NORGAARD-PEDERSEN v Lycopodium Pty Ltd
[2012] WADC 57
•20 APRIL 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: NORGAARD-PEDERSEN -v- LYCOPODIUM PTY LTD [2012] WADC 57
CORAM: COMMISSIONER GETHING
HEARD: 30 MARCH 2012
DELIVERED : 20 APRIL 2012
FILE NO/S: APP 92 of 2011
BETWEEN: CHRISTIAN NORGAARD-PEDERSEN
Appellant
AND
LYCOPODIUM PTY LTD
Respondent
Catchwords:
WorkCover appeal - Error of law - Arbitrator alleged to have taken into account irrelevant considerations
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 199 (WA) s 247
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant: Mr G M G McIntyre SC
Respondent: Ms L G Rafferty
Solicitors:
Appellant: O'Halloran Legal
Respondent: SRB Legal
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Aziz v Tempo Services Ltd [2010] WASCA 39
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Comfort Inn Suites v LKB [2012] WACC C1-2012
Compass Group (Australia) Pty Ltd v McGrath [2009] WACC C25-2009
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
Health Department of Western Australia v Prosser [2004] WASCA 83
House v R [1936] HCA 40; (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
MZXMM v Minister for Immigration and Citizenship [2007] FMCA 975
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Stettlement Agents Supervisory Board [2007] WASCA 97
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Seiffert v Prisoners Review Board [2011] WASCA 148
Sotico Pty Ltd v Wilson [2007] WASCA 112
Velez Pty Ltd v Tudor [2011] WASCA 218
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
COMMISSIONER GETHING: By appeal notice dated 21 December 2012, the appellant appealed from a decision of Arbitrator Brash on 28 November 2011. In the decision under appeal, Arbitrator Brash dismissed a Form 22 application for a determination that the appellant's degree of permanent disability was not less than 30%. The arbitrator assessed the appellant's degree of disability at not less than 19%.
The accident the subject of the present appeal occurred in 5 November 2004, prior to the day on which the Workers' Compensation Reform Act 2004 (WA) came into operation. It is relevantly governed by the '1993 scheme', being Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) Pt IV Div 2(2).
The appeal was commenced within the time limit set out in WCIMA s 247(4).
The respondent filed a notice of respondent's intention dated 25 January 2012. In it, the respondent stated that it would seek to uphold the decision under appeal on the grounds relied on by the arbitrator, and would not seek to rely on other grounds, nor vary the decision.
Appeal framework
The present appeal is pursuant to WICMA s 247, which provides:
247. Appeal against arbitrator's decision made under Part XI:
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213 (3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(4)An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
The present appeal is not one in which an amount of compensation is at issue. The appellant must therefore establish that it 'involves' a question of law before the jurisdiction to grant leave to appeal is enlivened.
There is no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [20]; Paridis v Stettlement Agents Supervisory Board [2007] WASCA 97 [16]. However, an appeal will not 'involve' an error of law merely because someone asserts that it does: Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 [14]; BHP Billiton[1], [15], [19]. A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; [1990] HCA 33; BHP Billiton [1], [15], [19].
In the present appeal, the registrar presiding at the initial directions hearing directed that both the question of leave and the substantive appeal be determined at the same hearing. The questions are, on their face, framed as questions of law. Whether they are properly characterised as questions of law is closely tied up with the merits of the appeal. The approach adopted by the registrar was the correct approach in this case: BHP Billiton [1], [14], [19]. I propose to consider both the issue of the grant of leave and the substantive appeal together.
There was no application to adduce fresh evidence, so the appeal is to be determined on the evidence before the arbitrator.
By WCIMA s 247(5) the appeal is a 'review' as opposed to, say, the criminal injuries compensation jurisdiction in which the court is to decide the application 'afresh': Criminal Injuries Compensation Act 2003 (WA) s 56(1).
As to the scope of the 'review', if some question of law is 'involved', the whole decision appealed from is open to review, and not merely the question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18], [30], [31]. The review is not a hearing de novo: Pacific Industrial [20], [30, [31]. Once a question of law is identified, and the jurisdiction enlivened, the review is not limited to pure questions of law: Pacific Industrial [18], [30], [31]. As Wheeler JA observed in Pacific Industrial, the correction of errors of law was the commissioner's (and is now the courts) 'principal, but not only, task': [25], [30], [31].
Within the constraints marked out by the nature of the appellate process, the review in WCIMA s247 is a 'real review': Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25]; Aziz v Tempo Services Ltd [2010] WASCA 39 [40], [42]; Sotico Pty Ltd v Wilson [2007] WASCA 112 [46]; Pacific Industrial [22] – [24], [30], [31]. The appellant must show some 'proper basis' within an appellate process for disturbing the decision under challenge, such as an error of 'fact, law or logic': Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, 586; Pacific Industrial [26], [30], [31]. It is not sufficient that the court undertaking the review would have come to a different conclusion on the facts to that of the arbitrator: House v R [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518-519. Unless the 'review' persuades the court that the arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand: Boston Clothing, 586; Pacific Industrial [20] ‑ [26], [30], [31].
