Nader v A O Design Pty Ltd
[2020] NSWWCCPD 19
•1 April 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Nader v A O Design Pty Ltd [2020] NSWWCCPD 19 |
| APPELLANT: | Neshan Nader |
| RESPONDENT: | A O Design Pty Ltd |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-3424/19 |
| ARBITRATOR: | Ms R Homan |
| DATE OF ARBITRATOR’S DECISION: | 14 October 2019 |
| DATE OF APPEAL DECISION: | 1 April 2020 |
| SUBJECT MATTER OF DECISION: | Alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, credibility and contemporaneous documents: Onassis v Vergottis (1968) 2 Lloyds Reports 403, proof of injury simpliciter, section 289A of the Workplace Injury Management and Workers Compensation Act 1998 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Ms E Grotte, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr A Combe, counsel | |
| Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The identity of the respondent is amended by consent to ‘A O Design Pty Ltd’. 2. The Arbitrator’s decision dated 14 October 2019 is revoked. 3. The matter is remitted to a different Arbitrator for re-determination. |
INTRODUCTION AND BACKGROUND
Neshan Nader (the appellant) was employed by A O Design Pty Ltd (the respondent) as a fitter and joiner, from about 2001. He suffered injury (the occurrence of the incident is not disputed) on 13 June 2012. He was attempting to lift a cabinet weighing about 20 kilograms when he slipped. The cabinet fell against his left hand which was lacerated. He attended Liverpool Hospital where the wound was sutured. He was off work until about August 2012, when he resumed normal duties. The respondent terminated the appellant’s employment effective 26 April 2013. He has not worked since. It is common ground that the appellant had some back symptoms prior to this incident.[1] He alleges that he injured the lumbar and thoracic regions of his back in the incident. The appellant underwent surgery involving decompression at L4/5 at the hands of Dr van Gelder, a neurosurgeon, on 16 May 2017.[2]
[1] Appellant’s statement, 11/7/17, Application to Resolve a Dispute (ARD), pp 1–2.
[2] Dr van Gelder’s report 19/5/16, ARD, p 105.
The appellant was seen by Dr New, orthopaedic surgeon, at the request of his solicitors. The doctor, in a report dated 14 February 2017, assessed the appellant’s whole person impairment at 21 per cent, in respect of the thoracic spine, the lumbar spine and scarring.[3] He was also assessed by Dr Lai, a surgeon, who reported on diagnosed left ulnar nerve compression resulting from the same incident, and assessed 4 per cent whole person impairment in respect of the left upper extremity and scarring.[4] A claim for lump sum compensation was made in respect of 24 per cent permanent impairment (the outcome when the two figures are ‘combined’).[5] That claim was disputed in a s 74 notice dated 7 June 2017.[6] The fundamental issue was whether the appellant had injured his back in the incident. The current proceedings, for lump sum compensation, were commenced by an Application to Resolve a Dispute (ARD) dated 10 July 2019.
[3] ARD, pp 17–19.
[4] ARD, pp 21–34.
[5] ARD, pp 4–5.
[6] Reply, pp 21–24.
The arbitral proceedings were listed for hearing on 9 September 2019. Mr Gaitanis appeared for the appellant and Mr Combe appeared for the respondent. The appellant was given leave, over objection, to rely on a late further report of Dr New dated 13 August 2019. A supplementary report of Dr Machart dated 16 April 2019 was tendered by the respondent, by consent.[7] The appellant made an application to rely, in argument, on an issue estoppel said to result from consent orders between the parties dated 23 October 2018, in earlier proceedings, matter no. 4968/18.[8] This was dealt with as an application pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[9] The Arbitrator delivered ex tempore reasons in which she declined the appellant’s application.[10]
[7] Transcript of proceedings 9/9/19 (T) 2.25–7.9.
[8] ARD, p 10.
[9] T 7.11–16.5.
[10] T16.7–19.7.
The matter proceeded on the papers. Both counsel addressed and the Arbitrator reserved her decision. The Commission issued a Certificate of Determination dated 14 October 2019, accompanied by 17 pages of reasons.[11] The Arbitrator concluded that the appellant had not discharged his onus of establishing that he suffered injury to his lumbar or thoracic spine pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) in the incident on 13 June 2012. The whole person impairment allegedly resulting from the left hand injury only (which was not disputed) was insufficient to entitle the appellant to pursue a claim for permanent impairment compensation (s 66(1) of the 1987 Act). The Arbitrator entered an award for the respondent. The appellant challenges that outcome in this appeal.
[11] Nader v A O Family Trust [2019] NSWWCC 331 (Reasons).
The respondent was initially nominated in the ARD as ‘A O Design Pty Ltd’. That was amended, in orders dated 8 August 2019 following a teleconference, to be ‘A O Family Trust’. The Commission enquired of the parties, in an email dated 12 March 2020, whether this was a legal entity, and if not, what the correct identity of the respondent was. The respondent’s solicitors advised that the correct legal identity of the respondent was ‘A O Design Pty Ltd’, and the appellant’s solicitors accepted this. With the consent of the parties the respondent’s identity is amended accordingly.
ON THE PAPERS
Section 354(6) of 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.”
The appellant submits that “a hearing may be of assistance … should any questions arise out of the written submissions”. The submission does not indicate in what way a hearing would assist, what questions may arise or what could be expanded on at a hearing that is not adequately covered in written submissions. The appellant has lodged the submissions that originally accompanied the appeal, together with additional submissions after the transcript of the arbitration hearing became available. The respondent submits that it is appropriate to deal with the appeal on the papers. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[12] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[13] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[14]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[15]
[12] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[13] (1966) 39 ALJR 505, 506.
[14] [1996] HCA 140; 140 ALR 227.
[15] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[16] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[17]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[18]
[16] [2017] NSWWCCPD 5, [67].
[17] [2001] FCA 1833, [28].
[18] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[19] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.[20]
[19] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[20] Heggie, [72].
The principles applicable to appeals pursuant to s 352 of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill. [21] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352, applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir.[22] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open” to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[23]
[21] [2020] NSWCA 54 (Hill).
[22] Hill, [17].
[23] Hill, [20].
THE ARBITRATOR’S REASONS
The Arbitrator described the issues in dispute as:
(a) whether the appellant sustained injury to his thoracic spine and lumbar spine on 13 June 2012, and
(b) the appellant’s entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.[24]
[24] Reasons, [8].
It was agreed that, if the appellant succeeded, the matter should be referred to an Approved Medical Specialist to assess the level of permanent impairment.[25]
[25] Reasons, [9].
The Arbitrator summarised the evidence in the appellant’s statement,[26] and from the appellant’s treating doctors. The appellant stated that his work involved lifting 100 cabinets per day, and that he suffered from twinges in his back from 2008. He said that on 13 June 2012, at the time of the incident, he was “immediately” in sudden pain, the same as that experienced from 2008, but “would now not go away and was much worse”.[27]
[26] Reasons, [13]–[20].
[27] Reasons, [14]–[15].
The Arbitrator summarised the evidence from the appellant’s treating doctors. The material from the general practitioner, Dr Swid, referred to x-ray evidence of “degenerative spondylitis” in the lumbosacral spine on 20 December 2006. A CT scan and x-ray report dated 1 September 2009 referred to a history of “low back pain and right-sided sciatica”, with a clinical impression of early degenerative disease and “mild, uncomplicated intervertebral disc prolapse” at L4/5. On 18 November 2011, there was reference to “back pain and stiffness and walking slowly”.[28] The certificates issued by Liverpool Hospital on 13 June 2012 (the date of injury) referred to only the left hand injury. Dr Swid’s notes on 14 June 2012, 18 June 2012, 20 June 2012 and 23 June 2012 referred only to the laceration injury to the left hand. On 25 June 2012, Dr Swid’s notes referred to “lower back and mid back symptoms secondary to sneezing”.[29]
[28] Reasons, [21]–[23].
[29] Reasons, [24]–[27].
The Arbitrator said there were multiple consultations with Dr Swid between July 2012 and May 2013 without mention of spinal symptoms. On 25 May 2013 the appellant attended Dr Swid with an MRI of the thoracic spine ordered by Dr Khaleal. The appellant was referred to a spinal surgeon. Dr van Gelder, neurosurgeon, reported a history of back injury in June 2012 when the appellant “strained his back twisting and lacerated his hand”.[30] The Arbitrator observed that the first reference to back symptoms in a WorkCover medical certificate was on 31 October 2013, when Dr Swid referred to “disc herniation at T8/9 and exacerbation of low back pain”, said to have occurred “through recurrent lifting and twisting in June 2012”.[31]
[30] Reasons, [30]–[33].
