Nyngan Community Homes Association t/as Mick Glennie Hostel v Black - [2015] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Nyngan Community Homes Association t/as Mick Glennie Hostel v Black [2015] NSWWCCPD 5
APPELLANT:	Nyngan Community Homes Association t/as Mick Glennie Hostel
FIRST RESPONDENT:	Susan Margaret Black
SECOND RESPONDENT:	State of New South Wales
APPELLANT’S INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
SECOND RESPONDENT’S INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-2491/13
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	4 August 2014
DATE OF APPEAL DECISION:	27 January 2015
SUBJECT MATTER OF DECISION:	Alleged failure to give reasons in support of finding on injury; failure to determine all issues in dispute; failure to determine if worker suffered a second injury in the nature of an aggravation of a disease; relevance of lack of contemporaneous medical evidence; alleged failure to exercise discretion in s 40(1) of the Workers Compensation Act 1987, as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; failure to amend pleadings to accord with claim made; error in calculating entitlement to weekly compensation; unsatisfactory pleadings
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant: Sparke Helmore Lawyers
First Respondent:	McCabe Partners Lawyers
Second Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The name of the second respondent is amended to State of New South Wales. 2. Paragraphs 1, 2 and 4 of the Certificate of Determination of 4 August 2014 are revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 3. Paragraphs 3, 5 and 6 of the Certificate of Determination of 4 August 2014 are confirmed. 4. The appellant employer is to pay the first respondent’s costs of the appeal, as agreed or assessed. 5. The second respondent is to pay its own costs of the appeal. 6. The worker’s costs of the first arbitration, and of the second arbitration, are to be paid by the appellant, or, depending on the findings made at the second arbitration, by the appellant and the second respondent in proportions determined at the second arbitration.

INTRODUCTION

This appeal involves three main issues.
First, a challenge to an Arbitrator’s finding that the worker injured her left knee in a fall at work in 2005 with one employer (the appellant) and, as a result, suffered consequential conditions in her right knee and back.
Second, an allegation that the Arbitrator failed to determine if, in addition to the 2005 injury, the worker also suffered an aggravation of a disease due to heavy work subsequently performed with a second employer (the second respondent) until 18 May 2010.
Third, a challenge to the date from which weekly compensation was sought and the calculation of that compensation.
For the reasons explained below, the challenge to the first point is unsuccessful, but the challenge to the second is successful and the challenge to the third is partly successful. As a result, significant parts of the claim must be re-determined before a different Arbitrator.