Form 22 proceedings
The general principles in relation to the determination of Form 22 proceedings are well established from decisions of the Court of Appeal and the former WorkCover Commissioner. The WorkCover Commissioner was required to be a Judge of the District Court: WCIMA s281 (now repealed). As such, I should treat a decision of the WorkCover Commissioner as having the same status as a decision of this Court, and follow it unless I am of the view that the decision is clearly wrong. The general principles in relation to the determination of Form 22 proceedings are conveniently summarised in the decision of Commissioner McCann in Comfort Inn Suites v LKB [2012] WACC C1‑2012 [4], and which I adopt, as follows:
(i) The purpose of so–called Form 22 proceedings is to obtain a determination of a worker's 'degree of disability' for the purposes of ascertaining what constraints, if any, should apply to the award of damages in common law proceedings. It has been held in a series of cases that the term 'degree of disability' is not synonymous with the term 'injury' as it is defined in s5(1)(a)-(d) of the Act (formerly known as a 'disability') and directs attention to the worker's 'condition' (see Girrawheen Tavern v Joseph[2003] WASCA 244; Hart v Griffin Coal Mining Co Pty Ltd[2005] WASCA 130; Hammond Worthington v Da Silva[2006] WASCA 180). The degree of disability in respect of that condition must be determined in accordance with the principles set out in s93D(1) - (4). When s93D(2)(a), Part I of Schedule 2 and s25 are read together, the 'degree of disability' is to be expressed (for injuries mentioned in Part I) as a percentage based upon the 'permanent loss of the use of' or the 'permanent loss of the efficient use of' ('the PLOFEU') the particular body part or function.
(ii) The term 'permanent' connotes that an injury will continue indefinitely or for the foreseeable future (see Re Croser; ex parte Rutherford[2001] 25 WAR 170 per Olson AUJ at [94] and Lamb v Tony's Auto Auctions Pty Ltd [2007] WACC C33–2007 at [26]). The degree of disability is determined as at the time of the determination having regard to current knowledge about the available treatment and circumstances of the individual worker (see Century Drilling Ltd v Stevens [2007] WASCA 131 per the Court at [6]). It follows that it is permissible for an arbitrator to take into account evidence relevant to the impact of past and future treatments provided that the assessment is based on facts and not speculation (see Girrawheen Tavernper Wheeler J at [35] and Lamb at [26]), and bearing in mind that medications may relieve the symptoms of a condition without necessarily curing it or removing the underlying condition (See Beer v Duracraft Pty Ltd[2004] WASCA 192 per McLure J at [97]).
(iii)In determining these issues the arbitrator is not required to have regard to the existence or otherwise of any causal connection between the worker's original injury (or the events which caused it) and the overall condition for which the degree of disability is being determined. This is an issue for the Court to decide in the common law proceedings. (See Girrawheen Tavernper Wheeler J at [52] - [53] and Hartper Pullin JA at [19]).
(iv)That issue is not to be confused with the aetiology and permanency of each disease or component injury, which are relevant considerations. It is relevant to enquire whether a putative symptom is indeed a symptom of (i.e. caused by) a particular injury or disease nominated in the Form 22, or whether a symptom will be permanent. Both questions inevitably involve questions of causation, but not that which is proscribed by the authorities. (See Bloomfield v Liebherr Australia Pty Ltd[2007] WASCA 154 per Steytler P, with whom Wheeler JA agreed, at [14], Nardi v Department of Education and Training [2006] WACC C22-2006 at [45] and Clarke–Martin v Australian Pacific Hotels (Perth) Pty Ltd [2010] WACC C6–2010 at [35]).
(v)In determining the degree of disability the arbitrator must make three findings. First, the diagnosis of the condition ('the diagnostic issue'). Second, the PLOFEU ('the prognostic issue'). Third, the degree of disability. The diagnostic and prognostic issues may overlap (see Brien v Pilbara Iron Pty Ltd [2011] WACC C6-2011 at [16]).
The degree of disability of the worker is to be assessed by reference to WCIMA Schedule 2 Part 1: WCIMA s93D(2)(a). Where there is no relevant item in Schedule 2 Part 1, the degree of permanent impairment is assessed in accordance with AMA Guides: WCIMA s93D(2)(b). The AMA Guide is the edition of the Assessment of Disability Guides published by the Western Australian Branch of the Australian Medical Association that is prescribed in the regulations: WCIMA s93CA.
Background facts
While the appellant was working as a health and safety officer at a mine site in Ghana he became ill. He places the date of injury as being 5 November 2004. He was flown to a hospital in South Africa for treatment. Blood tests at the hospital revealed that he had cerebral malaria. He became extremely ill, suffering jaundice and a secondary bacterial infection to his respiratory tract.
