Mayne Group Limited v Peterson

Case •

[2006] NSWWCCPD 313

•

17 November 2006

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mayne Group Limited v Peterson [2006] NSWWCCPD 313

APPELLANT:  Mayne Group Limited

RESPONDENT:  Nathan Peterson

INSURER:Self insurer

FILE NUMBER:  WCC11460-05

DATE OF ARBITRATOR’S DECISION:          8 November 2005

DATE OF APPEAL DECISION:  17 November 2006

SUBJECT MATTER OF DECISION: Jurisdiction; credit; evidence and weight of evidence; inadequate reasons; error of fact; error of law; injury, and substantial contributing fact pursuant to section 9A of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant:     Leigh Virtue & Associates

Respondent:  Gary Robb & Associates

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 8 November 2005, is revoked and the following order is made:

Award for the Appellant Employer.

No order is made as to the costs of the appeal.

BACKGROUND TO THE APPEAL

  1. Mr Nathan Peterson, the Respondent Worker, was employed as a security officer by Mayne Group Limited, at all relevant times.  Mayne Group Limited is self insured.

  1. Mr Peterson was born on 11 March 1976 and has no dependents.  He commenced employment with Mayne Group in approximately March 1998. 

  1. On 18 December 1998 Mr Peterson injured his left leg when he allegedly stepped down from a Mayne Group Armaguard vehicle carrying moneybags, and experienced a sharp stabbing pain in his left calf.

  1. On 18 December 1998, the same day of the incident, Mr Peterson notified Mayne Group of his injury and allegedly attended his local general practitioner, Dr Chan whose clinical notes state: “Pain left calf for two days. No history of trauma”.  On 21 December 1998 Mr Peterson attended Dr Letran who carried out a Doppler examination on his left calf and diagnosed a torn calf muscle. 

  1. On 22 December 1998 Mr Peterson lodged a claim with the Insurer for weekly benefits and medical expenses. 

  1. On 28 December 1998, while on holidays, Mr Peterson suffered chest pain and was admitted to Gosford Hospital for approximately 10 days and was treated for pleurisy.  Mr Peterson’s chest pain continued after his discharge from Gosford Hospital and he again attended Dr Letran who diagnosed him as having pulmonary embolus in both lungs.  He was treated with Heparin, Clexane and Warfarin.  Mr Peterson was eventually taken off Warfarin after approximately 18 months.

  1. Mr Peterson returned to work in early February 1999 and was placed on light duties for a period of one month before returning to full duties. 

  1. In June 1999 Mr Peterson was dismissed from his position with Mayne Group and in November 1999 he commenced working with the ING Bank where he is currently working as a loans officer carrying out clerical and administrative duties.

  1. In December 2002 Mr Peterson began experiencing pains in his chest again and was treated with Heparin and Clexane injections at Liverpool Hospital and was again put onto Warfarin.

  1. On 21 November 2003 the Insurer advised Mr Peterson that it denied liability for the claim for weekly benefits and medical expenses.

  1. On 13 July 2005 Mr Peterson lodged an ‘Application to resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission.  Mr Peterson claimed that he suffered a total or partial incapacity for work and suffered an injury for which non-economic loss compensation is payable, arising out of and in the course of his employment with Mayne Group.

  1. An arbitration hearing was held on 13 October 2005 at which time Mr Peterson discontinued his claim for weekly payments of compensation.

  1. The Arbitrator issued a Certificate of Determination on 8 November 2005.

  1. On 28 November 2005 Mayne Group lodged an ‘Appeal against Decision of Arbitrator’ with the Commission.

  1. On 19 January 2006 Mr Peterson filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ with the Commission.

THE DECISION UNDER REVIEW

  1. The Arbitrator’s ‘Certificate of Determination’ dated 8 November 2005 records the following determination:

“1.The Application in respect of weekly payments of compensation is discontinued.

2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.

3.That the Respondent pay the Applicant’s costs as agreed or assessed.”

  1. The Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’) also includes the following:

“The Applicant is now to be referred to an Approved Medical Specialist for determination of the s66 of the Act claim.”

ISSUES IN DISPUTE

  1. The issues in dispute in the appeal identified by Mayne Group are whether the Arbitrator erred:

(1)in considering that the Commission had jurisdiction to deal with the claim where there was inadequate evidence of any claim being submitted in respect of the injury alleged;

(2)in finding Mr Peterson to be a direct and truthful witness having regard to the inconsistencies in the evidence;

(3)in finding that the information contained in the claim form was ambiguous, and in reconstructing the contents rather than dealing with the inconsistencies and the consequences of them;

(4)in failing to provide adequate reasons either for disregarding or placing insufficient weight on certain medical evidence, in particular the clinical notes of Dr Chan;

(5)in asserting that there was no issue between the parties about the nature of the injury to the calf muscle or that a subsequent thrombosis was caused by an alleged calf muscle tear;

(6)in finding Mr Peterson’s injury is not a disease, and

(7)in failing to properly consider the test for determining whether Mr Peterson’s employment was a substantial contributing factor to any injury.

ON THE PAPERS REVIEW

  1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

    “(6)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 without holding any conference or formal hearing.”

  2. Mayne Group submits in its Application dated 28 November 2005, that it:

“…is not yet able to finalise all of its submissions and grounds of appeal as it has not been provided with the transcript of the proceedings.  As the transcript has not yet been provided and as the matter involves complex issues this matter cannot be dealt with on the papers and rather requires the appointment of a hearing before a Presidential member.” 

  1. Mr Peterson submits in his Opposition, dated 19 January 2006, that an oral hearing is necessary, at which time both parties can make submissions with references to the transcript of evidence.  He further states that: “…if the appellant is given leave to amend its submissions or grounds of appeal, then the respondent should be given leave to make further submissions in reply at an oral hearing”.

  1. A perusal of the Commission’s file reveals that on 5 December 2005 Mayne Group wrote to the Commission requesting a copy of the transcript of the proceedings in this matter.  The Commission provided both parties with the transcript under cover of a letter dated 5 December 2005.  No further submissions were lodged by Mayne Group with the Commission after the transcript of proceedings was provided.  On 9 January 2006 Mayne Group wrote to the Commission and stated: “…[W]e will address issues that arise from the transcript on the hearing date in due course before the presidential members”.

  1. On 19 June 2006 Mayne Group wrote to the Commission again stating “We are also awaiting the appointment of a hearing before a Presidential Member so that we can finalise submissions and grounds of appeal and address those matters referred to in our earlier correspondence”.

  1. It is noted that Mr Peterson’s Opposition submissions, dated 19 January 2006, make several references to and provides direct extracts from the transcript of proceedings.

  1. On 13 July 2006, after this matter was allocated to me for determination, I issued the following direction to both parties in order to be enable me to give proper consideration to the parties’ request for an oral hearing:

“1.The Appellant is directed to lodge in the Commission and serve on the Respondent to the Appeal, final grounds of appeal and full submissions in support of those grounds, in writing, including any submission that it may wish to make pursuant to Rule 77(3)(d), on or before Monday 31 July 2006.

