviewed the authorities with respect to the obligations of a Workers Compensation Service arbitrator to give reasons:
'68. In relation to s 213(4) of the Act, in Sotico Pty Ltd v Wilson [2007] WASCA 112 Wheeler JA (Steytler P agreeing) observed [23] - [24]:
"It is important, in my view, to have regard to s 213 against the factual context in which it was enacted. Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. Injured workers may suffer from a number of different conditions at the same time, and different medical practitioners may assess each different condition in different percentage terms, giving rise to a very large number of potential outcomes. It is against that background that the Arbitrator is required only to identify the facts accepted and to give the reasons for doing so.
By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected."
- 69. More recently, this court in Manonai v Burns [2011] WASCA 165 considered s 31 Magistrates Court Act 2004 (WA) which is identical in terms to s 213(4). Hall J (with whom Pullin & Murphy JJA agreed) said [56]:
"The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important."
70. In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result (cf AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, [44]).'
27 Pursuant to s 247 of the Act, MacMahon requires leave to bring this appeal. In Thomas v Chandler Macleod, I considered at some length the provisions of s 247 and its proper construction.
28 Counsel for the worker concedes that the monetary criteria of s 247(2)(a)(i) are met in this case. The only real question is whether it can be said that 'a question of law is involved'. The answer to that question will be found in the grounds of appeal.
29 In Thomas I summarised the authorities with respect to the meaning of the phrase 'a question of law is involved':
26 On whatever basis an appeal is brought pursuant to s 247(2), a question of law must be 'involved'. An appeal 'involves a question of law where either an error of law, or an error of mixed law and fact is involved': BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
27 A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15]. Ignoring for now the limiting provisions of s 247(2)(a), in order to obtain a grant of leave all that the appellant has to show is that there is a real or significant argument to be put which involves a question of law: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
28 Once it has been established that a ground involves a question of law, the whole decision of the arbitrator, and not merely the identified question of law is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].
29 If the court decides that a question of law is involved and leave to appeal has been granted, then the District Court is required to undertake a 'real review' of the matter. That review however is based on the materials that were before the arbitrator, and is not conducted by way of a hearing de novo: Pacific Industrial Co v Jakovljevic [20], [26].
30 Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it. The appellant may not simply invite the court to just ignore the arbitrator's decision and start again with a view to having the court substitute his or her own decision for that of the arbitrator: Pacific Industrial Co v Jakovljevic [20], [26], cited in Catholic Education Office of WA v Granitto [2012] WASCA 266.
Grounds of appeal
30 At the commencement of the hearing, the grounds of appeal, as amended, stood as follows:
Supplementary Ground 1:
1. The Arbitrator erred in relying on the opinions of Drs Krishnan and Haynes on causation and capacity where the doctors' opinions:
(a) were inadmissible; or in the alternative once admitted into evidence;
(b) were of no, or of no sufficient probative value to support the Arbitrator's findings, and in doing so the Arbitrator:
failed to act judicially, and/or in accordance with her obligation 'to act accordingly to equity, good conscience and the substantial merits of the case' as required by s 188 of the Act, and relied on irrelevant evidence.
Particulars
• The doctors' reports expressed a bare conclusion with no or inadequate reasons for the opinions expressed;
• The Respondent made submissions at Arbitration that the reports contained no or no adequate reasoning and should not be relied on – see for example T44 - 47.
Original:
2. The Arbitrator erred at law by failing to identify medical evidence that demonstrated that the injury suffered by the Respondent on 10 September 2012 was an aggravation, acceleration or recurrence of the pre-existing medical condition and reached conclusions that were not available to her on the evidence.
3. The Arbitrator identified that on 10 September 2012 that Respondent suffered a lateral ligament injury which required a reconstruction utilising a portion of the peroneous vervis tendon but failed to satisfactorily explain why this injury was a material contributing cause to the Respondent's osteoarthritis and in doing so failed to provide adequate reasons for her decision (Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149) and misapplied Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182.
4. The Arbitrator erred in law by finding that the Respondent's disclosure of a pre-existing injury in 2012 meant that the Applicant accepted liability for a pre-existing degenerative condition with such error infecting the manner that the Arbitrator assessed the remainder of the evidence.
