| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NADARAJAMUTHALI -v- COMMUNITY ENTERPRISES AUSTRALIA LIMITED [2013] WADC 192 CORAM : SCOTT DCJ HEARD : 21 AUGUST 2013 DELIVERED : 5 DECEMBER 2013 FILE NO/S : APP 35 of 2013 BETWEEN : KULATHAYENDRAN NADARAJAMUTHALI Appellant
AND
COMMUNITY ENTERPRISES AUSTRALIA LIMITED
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA) Coram : ARBITRATOR NUNN File No : A 1288 of 2011 Catchwords: Workers Compensation and Injury Management Act 1981 - Appeal against arbitrator's decision to dismiss appellant's claim - Claim for compensation for
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total incapacity - Arbitrator's refusal to allow appellant to adduce doctor's late report - Failure by arbitrator to make finding as to any period of total incapacity - Remission to arbitrator to make a finding Legislation: Workers' Compensation and Injury Management Act 1981 s 247(7) Result: Leave to appeal granted
Appeal allowed
Representation: Counsel:
Appellant : Mr J R Brooksby
Respondent : Mr C C Rimmer
Solicitors:
Appellant : Maurice Blackburn Lawyers
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Arnotts Snack Products v Yacob (1985) 155 CLR 171
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ball v William Hunt and Sons Ltd (1912) AC 496
Hood v Royal Perth Hospital (Unreported, WASC, Library No 970658, 5 December 1997)
McKay v Commission of Main Roads [2013] WASCA 135
McNair v Press Offshore Ltd (1997) 17 WAR 191, 198.
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Ross v Corruption and Crime Commission [2008] WACC-C15-2008
Specific Industrial Co Ltd v Jakovljevic [2008] WASCA 60
Thompson v Armstrong and Royce Pty Ltd (1950) 81 CLR 585
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Background 1 This is an application by the appellant for leave to appeal against the order made by Arbitrator Nunn on 20 March 2013 dismissing the appellant's claim for compensation consequent upon injuries sustained by him on 11 December 2011 during his employment with the respondent. 2 The appellant was employed by the respondent as a community development officer based in the Mulan Community in the Kimberleys. He had the use of a four wheel drive vehicle for work purposes. 3 On 11 December 2011 in company with James Brown and Mr Brown's son the appellant left Mulan in the vehicle to travel to Alice Springs. 4 At some stage during the journey, whilst Mr Brown was driving the vehicle, it collided with a road train resulting in the appellant being seriously injured. 5 The appellant claimed that his injuries were sustained in the course of his employment. The respondent denied that claim contending that the appellant's actions were contrary to policies and procedures in place in his employment. 6 Conciliation proceedings were undertaken by the appellant in which the appellant sought: 7 No agreement was reached in the conciliation. 8 The appellant filed an application for arbitration in which he sought a determination of liability in accordance with s 58 of the Workers' Compensation and Injury Management Act 1981 (Act) and specifically: (Page 4)
9 In the Reply the respondent did not challenge the contention that the appellant sustained personal injury but disputed that the injury arose out of or in the course of his employment or whilst he was acting under the respondent's instructions such that the appellant had sustained a compensable 'injury' defined in s 5(1) of the Act. 10 In the Reply the respondent did not admit or dispute the appellant's incapacity for work. 11 The arbitration was set down for hearing for 28 February 2013. 12 In the respondent's outline of submissions filed on 11 February 2013 the solicitors for the respondent raised the question of the appellant's incapacity to work as follows: 20. The applicant has submitted that he is totally incapacitated for his pre-accident duties since 11 December 2011 … 21. There is no evidence that the applicant is totally incapacitated for work from 26 October 2012. 22. The applicant has only provided progress medical certificates since 8 May 2012 [sic in] which the doctors do not provide the basis for the certification of unfitness. 23. On 12 May 2012 Dr Amanda Sillcock opined that the applicant would be fit for his pre-accident duties in the next 6 – 12 months. 24. For the applicant to be entitled to weekly compensation payments based on total incapacity when he is certified partially incapacitated, he needs to provide evidence that there is no suitable employment available within the meaning of clause 7(2) of the Act: Mitchell v Canal Rocks Beach Resort [2002] WASCA 331. The applicant has not produced any or any adequate evidence that there is no suitable employment available within the meaning of clause 7(2) of the Act. 25. For the applicant to be entitled to partial payments, the applicant has to establish that what he is able to earn in some suitable employment is less than the amount payable for total incapacity: Mitchell v Canal Rocks Beach Resort. The applicant has not provided any evidence that what he is able to earn in some suitable employment is less than the amount payable for total incapacity. (Page 5)
