Negi v Nass Consulting Pty Ltd (No 2)
[2021] NSWPICPD 9
•27 April 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Negi v Nass Consulting Pty Ltd (No 2) [2021] NSWPICPD 9 |
| APPELLANT: | Seema Negi |
| RESPONDENT: | Nass Consulting Pty Limited |
| INSURER: | AAI Limited trading as GIO – Agent for the NSW WorkCover Scheme |
| FILE NUMBER: | A1-4439/17 |
| MEMBER: | Mr P Sweeney |
| DATE OF MEMBER’S DECISION: | 8 September 2020 |
| DATE OF APPEAL DECISION: | 27 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – admission of additional evidence on appeal – whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied – alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Self-represented | |
| Respondent: | |
| Ms K Balendra, counsel | |
| Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to adduce further evidence on the appeal is refused. 2. The Arbitrator’s Certificate of Determination dated 8 September 2020, amended on 29 September 2020, is confirmed. |
INTRODUCTION AND BACKGROUND
This appeal is an appeal from a decision of an Arbitrator dated 8 September 2020, in which the Arbitrator reconsidered his earlier decision in the same matter dated 8 February 2018. In the earlier decision, the Arbitrator found that Ms Seema Negi (the appellant) injured her neck and right shoulder, and suffered an aggravation of a psychological condition as a result of those physical injuries, in an incident in the course of her employment with Nass Consulting Pty Ltd (the respondent) on 30 January 2015. He found, however, that the appellant had recovered from the effects of the injury by 24 May 2017 and awarded her weekly payments and treatment expenses that ceased on that date. The Arbitrator also found that he was not satisfied that the appellant had suffered an injury to her back or her left shoulder in the incident.
The appellant’s claim for lump sum compensation was then referred to a medical assessor for assessment of her whole person impairment, who assessed the appellant’s whole person impairment of the right shoulder and cervical spine as 12%.
On 16 June 2020, the appellant (through her former legal representatives) lodged an application for reconsideration of the decision. The essential argument put in the application was that the Arbitrator’s finding that the appellant had recovered from the effects of the injury was inconsistent with the conclusive finding by the medical assessor that the appellant had a permanent impairment.
The Arbitrator agreed that there was an inconsistency and that this was a proper ground for a reconsideration of his earlier decision. He proceeded to reconsider the matter. In a Certificate of Determination dated 8 September 2020 (which was amended to insert a corrected date on 29 September 2020), the Arbitrator declined to amend the closed period award for weekly payments, but awarded the appellant ongoing treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), associated with medical treatment for the right shoulder and cervical spine.
The appellant, who does not have legal representation, appeals that decision.
On 10 and 11 December 2020, the appellant also sought to lodge an Appeal Against Decision of Arbitrator in respect of the decision dated 2 February 2018, which was well beyond the 28 day period prescribed by s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That appeal application was sealed by the Commission on 14 December 2020 and is the subject of consideration in Negi v Nass Consulting Pty Ltd.[1] Leave to appeal that decision out of time was refused.
[1] [2021] NSWPICPD 8 (Negi No 1).
The parties are referred to the decision in Negi No 1 for a more comprehensive background to these proceedings. This decision is to be read together with the decision in Negi No 1.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that an oral hearing is not required.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
This appeal is against the Certificate of Determination issued by the Arbitrator dated 8 September 2020 (amended on 29 September 2020) in which the Arbitrator reconsidered his earlier decision, and ordered the respondent to pay the appellant’s ongoing treatment expenses in respect of the injuries to the neck and right arm. The decision finally determined the appellant’s rights and is not an interlocutory decision. The appellant therefore does not require leave to appeal, in accordance with s 352(3A) of the 1998 Act.
ADDITIONAL EVIDENCE ON THE APPEAL
The appellant seeks to rely on further material in support of the appeal. In submissions dated 21 October 2021, the appellant provides a list of the documents and gives reasons as to why the documents ought to be admitted. The documents are identified as:
(a) a report from Dr Dwight Dowda, occupational physician, dated 21 August 2017;
(b) a bundle of payslips;
(c) references in relation to the appellant’s work performance;
(d) the contract entered into between the respondent and CBA;
(e) emails to and from a third party in relation to the standard of the third parties’ toilet facilities;
(f) a letter from the appellant’s legal representative dated 15 September 2020 about her prospects of appeal, and
(g) unidentified comments about the conduct of Dr Raymond Wallace in medical examinations of injured workers.
The appellant submits that the evidence is necessary in order to prove her honesty and integrity and to show that the surveillance videos were “manipulated by the respondent.” The appellant provides the following specific reasons as to why the documents ought to be admitted:
(a) the appellant provided the report of Dr Dowda to her legal representatives, who made submissions on the appellant’s behalf about the report before the matter was finally determined, but the report and submissions were rejected by the respondent;
(b) the payslips, which she had previously provided with her claim for compensation, establish her earnings with the respondent;
(c) the references were sent to her previous lawyer but were not included in her file, and show her ethics and integrity and were evidence of her successful career;
(d) the contract between the respondent and CBA is evidence going to her proper compensation entitlement;
(e) the emails about the toilet facilities show how she had developed a phobia of falling and of water spills on floors;
(f) the letters from her legal representatives show that her lawyers could not act on her behalf in the appeal and had advised against an appeal, and
(g) the reviews of Dr Wallace’s conduct are relevant to show that Dr Wallace’s evidence is compromised by his attitude and biased approach.
The respondent refers to s 352(6) of the 1998 Act. The respondent objects to the further documentation being admitted on the appeal. The respondent submits that the appellant has not established that the evidence was not reasonably available to her or could not have been obtained by her before the arbitration. The respondent submits further that the appellant has not established that the failure to grant leave to rely on the documents would result in a substantial injustice in this case.
Consideration
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In order for the documents to be admitted, the appellant must show that the evidence was not available to her or could not reasonably have been obtained by her before the arbitration took place. It is clear from the appellant’s submissions that all of the documentation sought to be relied upon was available to her at that time. The appellant must therefore show that the failure to admit the documents would cause her a substantial injustice.
In CHEP Australia Ltd v Strickland,[2] Barrett JA discussed the test to be applied in consideration of whether a failure to admit documents would cause a substantial injustice. At [30]–[31] of his decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[2] [2013] NSWCA 351; 12 DDCR 501.
Put simply, the second limb of s 352(6) requires an assessment of whether the Arbitrator would have come to a different conclusion had that evidence been before him. In order to make that assessment, it is necessary to consider the additional evidence and determine whether, had it been available to the Arbitrator, it would have produced a different result.