BACKGROUND

In 2002, the first respondent, Susan Black, started work as a kitchen hand for the appellant (the first respondent at the arbitration), Nyngan Community Homes Association t/as Mick Glennie Hostel. On a date not disclosed in the evidence, Ms Black obtained an aid-in-nursing certificate. She continued working for the appellant as an aid-in-nursing until about 30 June 2007 when the second respondent took over the appellant’s business. Ms Black continued to work for the second respondent as an aid-in-nursing, which work (it is not disputed) involved heavy and repetitive lifting.
The second respondent was wrongly sued as the Western NSW Local Health District. As Dubbo is listed in the “Western NSW Local Health District” in Sch 1 of the Health Services Act 1997, and in light of State of New South Wales v Bishop [2014] NSWCA 354 at ([26]–[28]), the correct legal identity for the second respondent is the “State of New South Wales”. I have amended the pleadings accordingly.
On 17 November 2005, while still working for the appellant, Ms Black tripped on a resident’s walking frame and fell heavily on her left side, injuring her left knee. After several days off work, she returned to work and continued her usual duties, having been certified fit to do so by her general practitioner. As her knee did not appear to be getting any better, she saw a massage therapist. Though the treatment by the therapist gave some relief, it would not last long and the pain would return.
Though Ms Black had had previous surgery on her left knee (an arthroscopy on 9 August 2005), she gave evidence (in a medical history) that her knee was asymptomatic at the time of the fall on 17 November 2005.
On 22 July 2008, Ms Black saw Dr Stephen Ruff, orthopaedic and trauma surgeon, having been referred to him by her general practitioner, Dr Chan, because of bilateral knee pain. Dr Ruff recommended that she have a total knee replacement on the left side, which he performed on 2 February 2009.
On a date not disclosed in the evidence, Ms Black returned to work with the second respondent after the knee replacement operation, but she resigned on 18 May 2010 because of ongoing medical problems since her knee replacement operation.
On 28 September 2012, acting through her solicitor, Ms Black claimed lump sum compensation, weekly compensation from 19 May 2010, and compensation for medical expenses against the appellant and the second respondent. The claim against the appellant was on the basis of the injury on 17 November 2005, but the basis of the claim against the second respondent was not identified.
On 9 January 2013, Ms Black filed an Application to Resolve a Dispute in the Commission in which she claimed against the appellant and the second respondent the same compensation particularised in the correspondence of 28 September 2012.
A teleconference was conducted with Arbitrator Perrignon on 29 October 2013. In a document headed “Teleconference Outcomes”, the Arbitrator recorded, among other things, that weekly compensation was claimed from 1 July 2009 to date and continuing.
In an amended Application to Resolve a Dispute (the amended Application) filed on 5 November 2013, under “Injury description”, the following “injuries” were pleaded against both employers:
“•     Injury to [Ms Black’s] left knee requiring a total knee replacement with persisting stiffness of the knee and continual pain without gross instability nor mal-alignment.
·        Post traumatic stiffness of [Ms Black’s] right knee with retro-patella rub.
·        Back strain injury with radicular complaint with pre-existing PARS defects and disc lesion at L4/5 and facet arthralgia.
·        Neck strain injury with probable aggravation of the C4/5 and C5/6 cervical spondylosis when [Ms Black] fell, post traumatic stiffness and trapezial muscle pain.
·        Reliance on analgesia.
·        Gastro-oesophageal reflux disease requiring Nexium and precluding her taking anti-inflammatories.
·        Impaction of [Ms Black’s] back strain injuries on her activities of daily living.
·        Post traumatic stress disorder requiring anti-depressants.”
Pleadings of this kind are completely unacceptable. Clearly, descriptions such as “persisting stiffness”, “reliance on analgesia”, “impaction of [Ms Black’s] back strain” are not injuries and they should not have been pleaded as such. Pleadings in the Commission should identify, clearly and succinctly, the alleged injury or injuries. The amended Application filed in the present matter did not do that and that was unsatisfactory and unacceptable.
Under “Describe how the injury occurred”, the amended Application pleaded, against the appellant, the fall on 17 November 2005 and the disease provisions in ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act). It also alleged that Ms Black continued to have pain in her left knee and that, while favouring that knee, she overused her right knee, which became painful and she suffered back pain, which was aggravated by her altered gait (because of her left knee injury). Against the second respondent, the amended Application relied only on the disease provisions.
The right knee problem was based on Ms Black’s evidence that, in about 2008, she experienced, for the first time, problems with that knee, which she believed had been caused by her altered gait as a result of the left knee injury, or the wear and tear of her work until she resigned in May 2010.
With regard to her back, Ms Black said that she had suffered a back injury with a previous employer and made a claim for compensation for that injury, for which she received a payout of between $25,000 and $30,000. She said that by the time she started with the appellant, her back had settled completely. In her statement of 16 March 2011, Ms Black said that she was to have a needle placed in her spine to see if the pain in her right leg was “more sciatica or related to the altered gait” that she suffered as a result of her left knee injury.
Against both the appellant and the second respondent, Ms Black’s amended claim was for:
(a)     weekly compensation from 19 May 2010 to 31 December 2012 (emphasis added);
(b)     hospital and medical expenses under s 60 of the 1987 Act, and
(c)     lump sum compensation under s 66 for whole person impairment as a result of the condition of her lumbar spine, left lower extremity (left knee) and right lower extremity (right knee) together with compensation for pain and suffering under s 67.
As Ms Black was not an existing recipient of weekly compensation immediately before 1 October 2012, the claim for weekly compensation was under the provisions of the 1987 Act, as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), which amendments did not apply to her until 1 January 2013.
In support of her claim, Ms Black relied on evidence from Dr Dixon, orthopaedic surgeon. In summary, Dr Dixon said that Ms Black’s left knee was asymptomatic at the time of the November 2005 fall and that the fall caused an injury to the left knee, which required a total knee replacement. He added that while favouring her left knee, Ms Black had increasing pain and stiffness in her right knee.
In a later report, Dr Dixon essentially confirmed his opinion about the left knee injury in 2005 and said that the altered gait caused by that injury affected Ms Black’s right knee and back. He added that Ms Black’s underlying pre-morbid condition, arthritis and spondylosis, had resulted from her work as an assistant-in-nursing, which was notoriously heavy and demanding and could cause an aggravation of the disease from which Ms Black suffers. (This was, presumably, a reference to Ms Black’s work as an assistant-in-nursing up to May 2010.)
The appellant and the second respondent disputed liability on various grounds discussed later in this decision.