Arbitration Hearing 13 During the hearing (and in this appeal) counsel for the appellant confirmed that the appellant did not pursue a claim for weekly payments based upon partial incapacity. His claim was based on total incapacity only. 14 As to incapacity the appellant relied on various medical certificates and reports from Dr Ansari and Dr Sillcock. 15 The medical certificates comprised: (a) A medical certificate from Dr Meredith King dated 20 December 2011 in which she confirmed that following his accident the appellant was in ICU for five days and thereafter underwent physiotherapy on the ward for his chest and right leg, and that he was totally unfit for work from 11 December 2011 to 19 January 2012. (b) Certificates of capacity from Dr Ansari being certificates provided pursuant to the Accident Compensation Act 1985 (Vic) which were not in the form prescribed pursuant to reg 10 of the Act (Form 6) by reason (inter alia) that there was no prescribed declaration by the medical practitioner. Each of the certificates was signed by Dr Ansari and each detailed a date of examination, date of issue and dates between which the appellant was certified unfit 'for any duties'. Those certificates each recited: • Description of injury/disease Chest pain with fractured ribs and fractured sternum, back ache, stress • Diagnosis Fractured sternum, fractured sixth, seventh, eighth right ribs, # R ant, iliac spiner spine. • Treatment/medication • Analgesics, hospitalisation at Alice Springs Hospital, ICU. 16 The dates of examination, dates of issue and certification of unfitness were in the following terms:
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Date of examination | Date of issue | Unfit for any duties | | 24/02/2012 | 24/02/2012 | From 19/01/2012 to 9/2/2012 | | 24/02/2012 | 24/02/2012 | From 9/02/2012 to 24/02/2012 | | 24/02/2012 | 24/02/2012 | From Friday 24/02/2012 to Friday 02/03/2012 | | 02/03/2012 | 02/03/2012 | From Friday 02/03/2012 to Friday 16/03/2012 | | 15/03/2012 | 15/03/2012 | From Friday 16/03/2012 to 30/03/2012 | | 29/03/2012 | 29/03/2012 | From 31/03/2012 to 14/04/2012 | | 10/05/2012 | 10/05/2012 | From 12/05/2012 to 26/05/2012 | | 24/05/2012 | 24/05/2012 | From 26/05/2012 to 09/06/2012 | | 08/06/2012 | 08/06/2012 | From 09/06/2012 to 23/06/2012 | | 21/06/2012 | 21/06/2012 | From 23/06/2012 to 07/07/2012 | | 05/07/2012 | 05/07/2012 | From 07/07/2012 to 21/07/2012 | | 03/08/2012 | 03/08/2012 | From 04/08/2012 to 18/08/2012 | | 17/08/2012 | 17/08/2012 | From 18/08/2012 to 01/09/2012 | | 31/08/2012 | 31/08/2012 | From 01/09/2012 to 15/09/2012 | | 12/10/2012 | 12/10/2012 | From 13/10/2012 to 27/10/2012 | | 24/10/2012 | 24/10/2012 | From 27/10/2012 to 10/11/2012 | | 09/11/2012 | 09/11/2012 | From 10/11/2012 to 24/11/2012 | | 23/11/2012 | 23/11/2012 | From 24/11/2012 to 08/12/2012 | | 04/12/2012 | 04/12/2012 | From 08/12/2012 to 05/01/2013 | (Page 7)
17 The medical reports comprised: (a) A report from Dr Sillcock dated 8 May 2012. Dr Sillcock is a consultant occupational physician. She said in that report: • She had been told by the appellant that he had a diploma in IT and a Bachelor of Science. He also held a Masters in computer science and a Certificate IV in training and assessment and he was a registered builder. She reported having been told by him that he worked as a teacher in Sri Lanka and then worked in the Sunshine office of Centrelink for two or three years while he was doing his Masters in computer science and building. He then worked as a registered builder in Melbourne for eight years but lost his business. It was then that he commenced working for the respondent. • From the records he was in intensive care in Alice Springs hospital for five days followed by a further five days in hospital. • The CT scan of the appellant's chest conducted on 29 March 2012 showed that the rib fractures were healing. • She recommended that the appellant be evaluated by a neuropsychiatrist or neuropsychologist as she believed that there was some cognitive disability present. • She did not believe that the appellant would currently have the capacity to undertake his role with the respondent if it was available. She did not believe that he would be fit for that role for another 6 - 12 months. • She believed that it was far too soon to say whether the appellant would ever have the capacity to undertake his full pre-injury role as a community development officer however she believed that that was likely but it was not likely to be for another 6 – 12 months. She did not advance an opinion as to the appellant's fitness to work in any other vocation. (b) The report of Dr Ansari dated 13 August 2012 in which he said: • 'I first saw this patient on 20 February 2012'. (Page 8)