5. In making the error identified in paragraph 4 above, the Arbitrator placed an onus of proof upon the Respondent to demonstrate that the incident on 10 September 2012 was not materially related to the incident in 2000 which was a reversal of the onus of proof and an error of law.
6. The Arbitrator erred in law in failing to attach weight to the Respondent's recovery from his symptoms by November 2013 with such evidence being relevant from his symptoms by November 2013 with such evidence being relevant to the issue of whether the Respondent's osteoarthritis resulted from the injury on 10 September 2012.
7. The Arbitrator erred in law in misapplying the case of Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011) referred to in paragraph 27 and applied in paragraph 65. In misapplying Dasreef Pty Ltd v Hawchar, the Arbitrator failed to undertake her obligation in accordance with Pollock v Wellington (1996) 15 WAR 1.
8. The Arbitrator erred at law by failing to take into account medical evidence that demonstrated that the Respondent's right knee, hip and left ankle symptoms do not result from the incident on 10 September 2012.
9. The Arbitrator gave insufficient weight to the totality of Dr Haynes evidence which was to the effect that the Respondent was unfit principally because of his right knee condition.
10. The Arbitrator failed to make findings of fact in relation to the claimant's capacity to engage in alternative occupations nor make other findings of fact that support her conclusion that there was no suitable work available to the Respondent.
11. The Arbitrator misunderstood the evidence of Dr Phillips and stated in paragraph 55 that his report dated 30 November 2016 was merely a reiteration of his previous report and in so doing erred at law by failing to place sufficient weight on the nature of the injury suffered by the Respondent on 10 September 2012 and whether the Respondent recovered from that injury. Leggett v Argyle Diamond Mines Pty Ltd [2002] WASCA 182.
12. The Arbitrator erred at law in determining that Professor Krishnan's 'credit' was not impugned when in fact Professor Krishnan was not the subject of cross examination. In accepting Professor Krishnan's evidence because his 'credit' was not impugned, the Arbitrator failed to perform the appropriate analysis of the evidence which was to determine whether the opinion reached by Professor Krishnan was supported by the facts.
13. The Arbitrator erred at law by suggesting that there was two-step process in determining whether the Respondent's ongoing incapacity resulted from the incident on 10 September 2012.
31 The original ground 1 was abandoned prior to the commencement of the hearing. In the absence of any real objection I gave leave to substitute the supplementary ground 1. In the course of oral submissions at the appeal counsel for MacMahon abandoned grounds 2, 10, 11 and 12. For the purpose of submissions, the remaining appeal grounds were then grouped into pairs, reflecting their overlap.
32 I will deal with the paired groupings of the appeal grounds as they were presented in oral submissions, as opposed to the way in which they were bundled for the purposes of the written submissions.
33 The threshold question is whether any of the grounds, properly understood, reveal that a question of law is involved,
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics and the formulation of the ground cannot alter the position. The ground that asserts the decisions against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 61 [53] - [55] and the cases cited therein: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21].
34 It is apparent that, notwithstanding the linguistic gymnastics engaged, several of the grounds patently do not involve a question of law. Among these are grounds 1(b), 6 and 9.
35 I will turn then to what remains.
Grounds 1(a) and 7
36 As is the practice in such matters, both parties prepared books of evidentiary material to be relied upon at the hearing before the arbitrator. That included in the worker's case a statement of his evidence as well as a collection of medical records, letters and reports. It included the opinions of Professor Krishnan and Dr Haynes.
37 At the commencement of the hearing the arbitrator asked the parties whether the books of documents that had been tendered could be received. She records the response to that inquiry at [29] of her reasons: 'All medical opinions tendered in this case were admitted into evidence without objection during the hearing'.
38 Despite that, the submission on behalf of MacMahon is that the opinions of Professor Krishnan and Dr Haynes, to the extent that they attribute the worker's incapacity for work on the December 2012 accident, 'had no probative value. They were either inadmissible or they could carry no weight'. In other words, despite the lack of objection the arbitrator should nonetheless have declined to receive those reports or, having admitted them into evidence should have accepted a submission made on behalf of MacMahon, in the course of closing submissions, that these reports 'had no probative value'.
39 Arbitrators dealing with disputes of this kind are not bound by the rules of evidence: s 188(2) of the Act. That statutory provision is one which parties seem content to abide by in arbitration proceedings, right up to the point that they receive an adverse decision.