2.The Respondent in the appeal is directed to lodge in the Commission and serve on the Appellant, full submissions in reply to the Appellant, in writing, on or before Monday 14 August 2006.

3.The Appellant and the Respondent in the appeal are each required to forthwith upon service, lodge in the Commission, certificates of service in relation to documents served by each of them, on the other party.”

  1. Mayne Group lodged further submissions with the Commission on 28 July 2006 in accordance with the direction issued on 13 July 2006 and also lodged a certificate of service on 27 July 2006.

  1. On 11 August 2006 Mr Peterson filed submissions in reply in accordance with the direction issued on 13 July 2006.  A certificate of service was not lodged, however Mr Peterson notified the Commission under cover of letter dated 9 August 2006, that a copy of the submissions had been served upon the solicitors for Mayne Group.

  1. Mayne Group’s further submissions lodged 28 July 2006 did not include any submission or further reasons in relation to its initial request for an oral hearing of the appeal and its initial view that it should not be determined solely upon a consideration of the written material submitted (Rule 77(3)(d) of the Workers Compensation Commission Rules 2003 (‘the Rules’)). Similarly, Mr Peterson’s further submissions in reply did not address this issue.

  1. Having regard to the submissions of the parties, including the further submissions lodged in accordance with the direction issued on 13 July 2006 in which the initial request by each party for an oral hearing was not pressed, the transcript of the proceedings before the Arbitrator, and the relevant documents that are before me, 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.

LEAVE TO APPEAL

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

  1. Although the decision of the Arbitrator does not specify an amount of compensation, Mayne Group argues that the amount of compensation at issue exceeds the $5,000 threshold and relates to 100% of the amount at issue in the proceedings and therefore satisfies the threshold requirements in section 352(2). 

  1. In reply, Mr Peterson submits that as the decision of the Arbitrator was limited to an order to pay section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) expenses, costs and a referral to an Accredited Medical Specialist (‘AMS’) for assessment of determination of the s66 of the Act claim, Mayne Group has not established the relevant threshold pursuant to section 352(2) of the 1998 Act and therefore the application for leave to appeal should be refused.

  1. I find that although the Arbitrator made no award of compensation in the decision appealed against, the amount of compensation at issue on appeal does exceed $5,000.  Moreover, having regard to the grounds of this appeal, the determination of the appeal effectively puts the whole of the compensation claimed by Mr Peterson in issue.  Consequently, section 352(2)(a) of the 1998 Act is satisfied and section 352(2)(b) has no application. (See Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5; ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSWWCCPD 21; Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7, PeterDevine v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 28).

  1. The Appeal was lodged on 28 November 2005, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act. 

  1. Leave to appeal is granted.

FRESH EVIDENCE

  1. Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)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.”

  1. Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

  1. Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

    “ -a schedule of the new evidence,
      -a copy of the new evidence,
      -a brief outline of the new evidence and the reasons why it was not given in the
       proceedings before the Arbitrator, and
      -submissions why the new evidence should be admitted.”

  1. Mr Peterson seeks leave to include ‘new evidence’ and provides the following submissions as to why the ‘new evidence’ was not available in the proceedings before the Arbitrator:

·     it was understood by Mr Peterson’s legal representatives at the arbitral hearing that while Mayne Group had edited the records upon which it intended to rely, including the records (hospital notes) of Liverpool Hospital and Gosford Hospital, that all of those records were before the Arbitrator for the purposes of making his determination;

·     however confusion has arisen as a consequence of Mayne Group not providing Mr Peterson’s legal representatives with the selected pages from the hospital notes upon which they relied.  As a consequence Mr Peterson’s solicitors wrote to the Arbitrator on 14 October 2005 to confirm that all records produced by both Liverpool and Gosford Hospitals would be admitted, and is under the assumption that this was the case;

·     it is submitted that if this is not the case, then leave is sought to have all records relating to the admission of Mr Peterson to the Gosford Hospital on 28 December 1998 admitted into evidence and to also draw the Commission’s attention to the history provided by Mr Peterson contained therein;

·     leave is also sought to have the records of Liverpool Hospital, some of which have been extracted by Mayne Group and form part of the bundle of documents referred to on page one of the transcript, admitted into evidence;

·     Mr Peterson’s legal representatives made submissions on pages 35 and 36 of the transcript in respect of the clinical notes of both hospitals and seek leave for these notes to also be admitted as evidence in the determination of the Appeal.

  1. Mayne Group has not lodged submissions with the Commission in response to Mr Peterson’s request to seek leave to admit ‘new evidence’, presumably because of its awareness of the situation outlined at paragraphs 41 and 42, below.

  1. A perusal of the Commission file reveals that the documents before the Arbitrator consisted of the Application of Mr Peterson with the accompanying documents as outlined in Annexure “A” Part 5.1 Supporting Documents, which included the clinical notes from Liverpool Health Service and the South Western Sydney Area Health Service.  The Reply of Mayne Group was also before the Arbitrator and included the clinical notes of Gosford Hospital and Liverpool Hospital.  In addition the bundles of documents filed by Mayne Group, under cover of letters dated 23 September 2005 and 6 October 2005 (referred to on pages one and two of the transcript) were also before the Arbitrator and included the Gosford and Liverpool Hospital clinical notes along with documents referred to by Mr Peterson’s legal representatives on pages 35 and 36 of the transcript. 

  1. In addition, the Arbitrator also makes reference to the documents that were in evidence before the Commission, on pages 1 and 2 of the transcript, and lists those documents that were taken into account in making his determination, as set out in his Reasons.

  1. It seems that all of the relevant documents referred to by Mr Peterson were before the Arbitrator and on that basis there is no necessity to treat them as ‘new evidence’.

SUBMISSIONS, RELEVANT EVIDENCE, DISCUSSION AND FINDINGS

Jurisdiction

  1. Mayne Group submits that the Arbitrator erred in considering that the Commission had jurisdiction to deal with any purported claim or disputes in circumstances where there was no evidence, or in the alternative, inadequate evidence, of any claim having been submitted in respect of the injury alleged.

  1. In its further submissions lodged 27 July 2006, Mayne Group submits that the only relevant evidence in respect of the making of a claim for compensation is the claim form attached to the Application dated 22 December 1998 in respect of which Mayne Group notes the following:

(a)the claim form does not claim compensation in respect of any specific frank injury at all;

(b)       the claim form gives no time of injury;

(c)in describing how the alleged injury occurred the claim form says “entering and leaving Armguard vehicle”, and

(d)the claim form concedes that at the time the worker had other employment in the security industry.

Mayne Group submits therefore, that the claim for compensation is not made out in respect of any specific frank injury as relied on in the application to resolve a dispute.