The Arbitrator’s decision appealed against is the reconsideration decision dated 8 September 2020, which I have summarised below. The Arbitrator was asked to reconsider his findings that the effects of the injury to the appellant’s neck and right shoulder had ceased, thereby disentitling the appellant to ongoing weekly payments or treatment expenses. The Arbitrator was not asked to reconsider his earlier findings that the appellant’s back was not injured as alleged, or his findings in relation to the unreliability of the appellant’s evidence. The Arbitrator was also not asked to reconsider the calculation of the appellant’s pre-injury average weekly earnings, which had been the subject of submissions by the parties in the earlier proceedings.
The report of Dr Dowda was produced following a medico-legal assessment of the appellant in 2017. Dr Dowda was reliant upon the history provided by the appellant at that time and the information contained in the documentation forwarded to him. The appellant has highlighted various passages from the report, which address:
(a) the appellant’s reported ongoing complaints and limitations;
(b) Dr Dowda’s diagnosis of an entrenched chronic pain syndrome, and
(c) the appellant’s inability to work.
It is notable that Dr Dowda considered the appellant presented with what would be described as a significant psychiatric illness about which he was not qualified to comment. It is also notable that, on examination, the appellant “manifested very limited movement of the right arm”[3] and “when testing for muscle power however, there was give way weakness and virtually no detectable effort for giving maximum grip strength or pincer grip strength between thumb and index finger, thumb and little finger.”[4] Dr Dowda commented that the appellant had an unusual gait in respect of the right leg when asked to walk on her heels or toes.
[3] Dr Dowda’s report dated 21 August 2017, p 5.
[4] Dr Dowda’s report dated 21 August 2017, p 6.
Dr Dowda further commented that the appellant was displaying significant maladaptive behaviours which may be linked to a psychiatric condition, about which he would defer to the opinion of an independent psychiatrist. He opined that the limitations on the appellant’s effective use of her right arm exhibited pain avoidance behaviour and considered that the entrenched chronic pain, together with her perception of pain and disability, was significantly impacting her ability to work.
The appellant is required to show that the evidence of Dr Dowda would have been sufficient to persuade the Arbitrator, had it been before him, to arrive at a different conclusion. The difficulty with this evidence is that, as with the evidence rejected by the Arbitrator, it is:
(a) reliant upon the history provided to the doctor more than two years after the event;
(b) dependent upon the reliability of the appellant’s complaints, and
(c) inconsistent with the appellant’s activities recorded in the surveillance material, some of which was in relation to activities performed by the appellant within months of the examination, and none of which was provided to Dr Dowda for comment.
It follows that it is highly unlikely that the evidence would have been sufficient to result in a different outcome. The report is not admitted in the appeal.
In relation to the remaining documents:
(a) the bundle of payslips, together with the contract entered into with CBA, which the appellant seeks to rely upon to show her pre-injury earnings, were in evidence before the Arbitrator. They formed the basis of, and were consistent with, the Arbitrator’s findings as to the appellant’s pre-injury average weekly earnings. The documents are not supportive of error on the part of the Arbitrator;
(b) the references in relation to the appellant’s work performance are not relevant to the appellant’s conduct after the injury or to the issues of incapacity arising from the injury or the appellant’s need for treatment;
(c) the emails to and from a third party in relation to the standard of the third parties’ toilet facilities are proof only that the appellant was aware of the danger of slippery floors. They do not constitute proof of the appellant’s purported phobia of wet tiles and toilets, which requires support from a psychiatric opinion;
(d) the letter from the appellant’s legal representative dated 15 September 2020 about her prospects of appeal support the appellant’s difficulties in obtaining legal representation on the appeal, but are not relevant to an examination of whether the Arbitrator erred, and
(e) the unidentified comments about the conduct of Dr Raymond Wallace in medical examinations of injured workers are not verified by the identification of the authors or the source of the information and cannot be tested as to their veracity.
It follows that none of the documents are of any probative value on the appeal. They do not, either separately or in combination, go to show that the Arbitrator was wrong. Had they been before the Arbitrator, either singly or together, they could not lead to a different outcome. The documents are therefore not admitted.
THE EVIDENCE
A summary of the evidence before the Arbitrator leading up to the decision dated 2 February 2018 is provided in Negi No 1 and is adopted for the purpose of this appeal. The following summary relates to the further material which was admitted into evidence for the purpose of the application for reconsideration.
The appellant’s statement evidence
The appellant provided a further statement dated 16 October 2019 for the purposes of the reconsideration application.[5] The appellant confirmed her earlier statement evidence and provided an update of her ongoing treatment regime. She provided details of her ongoing pain and a long list of the difficulties she continued to experience as a result of the injury.
The medical evidence from the treating doctors
[5] Annexures to application for reconsideration, pp 1–8.
Dr Indranie Benedict, general practitioner
A number of reports and referrals from Dr Benedict, which were not previously before the Arbitrator, were adduced in evidence in the reconsideration application. Relevantly, on 9 December 2016, Dr Benedict sent a referral letter to the Sydney Pain Management Centre, in which she indicated that the appellant had experienced:
“chronic pain starting after a fall at work in January 2015. She did hurt the right side of her chest wall at the time & soon after started experiencing pain in the neck, R shoulder, lower back radiating down the R lower limb to the feet … She also suffers depression over the years related to her personal life issues & since this accident her depression has worsened significantly.”[6]
[6] Annexures to the application for reconsideration, p 76.
Mr Micke Hoong, acupuncturist and remedial therapist
The appellant sought treatment from Mr Hoong from 27 March 2015 until 14 July 2015. In a report dated 30 July 2015, Mr Hoong advised that the appellant:
“presented with injury on the right side of her body. Area of pain and loss of functionality included right rib area, right neck, right shoulder, right lower back, right hand and right leg.”[7]
[7] Annexures to the appellant’s submissions received 1 September 2020, pp 47–48.
Dr Mandeep Kaur, general practitioner
Dr Kaur, the appellant’s later general practitioner, provided a number of referrals to various medical specialists between 16 February 2018 and 28 April 2019. Dr Kaur variously described the appellant’s injuries as “cervical and thoracolumbar back [pain] with radiculopathy,” “r[ight] sided neck and back pain, that started with a workplace injury in 2015,” “chronic pain affecting the r[ight] side of her body” and “post traumatic stiffness in lumbar back which compromise her gait and posture.”[8]
[8] Annexures to the application for reconsideration, pp 121–127.