The appellant relied on evidence from Dr Bosanquet, orthopaedic surgeon, who said that Ms Black had sustained an injury on 17 November 2005 that aggravated underlying osteoarthritis in her left knee. Though he said that the injury resolved once Ms Black had the knee replacement operation in 2009, he added, in a later report, that 50 per cent of Ms Black’s whole person impairment (due to the condition of her left knee) was due to the 2005 fall and 50 per cent was due to her pre-existing condition. In other words, Dr Bosanquet supported the claim that Ms Black injured her left knee in the 2005 fall and that the effect of that injury was continuing.
Dr Bosanquet denied that Ms Black had injured her right knee due to the nature and conditions of her employment until 18 May 2010, noting that the symptoms occurred because of the deterioration of her osteoarthritis rather than her employment as such.
In respect of Ms Black’s back condition, Dr Bosanquet said that Ms Black had not suffered a back injury as a result of the left knee injury on 17 November 2005, noting that it was well known that she had had back problems for a number of years prior to the injury in 2005. He did not accept that she suffered a back injury as a result of the nature and conditions of her employment until 18 May 2010, noting that she suffers from degenerative changes in her lumbar spine, which had deteriorated over time with the natural activities of daily living.
In a reserved decision delivered on 4 August 2014, Arbitrator Phillips SC accepted that the 2005 injury was “of some significance” ([49]) and that it aggravated a pre-existing condition (osteoarthritis) in Ms Black’s left knee. He found that the aggravation continued and ultimately caused her to have a total left knee replacement much sooner than it would normally have occurred. He also accepted that, due to the altered gait caused by the left knee injury, Ms Black experienced symptoms in her right knee and lumbar spine.
The Arbitrator made no findings or orders with respect to the claim against the second respondent.
In respect of the period between 1 July 2009 and 18 May 2010, for which no weekly compensation had been claimed in the amended Application, the Arbitrator awarded Ms Black the purported difference between her probable weekly earnings but for her injury ($557) and her actual weekly earnings ($391), namely, $156 per week.
It should be noted that, even if compensation had been claimed for this period, which I have ultimately determined was the case, the Arbitrator’s calculations were wrong. The difference between $557 and $391 is $166 not $156. In addition, and more importantly, on the evidence in the wage schedules in the amended Application, Ms Black’s actual earnings were, in one of the schedules, $318.80 per week not $391. To add to the confusion, the other schedule asserted that actual earnings were $557.40. Further, neither schedule, read on its own, established a loss for the period from 1 July 2009 to 18 May 2010.
In respect of the period from 18 May 2010 to 31 December 2012, the Arbitrator assessed Ms Black to be able to earn $160 per week and he awarded the difference between that amount and what he considered to be Ms Black’s probable weekly earnings if she had not been injured ($557), namely, $397 per week. The calculation of Ms Black’s entitlement to weekly compensation, and the wage schedules on which it was based, is discussed in detail at the end of this decision.
The Arbitrator made a general order for the payment of Ms Black’s medical expenses under s 60 and referred the assessment of Ms Black’s whole person impairment as a result of her injuries and consequential conditions to the Registrar for referral to an Approved Medical Specialist.
The Arbitrator said that there was scant evidence of any injury to Ms Black’s neck, gastro-intestinal tract or psyche and he made an award for the appellant and the second respondent in respect of those claims. This finding has not been challenged on appeal.
The Commission issued a Certificate of Determination on 4 August 2014 in the following terms:
“The Commission determines:
1. The [appellant] will pay the applicant from 1 July 2009 to 18 May 2010 at $156 per week pursuant to section 40 of the Workers Compensation Act 1987.
2. The [appellant] will pay the applicant weekly benefits pursuant to section 40 at $397 per week from 18 May 2010 to 31 December 2012.
3.   The [appellant] will pay a general order in relation to section 60 medical expenses in relation to the applicant’s left knee, right knee and lumbar spine.
4.   I refer to the Registrar to have an assessment made in relation to [Ms Black’s] left and right lower extremities (knees) and lumbar spine as a result of, and as a consequence of the injury of 17 November 2005. An Approved Medical Specialist will assess whole person impairment, but will make relevant deductions for pre-existing conditions of all those body parts prior to 17 November 2005. The Approved Medical Specialist will have regard to the exhibits in this case and also to these reasons.
5.   The [appellant] will pay the applicant’s costs as agreed or assessed. To those costs, available to all parties I provide an uplift of 30 per cent on the grounds of complexity and I also note an additional 15 per cent for the [appellant and the second respondent] participating in the case, available to all parties.
6.   There is an award for the [appellant and the second respondent] with respect to the claimed injuries to the applicant’s cervical spine, gastro-intestinal tract and psyche.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
On 27 August 2014, the second respondent’s solicitors wrote to the Commission requesting that the following additional order be made:
“An award for the second respondent with respect to the allegation of injury occurring on 18 May 2010 (deemed) to the back and left and right knees.”
In an appeal filed on 1 September 2014, the appellant has challenged the Arbitrator’s determination of 4 August 2014. In light of the filing of the appeal, the Arbitrator has not dealt with the request in the letter of 27 August 2014.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, and the submissions made at and following the teleconference held by me on 16 December 2014, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding a formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal, as originally filed, were whether the Arbitrator erred in:
(a)     failing to provide proper and adequate reasons “in finding liability for the left knee, right knee and lumbar spine rested with the frank injury of 17 November 2005” (reasons);
(b)     failing to “determine on the evidence (including that of [Ms Black]) the lack of any contemporaneous medical evidence supporting a link between [Ms Black’s] ongoing knee symptoms and the event of 17 November 2005” (contemporaneous medical evidence);
(c)     failing to “have any or sufficient regard for [Ms Black’s] evidence that she believed her left knee was caused by the nature and conditions of employment with her employer from 2002 until 18 May 2010” (nature and conditions);
(d)     determining “that there was no real contest as to whether or not [Ms Black] had an altered gait as a result of the left knee injury; and that there was no dispute as to consequential injury to the lumbar spine or right knee” (altered gait), and
(e) failing to exercise his “discretion pursuant to section 40 of the [1987] Act” (section 40 discretion).
In view of the order made for the payment of weekly compensation from 1 July 2009 to 18 May 2010, a period during which no weekly compensation had (apparently) been claimed in the amended Application, and the generally unsatisfactory nature of the submissions filed by the appellant and the second respondent, which failed to properly grapple with the real issue, I held a teleconference on 16 December 2014. Mr John Gaitanis, of counsel, represented the appellant, Mr McCabe, solicitor, represented Ms Black, and Mr Marhaba, solicitor, represented the second respondent.

