Maitland City Council v McInnes
[2021] NSWPICPD 22
•23 July 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Maitland City Council v McInnes [2021] NSWPICPD 22 |
| APPELLANT: | Maitland City Council |
| RESPONDENT: | James McInnes |
| INSURER: | StateCover Mutual Ltd |
| FILE NUMBER: | A1-5284/20 |
| SENIOR MEMBER: | Mr G Capel |
| DATE OF MEMBER’S DECISION: | 16 November 2020 |
| DATE OF APPEAL DECISION: | 23 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, failure to give notice of injury in compliance with s 254 of the 1998 Act – ‘special circumstances’, failure to claim compensation in compliance with s 261 of the 1998 Act – ‘ignorance, mistake, absence from the State or other reasonable cause’, findings of ‘injury’ pursuant to s 4 of the Workers Compensation Act 1987, weight of a medico-legal assessment carried out by audio-visual link, a member’s duty to give reasons |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Barnes, counsel | |
| Moray & Agnew Lawyers | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Law Partners Personal Injury Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave is granted to the appellant to rely on its Amended Notice of Appeal dated 11 January 2021, including a further ground, Ground No. 5. 2. The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 3. The Certificate of Determination dated 16 November 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
James McInnes (the respondent) was employed by Maitland City Council (the appellant) full-time from March 2012. He was initially a labourer with the construction team, and from January 2018 was on the maintenance team repairing potholes on roads. The pothole work was conducted from a truck. The respondent would take asphalt weighing five to ten kilograms on a shovel from a hopper on the team’s truck, walk up to 25 metres to an identified pothole, and repair it with the asphalt.[1] The respondent stated that on 1 July 2019 he arrived at work in good health and worked with his team repairing potholes. They went to a Gun Club managed by the appellant, where there was facility to dump left over asphalt and clean the hopper. The respondent stated that he scraped left-over asphalt from the walls of the hopper, and was bent over closing the waste door on the hopper, which was “slightly damaged”, in a “slightly bent over” position, when he felt “pinching pain” in the lower back.[2]
[1] Respondent’s statement 20/3/20, [3]–[9], Application to Resolve a Dispute (ARD), p 2.
[2] Respondent’s statement 20/3/20, [30]–[47], ARD, pp 6–7.
The respondent had an interview on the following day “with HR” about unrelated matters. He took leave for largely unrelated reasons thereafter, until resigning on 1 September 2019.[3] On 1 October 2019 he moved to Queensland. The respondent described a “progressive escalation” in his back pain from 1 July 2019 to February 2020. He undertook some short-term employment. He was provided with a workers compensation certificate by Dr Zin (in Queensland) on 12 February 2020.[4] The respondent did not, to that time, report the injury to the appellant or make a claim for compensation in respect of it. It appears a claim was made on 12 February 2020.[5] The appellant declined liability in a notice dated 4 March 2020. It relied by way of defence on the failure to give notice and to make a claim within the relevant time limits, it disputed the occurrence of ‘injury’ and disputed whether the requirement of ‘main contributing factor’ for the purposes of the ‘disease’ provisions was satisfied.[6]
[3] Reply, p 6.
[4] Respondent’s statement 20/3/20, [57]–[71], ARD, pp 8–11.
[5] Claim form, ARD, pp 33–40.
[6] ARD, pp 41–44.
The current proceedings were listed for arbitration hearing on 4 November 2020. Mr Tanner appeared for the respondent and Mr Barnes for the appellant. Mr Tanner addressed first. After Mr Tanner had completed his submissions, Mr Barnes applied for leave to cross-examine the respondent. Following brief submissions, this application was refused by the Senior Arbitrator.[7] After both counsel had addressed, the Senior Arbitrator reserved his decision. The former Workers Compensation Commission issued a Certificate of Determination dated 16 November 2020, accompanied by the Senior Arbitrator’s reasons.[8] The respondent’s failure to give notice of injury and to make a claim for compensation within time were excused pursuant to ss 254(3)(b) and 261(4)(a) respectively of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). There was a finding that the respondent had suffered injury to the back from 12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019. There was a finding that employment was a substantial contributing factor. There was an award for continuing weekly payments and the payment of medical expenses.
[7] Transcript of arbitration hearing on 4/11/20 (T), T 31.32–33.30.
[8] McInnes v Maitland City Council [2020] NSWWCC 391 (the reasons).
TRANSITIONAL MATTERS
After the current appeal was lodged, the Workers Compensation Commission was abolished.[9] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[10] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. Given his appointment at the time of this decision, I will refer to the Senior Member in his then capacity as Senior Arbitrator.
[9] Clause 3 of Div 2 of Pt 2 of Sch 1 of the Personal Injury Commission Act 2020 (the 2020 Act).
[10] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[11] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[12] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[13]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c) It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[14]
[11] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[12] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[13] [1996] HCA 140; 140 ALR 227.
[14] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[15] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[16]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[17]
[15] [2017] NSWWCCPD 5, [67].
[16] [2001] FCA 1833, [28].
[17] Raulston, [20].
In Northern New South Wales Health Network v Heggie,[18] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[19]
[18] [2013] NSWCA 255 (Heggie).
[19] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[20] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[21]
[20] [2020] NSWCA 54 (Hill).
[21] Hill, [20].
THE LEGISLATION
Section 254 of the 1998 Act relevantly provides:
“254 Notice of injury must be given to employer
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances—
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Section 4 of the 1987 Act relevantly provides:
“4 Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …”.
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator described the background and issues. He set out brief reasons for refusing the appellant’s application to cross-examine.[22] He summarised the lay evidence including the statements of the appellant’s lay witnesses.[23] He summarised the clinical notes from both the Rutherford North Medical Centre[24] (where the respondent was treated in Sydney from 27 August 2014 to 16 July 2019) and the Waterford Village Medical Centre[25] (where the respondent was treated in Queensland subsequent to 17 January 2020). He summarised the opinions of Ms Mousset (a treating psychologist) and Dr Bodel (an orthopaedic surgeon qualified in the respondent’s case).[26] The Senior Arbitrator summarised various documents, particularly going to the circumstances surrounding the respondent’s resignation from the appellant, which involved allegations that certain risk assessment documents were based on falsified evidence. The Senior Arbitrator referred also to four previous workers compensation claims which emerged when the appellant conducted a claims search through the State Insurance Regulatory Authority.[27] He summarised the parties’ submissions in detail.[28]
[22] Reasons, [1]–[18].
[23] Reasons, [19]–[57].
[24] Reasons, [58]–[62].
[25] Reasons, [63]–[77].
[26] Reasons, [78]–[94].
[27] Reasons, [96]–[101].
[28] Reasons, [104]–[133].
The Senior Arbitrator noted the respondent alleged “an injury simpliciter or the contraction of a disease process in his lumbar spine in terms of s 4(b)(i) of the 1987 Act”.[29] He referred to Nguyen v Cosmopolitan Homes[30] and the need that he feel “an actual persuasion” of the existence of a fact before making a finding in that regard.[31]
[29] Reasons, [137].
[30] [2008] NSWCA 246.
[31] Reasons, [138]–[139].
The Senior Arbitrator referred to the appellant’s case that the respondent was “a liar and all of his evidence cannot be accepted”. He said the respondent’s denial, in his first statement, of any prior claims or disciplinary action was “misleading and is clearly incorrect”. He referred to the respondent’s denial, in his second statement, of suffering “any injuries or medical conditions that impacted on his capacity to work”. The Senior Arbitrator described this as “inaccurate” as the respondent “had mental issues and he was often absent from work on sick leave”.[32] He referred to the various people nominated by the respondent as witnessing his injury, and said they “denied any such report”.[33]
[32] Reasons, [140]–[143].
[33] Reasons, [147].
The Senior Arbitrator quoted from a passage of the judgment of Kirby J, dealing with credit findings, in Whisprun Pty Ltd v Dixon,[34] applied by Roche DP in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services.[35] The Senior Arbitrator said:
“These comments make it clear that one has to examine all of the facts and the evidence as a whole, and then assess whether the evidence can be accepted irrespective of any adverse credibility findings.”[36]
[34] [2003] HCA 48; 200 ALR 447; 77 ALJR 1598 (Dixon), [98]–[99].
[35] [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus), [62].
[36] Reasons, [151].
The Senior Arbitrator said that the respondent’s statements were “composed by an investigator and his solicitor”. He said that “one must always be cautious about statements that have been compiled by others”. He referred to words, employed in the respondent’s second statement, that contained “legal concepts and terminology”.[37] He said: “putting aside for the moment the issues arising from the accuracy of the [respondent’s] evidence regarding his prior claims and the disciplinary proceedings, what does the evidence show?”[38]
[37] Reasons, [153]–[154].
[38] Reasons, [155].
The Senior Arbitrator said there was no dispute that the respondent’s duties “involved heavy and repetitive work”. Co-workers corroborated the respondent’s evidence that there were “problems with the front passenger seat in the work truck”. He said the respondent resigned because of “conditions imposed upon him as a result of [the] HR meeting”. The appellant did not challenge this. The respondent described moving to Queensland, and then having additional stress with a number of court attendances due to a “DVO” taken out against him by his partner. He noticed his back pain increased. He had short periods of employment with two employers with no further injury. The Senior Arbitrator said there was no evidence from the appellant to challenge these assertions. He said there was no evidence to challenge the respondent’s evidence that work with employers after the appellant was light and did not involve any further injury.[39]
[39] Reasons, [156]–[162].