Dr Kaur also wrote a “To Whom It May Concern” letter, advising:
“This is to certify that Ms Seema Negi … is a patient of mine who suffers from chronic Right neck, shoulder, chest wall, and lower back pain radiating down the right leg and foot. I have recommended physiotherapy and Hydrotherapy.
She, at times, cannot get to her appointments and therapy sessions as the pain limits her driving and [judgement] on the road. I therefore also support her application for transport/taxi service.”[9]
[9] Annexures to the application for reconsideration, p 130.
On 19 August 2019, Dr Kaur responded to a request for a report from the appellant’s legal representatives.[10] She diagnosed:
(a) post injury neck stiffness and weakness of the right shoulder girdle;
(b) neck pain and right upper paraesthesia with hyperreflexia;
(c) C5/6 disc herniation, T3/4 small disc protrusion, L4/5 disc desiccation and right L5/S1 annular tear, as shown on the MRI scans;
(d) right thoracic pain radiating from the spine;
(e) lower back pain and radiculopathy, and
(f) left foot plantar fasciitis and intrasubstance tear.
[10] Annexures to the application for reconsideration, pp 162–163.
Dr Kaur indicated that the appellant was unlikely to return to pre-injury function given her lack of progress under treatment and considered that the appellant had developed a pain syndrome in the neck, shoulders, chest and low back. Dr Kaur considered that the appellant’s pain syndrome had an acute onset following the fall, so that the fall was directly responsible for her condition. Dr Kaur opined that the appellant had no capacity for work on the basis that she had an inability to sit, stand or walk for more than a few minutes.
Mr Francis Broomfield, physiotherapist
Mr Broomfield reported to Dr Kaur and Dr Anil Nair, pain management specialist, on 5 June 2018.[11] Mr Broomfield advised that the appellant had seen him sporadically after the respondent denied liability for the compensation claim, but that from the beginning of 2018 he had seen the appellant more frequently in the context of more severe pain. Mr Broomfield described wide-spread symptoms and restrictions in the appellant’s neck, right shoulder and arm, right ribs and thoracic area, lumbar spine and right hip.
[11] Annexures to the application for reconsideration, pp 133–135.
Mr Broomfield considered that the appellant was displaying many pain avoiding behaviours as a result of the condition being managed, rather than treated. He explained that this behaviour was demonstrated by her continued wearing of a brace while driving three years after the injury. Mr Broomfield opined that there was an impingement of the nerve either in the cervical spine or further down the spine, which had been resistant to treatment. He expressed concern in relation to the appellant’s mental health, which was causing a lack of motivation to push through her symptoms. Mr Broomfield considered that, on the basis that the radiological investigations had failed to show a definitive cause of the appellant’s symptoms, pain management strategies provided by Dr Nair would be important, as well as hydrotherapy exercises.
Dr Andrew Singer, psychiatrist
The appellant was referred to Dr Andrew Singer by A/Prof Molloy. Dr Singer reported to A/Prof Molloy on 21 December 2017.[12] Dr Singer reported that the appellant attended, complaining of “right-sided body pain, neck pain, chest pain, abdominal pain, right leg pain, right arm pain with comorbid mood disturbance.” Dr Singer commented that the appellant:
“described a number of unhelpful beliefs about the injury. She feels she crushed her right side. She feels that she will not get better. She feels that there is something wrong which has not been diagnosed.”
[12] Annexures to the application for reconsideration, pp 119–120.
Dr Singer noted that the appellant was consulting Dr Hsu, orthopaedic surgeon, in respect of her orthopaedic symptoms. Dr Singer advised that he suggested the appellant discuss with Dr Jaspreet Singh whether she should remain in Dr Singh’s care, rather than consult him.
Associate Professor Allan Molloy, pain management specialist
Dr Benedict referred the appellant to A/Prof Allan Molloy. A/Prof Molloy reported to Dr Benedict on 7 September 2017.[13] A/Prof Molloy recorded that the appellant complained of severe pain down the whole of her right side, was experiencing headaches, panic attacks, and had lost confidence when driving. A/Prof Molloy said the appellant sometimes stayed in bed for days at a time and used a brace on her neck and back.
[13] Annexures to the application for reconsideration, pp 107–110.
A/Prof Molloy noted that, on testing, the appellant had no power in her right arm and right leg, despite being able to carry things, hold her glasses, make a fist and being able to walk and weight bear on the right leg. A/Prof Molloy reviewed the MRI scan of the cervical spine dated 3 November 2016.
A/Prof Molloy reported that a physiotherapy assessment by Ms Lois Tonkin, physiotherapist, had to be aborted because of the appellant’s minimal effort in testing range of movement and strength and the degree of reported distress from head pain when attempting lower limb range of motion.
Following a multi-disciplinary meeting with his team, A/Prof Molloy advised that the appellant would benefit from individual physiotherapy and psychological intervention to encourage an upgrade to land-based exercise. A/Prof Molloy said that, firstly, the appellant would be required to read the book titled “Manage Your Pain.”
A/Prof Molloy further reported that at a psychological assessment performed by Ms Mayumi Oguchi, clinical psychologist, it was determined that the appellant suffered from severe clinical depression. The appellant reported a strong sense of injustice and anger.
A/Prof Molloy was of the view that the appellant’s passive pain management strategies were sub-optimal. A/Prof Molloy said that the appellant required an intensive pain management program with the view to having the appellant participate in the ADAPT program and she should also continue to see her psychiatrist and psychologist for ongoing management of her low mood and anxiety.
A/Prof Molloy reported further to the appellant’s subsequent general practitioner, Dr Noor Makhija, on 8 October 2018, following review of the MRI scan of the spine undertaken on 4 July 2018.[14] It appears from that report that the appellant was yet to commence the pain management program recommended by A/Prof Molloy.
[14] Annexures to the application for reconsideration, p 153.
Dr Brian Hsu, spinal surgeon
Dr Benedict also referred the appellant to Dr Brian Hsu, spinal surgeon, who practised from the same practice as Dr Singh. Dr Hsu reported to Dr Benedict on 12 August 2017.[15] He noted that Dr Singh had recommended a trial of a cervical spine injection. Dr Hsu reviewed the radiological investigations and advised that he considered that this non-operative treatment was the best course of action. He suggested, however, that the appellant should first undergo a bone scan, which he would like to review before progressing with the injection.
[15] Annexures to the application for reconsideration, p 105.