The appellant claims that he suffered permanent disability in four areas:
(a)left shoulder;
(b)scarring;
(c)loss of sexual function; and
(d)consequential psychiatric disability.
The appellant did not assert that he injured his left shoulder when he developed symptoms of malaria. Rather, the medical evidence is to the effect that the difficulties the appellant experiences in his left shoulder arose out of the treatment process. While he was initially in hospital, it was necessary for the soft tissues of his left upper chest to be incised to cannulate him to treat his secondary infection. From this incision he had a scar, described in the materials before me as being between 9 cm (Mr Bath) and 14 cm long (arbitrator's observation). The medical evidence was to the effect that the scarring has caused the left shoulder symptoms.
On 2 March 2011, the appellant filed a Form 22 application for a referral of the question of degree of disability to arbitration. He claimed a degree of disability of not less than 30%. On or about 11 March 2011 the respondent filed a Form 23 disputing the claimed level of disability. The Director referred the matter for determination pursuant to WCIMA Pt XI. The hearing took place on 19 October 2011. The decision was published on 28 November 2011 (Decision).
Decision of Arbitrator Brash
The decision of Arbitrator Brash in relation to psychiatric issues, loss of sexual function and scarring are not challenged in the appeal, so I am able to refer to his findings in a summary manner.
On the medical evidence before the arbitrator there was a consensus that the appellant's degree of disability relevant to his psychiatric impairments was 5%. The arbitrator found in accordance with this evidence.
In relation to loss of sexual function, the report from the appellant's urologist assessed the appellant as having a 20% loss (or more accurately, permanent loss of the efficient use –PLOFEU) of genitals pursuant to WCIMA Schedule 2 Part 1 Item 37. This converted to a 10% degree of disability. The arbitrator found that the respondent did not 'challenge this assessment in any substantial way' (Decision [3]). He accepted the evidence put forward by the appellant, and found a 10% degree of disability.
In relation to the scarring and left shoulder, the appellant primarily relied on reports of Dr David Watson, a consultant physician. Dr Watson saw the plaintiff on 27 May 2008, 4 June 2009, March 2010 and 27 January 2011. He provided reports dated 28 May 2008, 9 June 2009, 7 October 2009, 16 February 2011 and 5 September 2011. The respondent relied on a report of Mr Peter Bath, an orthopaedic surgeon, dated 31 May 2011. Mr Bath saw the plaintiff only on the one occasion, 31 May 2011.
In relation to scarring, the arbitrator preferred the analysis of Dr Watson over that of Mr Bath. The scar is on the upper left side of the appellant's chest. The arbitrator's own observation was that it was 14 cm long, and although 'well healed', could be considered to be 'severe bodily scarring' (Decision [19]). He found that the appellant had a 'permanent disability for severe bodily scarring' (or more accurately, PLOFEU) of 5%. This converts to a 2.5% degree of disability.
In relation to the shoulder impairment, in his report dated 9 June 2009, Dr Watson assessed the appellant as having a degree of 'disability' of his left shoulder of 25%. He observed that there was some tethering of the scar to the deep tissues outside the chest wall. On examination there were restrictions of movement in extension, flexion, abduction, internal rotation and external rotation of the left shoulder. In a letter dated 7 October 2009, Dr Watson confirmed that this assessment was made pursuant to the Second Schedule of WICMA, and that he considered the disabilities to be permanent.
The second significant report by Dr Watson was that dated 16 February 2011, based on a review on 27 January 2011. Dr Watson observed that the scar was unchanged, and was still tethering to the underlying deeper tissues. He reported that there had been '[e]ssentially no change' in the appellant's symptoms and that 'there was no changes in his physical examination'. Dr Watson did not report on the specific limitations of range of movement in the appellant's left shoulder in that report.
In his report of 16 February 2011, Dr Watson does not set out the degree of disability for the appellant's left shoulder. In a letter of 5 September 2011, Dr Watson reiterated that he assessed the degree of disability at 25%, 'according to section 3.14.3'. Section 3.14.3 is a reference to the Assessment of Disability Guide under the Workers Compensation of Rehabilitation Act of Western Australia produced by the Australian Medical Association (AMA Guide). He also stated that the assessment had been 'carried out within the framework of the 2nd Schedule' of the WCIMA.
Mr Bath, in his report dated 31 May 2011, reported that the plaintiff was living on a rural five acre property, and was looking after his nut and fruit trees, and his vegetable gardens. He noted that the appellant had not received any treatment with respect to his musculoskeletal symptoms. The appellant's main complaint to Mr Bath was a general lack of strength. The appellant did not give a history to Mr Bath 'of any functional disability with respect to his left arm over and above the comment regard [sic] a weak grip with the left hand'.
On clinical examination, Mr Bath found a full range of movement of the shoulder joint. The appellant was not able to abduct the left arm more than 100 degrees 'because of symptoms of pain in the region of the scar and this took on a tight appearance'. Mr Bath viewed this as being 'related more to a tightening of the scar in the arm in an abducted position although this was more that of the clinical examination rather than a feature of the history'. He commented that on 'the history given there does not seem to be any true loss of everyday function because of this restriction'. Mr Bath assessed the appellant as having a 'permanent disability of the left shoulder of 2% according to item, Item 13, Pt 1, Schedule 2 of' WICMA.