At the teleconference, I gave leave to the appellant to amend the appeal to add an additional ground of appeal to challenge the order for the payment of weekly compensation for the period from 1 July 2009 to 18 May 2010. Pursuant to that leave, the appellant formally amended its grounds of appeal in a document filed with the Commission on 17 December 2014 to add an additional ground of appeal, namely:
(f) that the Arbitrator erred in awarding compensation at all pursuant to s 40 for the period 1 July 2009 to 18 May 2010 (date from which the claim for weekly compensation commenced).
I also advised the parties that the appellant’s real challenge to the Arbitrator’s decision seemed to be that he failed to deal with the claim against the second respondent. Mr Gaitanis conceded that this was so and that the Arbitrator was entitled to find that Ms Black injured her left knee on 17 November 2005. However, he did not concede that the consequences of that injury were as found by the Arbitrator.
Though invited to do so, Mr Marhaba was unable to take me to any part of the Arbitrator’s decision where he dealt with the claim against his client, merely noting that the Arbitrator found injury against the appellant due to the 2005 incident and that the symptoms in Ms Black’s right knee and back had resulted from her altered gait which had been caused by the left knee injury with the appellant.
Against this background, I turn to the grounds of appeal.

REASONS

Submissions

Mr Gaitanis, who did not appear at the arbitration, submitted that the Arbitrator failed to record in his reasons that the appellant declined liability (in its s 74 notice) because:
“Given that you did not undergo any treatment or management at [the time of] your original injury; did not receive any ongoing management after the 28/11/2005; nil approval was sought from Allianz [the appellant’s insurer] for the Total Knee Replacement surgery indicated in Dr Dixon’s report; and you were certified final [sic, fit for] pre-injury duties as of the 28/11/2005; Allianz considers that your current symptoms are to be related to the Nature and Conditions of your employment with Greater Western Area Health Service [the second respondent] and as such believe that you should lodge a new claim with your current employer.”
Mr Gaitanis said that the Arbitrator was aware that the appellant sought to argue that liability rested with the second respondent “on the basis of disease of gradual onset aggravated by [Ms Black’s] employment with the second respondent”. Having noted that he was informed as to the dispute between the appellant and the second respondent as to liability for Ms Black’s injury, the Arbitrator found that injury to Ms Black’s left and right lower extremities (knees) and lumbar spine were as a result of the injury of 17 November 2005.
Mr Gaitanis submitted that the Arbitrator “failed to provide reasons for the finding and did not demonstrate that he had carefully and adequately analysed and reasoned the rejection of the [appellant’s] submissions”. Mr Gaitanis said that the appellant’s argument at the arbitration, and on appeal, is that, in respect of the left knee, Ms Black had had an arthroscopy on 9 August 2005, which pre-dated the event of 17 November 2005, and that Dr Ruff did not opine that work had anything to do with the surgery (presumably the knee replacement surgery), the altered gait or the consequential injury.
Dr Ruff referred to osteoarthritis and the need for surgery because of the osteoarthritis. Moreover, Ms Black performed hard arduous work for the second respondent as an assistant-in-nursing, which “would have led to the aggravation, acceleration, exacerbation of the osteoarthritic condition in both knees”.
In respect of the back condition, the first reference appeared in the evidence from Dr Ruff when he saw Ms Black on 26 October 2010 and it was noted that the symptoms had only been present for three weeks. After the incident on 17 November 2005, when the appellant was on risk, Ms Black had (only) about six days off work and was given a certificate certifying her fit for pre-injury duties and she continued to work in her usual occupation until 2010.
Mr Gaitanis contended that, despite submissions being directed to the issue of whether liability rested with the incident of 17 November 2005 or with a disease of gradual process aggravated by employment with the second respondent, there “is no methodical analysis or reasoning satisfying the resolution of the issue”. He said the Arbitrator should have set out why he rejected the appellant’s argument at the hearing.
Though counsel (Mr Halligan) represented the second respondent at the arbitration, its submissions on appeal were prepared by its solicitor, Mr Marhaba. Mr Marhaba submitted that the Arbitrator provided proper reasons for determining that Ms Black’s left knee, right knee and lumbar spine conditions were causally related to the incident on 17 November 2005.
Dealing with Ms Black’s statement that her duties from 2002 to 18 May 2010 contributed to her left knee symptoms, Mr Marhaba submitted that this “could not be considered conclusive evidence that [Ms Black’s] left knee symptoms were not causally related to the injury on 17 November 2005”.
Mr Marhaba said that the Arbitrator did not err in identifying that the incident on 17 November 2005 was significant and that Ms Black only consulted Dr Ruff for treatment in respect of her ongoing symptoms following that incident. Dr Ruff made no mention that Ms Black’s conditions were caused by a deterioration of a disease of gradual process. Based on this, the Arbitrator determined that Ms Black suffered an aggravation of her pre-existing left knee condition on 17 November 2005, which led to the total knee replacement. He accepted that Ms Black continued to suffer from the effects of that injury and his reasoning and findings contain no error.
Mr Marhaba said the Arbitrator was not required to give detailed reasons regarding why he did not consider that Ms Black’s left knee symptoms were due to an aggravation of a disease process during the course of her employment with the second respondent.