Dr Hsu reported to Dr Benedict again on 26 October 2017,[16] advising that the appellant had been unwell and had not undergone the bone scan. He said she had requested an MRI scan of her right shoulder and thoracic spine, which Dr Hsu arranged. He also advised that the appellant indicated that she would undergo the bone scan in the near future. Dr Hsu said that after the findings from that scan became available, he may proceed to administering the diagnostic injections. He confirmed that he did not consider that there was any indication for surgical intervention at that stage.
[16] Annexures to the application for reconsideration, p 115.
Dr Anil Nair, spinal surgeon
The appellant was referred to Dr Anil Nair by Dr Kaur. Relevantly, on 4 September 2018, Dr Nair reported to Dr Kaur that the appellant continued to have right upper and lower extremity symptoms and the MRI scan disclosed a right C5/6 disc herniation with foraminal stenosis. He also reported that there was fluid in the L4/5 facet joints and mild desiccation. Dr Nair prescribed epidural corticosteroid injections at the L4/5 level and a C5/6 corticosteroid injection.[17]
[17] Annexures to the application for reconsideration, p 150.
On 5 August 2019, Dr Nair responded to a request for a report by the appellant’s then legal representatives. He advised that:
(a) the appellant suffered from a C5/6 disc injury, pathological changes in the facet joints of the L4/5 and L5/S1, with annular tears at the L5/S1 level;
(b) there was a direct causal nexus between the incident on 30 January 2015 and the appellant’s current symptoms and radiological findings;
(c) the incident was the catalyst for the injuries;
(d) surgery and corticosteroid injections were not indicated, but may be considered in the future;
(e) the appellant’s capacity for work on the open labour market was compromised by the injuries, and
(f) the need for past and ongoing treatment was as a result of the injuries.[18]
[18] Annexures to the application for reconsideration, pp 160–161.
The radiological evidence
An x-ray of the thoraco-lumbar spine was undertaken on 16 March 2015, which showed minor degenerative changes and osteophyte formation.[19]
[19] Annexures to the application for reconsideration, p 60.
On 27 April 2016, a CT scan of the appellant’s chest was performed, which demonstrated no significant abnormality.[20]
[20] Annexures to the application for reconsideration, p 63.
An MRI scan of the appellant’s cervical spine was conducted on 3 November 2016. The scan reported a moderate disc protrusion at the C5/6 level effacing the C6 nerve root and a minor bulge at the C6/7 level, with some minor left sided foraminal narrowing at both levels.[21] An MRI scan of the lumbar spine was also conducted on 9 December 2016, which showed no evidence of disc protrusion or nerve root impingement, and a minimal disc bulge at the L5/S1 level.[22]
[21] Annexures to the application for reconsideration, p 72.
[22] Annexures to the application for reconsideration, p 74.
A further MRI scan of the appellant’s whole spine was performed on 4 July 2018. The scan showed multi-level degenerative wear in the form of facet joint arthropathy. The changes were more prominent at the C5/6 level with potential impact on the C6 nerves.[23] The scan also reported a very small disc protrusion at the T3/4 level, which was not causing nerve root impingement, and a right annular tear at the L5/S1 level. Very early degenerative changes were noted at the L5/S1 level and mild facet joint arthrosis at the L4/5 level.[24]
[23] Annexures to the application for reconsideration, pp 138–139.
[24] Annexures to the application for reconsideration, pp 140–141.
The remaining radiological evidence adduced in the proceedings relates to a subsequent knee and ankle injury suffered by the appellant and an injury to the right shoulder following a fall in 2019. That evidence is not relevant to the issues on appeal.
The Medical Assessment Certificate issued by Dr Drew Dixon, orthopaedic surgeon
The Medical Assessment Certificate dated 15 March 2018 was also annexed to the application for reconsideration.[25] The medical assessor reviewed the radiological evidence of the cervical spine, the chest and the right shoulder, as well as the bone density scan. The medical assessor examined the appellant and recorded that the appellant had stiffness and restriction in extension and rotation of the cervical spine, as well as right trapezius muscle tenderness and a positive cervical compression test. There was also stiffness on elevation of the right shoulder with signs of impingement and tenderness present in the trapezius muscle, the deltoid muscle and Levator scapulae.
[25] Annexures to the application for reconsideration, pp 48–54.
The medical assessor found that:
“[The appellant] has post traumatic stiffness of her right shoulder, with trapezial muscle Levator scapulae, deltoid and supraspinatus muscle belly pain with impingement on abduction, with post traumatic stiffness and weakness of her right shoulder girdle, and subacromial bursitis with supraspinatus tendinopathy.
She has a neck strain injury with post traumatic stiffness with dysmetria, and facet arthralgia with radicular complaint with intermittent paraesthesia in her right hand and right sided occipito-frontal headaches with a C5/6 disc lesion on MRI.
Her right rib injury has settled.”[26]
[26] Annexures to the application for reconsideration, p 51.
The medical assessor said that the appellant was consistent in her presentation. He certified that the appellant suffered from 5% whole person impairment of her cervical spine and 8% whole person impairment of her right upper extremity, giving the appellant a total of 13% whole person impairment.
THE ARBITRATOR’S REASONS
The Arbitrator referred to his earlier amended Certificate of Determination dated 15 February 2018, in which he found that the appellant suffered from injury to her chest, neck and right shoulder in the course of her employment on 30 January 2015 and awarded the appellant weekly payments and treatment expenses for the period 2 October 2015 to 24 May 2017. He confirmed that he found that the effects of the injury had ceased by 24 May 2017 and remitted the matter to a medical assessor to assess the whole person impairment of the appellant’s cervical spine and right upper extremity as a result of the injury.
The Arbitrator noted that the medical assessor had certified the appellant as having 5% whole person impairment of her cervical spine and 8% whole person impairment of the right upper extremity as a result of the injury, and that the appellant was therefore awarded $17,050 pursuant to s 66 of the 1987 Act. The Arbitrator further noted that the appellant sought a reconsideration of the award dated 15 February 2018 because it was inconsistent with the finding of the medical assessor that the appellant had a permanent impairment.
The Arbitrator observed that the arbitration, which was conducted by way of a telephone conference, was adversely affected by issues with connectivity and sound quality, but that the submissions were recorded, and the transcript was available. He noted that the submissions were much the same as the written submissions made at the commencement of the proceedings. He advised that the parties were also given an opportunity to lodge further submissions if a matter had been overlooked, but neither party had done so.
The Arbitrator said that it had been agreed that all of the evidence that had been relied upon in the earlier arbitration was also relied upon in the reconsideration application. He remarked that the only evidence referred to in the reconsideration application was the evidence upon which his reasons were based or were incorporated in the Medical Assessment Certificate.