• As to the appellant's work capacity 'this patient is certainly not fit for any work and if his condition remains the same, this is likely to continue for the foreseeable future'. • As to his long-term work capacity and level of impairment that he had read Dr Amanda Sillcock's report and agreed with her 'wholeheartedly that one cannot envisage the long term outlook at this stage'. He said that the appellant seemed to have developed quite a severe problem from the severe injuries he sustained and may certainly never return to his pre-injury duties however that could only be considered after at least 12 months or more. • 'Considering the history provided by the patient, together with the clinical and imaging findings as well as hospital reports, I am of the view that this patient's accident on 11 December 2011 caused the patient significant problems and in fact has incapacitated him from doing any work'. 18 He did not make reference to the appellant's work and qualification history or his fitness to work in any particular capacity. 19 Prior to the commencement of the arbitration, the solicitors for the appellant filed an interlocutory application seeking leave to have a report from Dr Ansari dated 19 February 2013 admitted into evidence. By that report, Dr Ansari: • Said that the report was an update of his previous report dated 13 August 2012. • Did not specify any date upon which there was a further consultation with the appellant after his report of 13 August 2012. However to that end the respondent does not take issue with the medical certificates from Dr Ansari in which he confirms the dates upon which he examined the appellant. • Said that the appellant was currently receiving treatment for his pain in the form of analgesics and non-steroidal anti-inflammatory medication as well as diazepam and regular psychological counselling for his anxiety. • Said that 'while the patient is very keen to return to the workforce, he is still unfit for any duties at this stage'. (Page 9)
Again, in this report, Dr Ansari made no reference to the appellant's history or his fitness to work in any particular capacity. 20 At the hearing the arbitrator refused to admit the further report of Dr Ansari into evidence on the grounds that it was sought to be adduced very late in the proceedings the hearing of which had already been adjourned on a number of occasions, and on the basis that counsel for the appellant conceded that the report 'did not take the matter much further' but confirmed the appellant's incapacity and brought matters up to date on 19 February 2013. 21 In the event the arbitrator dismissed the appellant's application for weekly payments for total incapacity, handing down written Reasons on 20 March 2013.
Appeal and grounds 22 Section 247 of the Act provides: 247. Appeal against arbitrator's decision made under Part XI (1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision. (2) Subject to subsection (3), the District Court is not to grant leave to appeal unless — (a) in the case of an appeal in which an amount of compensation is at issue — (i) a question of law is involved and the amount at issue in the appeal is both — or (ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie; (Page 10)
(b) in any other case, a question of law is involved. … (5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court. … (7) On hearing an appeal made under this section, the District Court may — (a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and (b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit. 23 In the Appeal Notice the appellant says that the question of law is: If a worker seeks compensation on the basis of total incapacity from the date of the accident and continuing, but in the ultimate decision the arbitrator is not satisfied as to the applicant's total incapacity as at the date of the hearing, is he obliged to dismiss the application notwithstanding that there is no dispute as to total incapacity for at least some period or periods prior to that date. 24 The appellant says that the amount in issue in the appeal comprises weekly payments and statutory allowances as and from 11 December 2011 which exceed $100,000 (s 297(a)) and a question of law is involved (s 247(2)(b)). 25 The grounds of appeal detailed in the Appeal Notice are: By his decision the Arbitrator found (para 9) that: 1. 'Mr Nada suffered multiple injuries including a fractured sternum, fractured ribs, a restrosternal haematoma and a fracture right iliac (hip) bone which appears to have involved some protrusion through the muscles of his hip area. There is no contest that Mr Nada was seriously injured.' 2. Found (by inference) that the Appellant was unfit on the basis of Dr Sillcock's report until at least 8th May, 2012 (paras 82b and 83). (Page 11)
3. The Arbitrator dismissed the Application because he was not satisfied: 'that he remains totally incapacitated'. In the premises the Arbitrator erred at law in finding that because the Application was one for continuing payments he was unable to award any payments at all. 4. Found that the certificates of incapacity provided by the Appellant thereafter were an inadequate certification of incapacity but failed to have regard or to inform himself of the medical report of Dr Ansari dated 19th February 2013 on the grounds that it 'added nothing' and 'that it adds little to proceedings at this late stage'. The Arbitrator erred in law in not allowing the admission of Dr Ansari's report of 19 February 2013, and gave insufficient reasons in this regard in his published decision.