  1. Mr Peterson’s submits that Mayne Group, either by way of evidence or submissions or in the pleading before the Arbitrator, did not raise the issue as to whether the Commission had jurisdiction to deal with the claim.  It did not do so until the filing of this appeal.  It is also submitted that Mr Peterson gave evidence that he sustained injury when stepping out of a security van on 18 December 1998, which was also disclosed at paragraph 6 of his statement.  The medical certificate of Dr Letran dated 23 December 1998 notes that the injury sustained by Mr Peterson was in the nature of a muscle tear caused by jumping on and off the truck.  The claim for workers compensation nominates the date on which the condition was first noticed as 18 December 1998, and in answer to the question “how did the injury occur and what were you doing at the time?” Mr Peterson responds, “entering and leaving an Armaguard vehicle”.  In addition Drs J C Beer, Guest, Humphries and Edwards all have histories of the injury as alleged. 

  1. In his submissions in reply lodged in accordance with the direction issued 13 July 2006, Mr Peterson reiterates his original submissions on this point and submits that he gave notice of injury as required by section 255 of the 1998 Act.  This ‘injury’ is supported by the medical certificate of Dr Letran (dated 23 December 1998) and the Liverpool and Gosford Hospital notes.  Finally, it is submitted that Mayne Group paid Mr Peterson compensation for many years on this basis and upon the history and medical reports and evidence that the Arbitrator accepted.

  1. Mr Peterson submits that Mayne Group has raised this as a fresh issue, which was not argued before the Arbitrator. The matter of raising fresh arguments on appeal was dealt with in the matter of Department of Corrective Services v Evans [2005] NSWWCCPD 58 (‘Evans’) where Deputy President Fleming stated:

“23.[T]his is the legal principle applicable to proceedings in a court and, for essentially the same reasons, it is applicable in proceedings in the Commission. Review by a Presidential Member is not an opportunity for a party to re-litigate their case or to raise fresh arguments on appeal that were not raised at first instance (see Commissioner of Corrective Services v Aldridge (No. 2)[2002] NSWADTAP 6, where this principle was applied in a ‘tribunal’ appeal proceeding). In this matter there was no application to lodge fresh evidence in the appeal. By putting in dispute on the appeal the issue of whether the PTSD suffered by Mr Evans ‘arose out of or in the course of his employment’ GIO is effectively raising a fresh issue not in dispute before the Arbitrator (see Zamovisa Pty Ltd v Kavanagh [2004] NSW WCC PD 53). The High Court set out the principle in Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 as follows:

‘It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.’

24.The principle was applied by the High Court in Coulton v Holcombe (1986) 162 CLR 1 (‘Coulton’) in relation to an appeal by way of rehearing. The Court held (per Gibbs CJ, Wilson, Brennan, and Dawson JJ) that:

‘It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish...’.”

  1. As Mr Peterson submits, the issue of jurisdiction of the Commission to deal with Mr Peterson’s purported claim on the basis now submitted by Mayne Group, (see paragraph 45 above), was never raised at first instance before the Arbitrator.  Mayne Group has not put forward on appeal, any circumstances that might be regarded as exceptional to support the introduction of this new argument.  Mayne Group is therefore, bound by the conduct of its own case before the Arbitrator.   I find accordingly.  Drawing upon the words of the High Court of Australia in Coulton this principle is “fundamental to the due administration of justice”.

  1. While it is the case that jurisdiction cannot be conferred or assumed where none exists, Mayne Group’s submissions do not sufficiently demonstrate in my view, that jurisdiction is lacking because of deficiencies in the claim.  This is particularly so, given the history of this matter.  It is apparent enough that Mr Peterson in fact made a claim for injury alleged to have occurred while on duty, and that Mayne Group has understood and acted upon this premise from the start, that is, right up until the making of this Appeal.  Indeed, it is difficult to imagine any other reason that would prompt Mr Peterson to submit a claim however vague its precise terms may have been.  The negotiations, developments and the process of dealings between the parties over time and the events that have occurred, have effectively exposed the further details of a substantive but disputed claim for injury, and that disputed claim has been determined by the Arbitrator, without objection, at first instance.       

  1. This ground of appeal fails.

Whether the Arbitrator erred in finding Mr Peterson to be a direct and truthful witness having regard to inconsistencies in the evidence

  1. Mayne Group submits that the Arbitrator erred in finding Mr Peterson to be a direct and truthful witness having regard in particular, to the specific and unexplained inconsistencies between the allegations, the evidence of Mr Peterson, and the information contained in contemporaneous records.

  1. Mr Peterson argues that it was open to the Arbitrator to accept his evidence, which included medical evidence, evidence given by way of statement, evidence in chief and in cross examination.  He submits that the Arbitrator found him to be both truthful and direct.  Mr Peterson relies on the decision in Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 (‘Radford’) where the Deputy President states:

“38.The Arbitrator accepted Mr. Radford as a witness of truth. The Arbitrator found that following Mr. Radford’s injury at work in January 1999 he continued to experience chronic pain. The Arbitrator accepted Mr. Radford’s evidence that he continues to take what I consider large doses of painkillers, something he has done ever since the 1999 injury and that the whole history he presents is consistent with the type of injury suffered (at paragraph 46). The Arbitrator found that Mr. Radford’s oral evidence was consistent and not materially shaken in cross-examination.

39.The acceptance or rejection of the evidence is a matter solely for the Arbitrator. In addition to the documentary evidence the Arbitrator had the considerable advantage of seeing and hearing Mr. Radford give oral evidence, and is the only person who is in a position to assess his credibility and truthfulness (Abalos v Australian Postal Commission (1990) 171 CLR 167 (‘Abalos’). The function of a Presidential Member on review of an Arbitrator’s findings based on credit is to ensure the decision is not affected by demonstrable mistake or misapprehension about relevant facts and that the ‘value and importance’ of the advantage of the Arbitrator has not been misused (State Rail v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588) [State Rail]. I find no such error in the Arbitrator’s decision in this matter and the Appellant’s submissions do not point to any such error.”

  1. The Arbitrator in the instant matter had the advantage of seeing and hearing Mr Peterson give oral evidence and in particular he states at paragraph 24:

“The Applicant was cross-examined quite vigorously by Mr Macken for the Respondent on this point, but I thought the Applicant was direct and truthful in his evidence and his explanation was consistent under pressure.”

  1. At paragraph 29 the Arbitrator further states:

“While there is on the face of it some conflict between Mr Peterson’s statement of 17 May 2005 on the one hand, and the claim form and Dr Chan’s note on the other, having considered the oral evidence of the Applicant and the other evidence, on balance I accept the account of the Applicant as to the incident causing injury on 18 December 1998.”