The Arbitrator summarised the submissions of the parties and the relevant legislative provisions, namely ss 326 and 350 of the 1998 Act. He referred to and quoted from the decision of Roche DP in Samuel v Sebel Furniture,[27] in which the Deputy President set out the series of principles applicable in a reconsideration application. That is, that:
[27] [2006] NSWWCCPD 141; 5 DDCR 482.
(a) section 350(3) of the 1998 Act gives the Commission a wide discretion to reconsider its previous decisions;
(b) a ‘decision’ includes but is not necessarily limited to, any award, order or determination of the Commission;
(c) whilst the discretion is a wide one, it must be exercised fairly, taking into account relevant considerations such as the reason for and extent of any delay in bringing the application for reconsideration;
(d) one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely;
(e) a reconsideration may be permitted if new evidence that could not, with reasonable diligence, have been obtained at the first arbitration is later obtained and, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result;
(f) given the broad power of ‘review’ in section 352, the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by arbitrators;
(g) depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[28] may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;
(h) a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration, and
(i) the Commission has a duty to do justice between the parties according to the substantial merits of the case.
[28] [1981] HCA 45; 147 CLR 589.
The Arbitrator observed that the Commission no longer had the broad power of review referred to in [63(f)] but otherwise the principles applied to the matter before him. The Arbitrator noted that the centre of the dispute between the parties was the dichotomy between the Commission’s jurisdiction that it was for the Commission to determine liability issues, but for a medical assessor to determine the question of permanent impairment. The Arbitrator referred to the former sub-s 65(3) of the 1987 Act, which precluded the Commission from making an award of compensation for permanent impairment unless the degree of impairment had been assessed by a medical assessor. The Arbitrator noted that the subsection was in force at the time he remitted the question of whole person impairment for assessment.
The Arbitrator discussed various authorities dealing with that dichotomy, ultimately considering the reasoning in Jaffarie v Quality Castings Pty Ltd,[29] in which Roche DP said that there was the potential for inconsistent findings where the Commission determines that the effects of the injury have ceased but the medical assessor subsequently finds that there is a permanent impairment. The Arbitrator said that the suggestion by Roche DP that the Arbitrator ought to refer the matter for medical assessment by an assessor before determining the weekly compensation and medical expenses entitlements was cumbersome and inefficient. The Arbitrator noted that the repeal of sub-s 65(3) of the 1987 Act had, to a large extent, resolved that issue but that in this case, the repeal occurred after the referral had been made. The Arbitrator recollected that the respondent did not object to the referral and on that basis the referral took place.
[29] [2014] NSWWCCPD 79 (Jaffarie).
The Arbitrator referred to the documents annexed to the application for reconsideration and the respondent’s submission that those documents did not constitute “different” evidence to that evidence relied upon in the earlier arbitration.
The Arbitrator accepted the submission, noting that the recent medical opinions were simply “more” evidence. The Arbitrator added that those opinions were not the sole basis for the application for reconsideration. The Arbitrator said that it was clear that the appellant was reliant upon the inconsistency between his finding that the appellant had recovered from the effects of the injury and the medical assessor’s certification that the appellant had a permanent impairment of her neck and right upper extremity. The Arbitrator observed that, in those circumstances, and in accordance with Jaffarie, there may be a proper basis for a reconsideration of his decision. The Arbitrator added that he could not think of any rational argument to the contrary.
The Arbitrator referred to the respondent’s submission in relation to the unexplained delay of more than two years in bringing the reconsideration application. He observed that the question of whether the delay was unreasonable was a matter of fact and degree, and in this case, the respondent would suffer no prejudice, other than that it had not been able to finalise the matter. The Arbitrator concluded that, despite the extent of the delay being unexplained, it would not be a just and equitable outcome to refuse the appellant’s application to have the determination, which determination was inconsistent with the medical assessor’s finding, reconsidered.
The Arbitrator noted the respondent’s argument that the Commission was not bound by the determination of the medical assessor when giving consideration to the degree of the appellant’s incapacity. The Arbitrator considered that the proposition was probably correct, but that it did not address the assertion of inconsistency raised by the appellant. The Arbitrator said that the critical question was whether his finding that the effects of the injury had ceased was inconsistent with the medical assessment some months later, in which the medical assessor found that the appellant suffered from a permanent impairment of the neck and right shoulder. The Arbitrator observed that the two findings could not stand together.
The Arbitrator said that he had not been referred to and nor had he reviewed the evidence that led him to his conclusion, but noted that the basis upon which the finding was made was his conclusion that the appellant’s evidence was unreliable. The Arbitrator explained that:
(a) the appellant’s presentation to Dr Wallace on 11 May 2017 was inconsistent with the appellant’s activities later that day of adjusting her hair and moving her neck and right arm more freely than in the medical examination;
(b) the appellant requested a hire car to travel to the medical examination but soon after, drove her own car, and
(c) Dr Wallace concluded that the presentation in the DVD was entirely inconsistent with her presentation at the examination by him on the same day.
The Arbitrator observed that the appellant had provided no explanation, even in the reconsideration application, for the inconsistencies. The Arbitrator concluded that he remained of the view that the appellant’s evidence was unreliable. The Arbitrator commented that it was obvious that the medical assessor accepted the appellant’s complaints. He said that, although the medical assessor had access to the material in evidence at the arbitration, the medical assessor did not refer to the inconsistencies and nor did he refer to the Arbitrator’s findings about the appellant’s reliability.
The Arbitrator conceded that, as the certification by the medical assessor is conclusively presumed to be correct, his finding that the injury had ceased could not stand. He said he was obliged to reconsider his decision but, in doing so, he bore in mind that the appellant was not a reliable witness. The Arbitrator remarked that the appellant’s presentation to many doctors with complaints of widespread pain must be assessed in the light of the accounts to medical practitioners in the days following the incident.
The Arbitrator reviewed the record of widespread complaints made to Dr Singer, psychiatrist, in his report dated 21 December 2017 and to Dr Kaur in her report dated 24 February 2018. The Arbitrator noted the appellant’s submission that the appellant enjoyed strong support from the medical assessor and Dr Nair that the neck and arm symptoms were caused by the disc lesion in the neck. The Arbitrator considered that, in ordinary circumstances, that evidence would overcome the evidence of Dr Wallace, but in the particular circumstances of this case, Dr Wallace was the only witness to have viewed the surveillance video and there was therefore no reason to reject his evidence about what the video showed.