Particulars
Prior to commencement of the Hearing the Arbitrator had refused to consider the medial report from Dr Ansari on the grounds that 'it added nothing' but then made the following observation about the medical evidence: 'The report is dated 13 August 2012. As at the time of hearing the report was 7 months old. Dr Ansari's clinical findings however appear to be based on a consultation Mr Nada had with him in February 2012, a year before the hearing. Read together with the progress medical certificates issued by Dr Ansari it is apparent that Dr Ansari must have further seen Mr Nada beyond the date of the report. However, no further clinical examination is reported. The report is not current and, by Dr Ansari's own admission, expresses no certain view as to Mr Nada's medical future.' 5. Failed to have regard to the Respondent's Reply dated 28th June, 2012 which did not put in issue at all the Appellant's incapacity. 6. Failed to have regard to the Respondent's Submissions dated 8th February, 2013 which states: 'there is no evidence that the Applicant is totally incapacitated for work from 26th October, 2012.' By inference therefore, the Respondent was not contesting incapacity prior to that date. If the Arbitrator had regard to the totality of the medical evidence as he was required to pursuant to Section 188 of the Act, he would have found that the Appellant was and had been totally incapacitated for work for at least periods since 11th December, 2011 and at least awarded some payments of compensation accordingly. The Arbitrator erred in law by failing to do so and dismissing the Appellant's Application. (Page 12)
26 During the course of argument counsel for the respondent accepted that the answer to the specific question of law posed in the appeal notice was clearly 'no'. That concession is obviously correct.
Grounds 5 and 6 – whether incapacity fairly raised as an issue. 27 Counsel for the appellant submitted that the question of whether the appellant suffered total incapacity for any period after being injured on 11 December 2011 was not raised by the respondent during the conciliation, in its Reply or, in any specific way in its submissions filed prior to the arbitration. 28 Counsel for the appellant said that whilst proceedings under the Act did not require pleadings, it is nonetheless the case that documents filed by the parties define the issues. 29 To that end counsel contended that in the respondent's written submissions, which were earlier recited, reference to the fact that there was no evidence that the applicant was totally incapacitated for work from 26 October 2012 (par 21) and that the appellant had only provided progress medical certificates since 8 May 2012 in which the doctors did not provide the basis for the certification of unfitness (par 22) had led the appellant and his advisers to believe that the respondent accepted that total incapacity was not in issue up to at least 26 October 2012. 30 As a consequence it would be unfair, counsel submitted, for the respondent to have been able to change its position during the course of the arbitration. 31 Whilst it is true that the principal issue raised by the respondent in the Reply and written submissions leading up to the arbitration hearing was whether the injuries sustained by the appellant occurred in the course of his employment with the respondent, in my view paragraphs 21 and 22 of its submissions, as reasonably read, do no more than point to the state of the medical evidence. In addition paragraphs 23 – 25 raise the issue of partial incapacity in respect to which the respondent asserts that there was no evidence as to alternative suitable employment. 32 At that stage it appears that it was not known by the respondent that the appellant would not maintain a claim based on partial incapacity. Nonetheless, these submissions ought to have placed the appellant on notice that the respondent did not concede incapacity be it total or partial and that the appellant would be required to discharge the burden of proof on him. (Page 13)
33 At the commencement of the arbitration hearing the appellant's counsel informed the arbitrator that the appellant was not maintaining a claim for partial incapacity and that it was 'total incapacity or nothing'. At that point the appellant's position was then made clear. 34 Counsel for the respondent then submitted that the respondent's position was that there was no evidence upon which the arbitrator could find that the appellant had proved that he was totally incapacitated for any period. He submitted that there was no evidence to the effect that he was unfit to work at all. 35 In the event that there was any prejudice to the appellant there was then an opportunity for the appellant to raise the matter at that time and seek an adjournment in order to lead further evidence if he proposed to do so. No such application was made. In my view there is no merit in the assertion that the arbitration was attended by unfairness. 