  1. A Presidential Member, reviewing an Arbitrator’s decision on appeal, should not upset any finding unless there is other incontrovertible evidence, which is not adequately dealt with, and therefore indicative of error, by the Arbitrator at first instance (Fox v Percy (2003) 77 ALJR 989 (‘Fox’), cf. Abalos.  See also discussion in Department of Education and Training v Jeffrey Sinclair [2004] NSWWCCPD 90 (‘Sinclair’)).  Even if the Arbitrator has made a specific finding on credit, it is incumbent upon a Presidential Member to give due consideration to the relevant facts and evidence of each case and the Arbitrator’s treatment of them (see CSR Ltd v Della Maddalena (2006) 80 ALJR 458 (‘Maddalena’); Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 (‘Arsic’); Walden v Black [2006] NSWCA 170 (‘Walden’)).

  1. In Radford the Arbitrator had made findings on credit, based substantially upon the Applicant’s evidence, which was consistent with historical events and the nature of the injury, as well as his oral evidence, including his consistent responses under cross-examination.  That is not so in this case.  The Arbitrator in the instant case has acknowledged that there are apparent inconsistencies in the evidence before him, notwithstanding that in his view, Mr Peterson’s oral evidence on the day withstood vigorous cross-examination [as to injury] and that he “was direct and truthful in his evidence and his explanation was consistent under pressure”.  While the principle stands that the assessment of Mr Peterson and his credit was a matter for the Arbitrator who was undoubtedly in the best position to make that assessment (Abalos) that is not the end of the matter.  The questions remain:

1.is there other incontrovertible evidence, not adequately dealt with by the Arbitrator, indicating error on the part of the Arbitrator (Fox), and

2.is the Arbitrator’s decision affected by demonstrable mistake or misapprehension about relevant facts, and has the “value and importance” of the advantage enjoyed by the Arbitrator [as to assessment of credit], been misused (State Rail; see also paragraph 57, above). 

  1. Of necessity, these overarching considerations and others of relevance, emerge later in these Reasons by virtue of the remaining grounds of appeal.  Notwithstanding his acknowledgment of inconsistencies, the Arbitrator made his finding in favour of Mr Peterson’s credit, “having considered the oral evidence of the Applicant and the other evidence”.  His reasoning leading to this conclusion are set out in paragraphs 23 to 29 of his Reasons.  The Arbitrator was entitled to make an assessment as he did (Abalos), but subject to the further considerations stated in paragraph 57, above. 

  1. Apart from his consideration of Mr Peterson’s oral evidence, the Arbitrator took into account that Mr Peterson is not an educated person, and essentially concluded that ambiguity rather than untruthfulness was the basis for the inconsistencies.  I do not concur in this conclusion as to ambiguity. 

  1. However, the ultimate resolution of this ground of appeal, that is a determination as to whether the Arbitrator’s assessment was soundly based and whether he was entitled to reach the conclusion that he did, emerges from the determination of the further grounds of appeal, including in particular, the next ground.    

Claim form and inconsistencies in evidence

  1. Mayne Group submits that the Arbitrator erred in considering that the information contained in the claim form was ambiguous.  It asserts to the contrary, that the information was specifically inconsistent with the allegations made by Mr Peterson.  It further submits that this inconsistency operates to refute Mr Peterson’s allegations with regard to any alleged injury, for the purposes of these proceedings. 

  1. Mayne Group further asserts that the Arbitrator has erred in apparently attempting to reconstruct the manner in which Mayne Group’s report of the injury has come about rather than considering the proper consequence of the inconsistency between Mayne Group’s report of the injury and Mr Peterson’s allegations insofar as his claim is concerned.  Moreover, it is asserted that the Arbitrator has erred in apparently rejecting the information contained in Mayne Group’s report of injury simply because that information is said not to be Mr Peterson’s own comments.

  1. In reply Mr Peterson submits that the Arbitrator, as part of the reasoning process, addressed the issue of the ambiguity of the information contained in the claim form.  It was raised specifically by Mayne Group in cross-examination (at pages 14 and 15 of the transcript).  It is submitted that the Arbitrator referred to the evidence, and at paragraph 25 of his Reasons concluded that the claim form was not inconsistent with Mr Peterson’s evidence in the claim that he injured his left calf while stepping down from the truck. 

  1. Mr Peterson also argues that in attempting to reconstruct the manner in which Mayne Group’s ‘report of injury’ had come about, the Arbitrator complied with both Rules 70 and 73 of the Rules’ in determining the matter and weighing up the evidence of both parties, and that it was open to the Arbitrator to come to this conclusion particularly where Mr Peterson was subject to a vigorous cross examination.

  1. It is further submitted by Mr Peterson that the Arbitrator’s decision should be read as a whole (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at p 444) and without combing it for error (Minister for Immigration and Multicultural Affairs v Wo Shan Liang (1996) 185 CLR 259), and that there was a clear basis in the Arbitrator’s reasoning for coming to the decision he did in accepting Mr Peterson as a witness of truth.

  1. In his Reasons the Arbitrator specifically states that Mr Peterson was cross-examined “quite vigorously” by Mayne Group’s legal representative in relation to the ‘claim form’, and states:

“25. The Applicant gave evidence that the ‘OH&S officer’ of the Respondent helped him complete the claim form.  He stated that the leg was painful getting in and out of the truck after the incident and that this was why he said that.  He denied that the statement in the claim form meant that the injury developed gradually.  He stated that the incident stepping down from the truck with the bags of coin was at either Woolworths or Coles near Liverpool and that he said to the driver at the time ‘My leg has gone’.

26. The Applicant’s [sic] is not a highly educated person and admitted that others helped him with claim forms for unrelated past injury claims.  In my view the short statement on the form is ambiguous but was clearly addressed by the Applicant in his oral evidence.  He stated that he thought he was being asked, ‘When does it hurt?’ so he gave the answer in terms of the pain he felt getting into and out of the truck following the incident at Liverpool.  The comments in the employer’s report of injury appear to me to be most likely based on the Applicant’s answer to that question and his misapprehension of it, but are in any case not the Applicant’s own comments”.

  1. Mr Peterson submits that it is open to the Arbitrator, as part of the ‘reasoning process’ to reconstruct the manner in which the claim was made and in doing so he complied with Rules 70 and 73, which provide:

    “70     Principles of procedure

    When informing itself on any matter, the Commission is to bear in mind the following principles:

    (a)evidence should be logical and probative,

    (b)evidence should be relevant to the facts in issue and the issues in dispute,

    (c)evidence based on speculation or unsubstantiated assumptions is unacceptable,

    (d)unqualified opinions are unacceptable.

…

73       Certificates of determination

(1)A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:

(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and

(b)the Commission’s understanding of the applicable law, and

(c)the reasoning processes that lead the Commission to the conclusions it made.

(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”

  1. The form ‘Claim Under the Workers Compensation Act NSW’ dated 23.12.98, apparently completed for, but signed by Mr Peterson contains a number of entries. The kind of injury suffered is stated as, “Tendon pulling away from left calf muscle”. The part of the body specifically affected is stated as, “Left calf muscle”. In describing how the injury occurred and what he was doing at the time, Mr Peterson stated, “entering and leaving Armaguard vehicle”. The “date of injury or date when condition first noticed” is stated as 18.12.98.