The Arbitrator described the appellant’s widespread symptoms as “extraordinary,” and the location of the symptoms contrasted starkly with the appellant’s description of injury reported to her treating doctors in the weeks following the injury.
The Arbitrator observed that it was not apparent to him that the appellant had objective signs of a disability. He referred to Dr Harrison’s finding that the appellant had non-verifiable radiculopathy, and Dr Harrison’s description of the symptoms as “electricity” in a global pattern down the right shoulder and into the hand. He also referred to the evidence of Dr Bhisham Singh, who reported diffuse symptoms all over the right side of the body and face, but that sensory testing was normal.
The Arbitrator concluded that it was unlikely that the appellant displayed objective signs of radiculopathy and that the validity of the testing performed by the medical assessor was reliant upon the appellant’s reliable responses. The Arbitrator said that, on the same basis, the appellant’s capacity for work was reliant upon her account of the severity of her symptoms. The Arbitrator reiterated that he found the appellant’s evidence unreliable, and he did not accept that the appellant had an incapacity for work after 24 May 2017. The Arbitrator pointed out that:
(a) it was not self-evident that because the appellant had a permanent impairment of the neck and right arm she would have an incapacity for her former work, as opposed to someone who worked in physical work;
(b) the test under the current legislation was not whether the appellant had a diminution in her earning capacity in the open labour market;
(c) the appellant worked up until October 2015, at times in full-time work, and
(d) there was no logical reason as to why the appellant was now more incapacitated than she was during that period.
The Arbitrator said that the relationship between the appellant’s psychological condition and her neck and right arm injury also depended upon the appellant’s credibility, and, as Dr Wotton observed, it was difficult to know what was going on in the appellant’s mind.
The Arbitrator concluded that, while ultimately the Commission must accept that the effects of the injury were continuing, it did not follow that the appellant had established an entitlement to weekly payments of compensation. The Arbitrator declined to vary the award made in respect of the claim for weekly payments. The Arbitrator further concluded, however, that because the entitlement to treatment expenses was to be assessed differently to that of weekly compensation, in circumstances where the effects of the injury continued, the Commission was bound to enter an award in favour of the appellant in respect of her treatment expenses pursuant to s 60 of the 1987 Act.
The Certificate of Determination issued on 8 September 2020 (amended on 29 September 2020) records:
“The Commission determines:
1. Having reconsidered my decision of 15 February 2018 pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 I amend the orders made therein by deleting order 4 of my Determination and inserting in lieu:
‘Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 in respect of injuries to the applicant’s neck and right shoulder on 30 January 2015.’”
GROUNDS OF APPEAL
The appellant does not clearly and separately identify her grounds of appeal. It appears from the narration provided which was incorporated in the appeal lodged that the appellant complains that the Arbitrator erred by:
(a) rejecting her allegation that she injured her back and left shoulder in the fall;
(b) finding that she was no longer incapacitated for work;
(c) failing to correctly calculate her loss of income;
(d) failing to take into account her psychological injury/condition when assessing her capacity to earn;
(e) failing to provide the opportunity to her and her legal team to make submissions about her capacity for work;
(f) accepting the surveillance evidence;
(g) accepting the opinion of Dr Wallace;
(h) lacking fairness and independence in his decision-making process, and
(i) incorrectly assessing her lump sum entitlements.
I have extracted from the allegations of error and the submissions of the parties the matters that pertain solely to the appeal from the Arbitrator’s earlier decision dated 2 February 2018. As a result, only the alleged errors summarised at [80(b), (d), (e) and (h)] require consideration in this appeal. The remaining allegations are dealt with in Negi No 1, as they concern allegations pertaining to the Arbitrator’s decision dated 2 February 2018.
The grounds of appeal are thus identified as:
(a) Ground One: error in finding that the appellant was no longer incapacitated for work;
(b) Ground Two: error by failing to take into account the appellant’s psychological injury/condition when assessing her capacity to earn;
(c) Ground Three: error in failing to provide the opportunity to her and her legal team to make submissions about her capacity for work, and
(d) Ground Four: error by failing to apply fairness and independence in the decision-making process.
LEGISLATION
Section 326 of the 1998 Act prescribes the status of an assessment certified in a medical assessment certificate. Subsection (1) provides:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether the degree of impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.”
Section 350(3) of the 1998 Act provides:
“(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 352 of the 1998 Act makes provision for the circumstances in which an appeal to a Presidential member against a decision of an arbitrator can be brought. Subsection (5) provides:
“(5) 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.”
SUBMISSIONS
Ground One
The appellant submits that, following the injury, she was unable to perform her work at the same level and was bullied to work for long hours for nine months without leave. She advises that she developed a fear of working.
The appellant refers to the difficulties she was experiencing as recorded by Dr Wotton, and Dr Wotton’s view that she was not fit for pre-injury duties because of severe pain. The appellant submits that the Arbitrator failed to take into account all of her injuries sustained in the incident which have impacted her ability to earn.
The appellant asserts that the Arbitrator measured her employment against that of hard physical work and determined, in a demeaning way, that because her work was not manual labour, she could not have any incapacity for the highly paid work of the kind she was doing prior to the injury. The appellant describes her former role as a “high profile career” and refers to the duties she was required to perform in her role. The appellant submits that because of her multiple injuries, she is unable to return to such a role.
The respondent refers to the Arbitrator’s reasons given in the reconsideration decision at [51]–[52] and [55], and submits that on a fair reading of his reasons, the Arbitrator simply made a comparison between the nature of administrative duties as opposed to more physical duties and did not denigrate the nature of the appellant’s employment. The respondent asserts that the Arbitrator was entitled to conclude that, because the work the appellant undertook was not physically taxing, the appellant had no ongoing incapacity for work as a result of the injuries.
Ground Two
The appellant refers to the history summarised by Dr Wotton, and his opinion that the appellant’s psychological stressors continued and caused her emotional distress and depression, with triggers reminding her of her injuries. The appellant refers to Dr Wotton’s note of the rapid onset of depression and his observation that the persistence of extreme physical symptoms, without objective explanation, needed further investigation.
The respondent does not specifically address the complaint that the Arbitrator failed to take into account the appellant’s psychological condition when assessing her incapacity. However, the respondent’s submission that this appeal is limited to a challenge to the matters raised in the reconsideration application is relevant, as well as its submissions in relation to whether the Arbitrator’s conclusions were based on the evidence and therefore open to him.