[31] Reasons, [38].
The Arbitrator referred to reports from Dr Sanki, who treated the appellant from 6 January 2014. He referred to a history that the appellant twisted his back in the incident on 13 June 2012 when his hand was lacerated.[32] Dr van Gelder reported that he had performed lumbar decompression surgery on 16 May 2016, after the worker was suffering from “unmanageable right sided sciatica resembling an L5 distribution”.[33]
[32] Reasons, [43].
[33] Reasons, [51].
The Arbitrator referred to Dr New’s reports. He took a history that the appellant, in the incident, twisted his back producing “very severe back pain and right-sided leg pain”. He recorded that the appellant was “asymptomatic and holding down a full-time job without restriction until the time of the injury”. He recorded there were “no prior problems associated with the thoracic pain”. He assessed 21 per cent whole person impairment of the lumbar spine, thoracic spine and skin.[34] The Arbitrator referred to the report of Dr Lai.[35]
[34] Reasons, [53]–[66].
[35] Reasons, [67]–[75].
The Arbitrator summarised the reports of Dr Machart, who was qualified by the respondent. The appellant told Dr Machart that he had suffered from “normal back pain since about 2009” but could work normally. The doctor noted reports of low back pain and right sided sciatica in 2011. He said there was no contemporaneous evidence of disc injury or back pain immediately after the injury on 13 June 2012. Dr Machart said that “symptoms developed to the present degree only after the [appellant] stopped working”. He said it did not appear that the incident on 13 June 2012 caused anything more than laceration to the left hand”. He did not think the lower lumbar symptoms were related to the injury on 13 June 2012.[36]
[36] Reasons, [76]–[87].
The Arbitrator summarised the submissions of both parties.
The Arbitrator quoted from Nguyen v Cosmopolitan Homes[37] regarding the need for a tribunal of fact to be persuaded of the occurrence of a fact before it can be found.[38] She said “[t]he value of contemporaneous evidence has been repeatedly endorsed by the courts”,[39] citing Watson v Foxman[40] and quoting from Onassis v Vergottis.[41] She said the “consideration of clinical notes must, however, be approached with caution”, quoting from Mason v Demasi.[42]
[37] [2008] NSWCA 246, [55].
[38] Reasons, [109].
[39] Reasons, [110].
[40] (1995) 49 NSWLR 315.
[41] (1968) 2 Lloyds Reports 403 (Onassis).
[42] [2009] NSWCA 227 (Mason), [2].
The Arbitrator accepted that the appellant suffered from “significant pathology at his thoracic and lumbar spine”. She noted the question was whether the appellant injured those body parts in the same incident in which he suffered the accepted injury to the left hand. She said she was satisfied, from the appellant’s evidence, Dr Swid’s clinical notes and the radiological evidence, that the appellant “had experienced lumbar symptoms since at least 2006”. These had been sufficiently troubling for him to consult his general practitioner and to be referred for radiological investigations in 2006 and 2009. The Arbitrator noted the appellant saw Dr Swid on 18 November 2011, about seven months prior to the incident, complaining of “back pain and stiffness causing him to walk slowly”.[43]
[43] Reasons, [112]–[114].
The Arbitrator referred to the appellant’s evidence of “immediate, sudden pain” after the incident, the “same as his previous pain but much worse”. She contrasted this with the early histories taken by Dr Swid and at Liverpool Hospital. She said the WorkCover certificates issued by Liverpool Hospital and Dr Swid in June and July 2012 identified only the left hand laceration as an injury arising from the incident on 13 June 2012. She said there was no complaint of back symptoms “in the period immediately following the incident”. She noted there was a complaint to Dr Swid of pain in the low back and the mid-back on 25 June 2012, 12 days after the injury. She said the notes did not reveal any claim by the appellant that he informed Dr Swid that the symptoms “commenced or increased as a result of the incident”.[44]
[44] Reasons, [116]–[118].
What the Arbitrator drew from this history, was not that sneezing caused some injury, but rather that the symptoms were intermittent, and more prominent when the appellant sneezed. This was difficult to reconcile with the history of “constant, severe pain from the time of the injury”. Dr Swid at the consultation on 25 June 2012 recommended treatment only by way of analgesia, described the appellant’s gait as “ok”, and recorded there were “no bad signs”. The Arbitrator said the referral for further radiology did not occur until the next consultation, on 28 June 2012, and was only in relation to the lumbar spine.[45]
[45] Reasons, [119].
The Arbitrator said that the radiology report dated 28 June 2012 “does not on its face reveal any dramatically different pathology to the 2009 investigations and did not prompt any further action” beyond a recommendation for analgesia. She noted a referral to Dr Khaleal was for a haemorrhoidectomy and colonoscopy carried out in July 2012. Dr Khaleal ordered the first investigation of the thoracic spine, which was carried out in May 2013, after the appellant ceased work with the respondent and about eleven months after the incident on 13 June 2012. She said there was no further mention to Dr Swid of spinal symptoms during the intervening period. The Arbitrator said that Dr Swid’s WorkCover certificates for work absences up to 26 July 2012 were related only to the hand injury, and the appellant was then certified fit for his pre-injury duties.[46]
[46] Reasons, [120]–[122].
The Arbitrator said she accepted a submission by the appellant’s counsel that the appellant was ignorant of his legal entitlement to compensation. She said:
“… there is simply no explanation in the [appellant’s] evidence for the apparent failure to identify a sudden and severe escalation in the [appellant’s] back symptoms in the context of the work incident to his treating practitioners for around a year despite regular medical consultations.”[47]
[47] Reasons, [123].
The Arbitrator noted an explanation given to Dr Machart and Dr Sanki that medication taken for the hand laceration may have masked the back pain. The Arbitrator said this did not credibly explain a delay of almost a year. She said that additionally, it was inconsistent with the appellant’s history that he had an immediate and persistent escalation of back symptoms after the incident.[48]
[48] Reasons, [124].
The Arbitrator said she was “prepared to accept” that there was a deterioration in the appellant’s capacity to work due to increasing spinal symptoms between August 2012 and April 2013, although this was not confirmed by contemporaneous medical evidence or lay evidence from the respondent. She said there were “other explanations” for this. Dr Sanki’s reports suggested symptoms became more prominent following the haemorrhoidectomy. The return to heavy manual work, which had previously related to “increasing tenderness in his back, may provide another explanation”. She said the decline in capacity did not “of itself” satisfy her that there was a sudden pathological change on 13 June 2012. The need for surgery did not satisfy her of this either.[49]
[49] Reasons, [125].
The Arbitrator referred to a submission on the appellant’s part that the mechanism of injury, a twisting motion of the back, was, as a matter of common sense, consistent with back injury, particularly to the thoracic region. The Arbitrator observed that the histories did not necessarily describe this mechanism. The histories from Dr van Gelder and those subsequently did, but the more contemporaneous medical evidence (Dr Swid’s clinical notes and the WorkCover certificates) did not. The Arbitrator said that Dr New supported the proposition that the mechanism of injury was consistent with the appellant’s presentation. However, this was based on the appellant’s presentation and reported history, and Dr New did not engage with Dr Swid’s clinical notes. She said Dr New’s opinion was “not firmly expressed”. [50]
[50] Reasons, [126]–[127].
The Arbitrator referred to the opinions of other doctors. She could not identify a clear opinion on causation in the reports of Dr Teychenne or Dr Lai. Dr Swid, in his certificate dated 31 October 2013, accepted that twisting in June 2012 caused a back injury. Dr van Gelder accepted the history that he recorded was consistent with a work-related back injury. Dr Sanki attributed the pathology to the nature of the appellant’s work, together with twisting in June 2012. The Arbitrator accepted a submission by the appellant that Dr Machart’s report made findings of fact based on the evidence. Dr Machart did not accept that the incident on 13 June 2012 involved the appellant’s back, and so did not comment on the mechanism of injury and whether twisting could cause a back injury in the circumstances. The Arbitrator said that, to the extent that his report made findings of fact, she did not take it into account. She noted Dr Machart’s opinion that there was no evidence radiologically of injury to the lumbar spine, in view of the prior complaints.[51]
[51] Reasons, [128]–[129].