The arbitrator preferred the evidence of Mr Bath to that of Dr Watson, and held that the appellant had 'a permanent disability to his left shoulder assessed at 2% according to item 13 of the second schedule of the Act'. It is not entirely clear whether the arbitrator meant that the degree of disability was 2% or that the PLOFEU was 2%. If the latter, applying the formula in WCIMA s 93D(4) the degree of disability would be 1.8%. As it makes no difference to the outcome, I will assume the former.
The arbitrator identified four reasons which caused him to prefer the evidence of Mr Bath to that of Dr Watson. The first was that he found parts of Dr Watson's evidence confusing (Decision [13], [14], [17]). Dr Watson used the AMA Guide, s 3.14.3 and pursuant to that document described the restrictions as being 'moderate to severe'. He recorded limitations of shoulder movement, which the assessor sets out. However the limitations of shoulder movement (in particular abduction) fell within the 'mild' category in AMA Guide s 3.14.3, not the 'moderate to severe category'. Further, it was unclear to the arbitrator whether Dr Watson actually examined the appellant's shoulder in January 2011.
Second, 'Mr Bath is an orthopaedic specialist and therefore well placed to provide an assessment such as this' (Decision [17]).
Third, Mr Bath's assessment was undertaken 'slightly more recently that that of Dr Watson' (Decision [17]).
Fourth, Mr Bath's opinion was, in the arbitrator's view, more consistent with the appellant's evidence (Decision [17]). The arbitrator found that the appellant's evidence was 'to the effect he can use his arm but, if he does, he experiences pain in certain situations' (Decision [13]). He adds that the appellant 'himself confirmed there was no functional problem with the shoulder' (Decision [17]). To the arbitrator, it appeared that the complaints that the appellant had when examined by Dr Watson in June 2009 and January 2011, were not as severe as they were in May 2011, when he was examined by Mr Bath.
The arbitrator thus determined that the appellant's degree of disability was not less than 19%, comprised as follows:
(a)psychiatric impairment - AMA Guides 5%
(b)loss of genitals (sexual function) – Sch 2 Pt 1, item 37 10%
(c)scarring – Sch 2 Pt 1, item 39 2.5%
(d)left shoulder - Sch 2 Pt 1, item 13 2%
As the application was made on the basis of a disability of not less than 30%, the application was dismissed.
Questions of law
Before dealing with the individual grounds of appeal, it is instructive to consider when it can be said that 'a question of law' is involved in an appeal for the purposes of s 247(2)(b).
To establish that there is a 'question of law' involved in an appeal, it is necessary for the appellant to show that an error of law or an error of mixed law and fact has occurred: BHP Billiton [1], [3], [19]; Pacific Industrial [18], [30], [31]. 'If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law': Paridis [1], [2], [53].
An error of law will arise if there is no evidence of a particular fact: Australian Broadcasting Tribunal, 356; Health Department of Western Australia v Prosser [2004] WASCA 83 [1], [29], [39]. Likewise, the question of whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Broadcasting Tribunal, 355 ‑ 356; Prosser [1], [29], [39]. However, if there is some basis for an inference in the sense that the particular inference is reasonably open, no error of law has taken place: Australian Broadcasting Tribunal, 355 ‑ 356; Prosser [1], [29], [39].
An error of law will not arise where it is asserted that the arbitrator made a wrong finding of fact, or wrongly preferred one witness over another, or made a finding against the weight of the evidence: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal, 356; BHP Billiton [1], [15], [19]; Paridis [1], [2], [54] ‑ [55]; Prosser [1], [29], [39].
An error of law will arise if the arbitrator makes a finding which is manifestly unreasonable, in the sense that no reasonable arbitrator could have made that finding: Paridis [1], [2], [56].
An error of law will also arise if the arbitrator fails to take into account a consideration which, in the circumstances, he or she was bound to take into account: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40; Seiffert v Prisoners Review Board [2011] WASCA 148, [192]; Paridis [1], [2], [57]. Whether or not the consideration is one which the arbitrator is bound to take into account must be determined by construction of the statute pursuant to which the decision is made, that is, the WICMA: Peko‑Wallsend 39 ‑ 40. The requirement may be express or implied: Peko‑Wallsend 39 ‑ 40. It is not sufficient if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account: Paridis [1], [2], [57]. There is also a distinction between failing to take into account relevant considerations which a tribunal is bound to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other: Paridis [1], [2], [57].
An error of law will also arise if the arbitrator takes into account an irrelevant consideration, that is, one which the he or she was precluded from considering: Peko-Wallsend 39 ‑ 40; Seiffert [192]. As with relevant considerations, for this to arise, the statute conferring the discretion must expressly or by implication exclude the consideration in issue from those which the arbitrator may take into account: Peko‑Wallsend 39 ‑ 40; Seiffert [192].