Ground Three
The appellant submits that the Arbitrator never asked her legal team to address the question of why she was not able to work, when she was previously able to work during 2015, and did not give her the opportunity to clarify her incapacity for work in the context of her multiple injuries. The appellant says that the Arbitrator’s conclusions indicate that he had a lack of understanding in relation to complex spinal injuries, which, in her case, were not diagnosed early. The appellant submits that she did not recover from those injuries and had no experience with workers compensation claims. The appellant adds that it was not her fault that she suffered the injury, or that she could not afford the best legal representation.
In relation to the appellant’s complaint about the quality of her legal representation, the respondent contends that, apart from the technical difficulties that were experienced by all parties, the appellant’s legal representatives were able to, and did, make full submissions referable to the issues in the case. The respondent points out that, in fact, the appellant was partly successful in her application for reconsideration of the earlier decision. The respondent submits that the appellant has no basis for complaint about the quality or effectiveness of the appellant’s legal representation, and there was no denial of procedural fairness.
Ground Four
The appellant asserts that the Arbitrator openly favoured the respondent’s case, used derogative language towards her and frequently indicated that there was no basis for her case. The appellant contends that the Arbitrator was resistant to the presentation of the reconsideration application. She reiterates that he compared her highly paid job to that of a clerk, which did not involve manual labour, thus ridiculing the concept of disability.
The appellant describes the Arbitrator’s questions as vague and making no sense and asserts that the Arbitrator has no regard for highly qualified women and suffers from a medical condition that affected his judgment. The appellant contends that the Arbitrator’s acceptance of her neck and shoulder injuries but not her injury to her back makes no sense in the context of her having reported the injury, and the severe symptoms in her back, to her general practitioner in March 2015.
The appellant complains that her lawyer was replaced just days prior to the arbitration and the replacement lawyer had little appreciation of her case and had neglected to comply with the requirement to provide written submissions. Further, her barrister had back surgery just days before the final arbitration and was on medication at the time, and these things impacted her case.
The respondent does not directly reply to the appellant’s submissions as to the conduct of the Arbitrator. The respondent generally submits, however, that there was extensive evidence available to the Arbitrator to support his findings and his reasoning process clearly explained his conclusions. The respondent refers to the transcripts recorded which show that the appellant had ample opportunity to adduce evidence and make submissions in relation to her credibility. The respondent submits that the appellant’s assertions are not sufficient to show error on the part of the Arbitrator in his reconsideration of his earlier decision.
The appellant’s submissions on the transcripts
The appellant makes further submissions in relation to the transcript dated 17 August 2020. The appellant points to an excerpt from the transcript where her counsel clearly mentioned that the appellant sought to have her back injury included in her claim for injury. The appellant refers to the transcript as evidence of the technical difficulties that presented on the day of arbitration.
The appellant also makes submissions on matters arising from the transcript dated 5 December 2017. The appellant reiterates that her case included all of her claimed injuries, not simply her neck and shoulder, and it was unfair that the Arbitrator only referred her neck and right shoulder to Dr Dixon for assessment. The appellant maintains that she reported all of her injuries to her treating specialists but liability for the injuries other than the neck and the right shoulder was rejected on the basis of the video surveillance undertaken some three years after the injury.
THE RELIEF SOUGHT
The appellant seeks to have the Arbitrator’s findings set aside and a determination in her favour. The respondent seeks to have the Arbitrator’s Certificate of Determination confirmed.
DISCUSSION
This appeal is an appeal from the Arbitrator’s decision in relation to the application for reconsideration of the Arbitrator’s earlier decision dated 2 February 2018. In his decision of that date, the Arbitrator made the following findings:
(a) the appellant suffered injury to her chest, neck and right shoulder arising out of and in the course of her employment on 30 January 2015;
(b) her employment was a substantial contributing factor to these injuries;
(c) the appellant had not established that she suffered injury to her lower back or left shoulder on that date;
(d) the appellant suffered a consequential medical condition, namely an aggravation of a pre-existing psychological condition as a result of the injury of 30 January 2015;
(e) the appellant was totally incapacitated until 24 May 2017;
(f) on the basis of the evidence, the appellant’s pre-injury average weekly earnings were $1,290 per week, and
(g) the appellant had recovered from the effects of her injury by 24 May 2017.
There are a number of matters raised by the appellant that do not fall within the ambit of allegation of error on the part of the Arbitrator in his reconsideration decision dated 8 September 2020, which is the only basis upon which an appeal can lie from an arbitrator’s decision to a Presidential member. Those matters are discussed and dealt with in Negi No 1.
The reconsideration application brought by the appellant, which was the subject of a further arbitration and the further decision of the Arbitrator dated 8 September 2020, cited the following matters as issues relevant to the reconsideration:
(a) a Certificate of Determination was issued by a delegate of the then Registrar awarding the appellant lump sum compensation pursuant to s 66 of the 1987 Act on the basis of a binding medical assessment certificate of 12% whole person impairment issued by a medical assessor;
(b) the binding finding of 12% whole person impairment was inconsistent with the Arbitrator’s finding that the appellant had recovered from the effects of the injury to her neck and right shoulder;
(c) the finding that the appellant had recovered from the injuries to the neck and right shoulder should be reconsidered;
(d) the appellant, who had no capacity for work, was entitled to weekly payments of compensation at the rate of $1,302 per week from 24 May 2017 to 26 January 2020 (which was the date of expiration of the appellant’s weekly entitlements in accordance with s 39 of the 1987 Act), and
(e) the appellant was entitled to ongoing treatment expenses pursuant to s 60 of the 1987 Act.
In the reconsideration application, the appellant referred to medical evidence as evidence that the effects of the injury had not resolved. The appellant also annexed further evidence, which her legal representatives indicated was evidence of the appellant’s ongoing incapacity and need for treatment.
The matter was listed for arbitration on 17 August 2020, which was conducted by telephone because of COVID-19 restrictions in place at the time. Although there were some acknowledged technical difficulties, the arbitration was re-convened a little later on the same day, and the appellant’s counsel was able to complete his submissions. The transcript of proceedings indicates that the appellant’s counsel was then given the opportunity to confer with the appellant and advised that:
“the submission I’m instructed to make is that these injuries including the originally claimed back injury have had a massive effect on the applicant’s life. She sees her life as having been ruined as a result of the injuries and she’s very aggrieved about the way that her entitlements have been considered, especially in relation to her back.”[30]
[30] Transcript of proceedings (T) dated 17 August 2020, Negi v Nass Consulting Pty Ltd [2020] NSWWCC 311, T30.22–29.
It was agreed between the Arbitrator and the appellant’s counsel that the appellant’s dissatisfaction with the Arbitrator’s finding in relation to the alleged back injury was not a matter raised in the reconsideration application.[31]
[31] T30.31–31.1.