The Arbitrator said she was satisfied there was no evidence of thoracic pathology prior to 13 June 2012. She said that, apart from the mention of mid back pain on 25 June 2012, there was no mention of thoracic symptoms until Dr Khaleal ordered an MRI eleven months later. She did not accept that the thoracic pathology could only have been caused by the incident on 13 June 2012. The Arbitrator noted that the case was pleaded only on the basis of a frank incident on 13 June 2012, pursuant to s 4(a) of the 1987 Act. She was not tasked with considering whether there was an injury on the basis of s 4(b)(ii). She noted that it was possible to make a finding of injury pursuant to s 4(a), in the presence of pre-existing disease pathology, on the basis of the frank injury on 13 June 2012.[52] The Arbitrator made a finding of fact regarding the allegation of thoracic and lumbar injury:
“I have carefully considered the evidence as a whole but, the lack of contemporaneous medical evidence of back symptoms associated with the incident; the lack of credible explanation for the delay in reporting such symptoms; the inconsistency between the [appellant’s] evidence and the contemporaneous medical evidence; the failure of Dr New to engage sufficiently with the contemporaneous medical evidence; and the identification in the materials of other possible causes for the [appellant’s] condition; leave me unsatisfied that the [appellant] has discharged the onus of proving on the balance of probabilities that the incident on 13 June 2012 caused injury pursuant to s 4(a) of the 1987 Act to his lumbar spine or thoracic spine.”[53]
[52] Reference was made to Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648.
[53] Reasons, [133].
The Arbitrator noted the injury to the left hand was conceded. She said there was no evidence of permanent impairment greater than ten per cent resulting from that injury. There was thus no basis to refer the matter for assessment by an AMS or to make an award of lump sum compensation.[54]
[54] Reasons, [134].
The Arbitrator referred to the Certificate of Determination – Consent Orders in matter no. 4968/18. She said she did not consider her findings to be inconsistent with those Consent Orders. She said there was no evidence before her of the injury pleaded in those earlier proceedings, or the injury in respect of which the consent orders were made. There was no evidence of what was said at the telephone conference where the orders were made. The issue of injury was not determined by the Commission in those proceedings. The award may have related only to the accepted hand injury. The respondent’s subsequent denials of liability were inconsistent with it having accepted liability for the body parts now disputed.
GROUNDS OF APPEAL
The appellant raises the following alleged errors as grounds of appeal:
(a) Error of mixed fact and law by giving insufficient weight to the evidence of the appellant and regarding complaints 12 days after the injurious event as not being contemporaneous. (Ground No. 1)
(b) Error of mixed fact and law by giving insufficient weight to the evidence of the appellant that he had injured his thoracic spine on 13 June 2012. (Ground No. 2)
(c) Error of fact in finding that the appellant failed to ‘identify a sudden and severe escalation’ in his back symptoms ‘in the context of the work incident to his treating practitioners for around a year despite regular medical consultations’. (Ground No. 3)
(d) Error of law in requiring the appellant to demonstrate medical evidence of a sudden identifiable pathological change in the lumbar spine in order to demonstrate ‘injury’ in circumstances where the ‘injury’ was in the nature of an aggravation of a pre-existing condition and there was evidence that there had been a dramatic increase in symptoms such that the appellant was no longer able to work. (emphasis in original) (Ground No. 4)
(e) Error of law in requiring the appellant to demonstrate a ‘dramatically different’ pathological change in the lumbar spine in order to demonstrate ‘injury’ in circumstances where the ‘injury’ was in the nature of an aggravation of a pre-existing condition and there was evidence that there had been a dramatic increase in symptoms such that the appellant was no longer able to work. (emphasis in original) (Ground No. 5)
(f) Error of law by failing to accord the appellant procedural fairness by refusing the appellant’s application to make submissions and present argument in relation to the issue of estoppel. (Ground No. 6)”
LEGISLATION
Section 4 of the 1987 Act provides:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
GROUND NOS. 1, 2 AND 3
The parties have addressed the first three grounds together. I will adopt the same approach.
Appellant’s submissions
The appellant submits the Arbitrator failed to give sufficient weight to the appellant’s evidence. It is submitted the mechanism of injury, twisting the back when lifting and moving a cabinet on 13 June 2012, was described consistently in the histories of Dr Sanki and Dr Teychenne. The appellant submits the fact that this history of injury was not described in the clinical notes on 25, 28 and 29 June 2012 is not determinative. Clinical notes are not recorded for the purpose of litigation. The appellant cites Mason.[55]
[55] Appellant’s submissions, [9.1]–[9.3].
The appellant noted the Arbitrator referred to thoracic and lumbar complaints on 25 and 28 June 2012, with a referral for x-ray on 28 June 2012. The Arbitrator said there was “no complaint of back symptoms … in the period immediately following the incident”, not considering the complaints on 25 and 28 June 2012 were “sufficiently contemporaneous”. The appellant referred to the Arbitrator’s statement that the notes did not disclose that the symptoms commenced or increased as a result of the incident on 13 June 2012.[56]
[56] Appellant’s submissions, [9.3].
The appellant submits the Arbitrator’s reasoning was that the appellant’s failure to link the back pain to the incident, and the lack of medical opinion to make the link until about one year later, was determinative. This is submitted to be error. All of the evidence supporting the claim should have been weighed, to determine whether it was established on the probabilities. The appellant submits the Arbitrator “approached each piece of evidence on its own”, noting why that piece of evidence was insufficient to discharge the onus. The appellant refers to the Arbitrator’s treatment of the “lack of immediate complaints” (reasons at [117]), the lack of medical evidence that incapacity between 13 June 2012 and August 2012 was related to back symptoms (reasons at [122]), and the appellant’s failure to identify a “severe escalation of back symptoms” to his general practitioner for around a year (reasons at [123]).[57]
[57] Appellant’s submissions, [9.4]–[9.4] (sic, the number is used twice).
The appellant’s submissions state that English was his second language and he “struggled to explain the injury to anyone he worked with”. The appellant submits this would apply equally to medical practitioners. The Arbitrator should have proceeded with caution dealing with clinical notes. It is submitted the Arbitrator ignored the evidence about struggling with language and relied on what was set out in such notes as “determinative of what was said by him”.[58]
[58] Appellant’s submissions, [9.5].
The appellant submits he worked in a heavy job prior to 13 June 2012. He attempted to return to work after a couple of months and “could not continue”. The appellant submits the Arbitrator “failed to have any regard” for this. The appellant submits the Arbitrator placed too much weight on the certificates and paid too little regard to the appellant’s evidence. It is submitted that, in disregarding the appellant’s evidence, the Arbitrator appeared to require corroborative evidence to establish injury. “As a result, the process of fact-finding miscarried.”[59]
[59] Appellant’s submissions, [9.6]–[9.7].
Respondent’s submissions
The respondent refers to the radiological examinations of the lumbosacral spine on 20 December 2006, which show degenerative change and disc disease. The appellant saw Dr Swid on 18 November 2011 with back pain, stiffness and walking slowly. The respondent says the Arbitrator compared the radiology before and after 13 June 2012 and there was no substantial change in the lumbosacral spine.[60] The respondent submits the Arbitrator accepted there was “no identifiable pathological change between 2009 and 2014” to satisfy the Arbitrator there was an injury. The respondent submits the first radiological examination of the thoracic spine was on 10 May 2013, after the appellant’s employment with the respondent ceased. It submits this was consistent with Dr Machart’s view that there was no injury on 13 June 2012.[61]
[60] The appellant compares an x-ray report dated 28/6/12 (ARD, p 64) with an MRI scan report dated 2/5/14 (ARD, p 74), in footnote 7 of respondent’s submissions.
[61] Respondent’s submissions, [7]–[9].
The respondent submits the appellant relied on an allegation of a frank injury in respect of the lumbar and thoracic spine. He carried the onus of demonstrating such an injury. The clinical note on 25 June 2018 showed “lower back and mid-back pain was attributed as being secondary to sneezing”, an event not related to 13 June 2012.
The clinical notes show Dr Swid did not, on 13, 14 and 20 June 2012 record any complaint of back pain. The certificate from Liverpool Hospital dated 13 June 2012 referred only to a hand injury. This is inconsistent with the appellant’s evidence that he had “immediate and severe back pain on 13 June 2012”. The clinical notes on 25 June 2012 (low back pain) and 28 June 2018 (thoracic pain) occur not less than 12 days after 13 June 2012. This “attenuates any allegation that these body parts were injured on 13 June 2012”.[62]
[62] Respondent’s submissions, [10]–[13].