40 The fact that an arbitrator is not bound by the rules of evidence does not of course mean that the principles underpinning those rules should therefore simply be ignored. The historical common sense as to what makes particular evidence persuasive or gives it value for a decision maker, and how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly. Section 188(2)(b) of the Act itself expressly requires that hearings before arbitrators be conducted, 'according to equity, good conscience and the substantial merits of the case …'.
41 The central issue raised in this appeal closely parallels one considered by Herron DCJ in BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6.
42 In Treby the appellant sought to argue that the arbitrator had erred in law in relying upon the evidence of a medical expert, Mr Wong, as to the worker's incapacity. The submission was that the arbitrator should not have given weight to the opinion of Mr Wong because it 'did not sufficiently, or at all set out any basis upon which Mr Wong reached his conclusion'.
43 His Honour, at [56], held that:
Although it might be readily accepted that Mr Wong's report provides little detail or analysis in support of his opinion that Ms Treby did suffer an end plate fracture which was work caused, nevertheless I am satisfied a sufficient is set out so that his opinion can be understood and evaluated. However, even if I am wrong in that conclusion and the arbitrator erred in accepting Mr Wong's report because the report failed to provide a sufficient basis to support his opinion, the arbitrator's findings based upon Mr Wong's report was not an error of law. It is only an error of fact.
44 His Honour continued (from [57]):
57 Counsel for BHP Billiton also submitted the arbitrator erred in law in relying upon Mr Wong's report when it had no probative force. In my view the submission is to the same effect as a submission that the report was inadmissible and therefore ought not to have been relied upon.
58 It is trite to observe that the factual basis upon which an expert's opinion is based must be established for the opinion to be admissible: Pollock v Wellington (1996) 15 WAR 1; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Makita (Australia) Pty Ltd v Sprowles(2001) 52 NSWLR 705. In effect, the appellant's submission is that Mr Wong's report ought to have been ruled inadmissible at the hearing because a proper factual basis for the opinion had not, on the evidence, been established. That is, Mr Wong in giving his opinion did not furnish the arbitrator with sufficient criteria to enable an evaluation of the validity of Mr Wong's conclusion: Makita (Australia) Pty Ltd v Sprowles [59] (Heydon JA).
59 The difficulty with that submission, as submitted by counsel for Ms Treby, is that the issue regarding the admissibility of Mr Wong's report, or whether it had any probative force, and therefore ought to have been ruled inadmissible or rejected, was not raised at first instance before the arbitrator. Addressing that difficulty, counsel for BHP Billiton put forward three contentions.
60 First, it is submitted the practice of the worker's compensation arbitration system is that the parties to proceedings file books of documentary evidence prior to the hearing before the arbitrator and then simply argue about weight rather than the admissibility of the evidence. The generally understood view, it was submitted, was that all evidence is admissible before an arbitrator and the arbitrator will therefore only consider what weight to give to any evidence. Therefore it would have been pointless and futile for the appellant to submit that Mr Wong's report was inadmissible or of no probative value because such a submission would have been rejected by the arbitrator.
61 Counsel further submitted that that generally understood view is not consistent with the case law which, properly understood, requires that an arbitrator not act upon evidence that is of no probative value in the sense that the evidence, as a matter of law, is not reasonably capable of supporting the existence or non-existence of facts relevant to the issue to be determined.
62 I reject counsel's submission. While I make no observation about whether arbitrators simply accept all evidence which is tendered without ruling upon its admissibility and only rule upon the weight to be given to evidence, I do not accept that objection to the admissibility of Mr Wong's report on the grounds now raised could not have been raised before the arbitrator. Nor do I accept that if objection to the admissibility of Mr Wong's report was raised it would necessarily have been rejected by the arbitrator. In my view the issue now raised by counsel on this appeal should have been raised at first instance before the arbitrator. Although an arbitrator is by s 188(2) not bound by the rules of evidence an arbitrator is required to conduct hearings fairly and, had an issue regarding the admissibility of Mr Wong's report being raised before the arbitrator, he would have been required to rule upon it. Indeed because of the requirement of an arbitrator to act in a manner that is fair, just, economical, informal and quick (s 3(d)) and to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 188(2)(b)) – it was only fair to both parties that the issue be raised at the hearing. It was in the interests of justice that all relevant issues be raised and addressed at the hearing before the arbitrator and be finally dealt with at the arbitration, which is the specialist dispute resolution body set up to resolve disputes about worker's compensation entitlements and from which there is only a limited right of appeal.