  1. The form ‘Employer’s Report Form – NSW/VIC/WA’ dated 23.12.98 states that the injury claimed to have been sustained by Mr Peterson occurred while he was working.  However, in describing how the injury occurred and what Mr Peterson was doing at the time, the following statement is made: “Unsure of exactly how it occurred but Nathan believes it was caused from continually getting in and out of the truck.”  The injury is described as a muscle tear.  In stating whether there is agreement with Mr Peterson’s version, the response is, “Worker himself is unclear how injury occurred and cannot pin point time or event when injury happened.”  On the face of it, this is consistent with the entry on Mr Peterson’s claim form.  By letter of 21 November 2003 Mayne Group indicated to Mr Peterson that the medical evidence indicated that his medical condition was not work related and his employment with Mayne Group was not a substantial contributing factor to any alleged injury.  Liability for payment of workers compensation benefits was then declined.

  1. The ambiguity perceived by the Arbitrator but highlighted by Mayne Group as an inconsistency, is that “entering and leaving Armaguard vehicle” could mean either that he sustained the injury while entering and leaving the vehicle on a particular occasion, or alternatively that he reported that constantly entering and leaving the vehicle had given rise to the injury over time (or had aggravated an existing injury).  However, what Mr Peterson said in his statement and later in his oral evidence before the Arbitrator was different again.  He then maintained that he suffered a specific injury as he stepped from the truck at approximately 10.30am on 18 December 1998, as opposed to “entering and leaving” the Armaguard vehicle.

  1. In his statement of 17 May 2005 Mr Peterson states at paragraph 3, “I have never previously suffered a work-related injury, nor sought compensation for a work related injury.”  However, at the hearing before the Arbitrator, Mr Peterson conceded that this was not correct, and that he had in fact previously suffered a number of work related injuries.  By way of explanation he said that he had been referring to his employment with Armaguard when he made that statement, but then added, “I hadn’t even remembered…doing these sort [sic] of things.”   While it is not absolutely clear what he meant by that statement, it appears that he was referring to his memory, or lack of memory, of his previous injuries and claims.

  1. Mr Peterson’s account of what occurred is found at paragraph 6 of his statement.  He says, “On [sic] approximately 10.30am on 18 December 1998 I injured myself as I was stepping out of my truck.  At the time I was carrying bags of coins weighing between forty (40) and sixty (60) kilograms.  As I was stepping from the truck, I felt a sharp, stabbing pain in my left calf.”  He went on to say that he reported the pain to his supervisor and later that day attended his local treating medical practitioner, Dr Tan Letran.  Dr Letran’s diagnosis was that Mr Peterson had a torn calf muscle, and Mr Peterson says that he was given a week off work.  He said that he visited Dr Letran again the next day as his calf was very swollen and painful, and was given another week off work.  At paragraph 20 Mr Peterson states, “Prior to my injury on 18 December 1998, I had no previous trouble with my left leg and my general health had otherwise been good.”  He then alludes to ongoing occasional pain and swelling in his left calf and says that his general health has declined because he is now unable to walk or run for long periods of time.

  1. Mr Peterson stated in evidence before the Arbitrator that there were never other circumstances in his life where he was taking steps “up and down carrying weights” (see transcript page 5, paragraphs 32 to 45).  However, in cross-examination Mr Peterson conceded again that this was not correct, and that he had injured his left calf muscle in December 2001 when he stepped down from a chair while working at ING Bank.  He agreed that he was required to go to hospital for treatment following this incident.  Moreover, there had been other occasions when he had reported injuries sustained in the workplace in other employment.  By way of explanation Mr Peterson stated that his reason for saying that there were never other circumstances in his life where he was taking these sorts of steps, was that “I was thinking stepping out of a truck” (see page 18 of the transcript).

  1. At paragraph 27 of his Reasons, the Arbitrator states that Mayne Group submitted that the entry in treating doctor, Dr Chan’s notes dated 18 December 1998, ‘pain L calf x 2 days.  No h/o trauma’, meant that Mr Peterson told him that there was no single incident of the injury.  (I note that this was the same date on which the alleged injury occurred).  He further states that Mr Peterson could not remember what he said to Dr Chan, given the passage of time.  The Arbitrator went on to say, “However, such a comment in the notes is also consistent with there being no other, previous traumatic event to the left calf.  The clinical notes are typically compressed brief and the particular brief note on its own is not sufficient.”

  1. Clearly, I do not have the benefit that the Arbitrator had in observing Mr Peterson giving evidence.  Nevertheless, it is inescapable there are inconsistencies in Mr Peterson’s evidence that he has attempted to explain.  While I accept the Arbitrator’s comment that Mr Peterson is not a highly educated person, I do find it difficult to accept that he misunderstood what he was saying and/or writing on a number of occasions, to the extent that it gave rise to all of the inconsistencies highlighted, up until the preparation of his written statement dated 17 May 2005 and his evidence before the Arbitrator.  It has emerged, contrary to his earlier statements, that Mr Peterson had previous experience with making claims as a result of injury and he surely would have had some idea of what he was about. 

  1. However, I do accept that both in relation to this claim and others, Mr Peterson has relied upon assistance from other people, to a greater or lesser extent, in order to progress the matter(s).  I am inclined to agree with Mayne Group that the inconsistencies could either reflect adversely to an extent on Mr Peterson’s credit as a witness or alternatively, on the reliability of his recollection - or perhaps both.  Furthermore, it is possible that a general vagueness of approach (because he “is not a highly educated person”), or lack of clarity in his understanding of the information and the significance of the information that he was being asked to provide, may have had something to do, to some extent, with the inconsistencies that have emerged. 

  1. While Mr Peterson provided explanations for his previous vague and/or inconsistent statements, I note that there was more than one such instance.

  1. Notwithstanding any reservations that I may have, the primary decision about Mr Peterson’s credit does not rest with me.  The issue is whether the Arbitrator fell into error.  In the final analysis, it is possible that flaws in Mr Peterson’s veracity, his recollection or his personal competence, or a combination of two or all of these, may have given rise to the inconsistencies in his evidence.  All are at least arguable.  Ultimately, I cannot be sure.  But whatever the position, the inconsistencies themselves are real enough.   

  1. In the circumstances, I am unable to determine that the Arbitrator strictly fell into error in assessing Mr Peterson as a “direct and truthful” witness.  That was his assessment.  It is possible notwithstanding the inconsistencies in his evidence, that Mr Peterson was doing his best in accordance with his memory and personal capabilities.  That seems to sum up the Arbitrator’s view.  Even Mayne Group itself concedes that the inconsistencies may be a reflection of his poor recollection, if not his truthfulness or otherwise as a witness.