The respondent submits the Arbitrator did weigh up the evidence. She carefully detailed the lack of “immediate contemporary complaint”. The evidence did not suggest that incapacity between 13 June 2012 and August 2012 was related to back symptoms. The appellant was fit for pre-injury duties from 31 July 2012. The respondent submits there was no evidence of language problems causing problems in communication with doctors. There is nothing to suggest clinical notes were wrongly recorded. There was nothing from the general practitioner to say there had been some problem. The respondent submits the clinical notes were part of the appellant’s case, he cannot rely on them and seek to distance himself from them.[63]
[63] Respondent’s submissions, [14]–[18].
Consideration
The appellant’s evidence in his statement was that from 2008 to 2012 his “back pain was getting worse over time”. He was “often required to lift heavy items during the course of employment”. Over time his “pain had become worse”.[64] He described the effect of the incident of 13 June 2012 on his back:
“8. … As I lifted the cabinet, I slipped and experienced a twisting motion of my lower back. Immediately I was in sudden pain. It was the same pain I was experiencing between 2008–2012, but now the pain would not go away and it was much worse. I believe that this twisting motion was the straw that broke the ‘camel’s back’. I also injured my left hand.
9. When I twisted my back and my right foot slipped, I tried to hold that position and not fall to the ground but because of the twisting motion I developed very severe back pain and right sided leg pain. I have been in severe pain since this injury. I now struggle to walk without the assistance of a cane.”
[64] Appellant’s statement 11/7/17, [7]–[8], ARD, p 1.
Dr New supported the appellant’s case on ‘injury’ on the basis of a generally similar (although slightly misstated) history of the mechanism and immediate consequences:
“… he was attempting to lift a cabinet which was full of pallets [sic]. As he performed this activity he stated that he twisted his back and his right foot slipped. He tried to hold his position and did not fall to the ground, but the twisting motion of his back gave him very severe back pain and right sided leg pain. He was off work that day and stayed off work for approximately two months, being reviewed by his GP.”[65]
[65] Dr New’s report 9/9/16, ARD, p 12.
A similar understanding of the history informed the views of Dr Lai.[66] Dr Lai did not specifically comment on causation of the back symptoms.
[66] Dr Lai’s report 21/11/17, ARD, p 22.
Dr Sanki recorded a history of an incident when the appellant’s left hand was cut, followed by surgery at Liverpool Hospital and two months off work. Dr Sanki recorded the appellant resumed work. He recorded the appellant was then involved in an incident where he was lifting a cabinet from a pallet when he twisted his back and his foot slipped. He recorded this twisting was associated with back and right leg pain that was quite severe. [67] At another point in the same report, Dr Sanki said that analgesia taken for the hand injury “probably disguised the pain in his lumbar spine that resulted from the injury at the same time”.[68] The history of the back injury is generally consistent with that in the appellant’s statement. However, the statement and Dr New’s recorded history describe the existence of a single incident resulting in the injuries to the left hand and the back. Dr Sanki’s initial understanding is contrary to the basis on which the claim was made and the basis on which the case was run.
[67] Dr Sanki’s report 4/5/14, ARD, p 38.
[68] ARD, p 40.
Dr Teychenne took a history of the appellant carrying a cabinet downstairs when it fell, lacerating the appellant’s left hand. His history then went on to deal with subsequent symptoms involving the neck and arms. He also recorded thoracic and right lumbar pain with right leg symptoms, although his understanding regarding the onset of back symptoms is unclear.[69]
[69] Dr Teychenne’s reports, 3/4/14 and 10/11/16, ARD, pp 49 and 57–58.
The appellant submits:
“The evidence of the appellant in terms of the mechanism of injury to the lumbar and thoracic spines was consistent throughout the process in that he told his clinicians that he had twisted his back at the time of lifting and moving the cabinet on 13 June 2012 …”.
The appellant footnotes this submission by reference to material from Dr Sanki and Dr Teychenne. The evidence of those doctors, read as a whole, does not support the submission. Each of those doctors recorded a history that was inconsistent with the appellant’s statement.
Dr van Gelder recorded a “work related injury in June last year. He strained his back twisting and lacerated his hand.” The doctor said the appellant had “a history consistent with a work related back injury”.[70] The doctor performed surgery involving lumbar decompression on 16 May 2016.[71] Dr van Gelder’s reports did not go into more detail regarding the history of injury or the issue of causation generally. He did not refer to the history of symptoms prior to 13 June 2012. He did not refer to whether, to what extent, and when there was a change in the appellant’s back symptoms following 13 June 2012.
[70] Dr van Gelder’s report 17/7/13, ARD, p 102.
[71] Dr van Gelder’s report 19/5/16, ARD, p 105.
The respondent relied on reports from Dr Machart. In his first report dated 11 August 2014, the doctor took a history of the mechanics of the incident that was broadly consistent with the appellant’s statement:
“He was taking care of a delivery, putting cabinets on pallets. The floor was uneven and wet. He slipped, twisted his torso, and suffered a crush injury to the left hand, which got stuck between two cabinets.”[72]
[72] Reply, p 25.
Dr Machart’s history of injury included:
“He reported low back pain radiating into the right leg. I quizzed him about this, specifically because this was the subject of your enquiry. His recollection was that at the time when he suffered the laceration to the left hand, he also twisted his back. He told me that he was unable to report the pain in the back because he was under medications, ‘antibiotics’.”[73] (emphasis in original)
[73] Reply, p 26.
Dr Machart had access to various records of the appellant’s treatment. These included a lumbar x-ray on 20 December 2006, the record of low back complaint on 18 November 2011, the Liverpool Hospital discharge summary dated 13 June 2012 (which referred to the left hand laceration only), the record of a consultation on 14 June 2012 (the day following the incident) which referred to the left hand laceration but did not mention the back, the entry on 28 June 2012 of pain in the left low back and legs, and the consultation on 30 June 2012, “left low back, and mid back pain secondary to sneezing”. The consultations referred to in this paragraph are with Dr Swid unless otherwise indicated.
Dr Machart said there was “no contemporaneous evidence that there was an injury to the spine on 13/6/12”. He said “[t]here is no evidence of injury radiologically”. He said “[o]n the balance of evidence it does not appear that the incident on 13/6/12 caused anything more than laceration to the left hand”. In his report dated 16 April 2019, Dr Machart remained of the same view:
“There is no indication that he suffered concurrent injuries to the lumbar spine and thoracic spine. He suffered injury to the left hand.”
It is apparent that the appellant’s medical case on causation was significantly dependent on the opinion of Dr New, which in its turn relied for weight on a history sufficiently consistent with the appellant’s statement, that the twisting motion of the appellant’s back gave him sudden, very severe back pain and right sided leg pain.[74]
[74] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 (Hancock), [82]–[83]; Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 (Sutton), [2]–[3], [69].
The Arbitrator summarised the appellant’s statement.[75] This included reference to the pre-existing symptoms and the increasing back symptoms with time.[76] She summarised the appellant’s description of the incident (see [48] above). This included reference to the twisting motion of his back and sudden pain at the time, which was much worse than it had been. She referred to the appellant’s two month absence from work from 13 June 2012, and worsening symptoms when he resumed full duties from August 2012. The Arbitrator referred to the appellant being put off work on 20 April 2013 when his boss noticed he was slower.
[75] Reasons, [13]–[20].
[76] Reasons, [14]–[15].
The Arbitrator was faced with diametrically opposed medical cases. That of the appellant was that he suffered serious injury to the thoracic and lumbar regions of his spine in the incident on 13 June 2012. The factual background for this medical case was that the appellant suffered injury on 13 June 2012 generally consistent with his statement. The respondent’s medical case was that the appellant lacerated his left hand but suffered no injury to his back in the incident. A consideration of which case should prevail involved a consideration of whether the appellant’s lay case should be accepted. The respondent made an attack on the acceptability of the appellant’s lay case, having regard to matters in the medical certificates and clinical notes which were arguably inconsistent with the appellant’s version.