Discussion and findings

The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The obligation to give reasons is related to and dependent upon the submissions presented to the judicial officer. It is therefore appropriate to consider how the parties conducted the case at the arbitration.
Ms Black’s counsel, Mr Dodd, focused on the “index event of 17 November 2005” (T12.17) but, significantly, also submitted on the “nature and conditions of [Ms Black’s] work thereafter”. He specifically relied on the evidence from Dr Dixon that the stresses and strains on Ms Black’s left knee and altered gait affected her right knee and back (T15.33).
In response to a question from the Arbitrator as to whether the right knee and lumbar spine symptoms were “consequential injuries [sic, conditions]” (T16.12), as a result of the 17 November 2005 injury, or were “other injuries which occurred from time to time after” (T16.14), Mr Dodd said, starting at T16.19:
“it’s a bit of both, that is it’s both, both the altered gait which you’ve referred to in that, in the first sentence of that paragraph we’re looking at, but then also in the last sentence about the underlying morbid pathological condition resulting from the work as an [assistant-in-nursing], notoriously heavy and physically demanding on the body, can cause aggravation of disease condition from which it suffers.” (emphasis added)
The reference in the quoted passage to “that paragraph” was a reference to the following passage in Dr Dixon’s report of 9 December 2013:
“The stresses and strains on [Ms Black’s] left knee and subsequent altered gait affecting the right knee and back led to an acceleration of left knee, back and neck conditions as a disease claim confirming that the injuries represented occupational diseases for an assistant in nursing. The underlying pre-morbid pathological condition[,] namely arthritis and spondylosis which has resulted from the work as an [assistant-in-nursing] which is notoriously heavy and physically demanding on the body, especially the neck, right and left knees and back, and can cause aggravation of the disease condition from which [Ms Black] suffers.”
Mr Dodd then pointed out that if the Arbitrator found that Ms Black suffered an aggravation injury with the second respondent, there could be two dates (of injury): the first, on 17 November 2005, when Ms Black fell and injured her left knee, and the second, on 18 May 2010, being the deemed date of injury for the aggravation injury. Mr Dodd submitted (at T22.13) that Dr Dixon related the (left) knee problem, the need for the knee replacement surgery and the consequential problems with the back and right leg, to the November 2005 injury and to the “additional injury by way of the nature of [Ms Black’s] work up until May 2010” (T22.15). (I note that the transcript wrongly attributed this submission to Mr Halligan, counsel for the second respondent at the arbitration.)
Counsel for the appellant at the arbitration, Mr Newton, acknowledged that, in the event on 17 November 2005, Ms Black suffered a “discrete injury to her left knee” (T31.1). However, he also took the Arbitrator to evidence that, as at June 2005, she had been aware of back problems for more than 10 years and that her back pain had increased at the beginning of 2005. He highlighted the short period of time off after the fall on 17 November 2005 and that Ms Black returned to work on her normal duties on 28 November 2005, after having been cleared to do so by her general practitioner in a certificate dated 26 November 2005. He also highlighted the evidence from Dr Ruff.
Mr Halligan submitted on behalf of the second respondent that it would be beyond commonsense to ignore the significance of the fall on 17 November 2005, noting Ms Black’s evidence as to the circumstances and consequences of that incident. He agreed with Mr Newton’s submission that there was a lack of evidence from Dr Ruff that filled in the historical details to “better understand the ideology [sic, aetiology] of [Ms Black’s] complaints” (T38.31), but added that Dr Ruff made mention of Ms Black’s condition having been brought about by a deterioration of a disease. He said that what was important was that the only reason Ms Black saw Dr Ruff was because of the trauma occasioned to her in the fall of November 2005.
Mr Halligan relied on Dr Dixon’s evidence, in his report of 10 September 2012, as providing support for his submission that the November 2005 fall was “the root of [Ms Black’s] problems” (T39.27). Dealing with the passage quoted at [59] above, which implicated his client in an aggravation injury, Mr Halligan said that Dr Dixon made no attempt to explain away why he “disfavoured the opinion” (T40.19) in his first report. Mr Halligan added that there was no material, other than in generic terms, as to what it was that brought about Ms Black’s conditions. He said that “the only plausible or convincing evidence as to the problems that [Ms Black] had to suffer [sic] leading to surgery was [the] frank injury in November 2007 [sic, 2005]” (T40.27).
Mr Halligan contended that all of the radiology was consistent with a condition that had developed since the chair incident (in 2005), which led to the symptomatology, the knee replacement surgery, and the decision to leave work. He said, at T43.23:
“The claim for the section 16 deterioration in my respectful submission is nothing more than a failsafe claim to ensure that the applicant achieves a result out of her claim simplictor [sic] but when you come to look at the available medical material you do not get any assistance in support of a nature and conditions claim other than for the fact that it was in my client’s period of risk when she decided to terminate her employment. The damage had already been done from 2005 and all of the Stephen Raff [sic, Dr Ruff’s] reports deal with a progression of treatment, presentation, complaints of symptoms right up into 2013 in circumstances where he makes no opinion to suggest that there was anything affecting this lady other than for the circumstances that brought him into the picture in the first place, namely the referral from Dr Chan post the 2005 (1:35:02) frame incident.”
In response, Mr Newton submitted that there was no suggestion that Ms Black saw Dr Ruff as a result of what happened in 2005 (T44.25) and he pointed out that Ms Black returned to work in November 2005 with a “fitness certificate after the frank injury” (T45.1)
It is correct, as Mr Gaitanis has submitted, that the Arbitrator did not “record” the passage in the s 74 notice quoted at [46] above. However, the relevance of that submission is unclear. An Arbitrator does not have to “record” everything in a s 74 notice. Nor are an Arbitrator’s reasons required to mention every fact or argument relied on by the losing party as relevant to an issue (Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 per Gleeson CJ, McHugh and Gummow JJ at [62]). Moreover, other than referring to the s 74 notice as an “aide memoire” (T36.19), Mr Newton made no specific reference to the passage quoted by Mr Gaitanis. He did not have to. His submissions properly identified the arguments in support of the appellant’s position.
The Arbitrator was aware of the appellant’s arguments and he expressly referred to them. After setting out (at [16]–[47]) a detailed summary of the parties’ submissions, which identified the issues and the parties’ positions, the Arbitrator said (at [48]) that there would be an award for the appellant and the second respondent with respect to the alleged injuries to Ms Black’s neck, gastro–intestinal tract or psyche. As previously noted, this finding has not been challenged.
Dealing with the left knee, the Arbitrator referred (at [34]) to Mr Newton’s submissions about the arthroscopy on 9 August 2005 and (at [36]–[39]) to Mr Newton’s submissions about Dr Ruff’s reports and (at [37]) to Mr Newton’s submission that Ms Black was on full duties until the end of her employment with the appellant on 30 June 2008. (The reference to 30 June 2008 may have been incorrect. Ms Black gave evidence that the second respondent took over the appellant’s business in June 2007. Though nothing turns on this on appeal, it may be relevant at the second arbitration and should be clarified).
The Arbitrator said:
(a)     it was apparent that Ms Black has had a multiplicity of problems affecting her musculoskeletal system and that she has had significant pre-existing problems in her left and right knees and lumbar spine ([49]);
(b)     based on the reports of Drs Dixon and Bosanquet, it was apparent that Ms Black’s injury on 17 November 2005, which injured her left knee, was “of some significance” ([49]);
(c)     even though Ms Black only had a comparatively short period of time away from her duties (after the injury on 17 November 2005), both Dr Dixon and Dr Bosanquet accepted that the injury to her left knee aggravated a pre-existing condition (Dr Bosanquet saying that the condition of the left knee could be apportioned 50 per cent to pre-existing pathology and 50 per cent to the injury on 17 November 2005) ([49]);
(d)     the mechanics of the fall on 17 November 2005 were “telling” and Ms Black had a very heavy fall on an “already compromised left knee”, which rendered it worse than it had been and the aggravation continued ([49]);
(e)     Ms Black’s evidence (which the Arbitrator clearly accepted) was that her left knee “never got any better and deteriorated until she came to have a total knee replacement in February 2009” ([50]), and
(f)      he accepted and found that Ms Black’s knee “was injured on 17 November 2005, which injury was an aggravation of a pre-existing condition which continues and ultimately caused her to have a total knee replacement”, which occurred much sooner than what it probably would have had the normal course of events in her life continued ([50]).
As the above summary demonstrates, the submission that the Arbitrator failed to provide reasons for finding that the injury to Ms Black’s left knee, and the consequential conditions in her right knee and lumbar spine, were the result of the injury on 17 November 2005 is plainly wrong. The Arbitrator clearly identified why Ms Black was entitled to succeed against the appellant.
However, the difficulty is that, as explained above, the 2005 injury was only part of Ms Black’s claim. Ms Black also alleged that, in addition to the 2005 injury, she suffered an injury in the nature of an aggravation of a disease caused by her heavy duties as an assistant-in-nursing up to 18 May 2010. The Arbitrator did not address that issue. His failure is highlighted by the fact that, after he delivered his decision, the second respondent asked for an additional order in its favour. As the Arbitrator made no findings dealing with the claim against the second respondent, it is not open to make that order. It follows that the Arbitrator erred in failing to properly determine all issues in dispute and this part of the claim, and the other matters discussed below, must be re-determined at a second arbitration.
In view of the above finding, Mr Gaitanis’s further points can be dealt with fairly briefly. The fact that Dr Ruff did not say that the work had anything to do with the knee replacement surgery was of limited relevance. He did not express any opinion on causation because he was never asked to do so. He prepared a series of reports addressed to the general practitioner. He did talk about Ms Black having arthritis in both knees, but did not exclude an aggravation caused by the 2005 fall (or by the duties performed with the second respondent). He simply did not address those issues. In these circumstances, the Arbitrator did not have to deal with his evidence in any detail.
The submission that Ms Black performed hard arduous work for the second respondent as an assistant-in-nursing, which “would have led to the aggravation, acceleration, exacerbation of the osteoarthritic condition in both knees” raises an issue that must be determined at the next arbitration and need not be considered further on appeal. Even if this argument is accepted, it does not relieve the appellant of liability, but merely raises the question of whether Ms Black has suffered two injuries, which may raise the possibility of apportionment between the appellant and the second respondent. I note that Mr Newton and Mr Halligan were both so confident of their respective positions that neither appears to have considered the possibility that each employer may be liable and that apportionment would be required.
Mr Gaitanis’s submission that the first reference to the back condition was by Dr Ruff on 26 October 2010 was incorrect. Ms Black had experienced back symptoms for several years prior to starting with the appellant. However, her evidence was that, by the time she started with the appellant, her back had settled. The next reference to back problems was in Dr Ruff’s report of 25 April 2008, which recorded that Ms Black presented on 1 April 2008 with back and right leg pain. Her history was of back symptoms for two weeks, with the onset of those symptoms on a Saturday morning, which she related to a pinched nerve. Mr Gaitanis’s submission has not established relevant error by the Arbitrator but seems to be an attempt to conduct the appeal as a rehearing.
On the issue of whether Ms Black suffered an injury on 17 November 2005, the Arbitrator gave reasons for his conclusion and no further “methodical analysis” was required. His error was in failing to consider whether, as a result of her duties with the second respondent, Ms Black suffered a second injury in the nature of an aggravation of a disease.