63 Had the issue regarding the admissibility of the report been raised at the hearing, Ms Treby may have been able to, or would have wanted to, adduce further evidence relevant to the admissibility of Mr Wong's opinion. She may have chosen to obtain a further report from Mr Wong, perhaps asking him to respond to Dr Flahive's report. She may have decided to further attempt to seek a further report from Mr Bannan.
64 In my view the appellant is bound by the way in which its case was conducted at the hearing before the arbitrator for the reasons explained in A v Corruption and Crime Commissioner [111 - [115]:
'111 It is only in the most exceptional circumstances that a party will be permitted to raise a new argument after the case has been decided against him when he or she has failed, either deliberately or inadvertently, to put the argument during the hearing when given the opportunity to do so - see Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481. The plurality in Coulton endorsed statements by the Court of Appeal of New South Wales in the same matter, recognising the importance of this principle in light of the public interest in the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance; keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (8).
112 These principles are not novel. In Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1, Isaacs J observed:
"[I]t is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopt at the trial (24)."
113 However, in some 'very exceptional cases', the failure of a plaintiff to put at trial a case formulated on appeal may not be conclusive against him - see Water Board v Moustakas (1988) 180 CLR 491, 498 (Mason CJ, Wilson, Brennan and Dawson JJ); Maloney v Commissioner for Railways (1978) 52 ALJR 292; (1978) 18 ALR 147, 152; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [52].
114 It has been established that the opportunity to assert a new case should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant (Water Board, 498; Rizhao [52]). As was noted in Rizhao [53],a court is highly unlikely to allow a new argument on appeal where the point, if taken below, might have resulted in additional or different evidence being led - see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438 - 439; Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594, 608, 362; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319.
115 The probability of success of the new ground of appeal will be inherently linked to the assessment of whether it is in the interests of justice to allow the appellant the opportunity to assert a new case. However, in this case, any assessment of success must be weighed against the possible prejudice which may arise from denying the parties opposing the relief sought the opportunity to raise evidence which would have been relevant to assessment of the reasonableness of the impugned decision.'
65 In my view the appellant, not having taken issue with the admissibility of Mr Wong's report at the hearing before the arbitrator, is now not permitted to object to the admissibility of the report on appeal. There are no exceptional circumstances which now permit the appellant to raise a new argument on appeal after the case was decided against it when the appellant failed to put that argument at the hearing before the arbitrator.
45 Counsel for MacMahon attempted to persuade me I should not follow Herron DCJ's reasoning in Treby, or alternatively that this case can be distinguished from Treby.
46 Referring to the question of the causal link between the worker's symptoms in 2015 and the accident in 2012, counsel for MacMahon said, in his closing submissions (P-44):
There is no explanation in the evidence from Dr Krishnan and there is no evidence, or no explanation in the evidence from Dr Haynes to associate a link why. The best they do is just say, well it is because of that. You know, this happened before and this has happened now, so therefore it is because of that.
ARBITRATOR: Isn't that the basis of an opinion?
MR ULLINGER: Well, I think critically it is. But in the sorts of cases that were dealing with now, the opinion must be explained with reference to a number of things … .
47 There was then this exchange:
MR ULLINGER: Looking at Dr Krishnan's evidence in isolation, then his reports, particularly bearing in mind that he was the treating surgeon, are very vague and generally quite unconvincing in our submission. This is a person who has had the opportunity to look into the ankle, to provide an observation of what he saw, to identify specifically the nature and extent of any osteoarthritis that there was in 2012 and explain why it is that he says that it continues to be an important factor now. But none of that has been done.
ARBITRATOR: And why is that necessary in the provision of an opinion?
MR ULLINGER: Well it underpins the basis of the opinion. Another point to observe, perhaps, about Dr Krishnan's evidence, is that …
ARBITRATOR: So are you saying that he has provided no reasoning?
MR ULLINGER: Correct. Or alternatively, no satisfactory reasoning.
48 MacMahon's alternative submission is that this case can be distinguished because of the closing submissions made by its counsel that I have set out above. That fact may distinguish the position of MacMahon here, but it does not enhance it.