The Senior Arbitrator said the respondent gave a “slightly different description of the mechanism of injury” in his second statement (“pain as he attempted to stand up after bending”) but this was not a “material change” in his allegation of injury. The respondent stated he did not report his injury because he thought he had “only suffered a muscle strain”. The Senior Arbitrator described this as “credible”. In his third statement, the respondent said he did not report the injury “for fear of losing his job”. The Senior Arbitrator said this reluctance was understandable, given that fear, and that the respondent “was in the midst of disciplinary actions”. The Senior Arbitrator said the respondent’s evidence of “his poor emotional state and its effect on his work performance” was corroborated by other employees of the appellant and the notes of the Rutherford North Medical Centre. He was referred to a psychologist on 4 June 2019, a matter of weeks before his alleged back injury. The Senior Arbitrator noted the respondent did not refer to back injury or symptoms on 16 July 2019, when he saw the practice about mental health issues. This was described as consistent with his evidence that his focus was on his emotional state.[40]
[40] Reasons, [164]–[169].
The Senior Arbitrator described the notes of Dr Zin as having “an important part to play in the evidentiary matrix”. They confirmed back complaints on 17 January 2020, with the first comments on causation on 11 February 2020. The Senior Arbitrator referred to a line of authority, including Davis v Council of the City of Wagga Wagga,[41] dealing with the care to be exercised when dealing with clinical notes of treating doctors.[42] He briefly summarised the notes/reports of Dr Zin, Ms Mousset and Dr Bodel.[43] He noted that, although Dr Bodel recognised that there were limitations in conducting an assessment via video, the doctor regarded the report as “sound”. The Senior Arbitrator said he saw “no reason why the doctor’s views should not carry any weight, particularly in the absence of any evidence to the contrary”.[44]
[41] [2004] NSWCA 34.
[42] Reasons, [170]–[173].
[43] Reasons, [174]–[181].
[44] Reasons, [182]–[184].
The Senior Arbitrator said the appellant had two reports from Dr Ivers (who examined the respondent on the appellant’s behalf) but did not rely on the doctor’s evidence. The Senior Arbitrator drew an inference pursuant to Jones v Dunkel[45] that Dr Ivers’ evidence “would not have advanced the [appellant’s] case”.[46] The Senior Arbitrator referred to the respondent’s evidence of his symptoms (lower back pain, numbness and tingling in the legs, thoracic spine pain, muscle spasm, bowel and bladder pain, incontinence, stress and depression). He said there was “no medical evidence to dispute this evidence”. He said the disciplinary process was “of little assistance regarding the injury dispute”. The respondent was under investigation for serious misconduct, the discussions were confidential.[47] The Senior Arbitrator did not accept that “inaccurate comments” the respondent made about his claims history compromised the rest of his evidence. He said the rest of the respondent’s evidence was “largely corroborated by his co-workers and his medical evidence”.[48]
[45] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).
[46] Reasons, [185].
[47] Reasons, [188]–[189].
[48] Reasons, [191].
The Senior Arbitrator said that the respondent’s psychological condition, together with injury to his bowel and bladder, were not raised on the pleadings and did not require determination.[49] He said there was no evidence that the respondent had contracted a disease.[50] He referred to the “common-sense test” of causation in Kooragang Cement Pty Ltd v Bates[51] and to “the unchallenged medical opinion of Dr Bodel”. He made a finding:
“I am satisfied that the [respondent] suffered an injury to his lumbar spine arising out of or in course of employment with the [appellant] on 1 July 2019 and as a result of the heavy and repetitive nature of his employment duties from 12 March 2012 to 1 July 2019 in accordance with s 4 of the 1987 Act, rather than a disease process in terms of s 4(b)(i) of the 1987 Act.”[52]
[49] Reasons, [194].
[50] Reasons, [192].
[51] (1994) 35 NSWLR 452 (Kooragang), 463G–464B.
[52] Reasons, [195].
The Senior Arbitrator turned to consider whether s 9A of the 1987 Act was satisfied. The Senior Arbitrator set out s 9A and referred to some of the leading appellate decisions dealing with the section. He said that the medical evidence he had accepted confirmed that the respondent “suffered a back injury as a result of the incident”. There was “no evidence to suggest any other cause”. He found that the requirements of s 9A were satisfied.[53]
[53] Reasons, [197]–[206].
The Senior Arbitrator dealt with the defences raised pursuant to ss 254 and 261 of the 1998 Act. Dealing with s 254 (report of injury), the Senior Arbitrator referred to the respondent’s statement in which he said he thought the injury was a muscular strain, and he feared he would lose his job. He noted the respondent had serious personal and emotional issues at the time, and the disciplinary process was a distraction. The Senior Arbitrator accepted the respondent’s explanation was “credible”. The Senior Arbitrator said the respondent’s statement that he was ignorant of the claims process was “inaccurate”, there were four prior claims. The respondent also said that he had no knowledge of the time limits governing claims, and he would have made a claim had he known. The Senior Arbitrator said there was no evidence from the appellant to challenge this assertion. The Senior Arbitrator accepted there was a reasonable explanation for the failure to comply with the time frames in the 1998 Act.[54]
[54] Reasons, [210]–[220].
The Senior Arbitrator found the failure to give notice of injury “was occasioned by special circumstances, namely ignorance or other reasonable cause, in accordance with s 254(3)(b) of the 1998 Act”. He found the claim was made on 12 February 2020, eight months after the injury. The failure to claim within the relevant time limits was “occasioned by the special circumstances, namely ignorance [or other] reasonable cause, in accordance with s 261(4)(a) of the 1998 Act”.[55]
[55] Reasons, [220]–[221].
The balance of the Senior Arbitrator’s reasons dealt with quantification of the respondent’s entitlements, which are not in issue on this appeal and do not need to be repeated.
THE APPELLANT’S APPLICATION TO RELY ON A FURTHER GROUND OF APPEAL
The appellant, in its Appeal Against Decision of Arbitrator dated 14 December 2000, relied on four grounds of appeal. The appellant’s submissions in support of the appeal did not comply with Practice Direction No. 6 as it then was, in that those submissions did not address each ground of appeal separately under separate headings. A direction was issued on 15 December 2020 directing that this deficiency be rectified. The appellant lodged amended submissions on 11 January 2021. The appellant, additional to rectifying the identified procedural deficiency, without leave added a further Ground of Appeal (set out below as Ground No. 5). The Commission advised the appellant’s solicitors that the appellant required either the respondent’s consent or the leave of the Commission to rely on the additional ground.
The respondent’s solicitors, by email dated 12 January 2021, advised that they did not consent to the further ground. They stated that the further ground was, by that point, out of time. The appellant had sought neither the respondent’s consent nor the leave of the Commission before purporting to rely on the additional ground and the respondent said he was prejudiced.
Additionally, a Direction was issued dated 13 January 2021, when official transcript of the arbitration hearing was furnished to the parties, giving the parties leave to file and serve supplementary submissions in respect of the transcript. The appellant lodged supplementary submissions dated 27 January 2021. These, in part, addressed matters raised by provision of the transcript; that aspect is not controversial. Additionally, these submissions included the additional ground and made submissions in support of the granting of leave to rely on it.
The 2020 Act relevantly commenced on 1 March 2021. A Direction was issued on 17 June 2021 in the following terms:
“The parties’ attention is drawn to s 3 of the Workplace Injury Management and Workers Compensation Act 1998, ss 3, 4 and 42 of the Personal Injury Commission Act 2020, and r 19 of the Personal Injury Commission Rules 2021.
In view of the above, the following direction is made in this matter:
1. On or before 4 pm on Friday 25 June 2021, the parties are to lodge submissions, if they wish, that briefly address any issues arising from the commencement on 1 March 2021 of the 2020 Act, relevant to the application for leave to amend the Appeal in this matter to add a fifth Ground of Appeal.”
Further Supplementary submissions were lodged by the appellant on 25 June 2021. The respondent lodged further submissions in response to the Direction on 29 June 2021, a matter of days out of time, on which it seeks to rely. The appellant largely reiterates submissions previously made on the application to amend. It specifically refers to the granting of leave as being consistent with the ‘just’ and ‘quick’ resolution of the matter, referring to the objectives and guiding principles of the 2020 Act. It specifically refers to the granting of leave pursuant to r 19.[56] The respondent opposes the application to add the further ground. It submits the appellant has not adequately explained why the further ground was not included in the appeal as originally lodged. It submits addition of the further ground “would undermine the principle of expeditious dispute resolution”.[57]
[56] Appellant’s supplementary submissions, 25/6/21, [12], [19]–[20].
[57] Respondent’s supplementary submissions, 29/6/21, [6], [8].
The submissions dealing with application to amend
The appellant submits:
(a) The submissions in support of Ground No. 5 were primarily contained in the original submissions filed by the appellant, which dealt with ‘credit’ (the topic of Ground No. 5). In moving its submissions to group them under headings representing the grounds, the appellant formed the view that it would be clearer to deal with ‘credit’ as a separate ground, rather than to revisit that topic in submissions dealing with the four original grounds. It submits “[t]he issue of credit is an underlying theme that is entwined in the other 4 grounds of appeal”.[58]
(b) The appellant disputes that the respondent is prejudiced by the granting of leave. The issue of ‘credit’ was raised in the grounds and submissions as originally filed on 14 December 2020. The respondent was provided with Ground No. 5 and the appellant’s submissions when these were filed on 11 January 2021. The appellant submits that Ground No. 5 is not “an entire new ground of appeal”, the submissions on which it is based were previously raised in other grounds.[59]
[58] Appellant’s supplementary submissions, 27/1/21, [16]–[19].
[59] Appellant’s supplementary submissions, 27/1/21, [20]–[26].
The respondent’s submissions on leave are those briefly described at [33] and [36] above.
Consideration of the application to amend
It was inappropriate that the appellant initially included the further ground without seeking leave or the consent of the respondent.
The respondent does not identify prejudice beyond the assertion that it exists, and he submits that amendment has the potential to extend the timetable for dealing with the appeal. He does not make any specific submission in opposition to that of the appellant, that the submissions on credit were largely encompassed in the submissions previously made under the umbrella of the original four grounds. The respondent’s submissions on this appeal include submissions dealing with Ground No. 5, which is the subject of the application for leave.