In Seiffert [192], Martin CJ referred to the decision of Mason J in Peko‑Wallsend and stated of the grounds of relevant and irrelevant considerations:
Neither basis for intervention will be made out if a decision-maker has failed to consider a matter that it was open to consider, but which he or she was not obliged to consider, nor if a matter was taken into account which it was open to the decision-maker to consider, even though there was no obligation to take it into account. Where the legislation does not specifically enunciate the considerations which a decision-maker is bound to consider, or which a decision-maker is precluded from considering, the ascertainment of those considerations is to be determined by implication from the subject matter, scope and purpose of the Act.
Martin CJ went on to observe that in certain limited contexts an error of fact may be so fundamental as to amount to an error of law [195]:
In some exceptional statutory contexts, an error of fact may be so fundamental as to cause the decision-maker to fail to take into account a mandatory relevant consideration (see Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346), or to result in a misapprehension which is so gross as to amount to an improper exercise of the power (see Akers v Minister for Immigration Local Government and Ethic Affairs (1988) 20 FCR 363, 373; Sezdirmezoglu v Acting Minister for Immigration and Ethic Affairs (1983) 51 ALR 561, 573). However, those cases will be exceptional and the court should remain vigilant to ensure that cases in which the substantial complaint is that of error of fact are not masqueraded as cases seeking judicial review on the grounds of error of law: see Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 [35] - [36] (McHugh J).
A breach of the duty to act judicially or in accordance with the rules of procedural fairness likewise constitutes an error of law. In Australian Broadcasting Tribunal, Deane J summarised the principle as follows (366 ‑ 367):
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion…. When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
In his submissions, the appellant referred to part of this passage as authority for the proposition that if the arbitrator relied on irrelevant material, there will be an error. I do not consider that the proposition elaborated by Deane J is any different to propositions set out by Mason J in Peko‑Wallsend and Martin CJ in Seiffert referred to above. Importantly, I do not read Deane J's comments as requiring materiality or relevance to be discerned other than from the terms of the statute granting the power in question.
The appellant also referred to the decision in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179. In this decision, the High Court catalogues what constitutes a jurisdictional error for both an administrative tribunal and an inferior court. One such error is where the tribunal relies on irrelevant material (179). Again, I accept this as a proposition of law, and make the same comment as I did in the preceding paragraph that materiality or relevance is to be discerned from the terms of the statute granting the power in question. Also, the inquiry as to whether or not a jurisdictional error exists is a slightly different inquiry to the present one, which is whether or not there was an error of law.
The appellant relied on the decision of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 156C for the proposition that a finding of ultimate fact may reveal an error of law where a decision‑maker has misdirected himself or herself by defining otherwise than in accordance with the law the question of fact to be answered. Again, the issue of statutory construction underpins this proposition.
Ground 1
Ground 1 provides that:
The Arbitrator misdirected himself in law by defining otherwise than in accordance with law a question of fact to be answered when the Arbitrator directed himself that it was open to determine for the purposes of the WCIMA whether or not the Applicant was suffering from a 'permanent impairment' as that term is used in the WCIMA, by preferring a more recent assessment of degree of disability over a less recent assessment, when the degree of recency of an assessment of permanent disability is an irrelevant consideration in determining the degree of permanent disability for the purposes of WCIMA.
The appellant submitted that the criteria for the assessment of permanent impairment are 'fully and exclusively' defined in WCIMA s 93D(2). It was then submitted that the recency of the assessment is not a criterion specified in WCIMA for making that assessment and is, therefore, an irrelevant consideration. WCIMA s 93D(2) provides:
(2)For the purposes of section 93E, the degree of disability of the worker is to be assessed —
(a)so far as Schedule 2 Part 1 provides for an injury suffered by the worker, as a percentage equal to —
(i)if only one item of that Part applies to the injury, the percentage of the prescribed amount provided for by that item, as read with section 25; or
(ii)if 2 or more items of that Part apply to the injury, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;
(b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;
(c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,
or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.
In relation to a shoulder injury, the relevant item in Sch 2 Pt 1 is item 13 which provides 'loss of arm at or above elbow'.
If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may refer the question to the Director: WCIMA s 93D(5). A question can only be referred under WCIMA s 93D(5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level. If within the relevant time limits the employer notifies the Director that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Pt XI: WICMA s 93D(8).
Arbitrators 'have exclusive jurisdiction to examine, hear and determine all disputes': WCIMA s 176(3). The objects of Pt XI include 'to provide a fair and cost effective system for the resolution of disputes … that ... in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable': WCIMA s 177(1). Arbitrators are to be legal practitioners: WCIMA s 182ZQ(3). The duty of the arbitrator is to determine the matter or matters in dispute in accordance with the WCIMA and the arbitration rules: WCIMA s 185(1). The arbitrator is bound by the rules of natural justice except to the extent that the WICMA authorises, whether expressly or by implication, a departure from those rules: WCIMA s 188(2). WCIMA s 188 to s 210 sets out the procedure for an arbitration. Those rules contemplate the arbitrator will conduct a hearing at which he or she will receive evidence from both the worker and the employer.