The Arbitrator accepted the appellant had suffered from “lumbar symptoms since at least 2006”.[77] She noted that a CT scan report dated 1 September 2009 demonstrated “mild degenerative disc disease and mild, uncomplicated disc prolapse at L4/5”. She noted that on 18 November 2011, there was complaint of back pain and stiffness and walking slowly. The Arbitrator observed that the evidence up to this point was “broadly consistent with the [appellant’s] evidence”, that up to 13 June 2012 he suffered back pain, was increasingly sore and tender after work. She noted there was pain in the right leg and the symptoms affected how the appellant walked.[78]
[77] Reasons, [113].
[78] Reasons, [114]–[115].
The Arbitrator said she was not satisfied the appellant’s evidence, dealing with matters from the time of the incident, was consistent with the medical evidence. She said there was no evidence of the appellant reporting back pain to Liverpool Hospital (on 13 June 2012) or to Dr Swid (on 14, 18, 20 or 23 June 2012). The clinical file of Liverpool Hospital was not in evidence. The WorkCover certificates of Liverpool Hospital and Dr Swid did not identify any injury beyond the laceration to the left hand. The Arbitrator made a factual finding that no complaint of back pain was made to the practitioners treating the appellant in the period immediately following the incident. The Arbitrator accepted that there was a complaint to Dr Swid of low and mid back symptoms on 25 June 2012. She said the “notes do not reveal and the [appellant] does not claim that he informed Dr Swid on this occasion that the symptoms commenced or increased as a result of the incident on 13 June 2012”. In the course of this discussion the Arbitrator referred to Mason and said the appellant did not claim he had informed Liverpool Hospital or Dr Swid of an escalation in his back symptoms immediately after the incident.[79]
[79] Reasons, [116]–[118].
The Arbitrator’s reasons are to be read as a whole.[80] The Arbitrator approached the clinical notes with an awareness of the principles discussed in Mason. She quoted the decision in her reasons,[81] and cited it in her discussion of the material from Liverpool Hospital and Dr Swid.[82] The appellant’s submissions take issue with the Arbitrator’s use of terms such as whether the complaints on 25 and 28 June 2012 were ‘sufficiently contemporaneous’. A term such as ‘contemporaneous’ is not specific. The issue was not whether the complaints were ‘contemporaneous’. The enquiry around the clinical notes and WorkCover certificates was whether, when these were weighed with the evidence as a whole, the appellant’s evidence of experiencing “very severe back pain and right sided leg pain”, “sudden pain”, (see [48] above) should be accepted. It may be remembered also that the WorkCover certificates were not clinical notes, but documents filled out by medical practitioners describing the injury the subject of the certificate.
[80] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[81] Reasons, [111].
[82] Reasons, [117].
The appellant submits the Arbitrator should have weighed the evidence, but that rather than doing, this she “approached each piece of evidence on its own, and then stated why that piece of evidence was not sufficient”.[83] I accept the respondent’s submission to the contrary. The Arbitrator summarised the evidence of both parties. She set out the pieces of evidence on which the respondent challenged the appellant’s version. The conclusion she reached came after considering these apparent inconsistencies together, which led to the factual conclusion:
“I find, on the basis of this evidence, that no complaint of back symptoms was made to the practitioners treating the [appellant] in the period immediately following the incident.”[84]
[83] Appellant’s submissions, [9.4].
[84] Reasons, [117].
Read in context, it is apparent the period referred to as “immediately following” is from 13 June 2012 to 23 June 2012. The Arbitrator then referred to the consultation with Dr Swid on 25 June 2012, when there was a recorded complaint of back pain, but no recorded indication of it being related to the incident on 13 June 2012. The Arbitrator noted that Dr Swid issued WorkCover certificates during the period of initial absence (13 June 2012 to 26 July 2012) relating solely to the left hand injury, after which the appellant resumed his pre-injury duties.[85] The Arbitrator said:
“… there is simply no explanation in the [appellant’s] evidence for the apparent failure to identify a sudden and severe escalation in the [appellant’s] back symptoms in the context of the work incident to his treating practitioners for around a year despite regular medical consultations.”[86]
[85] Reasons, [122].
[86] Reasons, [123].
The Arbitrator’s finding of fact, regarding the allegation of injury to the lumbar and thoracic spine, is set out at [33] above. It is plain that the decision involved a consideration of the evidence as a whole.
The appellant also raises a point regarding the fact that English was the appellant’s second language. It is submitted the Arbitrator ignored these language difficulties in dealing with the recorded medical histories. The appellant refers to his statement, in which he said “English is my second language and I therefore struggled to explain the injury to anyone I worked with.”[87] It is submitted this “would apply equally to speaking with his treating practitioners”.[88] The respondent submits there was no evidence of such a difficulty, nothing to suggest clinical notes were wrongly recorded, nothing to that effect from the general practitioner.[89]
[87] Appellant’s statement, [10], ARD, p 2.
[88] Appellant’s submissions, [9.5].
[89] Respondent’s submissions, [16].
The appellant did not raise this submission before the Arbitrator. The possibility of misunderstanding in histories was raised by the appellant’s counsel before the Arbitrator on a specific point, being the history recorded by Dr Machart:
“MR GAITANIS: … And perhaps if I could just take you briefly to [Dr Machart’s] report of 11 August 2014, which is the first report he provides for the respondent – ‘History’, first page, ‘Mr Nader’s English was not adequate for the conduct of this consultation. His wife interpreted for him. The history was difficult. So there’s issues there regarding the clarify [sic] of the history provided to the doctor, so I raise that for your consideration.”[90]
[90] T 29.15–22.
The submission that historical inconsistencies, in the clinical notes and certificates, could be explained by limitations in the appellant’s ability to communicate in English was not made before the Arbitrator. It is not supported by direct evidence from the appellant. It is not known, for example, whether some of the medical consultations may have been in a language other than English. In my view, the appellant should not be allowed to raise this submission for the first time on appeal.[91] It was not error for the Arbitrator to fail to deal with a submission that was not made before her.[92]
[91] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally), [7], Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (Coulton), [9].
[92] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell), [29]–[30].
The Arbitrator, in her reasons, quoted the following passage from Onassis, dealing with credibility where there is conflict between the evidence given and earlier contemporary documents:
“Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”[93]
[93] Onassis, 431.
A more extended section of the above passage was quoted with approval in Withyman v State of New South Wales where Allsop P (Meagher and Ward JJA agreeing) described it as a “helpful discussion of credibility”.[94] The Arbitrator recognised that the matters outlined in Mason also needed to be considered as part of this process.[95]
[94] [2013] NSWCA 10, [65].
[95] Reasons, [111].
The appellant submits the Arbitrator failed to have regard to the fact that the appellant, following the incident on 13 June 2012, returned to a heavy job and could not continue. He was terminated on 20 April 2013 after his boss noted he was “a bit slower”. The Arbitrator noted the appellant’s evidence that he attempted to return to pre-injury duties in August 2012, but over time his “injury worsened”. The Arbitrator specifically referred to the argument now made by the appellant, that there was a deterioration in the appellant’s working capacity when he resumed after the incident. The Arbitrator noted there was no medical evidence that incapacity from 13 June 2012 to August 2012 was related to back symptoms. The certificates related only to the hand injury. After 26 July 2012, the appellant was certified fit for his pre-injury duties. The Arbitrator said:
“… there is simply no explanation in the [appellant’s] evidence for the apparent failure to identify a sudden and severe escalation in the [appellant’s] back symptoms in the context of the work incident to his treating practitioners for around a year despite regular medical consultations.”[96]
And:
“I have considered Mr Gaitanis’ submissions on this point but find there are other possible explanations for the decline in capacity. There is suggestion in Dr Sanki’s reports that the haemorrhoidectomy in July 2012 may have resulted in symptoms becoming more prominent. The return to relatively heavy manual work, which the applicant had previously related to increasing tenderness in his back, may provide another explanation. The decline in capacity does not of itself cause me to be satisfied that there was a sudden pathological change in the applicant’s spine on 13 June 2012.”
[96] Reasons, [123].
The Arbitrator engaged with this submission by the appellant and did not accept it, for reasons which were open to her. This aspect of the decision does not reveal error.
The appeal before me is one restricted to the identification and correction of error. The respondent made an attack on the appellant’s credibility and the reliability of his evidence based on alleged discrepancies between his statement and recorded histories, and contemporaneous medical material. The conclusion which the Arbitrator reached was available to her on the evidence. The appellant has not, in the submissions on these grounds, succeeded in demonstrating error of the sort identified in Raulston and the authorities cited in that decision.