It is necessary that I have regard to the objects of the 2020 Act,[60] which include resolution of “the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[61] Overall, having regard to the objects of the 2020 Act and the ‘guiding principle’ identified in s 42 of that Act, in this matter the interests of justice favour the granting of the application to add the further ground. It will not add significantly to the time required to deal with the appeal and will assist resolution of the real issues. Leave is granted to the appellant to rely on Ground No. 5. References in these reasons to the grounds of appeal and submissions are to those in the appeal (as amended) dated 11 January 2021.
[60] Section 4 of the 2020 Act.
[61] Sections 3(c) and 42 of the 2020 Act.
THE GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Senior Arbitrator erred in finding that the worker sustained injury to his lower back arising out of or in the course of his employment from12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019. (Ground No. 1)
(b) The Senior Arbitrator erred in finding that employment was a substantial contributing factor to his injury. (Ground No. 2)
(c) The Senior Arbitrator erred in his finding that the worker’s failure to give notice of his injury was occasioned by the special circumstances identified in s 254(3)(b) of the 1998 Act. (Ground No. 3)
(d) The Senior Arbitrator erred in his finding that the worker’s failure to make a claim was occasioned by the special circumstances identified in s 261(4)(a) of the 1998 Act. (Ground No. 4)
(e) The Senior Arbitrator erred in that he gave insufficient weight to the attack made to [sic] the worker’s credit and by doing so formed erroneous deliberations on the totality of the evidence. (Ground No. 5)
APPLICATION FOR LEAVE TO ADMIT FRESH EVIDENCE
The basis of the application
The appellant seeks leave to admit fresh evidence, which is attached to the appellant’s appeal, pursuant to s 352(6) of the 1998 Act. It consists of workers compensation claim files relating to injuries suffered by the respondent, with earlier employers, on 22 October 2010, 3 February 2010 and 11 February 2004. The circumstances in which the material was obtained by the appellant’s solicitors is described in its submissions under the heading “2.5 New Evidence”. It is submitted the fresh evidence was “not available at the time of the arbitration hearing despite the appellant’s best attempts to obtain same”.
Briefly, the appellant submits the respondent (contrary to earlier statements) gave Dr Bodel a history of an earlier claim for a cut on his leg when he was about 15 years old. The appellant’s solicitors, through the respondent’s solicitors, sought to obtain an authority from the respondent to release “a SIRA claims history”. A resultant search revealed claims files in respect of four prior injuries in 2004, 2010 (x 2) and 2014. The appellant’s solicitors obtained further authorities from the respondent’s solicitors on 22 October 2020, for release of the claims files. The insurers in possession of the files needed to retrieve them from archives, and they “were forthcoming on 17 November 2020”, after both the arbitration hearing held on 4 November 2020 and the Arbitrator’s reasons delivered on 16 November 2020.[62]
[62] Appellant’s submissions, [6], [9].
The appellant refers to the Senior Arbitrator’s fact finding in his reasons at [212], where he said the respondent stated that he was ignorant of the claims process, which is submitted to be inaccurate as he had four previous claims. The Senior Arbitrator referred to the respondent’s evidence that he had no knowledge of the time limits for bringing claims and said that he would have brought a claim had he known. He said the appellant had adduced no evidence to challenge this assertion.
The appellant’s summary of the claim files[63] describes the following:
(a) Injury on 11 February 2004 – chicken juice splashed in eye – paid for two days off work and two attendances on GP – report of injury form is dated 18 February 2004, that form stated that the form “should be completed as soon as possible after receiving a work related injury and given immediately to your employer”. The appellant describes this as “evidence that the worker had constructive knowledge of his obligations under section 254 of the 1998 Act”.
(b) Injury on 3 February 2010 – palm frond puncture wound to right forearm – employer notified on the date of injury – paid for one day off work and one medical attendance.
(c) Injury on 29 October 2010 – struck right heel – medical expenses paid for attendances on 18 November 2010 and 6 December 2010.
[63] Appellant’s submissions, [19]–[21].
The appellant describes the above injuries as “minor in nature” and therefore inconsistent with the Senior Arbitrator’s acceptance that the respondent did not report his injury of 1 July 2019 due to its minor nature, regarding it as a “muscle strain”. The appellant submits there were numerous WorkCover certificates in the earlier files, consistent with the respondent having “actively engaged in the workers compensation framework”. It is submitted to be inconsistent with the respondent’s evidence that he was unaware that claims had been made.[64] The appellant submits that a different result would have emerged if the fresh evidence had been available at the arbitration hearing.[65]
[64] Appellant’s submissions, [22]–[24].
[65] Appellant’s submissions, [26]–[27].
The respondent’s submissions dealing with Grounds No. 3, 4 and 5 are relevant to the application to admit fresh evidence. He submits Ground No. 5 is “fundamentally misconceived”. The appellant called no evidence of its own to contradict the worker’s case that he suffered a lumbar injury. There was no dispute that his duties were “heavy and repetitive”. If aspects of his evidence were unreliable this does not “provide a basis for rejection of evidence which is not in dispute”. The reasons at [191] said that inaccurate comments by the respondent regarding his claims history did not compromise the rest of the respondent’s evidence, which was “largely corroborated by his co-workers and his medical evidence”. The respondent submits the Senior Arbitrator’s findings on ss 254(3)(b) and 261(4)(a) of the 1998 Act were open on the evidence, they were not erroneous.
Some principles governing the admission of fresh evidence
In CHEP Australia Ltd v Strickland[66] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[66] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
The power to admit fresh or additional evidence is therefore concerned with evidence that, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous.[67]
[67] Heggie per Sackville AJA (Basten and Ward JJA agreeing), [66].
Consideration
The description of events in the appellant’s submissions, dealing with the unavailability of the fresh evidence at the arbitration hearing, is not based on a statement. It is akin to evidence about procedural matters from the bar table. It is detailed and plausible; its accuracy is not challenged in the respondent’s submissions. In so far as it describes factual matters, I accept it. On that basis, I accept that the fresh evidence was not, and could not reasonably have been, obtained by the appellant for use at the arbitration hearing. This satisfies the first of the threshold questions identified in Strickland.
The admission of the fresh evidence is discretionary. Is it evidence which is likely to demonstrate that the decision was erroneous? Do the interests of justice favour the exercise of the discretion in the appellant’s favour?
Submissions relevant to the discretion
The appellant’s submissions dealing with Grounds Nos 1 and 2 (the ‘injury’ issue and s 9A) do not rely on, or otherwise refer to, the fresh evidence. The appellant does, however, make a submission in support of Ground No. 4, that “the credit issue impacts upon a genuine finding of injury in that the contradictions, omissions and effluxion of time before any complaint of injury cannot be reconciled with the evidence adduced by the [respondent]”.[68] This is not submitted to be dependent on the fresh evidence. Overall, the appellant does not pursue a specific submission that the outcome of Grounds Nos 1 and 2 relies on the success of the application for leave to admit fresh evidence. To the extent that the credit issue is relevant, in a general sense, to Grounds Nos. 1 and 2, this is dealt with in the discussion below relating to Grounds Nos. 3, 4 and 5.
[68] Appellant’s submissions, [115].
The appellant’s submissions in support of the application to admit fresh evidence refer to the respondent’s excuse for not giving notice and making a claim in compliance with the legislation, the respondent stating that he thought the injury was a muscle strain, an injury of a minor nature. The appellant submits the injuries the subject of the fresh evidence were also of a minor nature, yet claims and notice were made or given.[69] This essentially restates submissions (referred to below) made in support of Grounds Nos. 3 and 4.
[69] Appellant’s submissions, [22]–[23].
The appellant’s submissions dealing with Ground No. 3 refer to the reasons accepted by the Senior Arbitrator, in excusing the non-compliance with ss 254 and 261. Dealing with Ground No. 3, it is submitted the Senior Arbitrator accepted (at [210] of the reasons) that it was credible that the respondent thought that his injury was only a muscle strain, and that he was fearful of losing his job. It is submitted that the Senior Arbitrator accepted, at [218]–[219] of the reasons, that the respondent’s emotional issues distracted him from reporting the injury and making a claim, and that he was unaware of the relevant timeframes.[70] The appellant submits the past claims show the respondent was aware of the requirements to report an injurious event as soon as possible, he had done so previously.[71]
[70] Appellant’s submissions, [83]–[85].
[71] Appellant’s submissions, [90], [93].
The appellant refers to Gregson v L & MR Dimasi Pty Ltd in which Burke CCJ, dealing with s 65 of the 1998 Act (a predecessor of s 261) in its then form, said:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”[72]
[72] [2000] NSWCC 47; 20 NSWCCR 520 (Gregson), [61].
I note the above passage has been subsequently applied in Presidential decisions dealing with s 261 of the 1998 Act.[73] The appellant submits this decision provides meaning to the term ‘ignorance’. It is “not necessary that the worker had a detailed knowledge of the obligation”. It cannot be accepted that the respondent was ignorant of his obligations under s 254.[74]
[73] See Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12, [60]–[61], Paabo v State Rail Authority of NSW [2013] NSWWCCPD 45, [161]–[162], [171] and the decisions cited therein.
[74] Appellant’s submissions, [94]–[95].
Dealing with Ground No. 4 (failure to make a claim within time) the appellant largely repeats its submissions in support of Ground No. 3.[75]
[75] Appellant’s submissions, [111]–[114].
The appellant’s submissions dealing with Ground No. 5 (the credit issue) describe credit as having “always been singularly in issue” and “paramount in order for the opinions on causation to be accepted”. There is a summary of the “various inconsistencies in the worker’s evidence”.[76] Most of these “inconsistencies” do not depend on the fresh evidence.
[76] Appellant’s submissions, [116]–[117].