36 During the hearing it was accepted by counsel for both parties that the questions of law which really fell to be determined on this appeal were: Legal principles 37 The arbitrator is not bound by the rules of evidence (s 188(2)(a)) and is entitled to inform himself on any matter as he sees fit (s 188(3)) and is required to act according to equity, good conscience and the substantial merits of the case (s 188(2)(b)). 38 Nothing in the Act detracts from the general duty of arbitrators to act judicially: McNair v Press Offshore Ltd (1997) 17 WAR 191, 198. 39 An arbitrator is required to consider the rules of evidence and apply them in accordance with the merits and issues in the case. 40 An appeal 'involving a question of law' extends to questions of mixed fact and law. So, if some question of law is involved, the whole of the decision under appeal is open to review and not just the question of law: Specific Industrial Co Ltd v Jakovljevic [2008] WASCA 60. (Page 14)
41 As to whether a question is one of law or fact, Wheeler J in Hood v Royal Perth Hospital (Unreported, WASC, Library No 970658, 5 December 1997) referred to the decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 – 356 (Mason CJ) and said: The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. Similarly, therefore, the making of a finding that there is no evidence of an ultimate fact when there is, equally involves a question of law. 42 The appellant bore the onus of proving that for any period he had a total incapacity for work which resulted from the injury. In this case the question for the arbitrator was whether the appellant had discharged that onus of proof. 43 It is the person who asserts who proves: Mitchell v Canal Rocks Beach Resort [2002] WASCA 331, 80.
Admission into evidence of Dr Ansari's report of 19 February 2013 44 In support of the application to admit that report into evidence, counsel for the appellant submitted that it was essentially in support of the medical certificates which had been issued since mid-2011 [sic 2012] by Dr Ansari. Although he said that it did not take the matter any further, he said it essentially substantiated what had gone on before and confirmed the incapacity and problems suffered by the appellant up to 19 February 2013. 45 Indeed, in his Reasons the arbitrator observed that both Dr Ansari's report of 13 August 2012 and Dr Sillcock's report of 8 May 2012 significantly pre-dated the hearing and were equivocal in that the authors considered that it was too early to tell what the extent of the appellant's incapacity would be but that he would likely recover at some stage in the future some 6 – 12 months away (par 101). So one would have thought that an updated report would have relevance. 46 In my view the arbitrator erred in refusing to admit this report into evidence albeit that it was sought to be admitted shortly before the hearing. My reasons are as follows: (Page 15)
(a) the primary matter which appeared to have been dealt with at conciliation was whether the appellant suffered injury as a result of his employment. The question of his incapacity appears not to have been dealt with and the certificate of outcome confirms that to be the case; (b) in the respondent's Reply in answer to the application for arbitration, the respondent positively articulated the issues as being whether the injury arose out of or in the course of the appellant's employment, or whilst the appellant was acting under the employer's instruction. This is so even though the respondent did not make any admission that the appellant had a total incapacity; (c) it was not until the respondent filed its written outline of submissions that the matter of incapacity was specifically put in issue; (d) the evidence of Dr Ansari was to be adduced in the arbitration by the admission into evidence of his report of 13 August 2012 and the certificates of capacity which he had progressively signed. In his report of 19 February 2013 Dr Ansari updated the appellant's fitness for 'duties'. True it is that he made no reference in that report to the date upon which he had consulted with or examined the appellant however from the last certificate of capacity dated 4 December 2012, there was reference to a reported examination on that day in respect to which counsel for the respondent said that no issue would be taken; (e) counsel for the respondent did not submit that there was any prejudice by the report being admitted into evidence; (f) an updated report was of relevance. It was for the arbitrator to determine the weight he attributed to it.