Subject to the provisions of WCIMA, 'an arbitrator may make such decisions as the arbitrator thinks fit': WCIMA s 211(1). The arbitrator must give written reasons if required by WCIMA or requested by a party. The written reasons (WCIMA s 213(4)):
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
From this review of the arbitration regime in WCIMA, it is clear that the arbitrator is to review all the evidence and other information able to be placed before him or her and to make a decision as to the degree of disability of the worker for the purposes of s 93D. That decision is to be made in the context of a dispute between the worker and the employer as to the degree of disability. The worker is required to provide medical evidence as to the degree of disability. The employer is able to provide medical evidence as to the degree of disability; indeed it would be highly unlikely that there would be a dispute unless the employer had medical evidence contrary to that of the worker. The arbitrator will inevitably have to make a decision as to what medical evidence to prefer in order to make a decision as to the degree of disability. Aside from issues of procedure and the requirement to provide reasons, the WICMA does not prescribe how the arbitrator is to make this decision.
The issue of the approach of a WorkCover arbitrator to competing medical experts reports was considered by the Court of Appeal in Velez Pty Ltd v Tudor [2011] WASCA 218. The analysis by Murphy JA (with whom Pullin and Newnes JJA agreed) focussed on the adequacy of the arbitrator's reasons for preferring the opinion of one psychiatrist over another. His Honour held that it was incumbent on the arbitrator to explain why he accepted the opinion of one psychiatrist over another ([85]). Nothing in that decision suggests that there is any specific limit on the factors which the arbitrator may properly take into account in deciding which medical evidence to prefer, subject to the overriding requirement of the arbitrator to act judicially ([66]). I note that there was no general challenge to the adequacy of the arbitrator's reasoning processes in the present appeal. The decisions in Prosser, Sotico and Pacific Industrialare to similar effect.
There is no express list of the factors which the arbitrator must, or must not, take into account in making a decision as to what medical evidence to prefer in order to make a decision as to the degree of disability.
There are undoubtedly implied limits on the factors which the arbitrator may take into account is assessing the degree of disability and, in particular, on the factors that the arbitrator may take into account in determining which medical evidence to prefer. These limits will be discerned from the legislative purpose of the WCIMA, which is ascertained by reference to the language of the statute, its subject matter and objects: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 389. For present purposes, I do not need to express any general views on these limits.
As set out above, an error of law will only arise if the factor in issue is one which the decision maker is bound or required not to take into account. Thus, in order for ground 2 to constitute an error of law, on a proper construction of the WCIMA, the currency of an assessment of permanent impairment by one of the medical specialists giving evidence must be a factor which the arbitrator is bound or required not to take into account. Counsel for the appellant did not identify the source of any such limitation aside from the submission in relation to WCIMA s93D(2). WCIMA s 93D(2) does not expressly limit the factors that the arbitrator may take into account. It merely defines the framework within which the degree of disability is to be assessed. As I have observed, the arbitrator will inevitably have to make a decision as to what medical evidence to prefer in order to make a decision as to the degree of disability.
In my view, there is no express limitation or prohibition in WCIMA on the arbitrator taking into account the currency or recency of the various assessments made by the medical practitioners providing evidence in the arbitration hearing. Neither is there any implied limitation. Rather, the currency or recency of the assessment is a factor which an assessor may properly take into account.
Ground 1 is not made out.
Ground 2
Ground 2 provides:
The Arbitrator misdirected himself in law by defining otherwise than in accordance with law a question of fact to be answered when the Arbitrator directed himself that it was open to determine the degree of impairment of the Applicant by preferring the assessment of a specialist orthopaedic surgeon over the assessment of a physician, when a specialisation in orthopaedic surgery is an irrelevant qualification for the purposes of assessing the degree of impairment arising from the soft tissue injury which was the subject of the assessment.
The appellant submitted that as the shoulder impairment was due to tethering of the skin, and not a muscular or skeletal issue, it was outside the area of specialisation of an orthopaedic surgeon (Mr Bath) and more in the area of specialisation of a generalist physician (Dr Watson). Counsel cited the decision in MZXMM v Minister for Immigration and Citizenship [2007] FMCA 975, [117] ‑ [118] as authority for the proposition that it will be an irrelevant consideration if the decision maker refers to information which is so unreliable that no Tribunal acting reasonably would have regard to that information. In that case, the information was on a website. Counsel then submitted that the reasoning in MZXMM is analogous to the present case where specialised knowledge of orthopaedic surgery is said to be an unreliable source of information as to soft tissue injury because 'that area of specialisation does not result in specialised knowledge as to the injury in question'. It is thus an irrelevant source of information in assessing a soft tissue injury.