The submission at [117(a)] of the appellant’s submissions refers to the respondent’s explanation regarding “numerous past claims” and his statement that the “employers must have made the claims on his behalf”. The appellant submits this is “at odds with the claim documentation … that shows the worker engaging in the workers compensation process”.
The appellant’s submissions refer to the judgment of Kirby P in Dixon, in which his Honour discusses the challenging of credit-based findings on appeal.[77] The appellant submits that, given the “numerous inconsistencies and inaccuracies” in the respondent’s evidence, it was an error for the Senior Arbitrator to accept the respondent’s evidence as a witness of truth, “his evidence should not have been preferred”.[78]
[77] Dixon, [98]–[99].
[78] Appellant’s submissions, [122]–[124].
Conclusion regarding exercise of the discretion
The fresh evidence solely involves documents relating to previous workers compensation claims. Evidence regarding a claim in respect of an injury in the appellant’s employ on 28 July 2014 was available at the time of the hearing, and attached to an Application to Admit Late Documents dated 3 November 2020.[79] Emails between the appellant and StateCover, its insurer, record injury notification in a “StateCover Online Notification system” on 28 July 2014. On the same date this was the subject of a “request to convert an Incident to a Claim” in the online system. This was noted in an email from StateCover to Mr Archer, a case manager with the appellant. On 31 July 2014, StateCover wrote to the respondent acknowledging a claim for medical expenses for a left knee injury. Correspondence from StateCover to the appellant confirmed acceptance of the claim for “reasonably necessary treatment only”. On 26 August 2014, StateCover wrote to the respondent advising the claim would be closed within two weeks as the respondent had returned to pre-injury duties and required no further treatment. This material does not indicate what active steps, if any, were taken by the respondent at the time, by way of giving notice or making a claim.
[79] AALD, 3/11/20, pp 13–18.
It is necessary to consider the content of the fresh evidence in some detail in dealing with exercise of the discretion. The earliest of the claim documents in the ‘fresh evidence’ relate to an injury on 11 February 2004.[80] There is an “Employee’s Report of Injury”, a printed document filled out by hand, dated 18 February 2004. The printed material on the form includes a note that “This form should be completed as soon as possible after receiving a work related injury and given immediately to your employer”. The injury is described as “chicken juice splashed into my eye” when deboning a chicken. The injury was an “infected eye”. The “Employer’s Report of Injury” is consistent with this. It records notice was given on 13 February 2004, that the respondent ceased work on 16 February 2004 and he resumed work on 18 February 2004. WorkCover medical certificates dated 16, 17 and 18 February are consistent with a resumption of pre-injury duties on 19 February 2004. A document, which I infer is from the relevant insurer, indicates payments on the claim of $110 in medical expenses and $319.99 in weekly payments. The material does not include a claim form.
[80] Appellant’s Appeal, pp 1–8 (relating to that injury).
The next material chronologically relates to an injury on 3 February 2010.[81] There is a printed document dated 3 February 2010 on the letterhead of CGU entitled “WorkCover Register of Injuries”. It does not appear to have been completed by the respondent. It was signed by a person other than the respondent. The respondent’s details are entered in the third person (“Industry in which worker was engaged”, “Operation in which worker was engaged at time of injury”). The nature of injury is given as “Palm frond in right forearm”. The document records “Date claim forms forwarded to CGU” (3 February 2010), “Date Labourco notified” (3 February 2010) and a “W/C Code”. This would potentially be consistent with a claim form having been lodged. Bearing in mind no claim form is produced in the material, it also may be consistent with the submission of notification documents in a more general sense, as opposed to a claim form. There are two WorkCover certificates dated 3 and 5 February 2010, which record the respondent being fit for suitable duties from 3 to 5 February 2010 and fit for pre-injury duties on 5 February 2010. A document which I infer is from the relevant insurer indicates payments on the claim of $64 in medical expenses and $50.70 in weekly payments.
[81] Appellant’s Appeal, pp 1–4 (relating to that injury).
The next material relates to an injury on 29 October 2010.[82] It includes two WorkCover certificates dated 18 November 2010 and 6 December 2010, which describe the employer as “Labour Co”. The injury is described in the certificates as “struck heel on 29/10/10”. The first of these certificates describes the respondent as being fit for suitable duties from 18 November 2010 on a “management plan” of “heel raising insert”. The certificate dated 6 December 2010 states the respondent is fit for pre-injury duties from 6 December 2010. A document which I infer is from the relevant insurer indicates payments on the claim of $150 in medical expenses. It records nothing by way of weekly payments. The material does not include any formal report of injury or claim form.
[82] Appellant’s Appeal, pp 1–4 (relating to that injury).
It appears from the above that the claims in respect of injuries on 29 October 2010 and 28 July 2014 were for the cost of limited medical treatment only. The claim in respect of injury on 11 February 2004 involved somewhere in the vicinity of three days absence from work. The claim in respect of injury on 3 February 2010 involved limited medical expenses with a nominal sum ($50.70) by way of incapacity payments. All of the claims were very minor.
The available material does not include any claim forms lodged in respect of these claims. It is noteworthy that the claim in respect of injury on 28 July 2014 is referred to, in an email dated 29 July 2014 between the appellant and its insurer, as being recorded in an online notification system. A later email between the insurer and the appellant, on 29 July 2014, describes that notification being converted from an “Incident to a Claim” in the StateCover Online Notification System (see [62] above). There is no suggestion that this happened in the context of a claim form being lodged by the respondent. There is a formal written report of injury in respect of one of the claims, that for injury on 11 February 2004. It includes advice that the form should be completed as soon as possible after injury and given to the employer. This was about fifteen years prior to the incident on 1 July 2019. The material does not include other evidence going to knowledge on the respondent’s part of the obligation to report an injury.
The appellant refers to the respondent’s statement that he did not have knowledge of previous claims and that relevant employers must have made the claims on his behalf. The appellant submits this is “at odds with the claim documentation that has been obtained in respect of those past claims that shows the worker engaging in the workers compensation process”. The appellant refers to this as one of the “various inconsistencies in the worker’s evidence”[83] (see [59] above). Of the “inconsistencies” identified at [117] of the appellant’s submissions, this is the only one that directly raises the ‘fresh evidence’ dealing with earlier claims.
[83] Appellant’s submissions, [117(a)].
None of the material relating to the earlier claims clearly establishes that claim forms were submitted for the purpose of making any of the previous claims. The material does not establish that the respondent was, in these earlier claims, informed of his obligations regarding the making of a claim. The reporting of an injury may be done in various ways, with varying degrees of formality. It may be oral. Notice may be given to any person under whose supervision the worker is employed (see s 255 of the 1998 Act). It may, for example, be done through the submission of a WorkCover certificate containing relevant information. Only one of those claim files (for the injury of 11 February 2004) contained a formal report of injury form. One (for the injury on 3 February 2010) was apparently completed by the employer. It may or may not have been based on a formal injury report or claim form; no such documents are included in the available claims file. The file for the injury on 29 October 2010 includes WorkCover certificates but no written injury report or claim form.
The only document in the ‘fresh evidence’, that purported to inform the respondent of a worker’s obligation to report an injury, was the written form completed for the injury on 11 February 2004, more than 15 years prior to the incident in the current claim. All of the earlier injuries were of a trivial nature and involved negligible payments of compensation. They ranged from 5 to 15 years prior to the alleged injury on 1 July 2019. Other than in respect of the injury on 11 February 2004, the evidence does not indicate what form any notification of injury took. None of the other files indicates that written notice of injury was given or that a written claim was submitted. There is no reason to conclude that the respondent, in the context of the current claim, would have been aware, because of these old claims, of the obligations to give a report of injury or make a claim for compensation. There is no reason to conclude the respondent would have been aware of the associated time restrictions. The submission that the respondent “had constructive knowledge of his obligations” is simply artificial. The occurrence of these old injuries, and surrounding events relating to the recovery of minimal amounts of compensation for medical treatment and odd days of compensation, would not in the circumstances adversely affect the assessment of the respondent’s credit. It would not be likely to affect the result regarding the operation of ss 254 and 261.
It follows from the above that the ‘fresh evidence’ on which the appellant seeks leave to rely would not affect the result. There is no prejudice to the appellant if the ‘fresh evidence’ is not admitted. The interests of justice do not favour the admission of the material. The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the 1998 Act is refused.
GROUNDS NOS. 3, 4 AND 5
There is considerable overlap between these grounds. It is convenient to deal with them together. The discussion of these grounds should be read with the discussion above dealing with the application pursuant to s 352(6) of the 1998 Act.
Appellant’s submissions
The appellant refers to the reasons at [218]–[219] where the Senior Arbitrator said:
“218. In the present matter, I am satisfied that there was a reasonable explanation why the [respondent] did not report his injury. He thought he had only suffered a minor strain and he wanted to keep his job. It was not until Dr Zin suggested that he make a claim that he decided to do so. His emotional issues were also a distraction him [sic] from reporting his injury, and it was not until the issues with his partner had resolved in early 2020 that he gave thought to making a claim. This included the reporting of his injury.
219. The [respondent] was also not aware of the relevant time frames. He was absent from the state after October 2019, so this may have also contributed, but the [respondent] did not suggest that this was a reason. In my view, there seems to be a reasonable explanation for the failure to comply with the time frames in the 1998 Act.”
The appellant submits the Senior Arbitrator’s finding in respect of both ss 254 and 261 of the 1998 Act depended on acceptance of the respondent’s evidence that his failures were due to:
(a) ignorance as to the legislative requirements;
(b) the respondent’s view that he had suffered a minor strain to his back;
(c) the respondent’s fear of losing his job should he report the injury, and
(d) the respondent’s psychological injury.[84]
[84] Appellant’s submissions, [84]–[85].