Whether the arbitrator considered and made a finding whether total incapacity for any period 47 Counsel for the appellant submitted in this appeal that although the arbitrator in his Reasons articulated the nature of the relief sought by the appellant (par 1), he did not then consider and/or make any finding as to whether he was satisfied that the appellant was totally incapacitated for any period from the date of the injury. (Page 16)
48 Rather, from his Reasons, counsel says, it is clear that the arbitrator treated the appellant's claim on the basis that if the appellant did not satisfy him that he was totally incapacitated for the entire period from the date of his accident to the hearing then his claim would be totally unsuccessful. 49 Counsel for the appellant submitted that by posing the wrong question for himself the arbitrator self-imposed a constraint resulting in him placing no or inadequate weight on evidence which did not deal with the period up to and including the date of the hearing and that that tainted his consideration of the evidence generally. 50 In his Reasons: (a) The arbitrator recited correctly the orders for compensation sought by the appellant as: 'Past and ongoing statutory allowances. Full particulars of which are to be provided prior to the date of an arbitration hearing and past weekly payments commencing from the first date of incapacity being 11 December 2011 to the date of filing of this application, and into the future where there is evidence of incapacity'. (par 1) (b) In referring to the Alice Springs hospital notes the arbitrator said that the notes and records confirmed the injuries suffered but said they 'otherwise do not assist in determining any ongoing incapacity from the date of his release from hospital. Whilst I have regard [sic to] I afford them little weight'. (par 69) (c) The arbitrator in referring to Dr Ansari's report of 13 August 2012 said: It is likely that Dr Ansari had a fair idea of the history of the accident given that he appears to have been Mr Nada's treating GP. Although a more detailed history would permit safer conclusions to be drawn in respect of the weight to be afforded Dr Ansari's views, I consider that the opinions expressed are based on the facts of the injury as I have found them to be: Pollock v Wellington (1996) 15 WAR 1 [77]. (par 71) and The report is dated 13 August 2012. As at the time of hearing the report was seven months old. Dr Ansari's clinical findings however appear to be based on a consultation the appellant had with him in February 2012, a year before the hearing. Read together with the progress medical certificates issues by Dr Ansari, it is apparent that Dr Ansari must have (Page 17)
further seen Mr Nada beyond the date of the report. However, no further clinical examination is reported. The report is not current and, by Dr Ansari's own admission, expresses no certain view as to Mr Nada's medical future. (par 72)
He then says: In respect of Mr Nada's work capacity, Dr Ansari observes that Mr Nada was not fit for work and that 'if his condition remains the same, this is likely to continue for the foreseeable future'. He concurs with the view expressed by Dr Sillcock … that 'one cannot envisage the long-term outlook at this stage'. (par 74) (d) As to the progress medical certificates of which Dr Ansari was the author, the arbitrator commented that he was troubled by the identical nature of those certificates which appeared to be produced from a computer format without alteration. He said that each of the forms described the initial injury and appeared to describe the initial treatment and the only description of any ongoing treatment appeared to be the application of analgesics which was at odds with the contents of Dr Ansari's report of 13 August 2012 in which he made reference to anti-inflammatory drugs and antidepressants, neither of which was mentioned in any of those certificates of capacity. (par 77) (e) The arbitrator said that he was unable to afford the certificates significant weight, especially when they were read in light of the variation between the treatments noted by Dr Ansari in the certificates and his report. (f) The arbitrator referred to Dr Sillcock's report. He said that she examined the appellant in April 2012 and provided a report dated 8 May 2012 in which she detailed the reports and records she considered and a history taken from the appellant including his work and educational endeavours. He said she reported that he appeared depressed but she did not undertake any further examination to confirm that condition. She recommended that he be evaluated by a neuropsychiatrist or neuropsychologist as she believed that there was some cognitive disability present. She opined that she did not believe that he would currently have the capacity to undertake his role at the respondent if it was available and did not believe that he would be fit to do so for another 6 – 12 months. (Page 18)