  1. Whether the Arbitrator’s ultimate decision and the award in Mr Peterson’s favour are correct depends more broadly upon the whole of the relevant evidence considered by the Arbitrator, and the weight that he attached to that evidence. 

  1. Having regard to the presence of plausible alternatives to a lack of truthfulness on the part of Mr Peterson, it is not demonstrated that the Arbitrator is necessarily in error, and in any event, not to the extent that it is fatal to his ultimate decision in this matter.  He has not suggested that the inconsistencies are not present.  Moreover, there is no basis for finding that the Arbitrator misused his unique position in making his assessment on credit as he clearly applied his mind to the issue on the basis of what was before him.

  1. This ground of appeal fails insofar as it relates to the Arbitrator’s impressions and observations that Mr Peterson was a direct and truthful witness, and the manner in which the Arbitrator then went about dealing with the dispute before him.  However, these findings on appeal are not determinative as to whether or not the Arbitrator erred in arriving at his ultimate decision, based upon the whole of the evidence that was before him, including the inconsistencies in Mr Peterson’s evidence.  A proper consideration of the facts, the probabilities that emerge, and inconsistencies in the evidence must outweigh any reliance placed upon the Arbitrator’s findings, based on his impressions of Mr Peterson and his demeanour, in giving oral evidence.

Medical evidence and whether employment was a “substantial contributing factor”

  1. Mayne Group submits that the Arbitrator erred in failing to have any or proper regard to the contemporaneous medical records found in the clinical notes of Dr Chan, one of Mr Peterson’s treating doctors, when considered against the background of the other contemporaneous records.  Attention is drawn to the allegation of a traumatic injury by Mr Peterson on 18 December 1998, which it is submitted, is “clearly disproved” by the entry recorded in the clinical notes of his consultation with Dr Chan on18 December 1998.  It is submitted that Dr Chan’s notes clearly indicate that at that time Mr Peterson was complaining of pain in the left calf over the previous two days with no history of trauma.  It is submitted that this entry and other contemporaneous records make it clear that Mr Peterson in fact did not sustain any traumatic injury to the left calf on 18 December 1998 as alleged or at all.

  1. In addition. Mayne Group submits that the Arbitrator placed insufficient weight on Dr Chan’s clinical notes and that his assertion that those notes: “ … are typically compressed [and] brief, and the particular brief note on its own is not sufficient” is an error and submits that this is not the basis for rejecting, or apparently not giving regard to the clinical notes.  Further, it is submitted that the Arbitrator failed to give adequate reasons for apparently rejecting the clinical notes and has in fact reversed the onus of proof in that it was up to Mr Peterson to adduce evidence to the effect that the clinical notes were not an accurate representation.

  1. Mayne Group also submits that the Arbitrator erred in preferring or having regard to the Liverpool Hospital notes of 6 January 1999 despite it being clear that those records were not contemporaneous and related to information provided by Mr Peterson well after he has purported to have submitted a claim for the payment of compensation benefits.  In addition it was submitted that the hospital notes were not consistent with the allegations made by Mr Peterson and that the Arbitrator was clearly in error for relying on those records rather than the clinical notes of Dr Chan.

  1. Mayne Group finally submits that the Arbitrator erred in accepting the account of Mr Peterson regarding the alleged injury over the available contemporaneous evidence (claim form and Dr Chan’s note), not only because of the inconsistencies between the records and Mr Peterson’s allegations but also the fact that Mr Peterson accepted and acknowledged under cross examination, that the information contained in the contemporaneous records would be more likely to reflect what occurred than his later recollection.

  1. In response Mr Peterson argues that the Arbitrator did not fail to give proper regard to the contemporaneous medical records found in the clinical notes of Dr Chan and that it was open to the Arbitrator to come to the conclusion he did based on his consideration of all the evidence including the clinical notes of Dr Letran, Gosford and Liverpool Hospital notes, Mr Peterson’s own sworn testimony and the fact that Mr Peterson was paid workers compensation in respect of the claim until 23 December 2003.

  1. Mr Peterson submits further that the Arbitrator did not fail to give adequate reasons for not placing sufficient weight on the clinical notes of Dr Chan. It is argued that the Arbitrator is bound to apply Rule 70 of the Rules and that Dr Chan’s notes were but one part of the evidence and must be taken in context with the claim form, the certificate of Dr Letran dated 23 December 1998, the history provided to Liverpool Hospital and to all other medical practitioners, as well as Mr Peterson’s own oral evidence which the Arbitrator accepted as truthful. Furthermore, it is submitted that the Arbitrator took into account the clinical notes of Dr Chan in addition to the other evidence in determining the matter.

  1. Mr Peterson asserts that the Arbitrator was entitled to rely upon the clinical notes of Liverpool Hospital as Mr Peterson’s admission was “less than weeks after his injury” and the admission was not in respect of the treatment to his calf but as a consequence of complications flowing from the injury to his calf.  A claim for compensation had been made at that point. 

  1. Mr Peterson also argues that Mayne Group’s submission that the contemporaneous records (including the claim form and Dr Chan’s clinical note) are more likely to accurately reflect what occurred in the onset of Mr Peterson’s condition than any other evidence or information arising at a later date is incorrect and should be rejected as the Arbitrator’s function is to weigh up all the evidence, including the sworn evidence and histories provided, and determine the matter accordingly.

  1. The Arbitrator made reference to Dr Chan’s medical notes and provided reasons why he ‘rejected’ them at paragraph 27 of his Reasons where he stated:

“The Respondent submits that the comment of Dr Chan in his notes dated 18.12.98, which appears to be ‘pain L calf x2days. No h/o trauma’ means that the Applicant told him that there was no single incident of injury.  The Applicant could not remember what he said given the passage of time.  However, such a comment in the notes is also consistent with there being no other, previous traumatic event to the left calf.  The clinical notes are typically compressed brief and the particular brief note on its own is not sufficient”.

  1. The Arbitrator makes no reference to a similar lack of any reference to a work-related injury in the clinical notes of Dr Letran, the other treating doctor.  However, he then goes on to refer to the Liverpool Hospital notes of 6 January 1999 at paragraph 28 of his Reasons, stating:

“The notes from Liverpool Hospital of 6 January 1999 appear to record a history consistent with the Applicant’s evidence (although the date appears to be one day out), ‘19/12/98 Jumped off truck - > L calf pain’.  The Applicant in his oral evidence said he felt a stabbing pain as soon as his foot touched the ground that felt like someone had either stabbed or shot him in the leg.  The medical reports confirm that the history given by the Applicant of a single incident of 18 December 1998 is consistent with a torn calf muscle and the subsequent complications of deep vein thrombosis and pulmonary embolism suffered”.

  1. The Arbitrator then stated on balance, that he preferred Mr Peterson’s account over and above Dr Chan’s notes, at paragraph 29 of his Reasons, notwithstanding that “there is on the face of it some conflict between Mt Peterson’s statement of 17 May 2005 on the one hand, and the claim form and Dr Chan’s notes on the other, …”.