In my view, this ground of appeal is not made out on two bases.
The first is that two facts underpinning this ground have not been established in evidence before me. The two facts are that an orthopaedic surgeon (Mr Bath) does not have expertise in the cause and consequences of a soft tissue injury to a shoulder and that a physician (Dr Watson) does. There is no evidence as to the scope of the expertise of either doctor. There is no evidence that the opinion of Mr Bath in the present case 'was so unreliable that no [arbitrator] acting reasonably would have regard' to it, to quote from the decision in MZXMM.
I add in parenthesis that I would find it very difficult to accept that an orthopaedic surgeon would not have relevant expertise in the cause and consequence of soft tissue injuries. The Macquarie Dictionary (4th ed, 2005) defines 'orthopaedics' as 'the correction or cure of deformities and diseases of the spine, joints, muscles, or other parts of the skeletal system'. The Butterworths Medical Dictionary (2nd ed 1978) defines 'orthopaedics' as 'that part of surgery which deals with abnormalities, diseases and injuries of the locomotor system'. Both of these definitions encompass soft tissue injuries.
The second is that ground 2, as formulated, does not disclose an error of law. In order for ground 2 to disclose an error of law, on a proper construction of the WCIMA, there must be an express or implied limitation in the WICMA on an arbitrator taking the opinion of an orthopaedic surgeon into account in assessing the degree of disability arising from a soft tissue shoulder injury. Counsel for the appellant did not identify the source of any specific express or implied limitation over and above the submissions in relation to WCIMA s 93D(2) set out above. In my view, there is no such express limitation in WCIMA, either in WCIMA s 93D(2) or elsewhere. Nor am I able to discern any implied limitation in the WICMA. I therefore conclude that there is no restriction in WICMA on an arbitrator taking into account the opinion of an orthopaedic surgeon in assessing the degree of disability arising from a soft tissue shoulder injury.
At a general level, the qualifications of a medical practitioner who provides an opinion in the evidence before the arbitrator is a factor that the arbitrator may properly take into account in assessing the relative weight to be given to that evidence: Compass Group (Australia) Pty Ltd v McGrath [2009] WACC C25‑2009 [29] ‑ [30].
Neither has the appellant satisfied me that in taking into account Mr Bath's opinion, the arbitrator engaged 'in a misapprehension which is so gross as to amount to an improper exercise of the power', to quote from the decision of Martin CJ in Seiffert. In the absence of any evidence as to the scope of the expertise of an orthopaedic surgeon, I am of the view that it was quite proper for the arbitrator to have taken into account the qualifications of Mr Bath in determining whether to prefer his analysis to that of Dr Watson.
Ground 2 is not made out.
Grounds 3
Ground 3 provides:
The Arbitrator erred in law by failing to direct himself that the date when he was obliged to assess the degree of permanent impairment of the Applicant was the date of the Arbitration Hearing and that the evidence relevant to such assessment was to include all evidence as to permanent impairment up to that date, including the evidence of the Applicant at the hearing and the Arbitrator made an error in law by failing to take into account the evidence of the Applicant as to his degree of impairment at the date of the Arbitration Hearing.
This ground seems to have two limbs. The first is that the arbitrator misdirected himself as to the date on which the assessment was to take place. It was accepted in the hearing before me that the task before the arbitrator was to assess the appellant's degree of disability as at the date of the hearing.
From my reading of the decision, I was not able to discern any indication that the arbitrator was assessing the degree of disability on any date other than the date of the hearing. His preference for Mr Bath's opinion, on the basis that it was undertaken 'slightly more recently' than that of Dr Watson (among other factors), supports this conclusion.
The second limb of ground 3 is that the arbitrator did not include up to date evidence from the appellant as to his degree of disability.
In submissions, counsel for the appellant referred to the following passage in the Decision ([17]):
In his supplementary witness statement which is undated but is noted to have been taken 'as at 26 August 2009 and updated 17 November 2009' – in other words some 18 months before the Applicant saw Mr Bath. Mr Norgaard‑Pedersen said, in relation to his left shoulder and arm symptoms (see page 7 of is statement):
I believe that there is a permanent weakness in my left shoulder and this is deteriorating. I cannot use my left arm fully due to the pain I get. On a scale of 1 to 10, the left shoulder pain is 3 to 8 out of 10. The pain rarely ever goes away. There is quite a lot of restriction of movement. I cannot use my left arm a lot due to the pain I get. My left thumb is now also being affected. I had no prior left shoulder or arm problems or injuries.
Counsel then referred the court to a passage in the transcript of the hearing before the arbitrator in which the passage in italics above was put to the appellant. The appellant reiterated the correctness of this passage. Counsel for the appellant at the hearing before the arbitrator then asked the appellant if the position set out in this passage was correct 'as of today'. The appellant responded: 'That's correct' (ts 13).
The error complained of was that the arbitrator took the position in the passage in italics above to have been the position in August (or perhaps November) 2009, whereas the appellant's evidence was that it was also his position at the date of the hearing. The arbitrator then contrasted this position with the complaints given to Mr Bath in May 2011.