Grounds Nos. 1, 2 and 3 fail.
GROUND NO. 4
Appellant’s submissions
The appellant submits there was error in the Arbitrator’s consideration of whether there was a “dramatically different” change in the lumbar spine, in dealing with whether ‘injury’ was established. The respondent submits the injury was in the nature of an aggravation of a pre-existing condition and there was evidence of a dramatic increase in symptoms such that the appellant was unable to work. The appellant refers to a decision of Elsamad v Belmadar Pty Ltd[97] in which Wood DP quoted from the well-known passage of Federal Broom Co Pty Ltd v Semlitch in which Windeyer J said:
“The next question then is, was there in December 1960 ‘an aggravation, acceleration, exacerbation or deterioration’ of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[98]
[97] [2019] NSWWCCPD 22 (Elsamad).
[98] [1964] HCA 34; 110 CLR 626 (Semlitch), [9].
The appellant’s submissions also quote from a passage of the decision of the Full Court of the Federal Court in May v Military Rehabilitation and Compensation Commission[99] that was referred to by Wood DP.
[99] [2015] FCAFC 93; 322 ALR 330 (May No 1), [212].
The appellant submits he was only required to demonstrate an escalation of his symptoms. The incident had an adverse effect on his ability to carry out his pre-injury employment. His statement addressed this. There was a complaint of low back and mid-back pain within 12 days of the incident.[100]
[100] Appellant’s submissions, [10.1]–[10.2].
Respondent’s submissions
The respondent submits the appellant’s case was not pleaded or run as a ‘disease’ case within s 4(b)(ii) of the 1987 Act. This is different to Elsamad which was run as both injury simpliciter (s 4(a)) and as the aggravation of a disease (s 4(b)(ii)) in the alternative.
The respondent submits the appellant was certified unfit from 13 June 2012 and fit for pre-injury duties from 31 July 2012. There was no evidence of incapacity from 31 July 2012 to 26 April 2013. The certificates for the period prior to that related to the hand injury only. There was no medical evidence to support the claim that back injury caused incapacity from 31 July 2012. The reference to mid-back pain on 25 June 2012 secondary to sneezing does not suggest this was referable to employment.
Consideration
Elsamad was a matter where the injury was pleaded as both injury simpliciter and an injury pursuant to the ‘disease’ provisions in s 4(b)(ii), in the alternative. This is clear from the passage of that decision quoted in the respondent’s submissions at [10.2]:
“It is unfortunate that, although the appellant submitted that the injury suffered by the appellant was both an injury ‘simpliciter’ pursuant to s 4(a) and a disease injury pursuant to s 4(b)(ii) of the 1987 Act, which was accepted by the Arbitrator, much of the focus at the arbitration was directed to the identification of a pathological event. It is useful to consider what is required to prove an injury in the nature of an aggravation of a disease pursuant to s 4(b)(ii).”[101]
[101] Elsamad, [149].
The Deputy President clearly accepted the distinction between the two. This is not to say that the two provisions are mutually exclusive. In Yum Restaurants Australia Pty Ltd v Watters Roche DP said:
“Ms Watters argued that the terms personal injury and disease are not mutually exclusive categories and that a sudden or identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the event being a personal injury (Hoani v Chubb Security Australia Pty Ltd (2000) 21 NSWCCR 242 (‘Hoani’)). As a statement of principle, this is undoubtedly correct and is consistent with the High Court authorities of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 347; (‘Zickar’) and Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at [35] and [36]; (2000) 74 ALJR 1298; (‘Petkoska’).”[102]
[102] [2010] NSWWCCPD 31, [65].
The ARD in the current matter pleads a specific event on 13 June 2012.[103] In submissions the appellant’s counsel referred to “the very frank traumatic injury that’s occurred when he twisted his back lifting a cabinet”.[104] The respondent’s written outline of its submissions before the Arbitrator noted “the case is not pleaded as a disease for the purposes of s 4(b)”. Nothing contrary to this was raised by the appellant during the running of the arbitration hearing. It is apparent that the matter proceeded before the Arbitrator on the basis that the alleged injury was one pursuant to s 4(a) of the 1987 Act. The Arbitrator noted in her reasons that “only a frank injury on 13 June 2012 pursuant to s 4(a) of the 1987 Act is pleaded in these proceedings”.[105] The Arbitrator did not err in failing to deal with an argument not put.[106] Injury pursuant to s 4(b)(ii) of the 1987 Act not having been raised at first instance, the appellant should not be allowed to pursue it on this appeal.[107]
[103] ARD ‘Injury Details – 13/06/12’.
[104] T 28.2–3.
[105] Reasons, [132].
[106] Bell, [29]–[30].
[107] Metwally, [7], Coulton, [9].
The passage from Semlitch which the appellant quotes, goes to the proof of injury pursuant to the ‘disease’ provisions in s 4(b)(ii), not to injury pursuant to s 4(a). In the High Court’s decision of Military Rehabilitation and Compensation Commission v May,[108] the plurality (referring to Kennedy Cleaning v Petkoska[109]) said:
“However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in [Zickar] and [Petkoska]). But it is the physiological change – the nature and incidents of that change – that remains central.”[110] (excluding references, emphasis in the original).
[108] [2016] HCA 19 (May No 2).
[109] [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298.
[110] May No 2, [47].
In May No 2, Gageler J said:
“An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable’.”[111]
[111] May No 2, [75].
There is a distinction to be drawn between the proof of ‘injury’ pursuant to s 4(b)(ii), consistent with the passage from Semlitch on which the appellant relies, and the proof of injury simpliciter pursuant to s 4(a). Semlitch does not assist the appellant’s position.
The appellant refers to the reasons at [120]. The Arbitrator there compared the results of a radiological report dated 28 June 2012 with investigations carried out in 2009. She said the more recent of these did “not on its face reveal any dramatically different pathology”. The appellant refers to the Arbitrator then enquiring whether there was corroborative evidence to support “claims of a ‘dramatic increase’ in his symptoms”. The location of the phrase “dramatic increase” was not identified in the appellant’s submissions. The appellant submits the Arbitrator was applying an erroneous test, whether there was a “dramatically different” pathological change.
The Arbitrator did not suggest that the test to establish ‘injury’ for the purposes of s 4(a) involved identification of a dramatically different pathological change.
The Arbitrator, in her reasons at [125], discussed a submission dealing with the appellant’s declining work capacity after the incident. The Arbitrator said there were other possible explanations for the decline. She said the decline in capacity “does not of itself cause me to be satisfied that there was a sudden pathological change in the [appellant’s] spine on 13 June 2012”. This was generally consistent with a passage in Castro v State Transit Authority (NSW),[112] an authority on which the respondent submitted before the Arbitrator. The use of the word “sudden” is consistent with a consideration by the Arbitrator of whether there was an injury simpliciter, in circumstances where there were pre-existing degenerative changes in the lumbar spine, which may have constituted a disease (see the passage quoted at [86] above). I cannot see that the Arbitrator has misstated the test in the way alleged.
[112] 19 NSWCCR 496, [129].
Ground No. 4 fails.
GROUND NO. 5
Appellant’s submissions
The appellant refers to the reasons at [130], where the Arbitrator, after accepting there was no evidence of pre-existing symptoms or pathology in the thoracic spine, said:
“I do not, however, accept as a matter of commonsense that the pathology in the [appellant’s] thoracic spine could only have been caused by the frank incident relied upon. That is a matter for qualified medical opinion and there is no such medical opinion in the evidence before me. Apart from the mention of mid back pain on 25 June 2012 which was not further investigated by Dr Swid, there is no medical evidence of thoracic symptoms until the MRI ordered by Dr Khaleal 11 months later.”
The appellant submits there was the appellant’s evidence of what occurred and the mechanism of injury. The appellant submits there is also the report of Dr Sanki dated 4 May 2014, in which the doctor said:
“I also attribute the disc injury in his dorsal and lumbar spine to the type of work he is doing and to the abovementioned incident [on 13 June 2012].”
The appellant submits the Arbitrator ignored this evidence.