Ground One: error in finding that the appellant was no longer incapacitated for work
The appellant points to the various medical opinions that support her claim that the multiple injuries she suffered have caused her to have no capacity for work, and is critical of the Arbitrator’s comparison between her pre-injury employment and that of physical labour. As the respondent submits, the Arbitrator was simply comparing the likelihood that the impairments suffered by the appellant were less likely to impact the appellant’s capacity to work than they would if the appellant was performing more physically arduous tasks. The Arbitrator’s observation was a matter of common sense.
The appellant refers to having multiple injuries which impacted her work capacity. The Arbitrator found against the appellant in respect of the alleged injuries other than to the neck and right shoulder and a secondary psychological condition in his earlier decision and those findings were not challenged in the reconsideration application. It was, therefore, incumbent upon the Arbitrator to assess the appellant’s capacity resulting from the proved injuries, that is, the neck, the right shoulder, and the secondary psychological condition.
The Arbitrator found against the appellant in respect of her capacity to work on the basis of her abilities and activities recorded in the DVD surveillance material, which rendered her assertions about her neck and shoulder restrictions unreliable. The Arbitrator took into account the fact that the medical assessor, in the context of concluding that the appellant suffered permanent impairment, had not referred to the surveillance evidence or the Arbitrator’s own findings in respect of the appellant’s unreliability. The Arbitrator pointed to the extensive medical evidence relied upon by the appellant that recorded the appellant’s widespread complaints, which was not consistent with the surveillance evidence or with the early complaints the appellant made to her doctors following the injury. He remarked that the appellant’s account of her incapacity for work was also reliant upon her account of the severity of the symptoms.
The Arbitrator was not satisfied that the complaints made to the various medical practitioners and her evidence about her restrictions were reliable and accepted the opinion of Dr Wallace that the appellant was fit for her former role. It was on that basis that he rejected the medical evidence in support of the appellant’s claim for weekly payments and, taking into account her activities recorded in the surveillance material, concluded that the appellant was not incapacitated as alleged. This finding was a finding of fact. In Raulston v Toll Pty Ltd,[32] Roche DP discussed what is required to disturb a finding of fact made by an arbitrator. He said:
“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.
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.”[33]
[32] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[33] Raulston, [19] (sub-paragraph lettering omitted).
The Arbitrator did not overlook material facts or give undue or too little weight to the evidence before him. His reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. It is not sufficient that another decision-maker might come to a different view.
The appellant has failed to show error on the part of the Arbitrator on this ground of appeal. The ground of appeal fails.
Ground Two: error by failing to take into account the appellant’s psychological injury/condition when assessing her capacity to earn
In addition to the matters taken into account by the Arbitrator in considering the appellant’s capacity for work referred to in Ground One of this appeal, the Arbitrator made the following observations:
“I note that the applicant worked for a period in 2015 following her injury. As I understand the evidence, some of that work was on a full-time basis. There is no logical reason why the applicant is more incapacitated now than she was at that time.
It is true that also the issue of the applicant’s psychological health [sic]. But the interrelationship between this and the applicant’s cervical and right shoulder injuries also depends upon her credibility. While one might accept that the applicant has some continuing psychological symptoms as Dr Wooten states it is ‘difficult to know going on in her mind.’
Ultimately, I have concluded that on reconsidering the matter pursuant to section 350(3) that the Commission must accept that the effects of the injuries continue as determined by Dr Dixon in his MAC. It does not follow, however, that the applicant has established an entitlement to weekly payments of compensation, and I decline to vary the award I previously made in that respect.”[34]
[34] Negi v Nass Consulting Pty Ltd [2020] NSWWCC 311, [53]–[55].
The Arbitrator clearly took into account the appellant’s psychological condition when assessing the appellant’s capacity for work. Noting that the effect of the injuries on the appellant’s psychological condition depended upon the appellant’s lack of credibility, about which he had already made adverse findings, he was not satisfied that the appellant was entitled to weekly payments of compensation.
The appellant has provided no persuasive submission that goes to show that the Arbitrator failed to take into account her psychological condition when assessing her capacity. This ground of appeal fails.
Ground Three: error by failing to provide the opportunity to her and her legal team to make submissions about her capacity for work
The appellant asserts that she was not given the opportunity to address the question as to why she was not able to work or to clarify her incapacity for work in the context of her “multiple injuries.”
A review of the submissions made in the letter seeking reconsideration also shows that the appellant made submissions that the appellant had no capacity for work during the period between 27 May 2017 and 26 January 2020 and was entitled to the maximum entitlement to weekly compensation. The appellant referred to and annexed medical evidence that supported the submission.
The transcript of the arbitration hearing on 17 August 2020 discloses that the appellant was given the opportunity to make full submissions in relation to the issues for determination in the reconsideration application, despite the technical difficulties that presented. The Arbitrator also gave the appellant’s counsel the opportunity to confer with the appellant and the appellant’s counsel made short further submissions expressed by him to be in accordance with the appellant’s instructions.
It is apparent that the appellant had every opportunity to present her case and in fact did so. The appellant’s remaining submissions as to the Arbitrator’s degree of understanding in relation to “complex spinal injuries,” her lack of ability to afford legal representation, and her inexperience with workers compensation claims are either not founded in evidence or irrelevant to the question of whether the Arbitrator erred by failing to give her the opportunity to make submissions.
It follows that this ground of appeal also fails.
Ground Four: error by failing to provide procedural fairness and independence in the Arbitrator’s decision-making process
I have reviewed the transcripts of proceedings and both the Arbitrator’s decision dated 2 February 2018 and 8 September 2020. The appellant’s criticism of the Arbitrator’s attitude is not borne out in any of that material. The appellant’s criticisms, made only in the appeal application and not raised at any earlier stage, are not supported by evidence from any of the appellant’s experienced legal representatives or by the measured tenor of the Arbitrator’s decisions. To the contrary, the Arbitrator approached the appellant’s case in a balanced and reasoned manner and gave the appellant every opportunity to present her case. As the respondent submits, the Arbitrator gave consideration to the appellant’s application for reconsideration and the appellant was partly successful.
This ground of appeal also fails.
CONCLUSION
None of the appeal grounds raised by the appellant have been made out. The appellant has not established error on the part of the Arbitrator and the Certificate of Determination dated 8 September 2020, amended on 29 September 2020, is confirmed.
DECISION
The Certificate of Determination dated 8 September 2020, amended on 29 September 2020, is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
27 April 2021
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