49 With respect to the reception of evidence said to be inadmissible, in another context it has been said that:
… A new trial will rarely be ordered on that ground if no objection was taken at trial to the admission of the evidence: Heppingston v Commissioner of Railways (1901) 3 WALR 63, 65; Balenzuela v De Gail (1959) 101 CLR 226, 242; cited in Pollock v Wellington (1996) 15 WAR 1, 4.
50 I have set out Herron DCJ's remarks as to why requirements of fairness mean that a party should make an explicit and timely objection to evidence that it says should not be received.
51 In the game of poker a player may, consistent with the rules of the game if not with the favourable regard of his opponents, 'lie in the weeds'. That is, they may conceal what they consider to be the true strength of their hand until opponents have committed themselves, to their cost. What is acceptable in a card game however should not be tolerated in an arbitration hearing which is supposed to be conducted by an arbitrator according to 'equity, good conscience and the substantial merits of the case'.
52 Parties to arbitrations should carefully consider the material to be placed before an arbitrator well before the commencement of the hearing. If books of materials contain documents or statements that are not in law admissible, either on grounds of relevance or based on the kind of arguments made here, that fact should be signalled to the other side before the books of materials are finalised. At the very least, at the commencement of a hearing when books of materials are to be tendered, objection should be taken to anything that a party wishes to contend is not legally admissible. In that way, neither the other party nor the arbitrator will be left in the kind of ambiguous position that arose in Treby and here. Dealing with such matters in advance of the hearing might even have the result of narrowing issues or at least winnowing the materials that the arbitrator will have to deal with.
53 Before the arbitrator, counsel for MacMahon effectively sought to have the advantage of having the arbitrator treat Dr Krishnan's evidence as if it had not been received without actually taking an objection to it. I do not suggest that counsel was conscious of any impropriety in doing so, but having conducted the case without objection in that way, the objection should not be heard now.
54 With respect to ground 7, the submission is in effect that the arbitrator acted contrary to principle, acting on a notion that if a witness was properly qualified as an expert, that witness' opinion could be accepted without the basis of the opinion being provided.
55 In [57] – [70] of her reasons the arbitrator considers whether the post-traumatic osteoarthritis resulted from the accident on 10 September 2012. She carefully examines the medical evidence that addressed that issue and sets out her reasons for preferring the evidence of Professor Krishnan and Dr Haynes on that topic to the opinion of Mr Phillips. As set out above, the opinion of Professor Krishnan was that 'the workplace accident of 2010 [sic] is a significant contributor to his current ankle condition'. Dr Haynes' view was that, 'the symptoms occurring since 2012 were substantially related to the reported inversion injury of 10 September 2012. Similarly, surgery undertaken in 2013 is likely to have been the cause of ongoing symptoms'.56 The opinion of Mr Phillips differed only in degree. His view was that, 'the current condition was contributed to by employment October 2012 but that the contribution was not significant'.
57 The learned arbitrator, at [65] of her reasons, specifically addresses the adequacy of Professor Krishnan's opinion and his basis for that opinion. She acknowledges that it is not overwhelming in detail and explains why nonetheless it is adequate in the circumstances.
58 The arbitrator contrasted what she obviously regarded as the logic of what Professor Krishnan had to say with the view of Mr Phillips, and at [66] of her reasons she sets out in detail her concerns about the flaws in the reasoning process revealed by Mr Phillips' opinion.
59 Like Herron DCJ in Treby, it is appropriate to say here that Dr Krishnan did not in fact offer a great deal of detail. It is in my view however a sufficient basis for the arbitrator's reliance on Professor Krishnan's evidence. In any event, like Herron DCJ, I am in any event of the view that the arbitrator's reliance on Professor Krishnan's report here was not an error of law. It could at most be an error of fact.
60 It is not correct to say that the arbitrator did not require an explanation of the reasoning process of the expert witnesses whose opinion she accepted. The arbitrator did not make the error complained of.
61 Grounds 1 (a) and 7 fail.
Ground 3
62 Ground 3 raises the complaint that the arbitrator did not adequately explain her conclusion that the workplace accident in 2012 was a material contributing cause to the respondent's 2015 osteoarthritis: cf Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149.