The appellant submits the respondent’s “evidence cannot be accepted as truthful”.[85] The appellant also submits that, to the extent that the Senior Arbitrator relied on the respondent’s presence in Queensland after October 2019, this was erroneous because the respondent did not rely on that submission.[86]
[85] Appellant’s submissions, [98].
[86] Appellant’s submissions, [86].
The appellant submits that s 254 requires reporting of the “injurious event” (as opposed to the pathology), citing Warwick Hobart v Pietrzak.[87] The appellant submits the Senior Arbitrator fell into error in accepting the respondent’s excuse for the purposes of s 254 because:
(a) the respondent was aware of the legislative requirement to report the injury as he had done so on past occasions;
(b) the report of injury form relating to the injury on 11 February 2004 detailed the requirement to report an injury, and
(c) the respondent’s previous reports of injury were made “in a timely manner”.[88]
[87] [2006] NSWWCCPD 315.
[88] Appellant’s submissions, [89]–[93].
The appellant refers to Gregson in support of a submission that it is not necessary that a worker have “a detailed knowledge of the obligation imposed” by s 254 in its specific terms. The appellant refers to the respondent’s “assertion in his claim form” that he reported the incident to other employees. It submits this impacts the respondent’s credit because the other employees deny any such report. It submits this was consistent with the respondent being aware of the “requirement to report the injury”.[89]
[89] Appellant’s submissions, [94]–[99].
The appellant submits the respondent’s evidence that he did not report the injury because he thought it was a muscle strain was inconsistent with his history to Dr Bodel that his pain was “unbearable” at the time of the incident, and his statement that he took a week of leave from 2 July 2019 as he was experiencing chronic lower back pain. Even if the respondent genuinely believed the injury was simply a muscle strain, this did not excuse him from the obligation to report it. It submits the previous claims were minor yet claims were submitted and compensation paid. The appellant submits the respondent’s stated concern that he could lose his job if he reported the injury should not be accepted, he had made a claim against the same employer five years previously. The appellant submits the respondent’s evidence regarding his failure to report the injury was not credible, his “credit cannot be accepted”.[90]
[90] Appellant’s submissions, [100]–[108].
Dealing with Ground No. 4 (the failure to make a claim within time pursuant to s 261) the appellant submits it “restates the submissions” it makes in respect of Ground No. 3. It submits the submission that failure to report the injury due to fear of job loss is irrelevant to the failure to make a claim as the respondent voluntarily left the appellant’s employ on 1 September 2019. It submits the respondent’s evidence cannot be accepted as credible.[91]
[91] Appellant’s submissions, [112]–[115].
Respondent’s submissions
The respondent submits s 254(3)(a) provides one of the available “special circumstances” in s 254(3) is where “the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury”. There was no evidence of prejudice (reasons at [214]). This was sufficient to excuse the failure to give notice of injury, there was no submission to the contrary. The respondent submits it was open to find, as the Senior Arbitrator did, that the respondent initially thought the injury was not serious, that the respondent was contending with emotional issues and that there were domestic violence issues. These would constitute “other reasonable cause”. The Senior Arbitrator accepted the respondent’s evidence that he “had no knowledge of the time limits in respect of workers compensation claims”. There was no evidence from the appellant to challenge this assertion.[92]
[92] Respondent’s submissions, [28]–[33].
Dealing with s 261(4), the respondent submits the Senior Arbitrator’s findings at [210] to [212] of the reasons provide a “proper evidentiary basis” for the finding regarding s 261(4). There is no error.[93]
[93] Respondent’s submissions, [35]–[38].
Consideration
The appellant’s submission described at [75] above is not relevant. The Senior Arbitrator dealt with the respondent’s absence from the State after October 2019 in the reasons at [219]. He commented that this “may have also contributed, but the [respondent] did not suggest that this was a reason” (emphasis added). The Senior Arbitrator was clearly cognisant of the fact that the respondent did not rely on this aspect of the history and the Senior Arbitrator made no positive finding that it contributed causally for the purposes of s 254(3) of the 1998 Act.
Much of the appellant’s attack under these grounds consists of attempts to reargue factual issues that were decided adversely to the appellant by the Senior Arbitrator. The appeal is subject to s 352(5) of the 1998 Act and the principles that govern such appeals (see [8] to [12] above). It is insufficient on appeal to simply argue that a different factual conclusion is preferable. It is necessary to establish error.
The appellant is critical of the Senior Arbitrator’s reliance on the respondent’s fearfulness of losing his job if he reported the injury, a factor described by the Senior Arbitrator as “credible”. The appellant submits the respondent had previously made a claim with the appellant (in 2014) without imperilling his employment. This submission fails to take account of the fragile nature of the respondent’s employment as at 1 July 2019. The Senior Arbitrator referred to this in the reasons at [166]:
“In his third statement, the [respondent] indicated that he did not report the injury for fear of losing his job. Mr Barnes raised concerns about this because he had reported an injury in the past without similar reservations, however, one can understand the [respondent’s] reluctance to report an injury, given that he feared for his job and he was in the midst of disciplinary actions.”
The respondent had “an interview with HR” on 2 July 2019 at which he signed legal documents, wanted a week off due to issues raised at the meeting and was unable to reveal what was discussed. He ultimately resigned on 1 September 2019 because of conditions imposed as a result of the HR meeting.[94] The Senior Arbitrator found that the respondent feared the loss of his job and his evidence in this regard was “credible”. This factual finding was open in the circumstances and did not involve error.
[94] Reasons, [23]–[24].
The appellant is critical of the Senior Arbitrator’s acceptance of the respondent’s evidence that he thought he had suffered a minor strain. The Senior Arbitrator summarised the respondent’s symptoms around 1 to 2 July 2019 at [22] of the reasons. The respondent felt a pinching pain in his lower back whilst in a bent position cleaning the hopper. In the evening he took Panadol for tension and pain in his right upper buttock. He had periods off work thereafter, in part because of the issues raised at the meeting on 2 July 2019, and in part due to family reasons. When he asked for a week’s leave on 2 July 2019 the respondent had “chronic pain in his lower back”; he believed that with a week’s rest he would be able to return to work.[95] The respondent continued to experience back pain over the following two months. He took pain medication at work.[96] He said that when he resigned (on 1 September 2019) the pain was “unbearable”. After moving to Queensland on 1 October 2019 he did not look for work. “His back pain increased but he tried to put up with his symptoms.”
[95] Reasons, [30].
[96] Reasons, [24], [31].
The Senior Arbitrator referred also to the respondent’s second statement, in which he described his symptoms at the time of the incident of 1 July 2019 as a “sharp, shooting pain in his lower back”, which was not reported as the respondent “thought that he had only suffered a muscle strain”.[97]
[97] Reasons, [29].
The appellant submits the respondent’s statement, that he thought the injury involved a muscle strain, “cannot be accepted as credible evidence”. It refers to Dr Bodel’s history that at the time of the injury the pain was “unbearable” and the respondent collapsed. It refers also to the respondent’s second statement where it was said that, during his week of leave commencing from 2 July 2019, the respondent was predominantly resting and his symptoms were aggravated by extended sitting or standing.[98] It is difficult to see why, from a lay perspective, the respondent’s stated belief that he thought he had suffered a muscle strain inherently lacks credibility. The history does not suggest the respondent sought any medical assistance around this time. Although the Senior Arbitrator did not rely on this, it is noteworthy that Dr Bodel’s history also indicated that the doctor found the history “a little difficult to understand around this stage”. The doctor recorded that the respondent did not seek any specific treatment, but “put up with” the symptoms. “He took medication, did his stretches and continued to work”.[99] The Reasons at [165] are relevant to this:
“The [respondent] stated that he did not report his injury because he thought that he had only suffered a muscle strain and he expected that he would be able to resume work after a week off. He described himself as one who had become used to working in pain. This explanation seems credible. The fact that he took some time to seek treatment for his unbearable pain is not inconsistent with this evidence.”
[98] Appellant’s submissions, [100]–[101].
[99] Dr Bodel’s report 16/4/20, ARD, p 52.
The appellant’s submissions do not advance any persuasive argument for why the respondent’s evidence on this point is not credible. They do not advance a basis for a conclusion that the Senior Arbitrator erred in accepting the respondent’s evidence on the issue.
The appellant refers to the respondent’s evidence regarding his psychological difficulties as one of the matters on which acceptance of the respondent’s explanation depended. The acceptance of the respondent’s case on this point did not depend simply on the evidence of the respondent. The Senior Arbitrator referred to corroborative evidence from Mr Smith, the “Co-ordinator, Civil Works” with the appellant. Mr Smith stated that the respondent had personal issues which impacted his work performance and about which the respondent was counselled. Mr Smith said the respondent’s work performance had “dropped markedly over the last five to six weeks of his employment”.[100]
[100] Reasons, [51]–[54].
The reasons also refer to clinical notes from the Rutherford North Medical Centre, the general practice the respondent attended up to 16 July 2019.[101] These confirm emotional problems and anxiety in 2016, and on 4 June 2019 a referral to a psychologist for depression. There were mental health consultations, with time off work from 4 to 14 June 2019 and from 16 to 18 July 2019. The Senior Arbitrator noted the history of “long term emotional issues” was corroborated by employees of the appellant and the clinical notes.[102] The Senior Arbitrator said the respondent’s emotional issues were “also a distraction” in him not reporting his injury. It was when issues between the respondent and his partner “resolved in early 2020 that he gave thought to making a claim. This included the reporting of his injury.”[103]
[101] Reasons, [58]–[62].
[102] Reasons, [167]–[168].
[103] Reasons, [218].
The appellant has not identified error on the Senior Arbitrator’s part in dealing with the respondent’s psychological and emotional difficulties.