The appellant submits the reference to whether the incident was the “only cause” was erroneous, as it failed “to consider whether the incident could have materially contributed to the pathology”.[113]
[113] Appellant’s submissions, [11.1]–[11.3]
Respondent’s submissions
The respondent submits the Arbitrator was entitled to take into account the entirety of the evidence. It submits the Arbitrator correctly found that the first radiological investigation of the thoracic spine was on 10 May 2013, and that there was no mention of any spinal symptoms until 25 May 2013. The respondent submits that whether the incident materially contributed would be relevant had the appellant argued the matter under the ‘disease’ provisions, but she did not. The respondent submits the appellant had to establish that there was an ‘injury’ of the thoracic spine. The large disc extrusion at T8/9 “was plainly not a disease process”.[114]
[114] Respondent’s submissions, [25]–[28].
Consideration
The argument made by the appellant in support of Ground No. 5 is not dependent on whether the allegation of injury was based on the ‘disease’ provisions of the 1987 Act. The Arbitrator dealt with whether, as a matter of common sense, the thoracic spine injury “could only have been caused by the frank incident”[115] (emphasis added). The appellant’s argument is that this was the wrong question. In Lagana v Australian Retirement Partners Realty Pty Ltd Roche DP observed:
“It is trite law that an injury can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40; ACQ Pty Ltd v Cook [2009] HCA 28; 237 CLR 656 at [25] and [27]).”[116]
[115] Reasons, [130].
[116] [2015] NSWWCCPD 55 (Lagana), [46]. See also [47]–[49].
It is sufficient if the incident caused or materially contributed to the injury.[117] This, of course, leaves issues of ‘substantial contributing factor’ pursuant to s 9A of the 1987 Act (in a case involving injury pursuant to s 4(a)), but that is a different issue. The appellant refers to the Arbitrator’s observation that the thoracic injury issue “is a matter for qualified medical opinion and there is no such medical opinion in the evidence”. The appellant submits there was the appellant’s evidence and also the medical evidence of Dr Sanki. Dr Sanki expressed the view:
“I also attribute the disc injury in his dorsal and lumbar spine to the type of work he is doing and to the above mentioned incident.”[118]
[117] Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1994] HCA 68; 121 ALR 417, [3] Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87, 95B.
[118] Dr Sanki’s report 4/5/14, ARD, p 42.
There are some difficulties with Dr Sanki’s recorded history, referred to at [51] above. These do not render his opinion inadmissible but go to weight.[119] The Arbitrator, in her reasons at [128], noted that Dr Sanki (like Dr Swid) “attributed the pathology to the nature of the [appellant’s] work as well as twisting in 2012”. Dr Sanki is a general surgeon, who treated the appellant from 2008,[120] saw him about the incident of 13 June 2012 from 6 January 2014,[121] and was still treating him as at 5 August 2019.[122] The Arbitrator summarised Dr Sanki’s evidence, including his opinion on causation.[123]
[119] Hancock, [82]–[83].
[120] ARD, p 43.
[121] ARD, p 38.
[122] Application to Admit Late Documents (AALD) 15/8/19.
[123] Reasons, [43]–[45].
The Arbitrator gave reasons for not accepting the opinion of Dr New – his opinion was not expressed firmly and Dr New had not engaged with Dr Swid’s clinical notes. The Arbitrator rejected the explanation given by the appellant to Dr Sanki (and to Dr Machart) for why he did not make more contemporaneous complaints of his back symptoms following the incident – masking by medication taken for the hand injury.[124] This did not involve rejection of Dr Sanki’s opinion.
[124] Reasons, [124].
The Arbitrator’s reference to there being no qualified medical opinion, on the issue of whether the thoracic pathology was caused by the incident, suggests that Dr Sanki’s opinion was discarded out of hand. The Arbitrator did not say whether she accepted or rejected Dr Sanki’s opinion relevant to ‘injury’. The appellant was entitled to an explanation for the Arbitrator’s non-acceptance of his medical case in this regard. If Dr Sanki’s opinion was to be rejected, this required coherent reasons.[125]
[125] Hume v Walton [2005] NSWCA 148, [69], Eckersley v Binnie (1988) 18 Con LR 1 at 77–78, quoted with approval in Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293, [133], applied in Charles Sturt University v Manning [2016] NSWWCCPD 10, [53].
The way in which the Arbitrator described the issue of injury to the thoracic spine, in the reasons at [130], was inconsistent with a recognition that the injury could be proved in the presence of other contributing causes. I accept that this involved a misdescription of the test. Additionally, it was necessary that the Arbitrator engage with the parties’ respective medical cases and explain her preference for one over the other. This was not done in so far as Dr Sanki was concerned.
Error is established in Ground No. 5.
GROUND NO. 6
Appellant’s submissions
The appellant, at the arbitration hearing, sought to make submissions on whether an estoppel was created by consent orders made in earlier Commission proceedings between the parties, matter no. 4968/18. The appellant submits the Arbitrator declined to allow the appellant’s counsel to make submissions on this topic. The appellant submits the Arbitrator failed to consider relevant considerations. The appellant submits the exercise of discretion was unreasonable.[126]
[126] Appellant’s submissions, [12.1]–[12.5].
As is customary, the appellant was given the option of lodging further submissions when transcript of the arbitration hearing became available and was furnished to the parties. The appellant lodged additional submissions dealing with Ground No. 6, dated 28 November 2019.
The appellant notes the question of whether the appellant could pursue an argument based on estoppel was conducted as an application pursuant to s 289A(4) of the 1998 Act. The appellant refers to the statutory scheme. An insurer is obliged to determine a claim, and to issue a dispute notice as to matters it places in dispute: s 78 of the 1998 Act. In a claim for lump sum compensation (as in the current proceedings) a dispute cannot be referred for determination by the Commission unless the insurer wholly disputes liability, or the insurer has made an offer and a month has elapsed, or the insurer has failed to determine the claim when required: s 289 of the 1998 Act. Section 289A adds a further restriction, a claim cannot be referred to the Commission unless it concerns only matters previously notified as disputed.[127]
[127] Appellant’s additional submissions, [9].
The appellant submits the Arbitrator’s reliance on s 289A of the 1987 Act, to prevent a worker from pursuing a legal argument, was misconceived. The section is concerned with matters not previously notified by the insurer as disputed.[128] The appellant was entitled to present his legal argument and to have it determined. The prior consent orders were between the same parties. The appellant states that they involved an acceptance of injury to the lumbar and thoracic spine.[129] The appellant’s counsel advised the Arbitrator that he could not obtain instructions, on the basis of the prior consent orders, from previous solicitors, although this could be cured by enquiries. The appellant submits it was inappropriate to deal with this matter on the basis that it was not a previously notified matter. If there was an arguable case and it was in the interests of justice, the appellant should have been entitled to argue his legal point.
[128] Appellant’s additional submissions, [10].
[129] Appellant’s additional submissions, [11]–[12].
Respondent’s submissions
The respondent submits that the application to argue the estoppel point was made by the appellant, and the Arbitrator was entitled to deal with it on that basis. The respondent submits s 289A(4) of the 1998 Act applies to previously unnotified matters, not only to matters not previously notified as disputed by the insurer. It submits there was no evidence of correspondence dealing with the estoppel point, and it was not raised at the telephone conference prior to the hearing. It submits the Arbitrator correctly referred to Mateus v Zodune Pty Ltd.[130]
[130] [2007] NSWWCCPD 227 (Mateus).
The respondent submits the Arbitrator correctly took prejudice into account. Advance notice was not given of the estoppel argument, and the respondent needed to make enquiries before any estoppel could be determined.[131]
[131] Respondent’s submissions, [29]–[32].
Legislation
Section 78 of the 1998 Act provides:
“78 Insurer to give notice of decisions
(1) An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
(2) Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).
(3) The requirement to give notice of a decision to discontinue payment to a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.”
Section 79 of the 1998 Act provides:
“79 How notice of decision is given
(1) A notice required by this Division must be given—
(a)to the claimant or worker concerned, and
(b)in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.
(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.
(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
(4) The regulations may make provision for—
(a) the manner in which a notice under this Division is to be given, and
(b) the form of and other information to be included in or to accompany the notice.”
Section 289 of the 1998 Act provides:
“289 Restrictions as to when dispute can be referred to Commission
(1) A dispute about a claim for weekly payments (other than a dispute based on a work capacity decision) cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments pursuant to a work capacity decision (without having disputed liability) constitutes a failure to determine the claim.
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.
Note. Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.
(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until—
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
The Consent Orders
The consent orders from matter no. 4968/18 were attached to the ARD.[132] They provided:
“1. Award for the respondent in respect of the allegation of injury to the [appellant’s] neck and carpal tunnel syndrome in both upper limbs.