CONTEMPORANEOUS MEDICAL EVIDENCE

Submissions

Mr Gaitanis again referred to the arthroscopy on 9 August 2005, the fact that Ms Black was only off work for six days after the 17 November 2005 fall, and that she was certified fit to return to work at the end of that time. He said that Ms Black gave evidence that she had no problems with her right knee until about 2008. He submitted that the Arbitrator “instead accepted the opinions of Drs Dixon and Bosanquet that the injury was of some significance and [Ms Black’s] earlier statement … that her knee kept getting worse”.
Mr Gaitanis contended that the Arbitrator failed to have regard to the inconsistency between Ms Black’s two statements “as to the effect of the knee injury after 17 November 2005 and thus erred in his [sic] properly analysing [Ms Black’s] evidence”. He said it was incumbent upon the Arbitrator to evaluate the evidence in the context of other evidence; the other evidence being that Ms Black had failed to demonstrate that she had received treatment for a significant period after 17 November 2005. This should have highlighted to the Arbitrator that there was a “real dispute that the knee problems were due to [a] disease of gradual process accelerated exacerbated or aggravated by [Ms Black’s] employment with the second respondent”.

Discussion and findings

I have already noted that the Arbitrator was aware of, and dealt with, the evidence of the arthroscopy on 9 August 2005 and the fact that Ms Black was off for several days after the fall on 17 November 2005. The Arbitrator was also well aware that Ms Black had been certified fit to return to work in late November 2005 and expressly referred (at [40]) to Mr Newton’s submission on that point. That evidence was, however, of limited weight in determining the consequences of the fall and was far from determinative.
The general practitioner’s certificate issued in November 2005 provided no detailed analysis of the issues and did not mean that the effects of the fall were no longer continuing or that Ms Black had no symptoms from it. The Arbitrator considered the damage sustained in the fall by reference to the expert evidence of Dr Dixon and, in particular, the appellant’s own expert, Dr Bosanquet. That evidence provided ample support for his conclusion and his acceptance of their evidence involved no error.
Mr Gaitanis has not identified the alleged inconsistencies in Ms Black’s statements that demonstrate error by the Arbitrator. Moreover, Mr Newton made no submission along the lines now made by Mr Gaitanis and it is not open to argue on appeal that an Arbitrator erred in failing to deal with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [22] and [30] (Bell)). Nevertheless, I will deal with it.
In her first statement, dated 16 March 2011, Ms Black said that she was sore on the day of the 2005 fall, that night, and for the next couple of days. The pain did not seem to be going away and she saw her general practitioner who ordered x-rays and put her off work for two weeks. She said she went back to work after two weeks but her knee kept getting worse (in fact she was off for slightly less than two weeks). At no stage did her knee appear to be getting any better. She had remedial massage, which gave only short-term relief. The therapist said that the knee was not getting any better and that Ms Black should see her doctor. She saw her doctor and was referred to Dr Ruff.
In Ms Black’s second statement, dated 21 November 2013, she referred to her previous back and left knee symptoms, and that she had been advised by Dr Ruff that the arthroscopy on 9 August 2005 had been successful and she would be fit to return to work on about 25 August 2005. After her return to work, she suffered the injury on 17 November 2005. She said she had no problems with her right knee until about 2008. She believed that those problems had been caused by her altered gait or the wear and tear of her work with the employer (the second respondent) up until she resigned on 18 May 2010. She added that she believed that her left knee injury had been caused by the nature and conditions of her employment from 2002 up until 18 May 2010.
As far as the left knee is concerned, there are no relevant inconsistencies between the two statements. That is probably why Mr Newton did not address on it. Neither statement suggested a full recovery from the 2005 fall.
The lack of complaint of right knee symptoms until 2008 is of no consequence. Ms Black did not allege that she injured her right knee on 17 November 2005. Her case was that those symptoms came about because of the altered gait caused by the left knee injury. Dr Dixon supported that case and it was open to the Arbitrator to accept Dr Dixon’s evidence. The additional, or alternative, allegation that her right knee problems were caused by the wear and tear of Ms Black’s work up to May 2010 must be considered at the next arbitration.
If the real complaint by the appellant under this ground is that the Arbitrator erred in finding against it in light of the lack of contemporaneous evidence immediately after the 2005 fall, that complaint is rejected. The submission seems to be based on the erroneous assumption that a worker cannot succeed without contemporaneous evidence of his or her complaint. That is not correct.
In the civil law, the task of a judge (or, I would add, Arbitrator) is to decide, based on the whole of the evidence (denials and all), what he or she accepts (Chanaa v Zarour [2011] NSWCA 199 at [86]). Considering the evidence on which the parties addressed, and the issues argued, the Arbitrator accepted the evidence from Dr Dixon and Dr Bosanquet and found that Ms Black suffered an injury to her left knee on 17 November 2005 and that, because of an altered gait caused by that injury, Ms Black developed symptoms in her right knee and back. Those findings were open on the evidence and disclosed no error. They are not open to challenge at the next arbitration.

NATURE AND CONDITIONS

Submissions

Mr Gaitanis submitted that the Arbitrator erred in not having regard to Ms Black’s evidence that she believed her left knee injury had been caused by the nature and conditions of her employment from 2002 up until 18 May 2010 and his decision “not to make a determination on the lay evidence affected his reasoning and caused him to err when he determined that the left knee injury was attributable entirely to the event of 17 November 2005”. Had this evidence been accepted, the Arbitrator “would have been in a better position to critically assess the [appellant’s] argument of the role of the gradual process of disease in [Ms Black’s] disabilities”.

Discussion and findings

This ground raises what I identified at the teleconference on 16 December 2014 as the real issue on appeal, namely, the Arbitrator’s failure to consider whether, in addition to the injury on 17 November 2005, Ms Black also suffered an aggravation injury due to her heavy duties with the second respondent. As I have accepted that the Arbitrator failed to determine this part of the claim and that, as a result, the matter must be re-determined, it is not necessary to say any more about it.
The fact that this issue must be re-determined, and may affect Ms Black’s entitlement to weekly compensation, means that the awards of weekly compensation must be also revoked and re-determined in light of the assessment of the allegations against the second respondent. This is not to say that Ms Black does not have an entitlement to weekly compensation against the appellant, but merely that her entitlement must be re-determined in light of the claim against the second respondent and in light of the comments below about the wage schedules.

ALTERED GAIT

Submissions

Mr Gaitanis submitted that the Arbitrator erred in determining that “there was nothing put against [Ms Black] having an altered gait as a result of her left knee injury” ([51]) and that “no real contest took place between the parties as to whether or not [Ms Black] had an altered gait as a result of the left knee injury” ([55]). Mr Gaitanis said that the appellant “complied with its obligations pursuant to the section 74 Notice in denying liability with respect to the allegation of injury to the right knee and lumbar spine which resulted from or was a consequence of, [the] left knee injury of 17 November 2005”.
Mr Gaitanis contended that, having decided that the matter had not been sufficiently ventilated in submissions, the Arbitrator erred in “not critically assessing the evidence that lent weight to the [appellant’s] propositions as raised in the section 74 Notice and supported by medical evidence” from Dr Bosanquet who did not consider the right knee or lumbar spine problems were attributable to the injury on 17 November 2005. The Arbitrator did not give any reasons why he did not accept Dr Bosanquet’s opinion with respect to the right knee and lumbar spine.