The argument that the respondent was not ignorant of the notice and claim provisions, as he had previously engaged “in the workers compensation process”, is dealt with above. The appellant’s submissions on this topic largely proceed on the (ultimately incorrect) assumption that the fresh evidence would be admitted. The potential probative force of that evidence is dealt with above in the application to admit it, on the basis of what effect it would have on the result, if admitted. Regard should be had also to the passage from Gregson quoted at [56] above. Relevant on the topic of ignorance is a worker’s awareness of both his or her “rights and obligations” (emphasis added) under the notice provisions.
The appellant argues the respondent, in his claim form, stated that he reported the incident of 1 July 2019 to his fellow workers, who deny this. It refers to the reference in the claim form to the incident having been witnessed by Mr Wilcox.[104] The Senior Arbitrator summarised the evidence from the work colleagues on this topic.[105]
[104] Appellant’s submissions, [117(i)–(j)].
[105] Reasons, [47]–[57].
The claim form[106] is referred to in the appellant’s dispute notice as being dated 12 February 2020. The claim form asked “When did you report the injury/condition to your employer?” That box was left blank. It then asked “What is the name and position of the person you reported the injury/condition to?”, the response to which was to fill out the names of the respondent’s team leader, supervisor, work shop manager and engineer. It then asked “If you did not report the injury/condition, or there was a delay, please explain why”. The response was “Due to very extreme circumstances – work”. It gave the name of “anyone who witnessed the incident” as “David Wilcotts – Colleague”.
[106] ARD, pp 33–40.
The Senior Arbitrator referred to the statement in the claim form that the incident was not reported “due to very extreme circumstances”. He described the meaning of this as “presumably due to the disciplinary circumstances”. He said “little weight can be given to this document because it is internally inconsistent”.[107] The document identified four people (who would likely have been in positions of authority over the respondent) as having been given reports of the injury. It then gave a reason for why the injury was not reported. The description of the document as “internally inconsistent” was appropriate. The view that the claim form was of “little weight” was open.
[107] Reasons, [148].
The appellant refers to the respondent’s attendance on his then general practice on 16 July 2019. The clinical note[108] on that occasion refers to a “Mental health consult”, it does not refer to back symptoms. The Senior Arbitrator described this as “consistent with the [respondent’s] evidence that his focus was on his emotional state”.[109]
[108] ARD, p 260.
[109] Reasons, [169].
The Senior Arbitrator referred to the appellant’s case as one that the respondent “is a liar and all of his evidence cannot be accepted”. On this appeal the appellant submits:
“… the [Senior Arbitrator] has fallen into error by accepting the evidence of the [respondent] and, as this evidence formed a fundamental basis of the [Senior Arbitrator’s] determination, it follows that the [Senior Arbitrator] has erred in his determination with respect to liability for the claim.”[110]
[110] Appellant’s submissions, [124].
A number of the criticisms made by the appellant of the respondent’s credibility are referred to above, in the discussion dealing with these grounds. In respect of a number of these matters the Senior Arbitrator did not accept the criticisms made by the appellant (see [85], [89], [92] and [96] above). In respect of these, I have concluded that the Senior Arbitrator’s approach was open to him on the evidence and did not involve appealable error within the meaning of s 352(5) of the 1998 Act.
The Senior Arbitrator was aware that there remained matters that raised issues of credit. He described the respondent’s denial (in his first statement) of “prior claims and disciplinary action” as “misleading and [it] is clearly incorrect”.[111] The Senior Arbitrator expressed some misgivings about the accuracy of the respondent’s first statement, recorded by an investigator. He observed the respondent had “ample opportunity to address any inaccuracies in the statement with the assistance of his solicitor but he failed to do so”.[112] The Senior Arbitrator observed that, in his second statement, the respondent said he had not suffered from “injuries or medical conditions that impacted on his capacity to work”, which was inconsistent with the respondent’s mental issues.[113]
[111] Reasons, [140].
[112] Reasons, [142].
[113] Reasons, [143].
The Senior Arbitrator was not obliged to accept or reject the respondent’s evidence in its entirety.[114] In Sgro v Australian Associated Motor Insurers Ltd it was said:
“In coming to its determination, a court is not required to accept the whole of the evidence adduced by one or the other of the parties. Nor is it required to accept the whole of the evidence of a particular witness. It may find itself satisfied in respect of some facts, not satisfied in respect of other facts, and not satisfied one way or the other in respect of other matters.”[115]
[114] Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167, [30].
[115] [2015] NSWCA 262 (per Beazley P, McDougall J agreeing), [43]. See also Chanaa v Zarour [2011] NSWCA 199, [86].
The Senior Arbitrator referred to the reasons of Kirby J in Dixon regarding credibility findings.[116] He said “[t]here is no doubt that the [respondent] is an unreliable historian”. He then posed the question:
“Therefore, putting aside for the moment the issues arising from the accuracy of the [respondent’s] evidence regarding his prior claims and the disciplinary proceedings, what does the evidence show?”[117]
[116] Reasons, [150].
[117] Reasons, [155].
The Senior Arbitrator engaged in an assessment of the state of the evidence. He referred to various areas of the evidence where the respondent’s evidence was corroborated. These included problems with the front passenger seat in the work truck[118] and the respondent’s poor emotional state.[119] The Senior Arbitrator referred to multiple areas of the evidence where that of the respondent was unchallenged.[120]
[118] Reasons, [157].
[119] Reasons, [167]–[168].
[120] Reasons, [160]–[169].
The Senior Arbitrator referred to the state of the medical evidence. Dr Bodel, in the respondent’s case, assessed the respondent by way of video assessment. The Senior Arbitrator described Dr Bodel as “an experienced medico legal specialist, who obtained a detailed history regarding the injury and the [respondent’s] symptoms”. He noted that in the circumstances there were some limitations on the assessment. He said there was “no reason why the doctor’s views should not carry any weight, particularly in the absence of any evidence to the contrary”. This was a reference to Dr Ivers, the medico legal specialist who examined the respondent on the appellant’s behalf. Dr Ivers “apparently produced two reports, but Mr Barnes confirmed that the [appellant] did not rely on his evidence”. The Senior Arbitrator drew an inference (the appropriateness of which is not challenged on appeal) “that Dr Ivers’ evidence would not have advanced the [appellant’s] case”, referring to Jones v Dunkel.[121] The Senior Arbitrator noted there was no medical evidence to dispute the respondent’s evidence of his symptoms.[122]
[121] Reasons, [184]–[185].
[122] Reasons, [188].
The Senior Arbitrator said:
“When one considers the evidence in its entirety, I do not believe that the inaccurate comments made by the [respondent] in his statements regarding his claims’ history compromises the rest of his evidence, which has been largely corroborated by his co-workers and his medical evidence.”[123]
[123] Reasons, [191].
Dr Bodel misunderstood the history and recorded that the respondent continued to work beyond 1 July 2019 until 17 January 2020, when he was in agony and saw a doctor who gave him a WorkCover certificate. The doctor recorded that the respondent then resigned and moved to the Gold Coast. At the time of Dr Bodel’s remote consultation, for the purposes of his initial report, the respondent was “now reporting bowel and bladder problems”, symptoms that were starting to rapidly deteriorate. Dr Bodel thought the respondent “may well have early onset cauda equina lesion”. The doctor recorded a “past medical history” that the respondent was “quite well prior to the onset of these symptoms”.[151]
[151] ARD, pp 51–53.
Dr Bodel described the injury on 1 July 2019 as “consistent with the type of injury which could cause disc pathology at the lumbosacral junction”. Dr Bodel said “employment was the main contributing factor to his ongoing complaints”, and he agreed with Dr Zin (the general practitioner) that a “disc injury with shovelling at work” was the “probable cause of his complaint”. Dr Bodel said the “nature and conditions of his work is probably the cause of his complaint”. He also said “his incapacity for work arises as a result of the nature and conditions of his work and the injury at work”.[152] In a supplementary report of the same date Dr Bodel said it was “too early to make an assessment of Whole Person Impairment”. He said there was “no history of any prior accident, injury or problems with the back and therefore it is unlikely that there is any significant pre-existing abnormality”.[153]
[152] ARD, p 57.
[153] ARD, p 61.
Dr Bodel furnished a supplementary report dated 25 October 2020. The report quoted from a statement dated 22 May 2020 in which the respondent said there had been “an accumulative nature of these duties and incident on 1 July 2019 resulting in me sustaining severe injury to my lower back”. This passage is inappropriate in a statement by a lay witness, who is not qualified to make it. Be that as it may, Dr Bodel adopted the opinion, quoting the passage and saying “I agree with that”. Dr Bodel said “[t]here are a number of factors contributing to this injury but historically, it appears that the specific event on 1 July 2019, when cleaning out the hopper, has caused a structural injury in a damaged disc leading to his clinical circumstance” (emphasis added). The doctor said the “nature and conditions of his work in general is a prime causal agent ... It appears historically, that the external rupture which I assume has occurred when he arose from the bent position and felt severe pain while cleaning out the hopper.”[154]
[154] AALD 29/10/20, p 23.
The Senior Arbitrator said “[t]here is no evidence that the [respondent] contracted a disease”.[155] There was little evidence of symptomatic pathology prior to 1 July 2019. In his statement dated 20 March 2020, the respondent referred to his “injury which occurred on 1 July 2019”. He stated “I have not suffered any prior injuries to my back.”[156] In his statement dated 22 May 2020, the respondent said that “[p]rior to the subject injury, I did not suffer from any medical conditions or physical injuries that had an ongoing impact on my capacity to work”.[157] His statement dated 14 September 2019 does not refer to relevant symptoms prior to 1 July 2019.[158] The history recorded by Dr Bodel was that the respondent was “quite well prior to the onset of these symptoms”. Dr Bodel recorded that prior to 1 July 2019 the respondent “had been experiencing a general build up of back pain over a few days or so but it was nothing serious”. The doctor recorded that on 1 July 2019 the respondent was bending down to reinstall the hopper, as he stood up from that bent position, his pain was unbearable.[159]
[155] Reasons, [192].