  1. The Liverpool Hospital notes of 6 January 1999 were recorded some 19 days after the alleged injury occurred.  In addition, Mr Peterson has pointed to other contemporaneous records that support his account of his injury including, Dr Letran’s certificate dated 23 December 1998, which he says identifies an injury on 18 December 1998 (the incident as described in this Certificate is “jumping on and off truck”); the claim form which nominates the “date of injury or commencement of the condition” as 18 December 1998 and the clinical notes of Gosford Hospital dated 28 December 1998 which provide a history of “left leg calf pain and swelling injury 10 days since injury”.

  1. A reading of the entry in Dr Chan’s clinical notes appear to support Mayne Group’s view that Mr Peterson had consulted him about pain in his left calf that had been present for a period of two days before 18 December 1998, and that there was no history of trauma.  In his Reasons, the Arbitrator makes no reference to the previous “2 days” of pain in the left calf, apparently reported to Dr Chan by Mr Peterson.  There is no explanation for this particular aspect of the notation in the clinical notes. 

  1. Significantly, Mr Peterson said in evidence that he could not remember what he said to Dr Chan on that occasion, that is, 18 December 1998, the date of the alleged injury.  At page 12 of the transcript of proceedings before the Arbitrator, Mr Peterson concedes not surprisingly, that his memory of events would have been much better on 18 December 1998, the date of the alleged injury, than in 2005.  However, under cross examination, Mr Peterson could not recall even visiting Dr Chan on 18 December 1998 but did not dispute the fact that he had in fact done so, as indicated by the entry in Dr Chan’s clinical notes.  On the other hand he was adamant in denying that he would have told Dr Chan anything to the effect that he had experienced a pain in his left calf for two days before 18 December 1998, and that there was no previous history of trauma.

  1. Furthermore, Mr Peterson could not recall the conversation that he had with Dr Letran, the other treating doctor, three days after the alleged injury, which in fact took place on 21 December 1998 (and then again on 23 December 1998).  In response to the question, “And there’s nothing there about any work injury [in Dr Letran’s notes], he responded, “I don’t know.”   

  1. Further to what is stated at paragraph 75 above, I do not agree with the Arbitrator’s conclusion that the “short statement on the form [Mr Peterson’s claim form] is ambiguous”.  The statement is consistent with the notes made contemporaneously by Mayne Group at the time.  However, it is in conflict with Mr Peterson’s oral evidence, which the Arbitrator accepted.  Mr Peterson’s explanation is that he misconstrued the question because of the advice he received from the person who was assisting him to complete the form.  Nevertheless, after initially stating that he had never before suffered a work-related injury, Mr Peterson conceded under cross examination that this was not entirely correct, as he had done so while working in other employment.  (I note however, that Mr Peterson did disclose in his claim form a previous work related injury to his foot when employed by “DFE”).  What can be drawn from this is that Mr Peterson obviously had some idea of what was involved in reporting and making claims for work-related injuries and it is reasonable to infer therefore that he was not entirely ignorant of the process, nor wholly reliant on the advice and assistance of others in negotiating his way through it.

  1. In summary, Mr Peterson’s report of injury dated 22 December 1998, Mayne Group’s contemporaneous note dated 23 December 1998, and Dr Chan’s clinical notes of 18 December 1998, are all consistent with the proposition that Mr Peterson had reported that he had experienced pain in his left calf muscle, as opposed to suffering a discernable, work-related frank injury on 18 December 1998.

  1. Further, Mr Peterson stated in his oral evidence before the Arbitrator on 13 October 2005, that he had injured his left calf muscle in December 2001 when he stepped down from a chair while working at ING Bank and that he was required to go to hospital for treatment following this incident.  However, Dr Conrad, Orthopaedic Surgeon, in his report of 3 November 2004 gives the following account, as related to him by Mr Peterson.  He states:

“He was working then for ING Bank as a customer service accounts, when on his way to work sometime in December 2001, he again noted pain in his left calf, which persisted for several days.  He went to a city medical centre and was referred to Liverpool Hospital, where a duplex scan showed clots in his calf … He was off work for about 3 or 4 weeks and he now continues to work for ING at the moment, doing full time customer service in the Bank.”

  1. Dr Conrad also sets out the history of events at Mayne Group relevant to the instant claim, as related by Mr Peterson, and opines that, “This man was involved in an accident on 18 December 1998 as a result of his accident at work, he may have torn a calf muscle and this appears to have been associated with a DVT at that time.  He has a pulmonary embolus and has ongoing pain and swelling in his left leg, which one would regard as a post-phlebitic leg.”

.

  1. The clinical note at Liverpool Health Centre refers to swelling and pain after stepping down from a chair and his “legs giving way”.  The note also makes reference to treatment in 1999 after another injury to his calf.  The Emergency Department Clinical Report of Liverpool Hospital refers to this treatment, and the words “fell off truck” are there recorded.  A notation of 6.1.99 refers to left calf trauma and swelling, with the date “19.12.98”, as noted by the Arbitrator in his Reasons at paragraph 28.

  1. Mr Peterson was admitted to Gosford Hospital in December 1998 suffering from pneumonia.  There is a reference in the ‘History and Progress Notes’ on “2/1/98”, which in the context of the notes is obviously meant to be 2/1/99, that states that Mr Peterson complained of a sore calf muscle “(work related injury)”.  The Hospital notes over a period of time indicate a range of medical issues, including left calf pain, problems with his left arm, his right leg and thigh, his groin, respiratory difficulties, and pleurisy, and treatment for them.  Other documents before the Arbitrator referred to various accidents in work places that gave rise to some of the injuries mentioned, as well as injury to his back. 

  1. Dr Kim Edwards, Medico Legal Consultant, who examined Mr Peterson for Mayne Group, opined in his assessment report dated 10 January 2005:

“From the history given today, I think it most likely that Mr Peterson suffered a left calf muscle tear on 18/12/98.  He subsequently suffered a left deep venous thrombosis, and presumably a pulmonary embolus, judging from his clinical history.”

  1. Dr Edwards reported that Mr Peterson told him that he incurred the injury on 18 December 1998 when he stepped backwards out of a truck carrying about 40 kgs of coins.

  1. There was nothing in Dr Edwards’ report to indicate that he was aware of the specific incident at ING in December 2001, although he does refer to difficulties experienced by Mr Peterson over a number of years.  Dr Edwards added, “The history he gives, suggesting that he has sustained calf muscle strain is fairly typical of the condition.  It could have occurred at any time, whether he was at work or at home.  It is my opinion, the deep venous thrombosis is secondary to his calf muscle injury.”