Discussion and findings

I do not accept Mr Gaitanis’s submissions.
First, the reliance on the s 74 notice is misplaced. That document disputed liability for the reasons set out at [46] above. It did not specifically address the consequential conditions in the right knee and lumbar spine, though it was accepted at the arbitration that it disputed liability for them.
Second, at the arbitration, neither Mr Newton nor Mr Halligan challenged Mr Dodd’s submission (at T29.1), based on Dr Dixon’s evidence, that Ms Black had problems with her right knee and lumbar spine because of her significantly altered gait due to the injury to the left knee. The only submission made by either counsel for the employers about Ms Black’s gait was by Mr Newton, who merely said (at T34.13) that Dr Ruff gave no opinion that work had anything to do with the need for surgery “or altered gait or consequential loss”.
Third, as Mr Dodd noted (at T7.7), and Mr Halligan conceded (at T52.18), nothing was put against Ms Black’s credit. In other words, there was no reason not to accept her evidence that she walked with an altered gait because of the injury to her left knee.
In these circumstances, it was open to the Arbitrator to conclude, as he did, that nothing was put against Ms Black having an altered gait (as a result of the left knee injury on 17 November 2005). This ground of appeal was without substance. The Arbitrator’s finding that, as a result of the left knee injury on 17 November 2005, Ms Black walked with an altered gait, which contributed to her back and right knee symptoms, is not open to challenge at the next arbitration.
Mr Gaitanis’s next point is based on the false premise that the Arbitrator decided that “the matter [relating to the altered gait] had not been sufficiently ventilated in submissions”. The Arbitrator said no such thing. He correctly observed that nothing was put against Ms Black having an altered gait as a result of her left knee injury.
The submission that the Arbitrator erred in not “critically assessing” the evidence from Dr Bosanquet dealing with the right knee and lumbar spine conditions has overlooked the fact that Mr Newton made no relevant submissions about that evidence. It is not an error for an Arbitrator not to deal with an issue not argued (Bell).
There were good reasons why Mr Newton did not argue the point Mr Gaitanis has raised on appeal. Mr Dodd relied extensively on Dr Bosanquet’s evidence as being supportive of Ms Black having injured her left knee on 17 November 2005 (see T22.32, T23.10, T23.30, T27.21 and T28.28). In response, Mr Newton merely said that Mr Dodd had taken the Arbitrator “through [the reports from] Dr Bosanquet” (T35.27) and he (Mr Newton) had nothing more to add other than reciting what Mr Dodd had said, which he did not intend to do.
Dr Bosanquet’s evidence was that Ms Black had not suffered an injury to her right knee or lumbar spine either in the 2005 fall or as a result of her subsequent employment with the second respondent. He did not consider whether, as Ms Black claimed, the right knee and lumbar spine symptoms had been aggravated by the altered gait caused by the 2005 fall. Therefore, his report did not call for “critical assessment” on this issue.
In these circumstances, it was not necessary for the Arbitrator to deal with this issue in any greater detail than he did. It was open to him to accept Dr Dixon’s evidence, which he did. He did not have to give reasons for rejecting an opinion Dr Bosanquet never expressed and upon which Mr Newton made no submissions.
For completeness, I add that in addition to (correctly) noting that nothing was put against Ms Black having had an altered gait as a result of her left knee injury, the Arbitrator gave the following additional reasons for accepting that the right knee and lumbar spine symptoms had resulted from the left knee injury:
(a)     one could certainly, based upon the medical opinion and commonsense, recognise that someone whose left knee was “so compromised that it ultimately [led] to having a total knee replacement, such a condition would affect the way she walks and would have affected an already compromised right knee and lumbar spine” ([51]) (the Arbitrator’s reference to the medical opinion was to the evidence from Dr Dixon);
(b)     Dr Dixon “surmise[d]” that such an altered gait would have provided the necessary mechanism to cause worsening conditions and/or damage to Ms Black’s “already compromised right knee and lumbar spine” ([55]), and
(c)     it followed that the left knee injury led to an aggravation and worsening of Ms Black’s right knee and lumbar spine.
These conclusions were consistent with the evidence and disclosed no error. They are not open to challenge at the re-determination.

SECTION 40 DISCRETION

Submissions

This ground of appeal relates firstly to the Arbitrator’s finding (at [56]) that nothing had been put to him as to why the difference between Ms Black’s probable earnings ($557) and her ability to earn ($391) should be reduced. (It should be noted that the figure of $391 was incorrect in any event.)
Mr Gaitanis submitted that it was commonplace, bearing in mind Ms Black’s pre-existing injuries to her back and left knee, that she suffered from disabilities unrelated to work with the appellant and the Arbitrator erred in not having regard to the s 74 notice, which contended that the left knee injury of 17 November 2005 did not incapacitate Ms Black for work because she continued working in her pre-injury duties.
Next, Mr Gaitanis said that the comparable earnings of $557 per week was based on a period of work in February 2010, which was after the knee replacement surgery and was in excess of pre-injury comparable earnings.
Last, he said the Arbitrator erred in indicating that there was no contest on the discretion when the appellant argued that Ms Black had demonstrated the capacity to earn in excess of pre-injury income after she had undergone the knee replacement surgery.

Discussion and findings

As the award for weekly compensation must be re-determined in any event, it is not necessary for me to deal with this ground. However, as it raises a common error in s 352 appeals, and issues that might be relevant at the re-determination, I make the following observations.
To the extent that this ground of appeal relates to the Arbitrator’s failure to use the discretion in s 40(1), neither Mr Newton nor Mr Halligan submitted that the difference between Ms Black’s ability to earn and the comparable earnings should be reduced in the exercise of the discretion in s 40(1). As the Commission has attempted to explain in dozens of cases, it is not an error for an Arbitrator not to deal with an issue not argued (Bell). Moreover, it is not open to the appellant to raise this issue for the first time on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481). Had it been necessary to deal with it, this ground of appeal would have been rejected.
In addition, Ms Black’s previous back symptoms related to an injury in the 1990s. She started work with the appellant in 2002 and there is no evidence that her previous back condition prevented her from carrying out her initial duties for the appellant. With regard to her previous left knee symptoms, Ms Black’s evidence was that she recovered from the August 2005 arthroscopy. The left knee injury in November 2005 was the subject of the current claim and it was for the Arbitrator to determine the loss of earning capacity Ms Black suffered as a result of that injury.
The submission that the Arbitrator erred in not having regard to the s 74 notice, which contended that the left knee injury of 17 November 2005 did not incapacitate Ms Black for work because she continued in her pre-injury duties, misses the point. The assertion that the 17 November 2005 injury had not incapacitated Ms Black was made by Mr Newton in support of his contention that Ms Black had recovered from that injury within a few days. For the reasons discussed above, the Arbitrator did not accept that submission and determined that the effects of the November 2005 injury were continuing and that they caused an incapacity. The challenge to those findings has failed and it is not open to the appellant to dispute those matters at the re-determination.
The fact that Ms Black earned $557 per week for two weeks in early 2010 did not establish that she suffered no incapacity as a result of her left knee injury. The receipt of a higher wage post injury does not deny the existence of an incapacity for work (Thompson v Armstrong and Royse (1950) 81 CLR 585; Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171).
However, for the reasons discussed below dealing with the wage schedules, Ms Black’s actual and probable earnings must be re-visited at the next arbitration. As noted earlier (at [86]), that is not to say that she is not entitled to an award of weekly compensation, but merely that the period and quantum of that award, including whether it should be for partial or total incapacity, and whether it should be paid by the appellant alone, or by the appellant and the second respondent, must be re-determined.