[156] Respondent’s statement, 20/3/20, [19], [25], ARD, pp 1–12.
[157] Respondent’s statement, 20/3/20, [7], ARD, pp 13–22.
[158] Respondent’s statement, 14/9/20, ARD, pp 23–27.
[159] ARD, p 51.
Dr Bodel’s understanding of the ‘nature and conditions’ of the respondent’s employment is inconsistent with the true history, to the extent that the doctor understood the respondent continued working with the appellant until 17 January 2020, with ongoing aggravation of the back symptoms from jarring in the poorly sprung truck. On the doctor’s understanding this continued until 17 January 2020, by which time the respondent “was in agony”, saw a doctor, obtained a WorkCover certificate, resigned and moved to the Gold Coast. On Dr Bodel’s initial assessment he did not have access to the CT scan (carried out on 30 January 2020) nor a report of it. In his initial report dated 16 April 2020, Dr Bodel diagnosed a “disc rupture at the lumbosacral junction” with a “strong probability” of cauda equina syndrome. He described the history and mechanism of injury as “consistent with the type of injury which could cause disc pathology at the lumbosacral junction”.[160]
[160] ARD, p 56.
The CT scan report of Dr Chu dated 30 January 2020 was reported as showing mild degenerative change of the lumbar spine, mild disc herniations at L4/5 and L5/S1 and mild indentation into the anterior L4 thecal sac.[161] An MRI scan is reported by Dr Ratanjee, radiologist, on 27 May 2020. He summarises it by way of “comment”:
“There are desiccated L4/5 and L5/S1 discs. At L4/5 there is a posterior annular tear with a broad based disc protrusion compressing the thecal sac resulting in mild spinal canal stenosis. It does compromise and impinge the L5 nerves bilaterally just as they exit the thecal sac.”[162]
[161] AALD 29/10/20, p 19.
[162] AALD 29/10/20, p 21.
Dr Bodel quoted the above “comment” in his supplementary report dated 25 October 2020. Dealing with causation the doctor said:
“… there is definite disc pathology at the lumbosacral junction probably caused by, at the very least, the nature and conditions of his work over a period of time but more specifically, probably by a specific event at work on 1 July 2019.”[163]
[163] AALD 29/10/20, p 24.
The appellant submits that “the opinion of Dr Bodel on causation in [the report dated 16 April 2020] is not specifically supportive of a finding of injury simpliciter due to a frank incident sustained on 1 July 2019”.[164] It submits that the doctor, in his first report, described the ‘nature and conditions’ of employment as “probably the cause of the complaint”. It submits the doctor described the respondent’s incapacity as arising from “the nature and conditions of his work”. It submits that Dr Bodel, in his supplementary report, amended his opinion to attribute the pathology to the nature and conditions of employment involving heavy lifting, the uncomfortable truck seat, the frank incident on 1 July 2019, which caused a structural injury to a damaged disc, or a combination of all. It submits the doctor’s opinion on causation was “noncommittal”, that it “contradicts his earlier opinion and he has provided no real reason for the amendment”. It submits Dr Bodel has continued to view “the injury as one that is governed by s 4(b)”.[165]
[164] Appellant’s submissions, [62].
[165] Appellant’s submissions, [59]–[64].
Dr Bodel’s opinion, in his initial report, supported the proposition that the respondent suffered lumbosacral disc pathology in the incident on 1 July 2019. The doctor there said:
“Mr McInnes gives a history of an injury to the back on 01 July 2019.
I accept the history and mechanism of injury which is consistent with the type of injury which could cause disc pathology at the lumbosacral junction.”[166]
[166] ARD, p 56.
This was made more clear by the report dated 25 October 2020, which post-dated the doctor’s access to the reports of the radiological investigations (see [139]–[140] above). The submission that the doctor provided no real reason for the “amendment” to his opinion involves a misreading of his reports when viewed as a whole. The doctor’s reports, throughout, attributed the back injury to a combination of the nature and conditions of the respondent’s employment, and the incident on 1 July 2019. The opinion in the supplementary report followed access to the results of the MRI scan dated 27 May 2020, which was consistent with Dr Bodel’s earlier opinion regarding lumbosacral disc pathology.
On the medical evidence it was open to the Senior Arbitrator to make a finding that the event on 1 July 2019 satisfied the legal requirements to constitute an ‘injury’ pursuant to s 4(a) of the 1987 Act. Whether the doctor regarded the injury as being governed by s 4(b) of the 1987 Act (assuming that to be true) is not to the point. Although Dr Bodel described a number of matters as causal contributors to the back condition, he considered the external disc rupture occurred when the respondent rose from a bent position while cleaning out the hopper.[167] Dr Bodel’s medical description of what occurred on 1 July 2019 satisfied the test to find an ‘injury simpliciter’ consistent with the High Court authorities discussed above.
[167] Dr Bodel’s report 25/10/20, AALD 29/10/20, p 23.
(c) The finding of ‘injury’ based on the ‘nature and conditions’ of employment
The appellant submits the respondent’s medical case was such that it supported an allegation of injury due to the ‘nature and conditions’ of employment. It submits that whether this case was accepted required determination pursuant to s 4(b). The Senior Arbitrator determined that the ‘disease’ provisions did not apply. The appellant submits it was not open to the Senior Arbitrator in the circumstances to find ‘injury simpliciter’ pursuant to s 4(a) as a result of the heavy and repetitive employment duties.[168] The appellant does not offer authority in support of this submission.
[168] Appellant’s submissions, [40], [69].
The respondent submits that the Senior Arbitrator’s injury finding was one of injury resulting from repetitive stresses (micro-traumata) due to the nature and conditions of employment, including the episode on 1 July 2019 (see [123] above). This is consistent with how the case was presented at first instance, the respondent submitting: “The episode on 1 July 2019 is simply an acute episode in the context of repetitive stress on the lumbar spine.”[169]
[169] T 25.28–29.
The Senior Arbitrator’s formal finding on ‘injury’ is set out in the reasons at [239] and is in the following terms:
“The [respondent] sustained injury to his back arising out of or in the course of his employment with the [appellant] from 12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019.”
This finding is generally consistent with the respondent’s submission referred to above. It is also consistent with Dr Bodel’s opinion on causation expressed in his report dated 25 October 2020, described at [136] above. Dr Bodel did not employ the term ‘disease’ in expressing his opinion. That does not prevent a finding of ‘disease’ if it is appropriate on the evidence. If one assumes, consistent with the appellant’s argument, that the respondent’s medical evidence was consistent with supporting a ‘disease’ finding, this does not necessarily preclude a finding of injury pursuant to s 4(a). The medical evidence supports a finding that there was a rupture of the disc at the lumbosacral level in the incident on 1 July 2019. That event answered the description of a ‘personal injury’ on the authorities discussed above (see [127] to [129] above). On Dr Bodel’s opinion the rupture occurred as part of, and as a result of, the nature and conditions of the respondent’s employment.[170] I do not accept the submission that the Senior Arbitrator, in the circumstances, was precluded from making a finding of injury pursuant to s 4(a) of the 1987 Act.
[170] AALD 29/10/20, p 23.
(d) The finding based on both injury on 1 July 2019 and the nature and conditions of employment
The appellant refers to the Senior Arbitrator’s finding of injury at [195] of the reasons. It submits the only findings of injury open to the Senior Arbitrator were:
(a) injury due to the incident on 1 July 2019 (s 4(a)), or
(b) injury involving a disease of gradual onset due to the heavy and repetitive nature of the employment duties from 12 March 2012 to 1 July 2019 (s 4(b)).[171]
[171] Appellant’s submissions, [43].
The appellant submits the Senior Arbitrator could not make a finding on the basis of both mechanisms. In support of this the appellant refers to a decision of the President, Phillips J, in Booth. There was an issue in that matter regarding estoppel on the basis of Port Melbourne Authority v Anshun Pty Ltd.[172] The appellant relies on a passage in which, dealing with the Anshun issue, the President said that “s 4(a) and s 4(b)(ii) are separate and distinct causes of action which materialised when the evidence was available to pursue those claims”.[173] The appellant refers to it as authority that ss 4(a) and 4(b) are separate and distinct causes of action. The President’s remarks were made in a completely different context and were not directed to the issues regarding ‘injury’ that are raised in this appeal. They were directed to the issue of whether it was unreasonable that a worker failed, in prior proceedings, to plead a claim pursuant to s 4(b)(ii), in conjunction with an injury pleading based on s 4(a). The worker in that matter did not, at the earlier time, have relevant medical evidence to support an argument based on s 4(b)(ii). It is not in doubt that the evidence necessary to support a finding of injury pursuant to s 4(b)(ii) may be different to that necessary to support a finding pursuant to s 4(a). Whether injury is established pursuant to subcll (a) and/or (b) will depend on the facts and evidence in each case.
[172] (1981) 147 CLR 589.
[173] Booth, [131].
In the current matter the Senior Arbitrator did not make a finding of injury pursuant to both subcll (a) and (b) of s 4. In the reasons at [195] he specifically rejected the proposition that there was “a disease process in terms of s 4(b)(i) of the 1987 Act”. The Senior Arbitrator’s reasons proceeded on the basis that s 4(b)(ii) was not relied on.[174] To the extent that this aspect of the submissions seeks to raise the issue of whether findings pursuant subcll (a) and (b) of s 4 are mutually exclusive, this does not arise. The Senior Arbitrator’s injury finding was solely on the basis of s 4(a). The issue rather is whether it was open to the Senior Arbitrator, on the evidence that was before him, to make the finding which he did of injury pursuant to s 4(a). This has been dealt with above.
[174] Reasons, [12], appellant’s submissions, [35].
(e) Did other factors militate against the finding of injury on 1 July 2019?