2. The respondent to pay the [appellant] $243.90 per week from 26/4/13 to 3/9/15 in the agreed sum of $30,000 pursuant to ss 36 and 37 of the Workers Compensation Act 1987, otherwise and thereafter an award for the respondent.
3. The respondent to pay reasonable medical expenses up to $10,000 on production of accounts and/or receipts and the Medicare charge pursuant to s 60 of the Workers Compensation Act 1987, thereafter an award for the respondent.
4. No order as to costs.”
[132] ARD, p 10.
Consideration
The respondent submits that the procedure of using s 289A(4) of the 1998 Act to deal with whether the appellant could run an argument based on estoppel arising from the earlier consent orders, was one to which “no objection was made”.[133] I can see nothing in the passages of the transcript to which the respondent refers in this regard[134] that suggests active consent on the appellant’s part. Counsel then appearing for the appellant, making submissions on this interlocutory application, said:
“There is no compulsion, in my respectful submission, for the [appellant] to flag the issue estoppel. Simply I’m relying on the certificate of determination which is in the application to resolve a dispute in mounting the argument that there’s been an acceptance by the respondent of injury to the thoracic and lumbar spines. Having said that, as I indicated earlier, there is no notation of the certification [sic, certificate] of determination which says that there is an injury – there’s an award for the [appellant] in respect of injury to the thoracic and lumbar spines.”[135]
[133] Respondent’s submissions, [32].
[134] Respondent’s submissions, footnote 17.
[135] T 9.26–10.2.
The above does not suggest acquiescence on the appellant’s part, to the proposition that he was obliged to give notice of the estoppel argument, and in its absence seek leave to make an application pursuant to s 289A(4). The appellant’s additional submissions on this appeal clearly do not accept the course that was adopted. The reliance on s 289A is described as “misconceived” and “not appropriate”.[136]
[136] Appellant’s additional submissions, [10], [14].
At the outset of the interlocutory application, before the parties had addressed on it, the Arbitrator said:
“… we had a quite detailed discussion during conciliation with regard to the effective [sic, effect of] consent orders appearing in the application to resolve a dispute that were issued in relation to prior proceedings in this Commission in 2018, and whether an issue estoppel is raised by those consent orders. It’s my view that this is a matter that requires a section 289A(4) application from the [appellant] who is the party seeking to rely on this dispute. It’s certainly not a matter that’s been notified in a notice of dispute under the 1987 Act or the 1998 Act. It’s not been a matter that’s been raised between the parties prior to the commencement of these proceedings, and the section 289A would otherwise prevent me from dealing with the dispute, unless I am satisfied that it is in the interests of justice to hear the dispute.”[137]
[137] T 7.12–27.
There is, of course, no transcript to indicate what was said in conciliation; that part of the process is not routinely recorded or transcribed. It is common for the parties during conciliation, in consultation with an arbitrator, to reach agreement about the basis on which a matter will be conducted, what points will be taken or conceded, the resolution of procedural issues, and other things of that nature. I have periodically indicated that, where there are discussions or agreements arrived at during conciliation, it is important that these matters be placed on the record during the arbitration hearing. I repeat that this is a necessary course, which protects the parties and the arbitrator involved, and facilitates any appeal that may subsequently occur.
On the basis of the material before me, I could not be satisfied that the appellant consented to the procedural course adopted.
The appellant’s brief summary of the role of s 289A(4) in the statutory scheme (see [107] above) is generally correct. Put briefly, when a claim is made the insurer is obliged to give notice if it disputes the claim, in compliance with s 78. The notice disputing the claim must comply with s 79, containing a statement of the reasons, issues and provisions of the legislation on which liability is disputed. It will be observed that a dispute is created by the insurer after a claim is made on it. The notice issued in compliance with s 79, setting out the reasons on which liability is disputed, is issued by the insurer.
Section 289 contains provisions dealing with when a dispute can be referred to the Commission. In a general sense, a dispute cannot be referred unless the person on whom the claim was made has disputed it or has failed to determine it when required by the Act. Additionally, a lump sum claim can be referred where the person on whom the claim was made has made a settlement offer pursuant to the determination and one month has passed. Put briefly, disputes can be referred when the person on whom the claim is made has disputed liability, wholly or in part.
Section 289A prevents referral of a dispute to the Commission unless it concerns only matters “previously notified as disputed”. That term is defined in subs (2) of the section. It is matters “notified in a notice of dispute under this Act or the 1987 Act” after a claim was made or reviewed. Such a notice will be one issued pursuant to s 78 or s 287A of the 1998 Act. In either instance it will be a notice by an insurer. The term “previously notified as disputed” also includes matters raised in writing “concerning an offer of settlement of a claim for lump sum compensation”. This probably relates to the matters referred to in s 289(3)(b) of the 1998 Act. It is unnecessary to consider that further, as it does not arise on the facts of the current matter. The decision set out in the s 78 notice dated 10 July 2019[138] in no way involved an offer of settlement.
[138] ARD, pp 6–9.
It follows from the above that s 289A of the Act relevantly precluded the Commission from dealing with a dispute in the current matter where it was not notified by the insurer in a notice of dispute pursuant to ss 78 or 287A of the 1998 Act.[139] The matters raised in the s 78 notice in the current matter were those matters that the insurer raised in disputing the claim. Section 289A was not relevant to the appellant’s attempt to rely on an argument based on estoppel and the earlier consent orders.
[139] See Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174, [33].
The respondent, on this appeal, submits s 289A(4) applies to previously unnotified matters by either party, and is “not limited to matters not previously notified by the insurer”. The respondent refers to no authority and makes no developed argument in support of this submission. The way in which the application was dealt with pursuant to s 289A of the 1998 Act was inconsistent with settled practice in the Commission over many years.
This does not leave employers without protection in situations where notice of matters is given late. The Commission is bound by a duty to afford procedural fairness.[140] A party is entitled to “notice of the case against it and the opportunity to respond to it”.[141]
[140] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [91]–[92]
[141] Far West Area Health Service v Radford, [2003] NSWWCCPD 10, [34].
The Arbitrator treated the question of whether the appellant could raise the issue of estoppel, on the basis of the earlier consent orders, as one involving the exercise of her discretion. In exercising her discretion on the basis of whether leave should be given pursuant to s 289A(4) she took account of irrelevant considerations. She failed to take account of relevant considerations. This involves error.[142] Ground No. 6 characterises this as a failure to afford the appellant procedural fairness. That is appropriate where the nature of the error is that the appellant’s entitlement to raise the estoppel argument and to make submissions in respect of it was dealt with on an erroneous basis.
[142] House v The King [1936] HCA 40; 55 CLR 499.
DISPOSITION OF THE APPEAL
Error is established in respect of Grounds Nos. 5 and 6. The appellant submits there should be findings of injury to the lumbar spine, the thoracic spine and the left upper extremity, and referral of the matter to an Approved Medical Specialist for assessment of permanent impairment. I do not accept that submission. There was a failure to take account of relevant medical evidence. There was a misstatement of the test of causation where there were multiple causes of injury. The appellant was not permitted to pursue his proposed argument based on estoppel, for reasons which involved a failure to afford procedural fairness. It does not follow that the matter must be determined on the basis that the appellant succeeds on all issues.
In Stead v State Government Insurance Commission, the High Court said:
“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”[143]
[143] [1986] HCA 54; 161 CLR 141, [16]. See also Toll v Morrissey [2008] NSWCA 197; 6 DDCR 561.
Consent orders can create an estoppel as between the parties.[144] Dr Sanki was a treating specialist whose views were potentially entitled to weight (which would be a matter for an arbitrator) notwithstanding the views the Arbitrator formed about contemporaneous complaint. A recognition of the fact that the alleged injury could potentially be established, notwithstanding the presence of multiple causes, could affect the finding on injury. It could not be concluded that a properly conducted trial could not possibly have produced a different result. The appropriate course is that the matter be remitted to a different Arbitrator for re-determination.
[144] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 [186]. See also Manpower Pty Ltd v Harris [2011] NSWWCCPD 10, [94].
DECISION
The Arbitrator’s decision dated 14 October 2019 is revoked.
The matter is remitted to a different Arbitrator for re-determination.
Michael Snell
DEPUTY PRESIDENT
1 April 2020
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