  1. The clinical notes of Dr Letran indicate an entry with reference to 18 December 1998 and Mr Peterson’s left calf and “DVT – Doppler”.  The entry on 21 December 1998 refers to  “Doppler NAD”, a left calf tear and “Deep VT”.  There is no mention of a work related injury nor an attribution to any cause of Mr Peterson’s apparent condition.

  1. Having reviewed the whole of the medical evidence that was before the Arbitrator, including the evidence to which I have made specific reference above, I am satisfied that he was entitled to come to the conclusion that Mr Peterson had an injured calf muscle and the “subsequent complications of deep vein thrombosis and pulmonary embolism suffered.”  However, the medical history is far from conclusive of the fact that this was actually the result of a work related injury that occurred on 18 December 1998.  The history is repeated in several of the medical documents, and while the medical assessments of Mr Peterson’s condition are reasonably consistent one with the other, the purported link with a work-related incident on 18 December 1998 emerges from the series of medical reports more as mantra than as fact.

  1. Logically, the constant repetition that an injury is work-related, in the documented history of events as extracted from earlier medical documentation and/or as told by Mr Peterson himself, does not alone, make it a fact.  The attribution in the medical reports as to a work-related incident on 18 December 1998 being the probable cause and/or starting point of Mr Peterson’s condition relies fundamentally on what Mr Peterson told them, and is accepted and embraced without question, by most of the medical commentators.  By contrast, there is no reference to a work-related incident in either Dr Chan’s or Dr Letran’s clinical notes that were recorded at or around the relevant date, notwithstanding that Mr Peterson consulted each of them, as treating doctors.  The fact that Mr Peterson sought the assistance of not one but two experienced treating doctors, neither of whom made any notation about a work-related incident in his clinical notes, is significant.

  1. Moreover, the inconsistencies in the evidence in terms of what allegedly occurred on 18 December 1998, as submitted by Mayne Group, and outlined above, cannot be ignored, notwithstanding Mr Peterson’s attempts to explain them by claiming a series of misunderstandings and memory lapses on his part over a period of time.  Notwithstanding that the Arbitrator states that Mr Peterson’s original claim is ambiguous, it is consistent with Mayne Group’s submission, as well as the other contemporaneous documents that are not ambiguous, and that were completed separately by Mayne Group’s representative, Dr Chan and Dr Letran, in consultation with Mr Peterson himself in each instance.  It is difficult to accept that they all got it wrong. 

  1. The Arbitrator finds that Mr Peterson’s medical history, as put by him, is consistent with his actual medical condition.  However, as I have said, there is no substantial evidence, apart from what Mr Peterson has subsequently stated to various medical practitioners and institutions, and in the documentation prepared for the purposes of his claim and the Commission proceedings, that provides the necessary causal link or temporal relationship between injury arising out of or in the course of employment and his employment with Mayne Group (see generally Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; Tarry v Warringah Shire Council [1974] 48 WCR 1; Nunan v Cockatoo Docks & Engineering Co  Ltd (1941) 41 SR (NSW) 119; Commonwealth v Oliver (1962) 107 CLR 353; Weston v Great Boulder Gold Mines Ltd (1964) 1122 CLR 30).

  1. I note also, that the account of the alleged work-related injury that Mr Peterson has given to various medical practitioners and institutions has not been entirely consistent, according to copies of their records that were before the Arbitrator.  They include as already stated, jumping from a truck, falling from a truck, having an accident, stepping down from the Armaguard vehicle, stepping backwards from the Armaguard vehicle, and getting in and out of the vehicle (apparently over a period of time).   It is perhaps unfortunate that neither party has put forward any evidence from the driver of the Armaguard vehicle who is said by Mr Peterson to have witnessed the alleged incident at the relevant time. 

  1. While the Arbitrator found in favour of Mr Peterson “on balance”, the consistent, contemporaneous documents prepared by and in consultation with Mr Peterson at the time, and the inconsistencies between them and subsequent statements and evidence put forward by Mr Peterson, do not lend support to his decision.  On the evidence before the Arbitrator, Mr Peterson has not discharged the onus of establishing that an injury arose from or was sustained during the course of his employment with Mayne Group.  It is my view that the weight of the evidence leads to a conclusion on balance, that a work-related injury was not sustained by Mr Peterson on 18 December 1998, as claimed.  I find accordingly.

  1. All of the medical opinion as to whether employment with Mayne Group was a substantial contributing factor or a contributing factor at all, to Mr Peterson’s injury, the subject of these proceedings, is grounded in the history of events as related by Mr Peterson. There is no other evidence to substantiate the medical opinion as to the issue of causation of injury, for the purposes of establishing liability for payment of workers compensation. Having regard to my finding as to “injury” in the preceding paragraph, it follows on the facts and the weight of the evidence, that such employment was not a substantial contributing factor, pursuant to section 9A of the 1987 Act. The Arbitrator’s “clear impression” that the requirements of the section were satisfied, is incorrect, in the circumstances (see paragraph 36 of the Arbitrator’s Reasons).

  1. Having regard to these findings, the appeal must succeed.

Nature of the calf injury and subsequent thrombosis

  1. Mayne Group submits that the Arbitrator erred in asserting there was no issue about the nature of the injury to the calf muscle or that a subsequent thrombosis was caused by an alleged calf muscle tear.  It is submitted that these matters were clearly and properly in issue in regard to the dispute as to the onset of Mr Peterson’s alleged problem with his left calf.

  1. In response to this ground of appeal Mr Peterson submits that is was not unreasonable for the Arbitrator to conclude that the nature of the injury and the sequelae of the injury, which was a calf strain or tear producing deep vein thrombosis and pulmonary embolism, was a consequence of a tear to the calf muscle.  It is submitted that the Arbitrator’s statement in paragraph 30 of his Reasons reflected the medical evidence before him.

  1. Given that the appeal has been successful on other grounds, I am not required to proceed to make a determination on this issue.

Disease

  1. Mayne Group submits that the Arbitrator erred in finding that Mr Peterson’s injury is not a disease as Mr Peterson’s condition is clearly in the nature of a disease.  In addition it is submitted that the Arbitrator failed to have any or proper regard to the medical evidence and Mayne Group’s submissions regarding the disease provisions, so far as these proceedings are concerned.

  1. Mr Peterson argues that the medical evidence of Mr Peterson and more specifically, that of Mayne Group, did not disclose a disease and that applying the expressed views of the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 and based on the available evidence, it is submitted that the Arbitrator was correct in his conclusion.

  1. Mayne Group submits, “Mr Peterson’s condition is clearly in the nature of a disease.”  Mr Peterson is obviously quite adamant that such is not the case.  However, as the appeal is successful on other grounds, I am not required to proceed further to determine this particular issue.

DECISION

  1. The appeal is successful.  The decision of the Arbitrator dated 8 November 2005 is revoked and the following decision is made in its place:

Award for the Appellant Employer.

COSTS

  1. No order is made as to the costs of this appeal.

Gary Byron

Deputy President  

17 November 2006.

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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