She said that it was far too soon to say whether he would ever have the capacity to undertake his full pre-injury role but she believed it was likely that he would but likely not for another 6 - 12 months. I note that Dr Sillcock in her report made no observations as to the appellant's capacity to undertake any work for which he might otherwise have been suited, having regard to the history related to her by him. (g) Under the subheading 'Determination as to total incapacity' the arbitrator said that it remained for the appellant to prove that since the date of the injury 'he has been and remains totally incapacitated for employment. This is the case he advances'. (par 84) (h) The arbitrator said that it was the inability to derive an income at all that gives rise to total incapacity (par 89) and cited McTiernan J in Thompson v Armstrong and Royce Pty Ltd (1950) 81 CLR 585 citing with approval, Loreburn J in Ball v William Hunt and Sons Ltd (1912) AC 496 who said: In the ordinary unpopular meaning which we are to attach to the language of the statute, I think there is incapacity for work when a man has a physical defect which makes his labour unsalable in any market reasonably accessible to him … (par 90) (i) The arbitrator said it was not simply the occupation that the injured person was engaged in at the time of the injury that was relevant to an assessment of total incapacity, but other occupations that may be reasonably open to the injured person. (par 91) After citing Arnotts Snack Products v Yacob (1985) 155 CLR 171 and Ross v Corruption and Crime Commission [2008] WACC-C15-2008 the arbitrator said at (par 97):
The labour market a person might reasonably be expected to work in depends on the facts of each case and the skills and experience of each person. However, as the onus to prove the totality of the incapacity lies with the applicant, the applicant must show that they are unfit for jobs for utilising skills they may have or that there are no jobs at all for which they are fit (for). How comprehensive this evidence must be will again, depend on the facts of the case but it is anticipated that some evidence of this nature will be led in support of an application of the total incapacity. This might not require an exposition of every job a person can (or cannot) do by virtue of the combination of the person's injury and skill set or what
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the duties specifically require by any particular job. However, unless the matter is on its facts, plainly obvious, some evidence must be advanced on this front.
51 That is in my view, a correct analysis of the evidentiary burden cast on an applicant who asserts total incapacity. (j) The arbitrator then observed (par 98) that expert medical opinion expressed in broad and general terms as to a person's capacity for work will be of little weight on its own because a bare assertion does not assist in resolving the question of fact. That is, can a person work at all or is the person able to work in some fashion. He observed that an expression of incapacity must be based on the proven facts relating to the injury and what is involved in the person's occupation, or those occupations reasonably open to the person. In this regard he cited Pollock v Wellington. (k) At par 100 the arbitrator said that having regard to the entirety of the appellant's medical evidence he was not persuaded that it established the claim for total incapacity advanced by him. (l) He then observed that both medical reports significantly predated the hearing and that both were equivocal in that the authors considered that it was too early to tell what the extent of the appellant's incapacity would be but that he would likely recover at some stage in the future some 6 - 12 months away. (par 101) (m) He then said 'the only link to this is the progress medical certificates of Dr Ansari which, as expressed above, in light of the equivocation in Dr Ansari's report cannot in my view be afforded any significant weight'. (n) The arbitrator then said (par 103): In my view the highest the medical evidence rises is to establish that at the time the reports were produced, Mr Nada was suffering some physical incapacity. Beyond the bare assertion of the assessing doctors that he is not medically fit for work there is no explanation as to how or why this is so, nor is there any connection revealed between this physical incapacity and Mr Nada's ability to engage in his pre-injury (or any other) employment. (o) The arbitrator said: … there is no evidence of how his injuries may now mean he could not engage in employment of some kind. In relation as to what that (Page 20)
employment might be, I accept that Mr Nada is not without a range of transferrable skills and could possibly be vocationally qualified to do office work or administrative tasks. I infer from his tertiary qualifications that he has some skill with computers. He has worked in customer service roles previously. (par 105)