The appellant submits the respondent first sought treatment for his back on 17 January 2020. It submits the first indication that the back problems were work-related was in the clinical note on 11 February 2020. It submits the history recorded by Dr Zin on 11 February 2020, and in the doctor’s certificate dated 12 February 2020, was of back pain from repetitive movement and shovelling hot mix all day.[175] It did not record a frank incident on 1 July 2019. It submits the medical opinion evidence is based on a history that the respondent suffered from low back pain in mid-2019 and an injury on 1 July 2019.[176]
[175] Appellant’s submissions, [52]–[53].
[176] Appellant’s submissions, [67]-[68].
The appellant does not specifically submit on what inferences or conclusions should be drawn from these matters. The matters potentially go to credit, whether it was open to the Senior Arbitrator to accept the respondent’s evidence (and the medical histories) regarding the occurrence of the incident on 1 July 2019. Multiple matters, including inconsistencies and delay in seeking medical treatment and the reporting of the incident, are raised in the appellant’s submissions dealing with Grounds Nos. 3, 4 and 5 (which specifically raise ‘credit’). These are discussed above in the reasons at [83] to [106]. The matters considered by the Senior Arbitrator, in dealing with the delay in reporting the injury and making a claim, are relevant to the issues going to credit and the incident on 1 July 2019 in a more general sense. My reasons for accepting that the approach taken by the Senior Arbitrator, dealing with ‘credit’, did not involve appealable error, appear at [98] to [106] above.
The appellant submits that little weight should be afforded to Dr Bodel’s opinion, because it is based on a consultation conducted by Telehealth, not an appropriate method of examination for an orthopaedic injury. It submits the absence of medical evidence to the contrary does not assist the respondent where his evidence is “deficient”.[177]
[177] Appellant’s submissions, [55]-[57].
Dr Bodel said that the respondent was “examined by Video Conferencing using WhatsApp”. The doctor referred to observing what appeared to be muscle spasm, and to tightness when the affected area was palpated by the respondent’s partner. The report dated 16 April 2020 described the respondent’s ranges of movement. The doctor said that “[c]learly, I cannot test the reflexes at this time and I cannot observe any wasting”.[178] In his report dated 25 October 2020 Dr Bodel responded to a question from the respondent’s solicitors, asking whether “the video assessment would have affected your ability to provide a sound report?” The doctor described his report as “very thorough and sound”. He acknowledged his “inability to assess [the respondent’s] reflexes, his sensory loss and the measurement of wasting”. The doctor said the respondent appears “to have some nerve root irritability” consistent with “probable disc pathology”.[179]
[178] ARD, pp 2, 4, 5.
[179] AALD 29/10/20, pp 22–25.
The appellant, at the arbitration hearing, addressed on Dr Bodel’s remarks regarding the adequacy of the assessment by way of videoconferencing.[180] The Senior Arbitrator referred to the assessment by way of video conferencing. He referred to the absence of medical evidence contrary to the opinion of Dr Bodel:
“184. Dr Bodel acknowledged that a video assessment was at times insufficient, but he felt that his report was nevertheless sound. Whilst I expressed some concerns about the reliability of such an assessment in respect of a musculoskeletal injury, the doctor is an experienced medico legal specialist, who obtained a detailed history regarding the injury and the [respondent’s] symptoms. He was able to observe the [respondent], albeit at a distance, and he had access to the diagnostic reports. Whilst this is not entirely satisfactory, I see no reason why the doctor’s views should not carry any weight, particularly in the absence of any evidence to the contrary.
185. The [respondent] was examined by Dr Ivers on behalf of the [appellant]. He has apparently produced two reports, but Mr Barnes confirmed that the [appellant] did not rely on his evidence. Therefore, the absence of these reports can only lead me to the conclusion that Dr Ivers’ evidence would not have advanced the [appellant’s] case on the principles set out in Jones v Dunkel.”
[180] T 50.6–51.10.
The Senior Arbitrator’s reasons clearly recognised that the weight of Dr Bodel’s opinion was affected by limitations in the way in which the doctor’s assessment was carried out, but he considered it was not deprived of all weight. This approach was open in the circumstances. There was no evidence to the effect that Dr Bodel’s opinion was deprived of all weight by the circumstances in which the respondent was examined. The only medical evidence on that topic was from Dr Bodel and was to the contrary. The extent to which the weight afforded to an expert opinion is affected, if at all, by the way in which the assessment is carried out, depends on the facts and circumstances of the particular case. The way in which the Senior Arbitrator dealt with this aspect of the evidence did not involve error.
It follows from the above that Ground No. 1 fails.
GROUND NO. 2
Appellant’s submissions
The appellant notes that the Senior Arbitrator applied the test of ‘substantial contributing factor’ found in s 9A of the 1987 Act, a test that does not apply in respect of a ‘disease injury’. Injury pursuant to s 4(b) is subject to a test of ‘main contributing factor’, which forms part of the definition of a ‘disease injury’ in s 4. The appellant submits the test of ‘main contributing factor’ should have been applied, because the finding of ‘injury’ was erroneous, and should have been dealt with on the basis of the ‘disease’ provisions.[181]
[181] Appellant’s submissions, [71]–[72], [76].
The appellant refers to the Senior Arbitrator’s reasons at [201] to [206], which are submitted to constitute his “consideration of the matters provided by s 9A(2)”. It is submitted the reasoning is “brief”. The appellant refers to the decision in Beale v Government Insurance Office (NSW).[182] It submits the reasons “should demonstrate that all evidence has been considered and why the relevant findings of facts were made”. The appellant refers to a part of the passage from Whiteley Muir quoted at [9] above. It submits the reasons fail to demonstrate consideration of the totality of the relevant, available evidence and show how the Senior Arbitrator came to his “concluded views”. It submits the Senior Arbitrator referred to there being “no evidence to suggest any other cause” of the pathology. It submits the respondent carried the onus, and absence of an alternate cause is not evidence that the pathology resulted from employment. It submits the finding of ‘substantial contributing factor’ involved error.[183]
[182] (1997) 48 NSWLR 430 (Beale), 442–444.
[183] Appellant’s submissions, [73]–[75], [77]–[81].
Respondent’s submissions
The respondent submits that the appellant failed to tender any expert evidence going to either ‘substantial contributing factor’ or ‘main contributing factor’. There was “no evidence of any contributing factor other than the [respondent’s] employment”. The appellant’s submissions refer to no other causal factors which would oust liability. It submits the appellant’s complaints regarding s 9A are “unfounded”.[184]
[184] Respondent’s submissions, [25]–[27].
Consideration
The appellant’s submission, that it was erroneous to apply the test in s 9A of ‘substantial contributing factor’, is dependent on acceptance that the basis of any proposed ‘injury’ finding was pursuant to the ‘disease’ provisions in s 4(b). This is contrary to the finding of injury the Senior Arbitrator made. The balance of the appellant’s submissions on this ground proceed on the basis that s 9A applies.
The issue of ‘substantial contributing factor’ is dealt with in the reasons at [196] to [206]. The Senior Arbitrator set out the section. He referred to four Court of Appeal decisions dealing with s 9A, including the leading case on the provision, Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd.[185] He briefly set out some relevant principles. The provision involves a causative element, the connection must be “real and of substance”. He referred to the matters described in s 9A(2) of the 1987 Act. Satisfaction of the test involves matters of “impression and degree” to be decided on all of the evidence. It is a more stringent test than that in s 4. The appellant’s submissions are not critical of the accuracy of the brief summary of the applicable principles.
[185] [2009] NSWCA 324 (Badawi).
The Senior Arbitrator referred to the matters in s 9A(2). On his findings, the respondent suffered injury during normal working hours, involving disc pathology caused by his employment. This assisted the respondent in respect of the matters described at subss (a), (b), (c) and (d) of s 9A(2). The factor described at subcl (e) was neutral, given that the respondent’s psychological issues arising from family problems impacted his ability to work. The matters in subcl (f) favoured the respondent’s position, as the evidence did not suggest the respondent’s “lifestyle and activities when he was away from work would be of any concern”. The Senior Arbitrator said the connection between the employment concerned and the injury was real and of substance, the respondent suffered injury carrying out his duties as a labourer. Dr Bodel described employment as the ‘main contributing factor’, recognised by the Senior Arbitrator as involving a greater degree of causal contribution than that required to satisfy s 9A. He found that there was a causal connection between the found injury and employment such that s 9A was satisfied. He commented that there was no evidence to suggest any other cause.
The only specific attack the appellant makes on the Senior Arbitrator’s analysis dealing with s 9A is to submit that absence of an alternate cause is not evidence that the pathology resulted from employment.[186] Whilst this may be true, when a fact-finder is weighing evidence to consider whether something is proved on the probabilities the absence of evidence to the contrary is relevant to that task. The Senior Arbitrator’s remark about other evidence does not, in any event, appear to be dispositive. It appears at the end of a passage in which he has considered the evidence relevant to s 9A and found s 9A to be satisfied “given the [respondent’s] medical and factual evidence”. The analysis does not suggest the Senior Arbitrator was dependent on the absence of evidence to the contrary in reaching this conclusion.
[186] Appellant’s submissions, [57].
The appellant is critical of the adequacy of the Senior Arbitrator’s reasons. There is a helpful summary of the authorities governing the obligation to give reasons, by Keating P, in NSW Police Force v Newby, where his Honour said:
“150. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
151. When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443-444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
‘If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.’”[187]
[187] [2009] NSWWCCPD 75, [150]–[151].
The reasons clearly enough exposed why the relevant findings of fact were made in dealing with s 9A. The reasons given by the Senior Arbitrator, dealing with the s 9A issue, complied with his obligation to provide adequate reasons.
Ground No. 2 fails.
CONCLUSION
The various grounds of appeal have failed. The appeal is unsuccessful.
DECISION
The Senior Arbitrator’s decision dated 16 November 2020 is confirmed.
Michael Snell
DEPUTY PRESIDENT
23 July 2021
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