63 At common law a decision maker has to provide adequate reasons to give effect to any right of appeal, to enable the appeal court to determine whether or not an appealable error was made, and to allow the parties to understand why they were, or were not successful: Mount Lawley Pty Ltd.
64 Pursuant to s 213(4) of the Act the obligations of an arbitrator to give reasons are modified to a degree. Among other things this is in recognition of 'the realities of pressure of work and limited time': Manonai v Burns [2011] WASCA 165 cited in Velez Pty Ltd v Tudor [2011] WASCA 218 [69].
65 Nonetheless, in identifying the facts accepted, the law applied and the reasons for doing so, the arbitrator will still be obliged to expose the reasoning process linking them and justifying the ultimate result: Velez [70].
66 The greatest part of the arbitrator's reasons from [30] – [81] set out in some detail the evidence of the worker and the medical opinions relevant to the issue of causation. The arbitrator refers to the conflicting issues raised by the medical opinions tendered by the worker and MacMahon, and cogently explains why she reaches the conclusions that she does. The appellant may choose not to accept her reasoning, but on any fair reading she carried out a systematic analysis of the medical reports and other evidence, setting out the facts that she accepted and her reasons for doing so. It could not fairly be said that she did not discharge her obligations pursuant to s 213(4).
67 This ground fails.
Ground 4
68 It was not apparent at the hearing of the appeal whether ground 4 was maintained or abandoned. For the sake of completeness I will say however that, notwithstanding linguistic gymnastics, this ground merely challenges the arbitrator's assessment of the evidence in a very general way and does not involve a matter of law.
Ground 8
69 Ground 8 was originally paired with ground 9 in MacMahon's submissions.
70 The arbitrator was alive to the fact that subsequent to the exacerbation of the worker's right ankle osteoarthritis he reported other problems in his right knee and his hips that he attributed to the accident in September 2012. The arbitrator reviewed the medical evidence and relied in particular on the evidence of Professor Krishnan where he attributed the worker's incapacity to the right ankle injury. While, as I have noted, the arbitrator was sympathetic to the belief of the worker that his knee and other problems were related to his workplace injury and that she accepted that his view was honestly held, plainly her analysis of the medical evidence was that the subsequent problems did not 'break the chain of causation, nor undermine the finding of capacity with respect to the applicant worker's right ankle': [80] (and see [45] – [47]).
71 In context, ground 8 is another quibble about the conclusions drawn by the arbitrator in the course of her fact finding duties. It does not involve an issue of law.
72 This ground fails.
Grounds 5 and 13
73 The argument that the arbitrator somehow shifted the burden of proof from the worker to MacMahon in some unprincipled way does not arise from a fair reading of her reasons. The arbitrator said, that:
24. In determining whether incapacity results from the accident, a common sense evaluation of the chain of causation is required (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463-464 per Kirby P with whom Sheller and Powell JJA agreed) and the accident must at least be a material contributing cause of the incapacity (Leggett, [24 - [26] per Wallwork J; in relation to common law generally see March v E & M H Stramere Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, [21] – [28] per Mason CJ).
25. If the applicant worker discharges this burden, the respondent employer may then seek to prove, on the balance of probabilities, that the applicant worker was, prior to the compensable injury, in a condition that, without the accident, would have led to his post-accident state of health (Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160 per Dixon CJ; see also Purkess v Crittenden [1965] HCA 34; (1995) 114 CLR 164 and Moussa v Confoy [2015] NSWDC 103 [471] per Levy SC DCJ). If this becomes necessary and the respondent employer is successful, the applicant worker will not be entitled to any weekly payments.
74 Having considered all of the evidence, including the evidence of the worker and the medical evidence that she canvassed in some detail she finds:
69. Accordingly, I find that the 10 September 2012 injury is a material contributing cause of the post-traumatic osteoarthritis in the applicant worker's right ankle.
70. I also find that the respondent employer has not established that the applicant worker was, prior to the compensable injury, in a condition that, without the accident, would have led to his post-accident state of health. The weight of the evidence does not support any such finding.
75 As can be seen from her reasons, any question of a need for MacMahon to prove anything only arose after the arbitrator was satisfied of the matters that she describes at [69] of her reasons. No 'reversal of onus' is suggested. Accordingly, grounds 5 and 13 fail.
76 For the above reasons, no question of law being involved I refuse leave to appeal.
77 I will hear the parties as to costs.
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40
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