And then: Unless it is obvious that the appellant could not work in any other employment, which in my view it was not, it is not sufficient for the Applicant to only rely on evidence of his unfitness to perform his pre-injury role with CEA, whatever those duties might entail. Additionally, it is not sufficient to rely on a medical practitioner's conclusion as to a compound legal concept of capacity, which once unpacked means being unable to compete in the 'open market', in the absence of any discussion as to what is required to enable the expert to arrive at this conclusion. In my view, this is largely the effect of the medical evidence. Furthermore, as observed, the medical evidence is in my view stale and equivocal in that both doctors consider it is too early to tell whether Mr Nada's then capacity will be ongoing. (par 106) (p) The arbitrator then said: In my view, despite leading some medical evidence, the applicant has really asserted that he is incapacitated and little more. I do not consider that the applicant has led sufficient evidence to enable me to make any finding as to his current (in)capacity. (par 110) (my emphasis) (q) Finally, the arbitrator said: However, Mr Nada has failed to satisfy me that he remains totally incapacitated. Although I can infer from his work history and qualifications what employment he may be vocationally capable of doing, the medical evidence led does not sufficiently establish how or why his injuries physically restrict [sic him] from doing work that might utilise his skills and experience. (par 112) 52 He then concluded: Accordingly, in the terms of the case advanced by the Applicant I am unable to find that Mr Nada is totally incapacitated. I dismiss the application (par 113) (my underlining). (Page 21)
Conclusion 53 The arbitrator articulated the appropriate principles which governed the consideration of an applicant's claim for compensation based on total incapacity. 54 The appellant bore the burden of proving on balance of probabilities that he was totally incapacitated for some period after the date upon which he was injured. 55 This means that he must show that he was unfit for jobs utilising skills he may have or that there are no jobs for which he is suited. The extent and nature of the evidence which is required to discharge that onus depends on a case by case basis. 56 In my view, although the arbitrator correctly recited at the commencement of his Reasons the relief sought by the appellant on his application, on considering his Reasons as a whole, he did not make a specific finding as to whether for any period as and from 11 December 2011 the appellant was totally incapacitated and if so, what period. 57 In his Reasons, the arbitrator did make clear that he was not satisfied on the evidence that it established more than the appellant was suffering from some physical incapacity but did not satisfy him that he suffered from total incapacity (pars 84 and 103). 58 However the arbitrator does not make a specific finding that there was no period as and from 11 December 2011 during which he was satisfied that the appellant was totally incapacitated. 59 I am fortified in that view in that I would have thought it obvious, for example, that in the 10 days or so during which the appellant was in hospital he must have been totally incapacitated and yet no finding was made with respect to that period. 60 There are a number of references in his Reasons which, on a reasonable construction, demonstrate that the arbitrator's focus appeared to be on the current capacity (incapacity) of the appellant culminating in paragraphs 110, 112 and 113, which I have recited. To that end I have been cautious not to focus only on certain paragraphs of the arbitrator's Reasons rather than considering his Reasons as a whole. (Page 22)
61 I am satisfied that the arbitrator was in error by not making a finding. 62 I do not accept the submission by the appellant's counsel that the arbitrator fettered his consideration of the evidence as a whole by failing to make such a finding. 63 It was for the arbitrator to analyse the evidence and consider its weight in determining whether the appellant had discharged his onus of proof. 64 There was nothing evident from the arbitrator's Reasons which would persuade me that he imposed any limitation on his consideration of that evidence. 65 If I was to allow the appeal counsel for the parties expressed a wish for me to make a determination as to whether on the evidence adduced at the arbitration including if I so found, the further report of Dr Ansari, the appellant has proved total incapacity, and if so, for what period. 66 Primarily that preference was occasioned by understandable economic practicality. 67 I have given that matter careful consideration however in my view that would not be a proper course. 68 I have identified two discrete areas in which I have found the arbitrator to have been in error. It is appropriate in all the circumstances for the matter to be remitted to the arbitrator on the basis that he make a finding on the evidence, including the report of Dr Ansari dated 19 February 2013, as to whether he is satisfied that the appellant has made out his claim for total incapacity for any period and if so, for what period: see McKay v Commission of Main Roads [2013] WASCA 135, Murphy JA (Martin CJ and Buss JA agreeing) 353 - 357, 362. 69 The orders I make are: (a) There be leave to appeal. (b) The appeal be allowed. (c) The matter be remitted to the arbitrator to make a finding, in accordance with this judgment, as to whether the appellant was totally incapacitated for any period as and from 11 December 2011 and, if so, for what period and to make any consequential orders relating to that finding. (Page 23)
70 I will hear the parties as to any further orders and costs.
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