MPGTC Pty Limited v Jones

Case [2019] NSWWCCPD 57
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: MPGTC Pty Limited v Jones [2019] NSWWCCPD 57
APPELLANT: MPGTC Pty Limited
RESPONDENT: Timothy Jones
INSURER: Employers Mutual NSW Limited
FILE NUMBER: A1-718/19
ARBITRATOR: Mr J Harris
DATE OF ARBITRATOR’S DECISION: 16 April 2019
DATE OF APPEAL DECISION: 8 November 2019
SUBJECT MATTER OF DECISION: Factual findings – whether material facts were overlooked or misconstrued; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 considered; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 considered
PRESIDENTIAL MEMBER: President Judge Phillips
HEARING: On the papers
REPRESENTATION: Appellant:
Mr P Perry, counsel
Hicksons Lawyers
Respondent:
Mr L Morgan, counsel
Wyatts Lawyers & Advisors
ORDERS MADE ON APPEAL:

1.    The Arbitrator’s Certificate of Determination dated 16 April 2019 is confirmed.

INTRODUCTION

  1. The issue in dispute on appeal is whether the worker’s right hip condition was caused by his accepted left ankle injury. Specifically, whether Mr Jones’ altered gait caused or aggravated any of Mr Jones’ arthritic hip condition as articulated by orthopaedic surgeon, Dr Bodel. This involves the consideration of mixed questions of fact and expert medical testimony.

BACKGROUND

  1. On 23 May 2004, Mr Jones sustained an accepted injury to his left ankle during the course of his employment with the employer as a painter, after falling from atop a bench which collapsed. Following the incident, Mr Jones filed a workers compensation claim with Employers Mutual NSW Limited (the insurer), which was accepted. Mr Jones returned to work shortly after the incident and consequent to that injury underwent a number of surgical procedures to his left ankle over several years.

  2. Mr Jones began to experience pain in his right hip sometime between 2005 and 2007 (dates respectively noted by rehabilitation physician Dr Sun and Mr Jones). Mr Jones underwent surgery in respect of his right hip in 2009 and had a right total hip replacement in 2011.

  3. On 15 December 2017 Mr Jones made a claim for lump sum compensation for 29% whole person impairment in respect of his left ankle and right hip as a consequential condition, relying on the assessment by Dr Bodel.

  4. On 23 March 2018, the insurer issued a s 74 notice denying liability on the basis that Mr Jones’ right hip condition did not result from the left ankle injury sustained on 23 May 2004.

  5. On 14 February 2019, Mr Jones filed an Application to Resolve a Dispute (ARD) with the Commission.

  6. On 15 April 2019 the matter was heard before Arbitrator Harris. During submissions before the Arbitrator, counsel for the employer accepted that Mr Jones’ left leg altered gait was due to the left ankle injury.

  7. On 16 April 2019, Arbitrator Harris provided his ex tempore decision and issued the Certificate of Determination.

ON THE PAPERS

  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…

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AGLC
MPGTC Pty Limited v Jones [2019] NSWWCCPD 57
Case
[2019] NSWWCCPD 57
Decision Date

CaseChat Overview and Summary

MPGTC Pty Limited brought proceedings against Jones in the Federal Court of Australia, challenging an arbitrator's decision that determined Jones was entitled to workers' compensation for an injury sustained at work. The primary issue was whether the arbitrator had overlooked or misconstrued material facts in making the decision. The case referenced Whiteley Muir & Zwanenberg Ltd v Kerr and Kooragang Cement Pty Ltd v Bates to consider whether the tribunal's factual findings were lawful and whether the evidence was sufficient to support the conclusions reached.

The court examined whether the arbitrator's decision was based on satisfactory evidence, noting that while the tribunal is not bound by the rules of evidence, it must be satisfied that expert evidence provides a satisfactory basis for its findings. The court highlighted that the tribunal must draw conclusions from material that is satisfactory in a probative sense and apply logic and common sense when experts differ. The court found that the arbitrator had correctly identified a causal connection based on common sense and the available evidence, and that the evidence was sufficient to support the findings. The court also noted that the tribunal could consider common-sense inferences where appropriate, but the evidence must still be sufficient to establish the injury as defined by the relevant legislation.

The court confirmed the arbitrator's determination, finding that the decision was based on lawful and sufficient evidence. The arbitrator's Certificate of Determination dated 16 April 2019 was upheld. The court's decision ensured that the tribunal's findings were supported by the evidence, and that the conclusions reached were not arbitrary or capricious.

Orders

Orders of the court

1. The Arbitrator’s Certificate of Determination dated 16 April 2019 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Indeed, Christensen was a matter which was very similar to this in that the employer in that case challenged the Arbitrator’s decision, alleging errors of fact that work caused Mr Christensen’s illness. Just as in this case, the employer contended that the evidence was insufficient to support those conclusions. McColl JA in considering these matters said as follows:“363. Nevertheless, ‘[a]lthough not bound by the rules of evidence, there can be no doubt that the [Workers Compensation] Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings’ and ‘the question of the acceptability of expert evidence will not be one of admissibility but of weight.’[42]364. The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.[43] In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.[44]365. The Arbitrator directed himself that he could find a causal connection between ‘stress and the breakdown of [Mr Christensen’s] health allowing the entry into his system of a viral illness, or the subsequent entry of the virus by virtue of the T cell lymphocytes into [Mr Christensen’s] myocardium causing ventricular fibrillation and cardiac arrest’ on the basis that ‘medical science does not say in this individual case that there is no possible connection between the events and the death’ and a ‘commonsense evaluation of the causal chain’.[45]366. As I have said, in May, the plurality accepted that in determining whether there was an ‘injury’, the evidence may, ‘where appropriate ... take into account common-sense inferences drawn from a sequence of events’.[46] Gageler J in his separate reasons, also accepted that, as the Full Court of the Federal Court held, there were cases where a conclusion of ‘injury’ could be reached ‘on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion’ and that ‘[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case’.[47]367. However, as I have said, that did not avail the claimant in May, where ‘[c]ommon experience provided no guidance, and the medical evidence was inconclusive.’[48] The temporal coincidence between the onset of Mr May’s dizziness/vertigo and the vaccinations he had received was not sufficient, absent medical evidence, to establish that he had suffered ‘an injury’ in the sense required by the definition.” (emphasis added)[42] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, [82]–[83], per Beazley JA (Giles and Tobias JJA agreeing).[43] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, [2].[44] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, [71], per Heydon JA.[45] Christensen [269]–[270]. [46] May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 233 FCR 397, [62] (May).[47] May, [80] (footnotes omitted).[48] May, [82].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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