Earlier in his decision, the arbitrator summarised the appellant's evidence as follows (Decision [13]):
The worker's testimony was to the effect he experiences pain in his shoulder when he attempts to lift it above shoulder height and has difficulties swinging a backpack to his shoulder by way of example. So, his evidence seems to be to the effect he can use his arm but, if he does so, he experiences pain in certain situations.
The arbitrator goes on to note that the appellant 'himself confirmed there was no functional problem with the shoulder' (Decision [17]).
The arbitrator therefore did take into account the evidence of the appellant as to his disability at the date of the hearing. On that basis alone, no error is made out. However, as I have discussed, above, it is not sufficient for there to be an error of law that the arbitrator made a wrong finding of fact, or wrongly preferred one witness over another, or made a finding against the weight of the evidence. It would need to be manifestly unreasonable or to result in a misapprehension which is so gross as to amount to an improper exercise of the power. I am not satisfied that the arbitrator's finding could be so characterised.
Ground 3 is not made out.
Ground 4
Ground 4 provides:
The Arbitrator erred in law by drawing the inference that Dr Watson had not examined the Appellant's left shoulder or made an assessment of his shoulder on 27 January 2011 when there was no evidence to support the drawing of such an inference and reaching that conclusion of fact as a basis for preferring the assessment of degree of permanent impairment of the Applicant by Mr Bath over that of Dr Watson.
The relevant portions of the Decision are as follows ([17]):
It seems to me whatever complaints the Applicant was making when examined by Dr Watson in June 209 and January 2011 they do not seem to be as severe in May 2011 when he was examined by Mr Bath. For example, when one reads the report of Dr Watson of 16 February 2011 which relates to his examination of the Applicant on 27 January 2011 there is little reference (if any) to him undertaking a detailed examination of the Applicant's shoulder at that review. At page 2 (last paragraph) Dr Watson simply records … 'on examination he looked much happier and spoke much more positively. He weighed 94kg and was 181 cm tall. The scar on the upper aspect of his chest on the left side below the clavicle was unchanged, still with tethering of the deeper tissues …' When asked what symptoms the Applicant complained of he replied 'essentially, there has been no change in Mr Norgaard‑Pedersen's symptoms'. He also said there had been no changes in the Applicant's 'physical examination' but he has not recorded his findings of his examination if indeed he undertook one of the left shoulder. In his report of 5 September 2011 which was apparently issued in response to a request from the Applicant's solicitors to clarify how his assessment of the worker's shoulder was undertaken he said … 'you refer to a report dated 9 June 2008 in which I stated that the left shoulder was 25% and the scarring was 5%. I presume you are referring to my report of 9 June 2009. I also draw your attention to the subsequent letter of 7 October 2009 in which I indicated that the assessment was made under the second schedule of the Worker's Compensation and Rehabilitation Act'.
His answer to this question was that the restricted movement in the Applicant's left shoulder was moderate to severe. All of this is suggestive of Dr Watson undertaking his assessment of the Applicant's shoulder in June 2009. It is far from clear to me he actually examined the Applicant's left shoulder in January 2011.
It is thus apparent that the arbitrator did not find that Dr Watson had not examined the appellant; rather, he concluded that it 'is far from clear to me he actually examined the applicant's left shoulder in January 2011' (Decision [17]).
Again, as discussed above, it is not sufficient that in making this comment the arbitrator made a wrong finding of fact, or wrongly preferred one witness over another, or made a finding against the weight of the evidence. It would need to be manifestly unreasonable or to result in a misapprehension which is so gross as to amount to an improper exercise of the power. In my view, the comments of the arbitrator could not be so characterised. The comment was not expressed as a definite statement that Dr Watson had not examined the appellant. It is apparent to me that in his report of 16 February 2011, Dr Watson does not record the same types of findings as to restrictions of movements with the plaintiff's shoulder as he did in his report dated 9 June 2009. It is apparent that the arbitrator found the report of Mr Bath more persuasive than those of Dr Watson for a number of reasons. The lack of a detailed report as to the limitation of shoulder movement in Dr Watson's 16 February report was one of those reasons.
I am not satisfied that ground 4 demonstrates an error of law.
Summary
Each ground of appeal contained an assertion of an error of law. I am satisfied that the appeal involves an error of law, and that leave ought to be granted.
However, in my view, the appellant has not established that the arbitrator made any of the errors of law as set out in the four grounds of appeal. The appellant has not pointed to any other ground on which the arbitrator's decision could be said to be in error, whether of 'fact, law or logic': Pacific Industrial [26], [30], [31]. I am not persuaded that the arbitrator's decision should be varied, quashed or otherwise disturbed. Rather, pursuant to WCIMA s 247(7) I affirm the arbitrator's decision.
The appeal should be dismissed. There is no power to award costs against the appellant: WCIMA s 247(7)(b), s 267.
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