DATE FROM WHICH THE CLAIM FOR WEEKLY COMPENSATION COMMENCED

Submissions

Mr Gaitanis referred to the amended Application, which claimed compensation from 19 May 2010 to date, and to a submission by Mr Dodd, counsel for Ms Black, that the claim ran “from 19 May 2010” (T25.19). He said that there was no evidence that suggested that the claim for weekly compensation pre-dated 19 May 2010.
Mr Gaitanis added that the Arbitrator erred in determining that, during Ms Black’s return to work up to May 2010, she should have been earning $557 per week whereas she was earning an average of $391 per week, thereby suffering a wage loss. Thus, he submitted that the Arbitrator erred in making an award in favour of Ms Black in the period from 1 July 2009 to 18 May 2010.
In response to these submissions, Mr McCabe referred to the teleconference on 29 October 2013, where it was noted that the claim against the appellant was from 1 July 2009, and drew attention to submissions by Mr Dodd, made at the arbitration, that:
(a) between July 2009 and May 2010 Ms Black worked “at a much lesser rate” (T7.13) because she was having significant problems, particularly with her knee;
(b) there was a return to work program between July 2009 and late 2010 but Ms Black resigned because of her continuing problems (T7.25), and
(c) Ms Black was “otherwise earning on the wage schedules which aren’t in issue $557.00 a week and during this period of time that dropped to on average, because it would vary from time to time, but on average $319.00. So if there was a section 40 claim if I can put it that way it would be in that period of a decrease in her earning rates of about 40 percent [sic]” (T8.22).
Mr McCabe submitted that Mr Newton and Mr Halligan were both aware that the claim was for weekly compensation from 1 July 2009 to date and continuing. He repeated that the pleadings had been amended at the teleconference on 29 October 2013 and that it was confirmed at the arbitration on 26 March 2014. He said that the Commission is “not even a Court of Strict Pleadings, it is a Tribunal, whose aim is to provide a fair, just, timely and cost effective resolution of workers compensation disputes” and that it “must act in accordance with equity and is to provide a flexible procedure that is responsive to the needs of individual’s [sic] case [sic], which allows for the efficient and timely processes that provide for a just resolution of disputes”.

Mr McCabe submitted that paragraph 1 of the Certificate of Determination of 4 August 2014 should be amended to be $238.00 per week from 1 July 2009 to 18 May 2010, rather than $156. This was on the basis that the correct figure for actual earnings was $319, not the figure of $391 allowed by the Arbitrator.
The solicitor for the appellant, Ms Ebonie Fusarelli, submitted that she was present at the teleconference on 29 October 2013 and, though she had no direct recollection, her notes made no reference to an amendment to the Application in relation to weekly compensation. She noted that the wage schedules in the amended Application mentioned the period from 1 July 2009 to 18 May 2010 and asserted that the “difference” was nil. Accordingly, she submitted that it was clear that Ms Black was not claiming weekly compensation for that period. She added that that period appears to have been used for the purpose of calculating comparable/probable earnings rather than for the purpose of making a claim for weekly compensation.
Ms Fusarelli submitted that as there is no record of any amendment to the weekly compensation claim in the transcript of the arbitration, and as her notes did not reveal that any amendment was sought at the teleconference (on 29 October 2013), and as the amended Application pleaded no loss between 29 July 2009 and 18 May 2010, it is open to conclude that the claim for weekly compensation commenced on 19 May 2010.
Mr Marhaba submitted that the amended Application was not further amended to include a claim for weekly compensation from 1 July 2009 to date. In support of this submission, Mr Marhaba relied on a letter from Mr Halligan sent to his office at the conclusion of the arbitration, which did not record that the claim had been amended to claim from 1 July 2009. He also referred to a submission by Mr Dodd (at T29.13) to the effect that between May and December 2012 Ms Black for practical purposes could not work.

Discussion and findings

It is correct that the amended Application filed on 5 November 2013, a few days after the teleconference on 29 October 2013, only claimed weekly compensation from 19 May 2010. I assume that that was an error, though Mr McCabe has not conceded that it was. Regrettably, the transcript is confusing and has conflicting assertions.
I do not accept Mr Marhaba’s submission based on Mr Halligan’s letter. That letter is not in evidence and, in the absence of an application that it be admitted as fresh evidence on appeal, it was improper to refer to it. Similarly, Ms Fusarelli’s notes of the teleconference on 29 October 2013 are not in evidence. Further, Mr Marhaba’s reference to Mr Dodd’s submission at T29.13 failed to acknowledge that that submission was only dealing with the period from May 2010. As noted above (at [116]), Mr Dodd made other submissions relevant to this issue.
Mr Marhaba’s submissions have graphically demonstrated, yet again, the need for experienced counsel to be briefed on appeals. I have determined this issue by reference to the transcript, the Arbitrator’s reasons for his decision, and the teleconference outcome form completed by Arbitrator Perrignon, the Arbitrator who conducted the teleconference on 29 October 2013, which is part of the Commission’s file and which the Arbitrator referred to in his decision.
Mr Dodd certainly made submissions consistent with a claim for weekly compensation from 1 July 2009. However, he also asserted that “the claim runs from 19 May 2010” (T25.19). Notwithstanding the failure to amend the amended Application to reflect a claim of weekly compensation from 1 July 2009, which was surprising, and notwithstanding Mr Dodd’s inconsistent submissions, considering the history of the matter, the better view is that Ms Black intended to claim weekly compensation from 1 July 2009.
This conclusion is consistent with the teleconference outcome form completed by Arbitrator Perrignon on 29 October 2013 where he recorded that the claim for weekly compensation was “from 1 July 2009” and with Arbitrator Phillips’s statement at [2] and [5] of his decision that wages were claimed “from 1 July 2009”. The Commission has a statutory obligation to act according to the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act). However, it is important that claims be properly pleaded and particularised and that the pleadings accord with the claim made. It follows that the Arbitrator was entitled to determine the claim from 1 July 2009, though it would have been helpful if he had amended the pleadings accordingly.
However, there are further difficulties with this part of the claim that prevent the making of the orders sought by Mr McCabe and require that the claim for weekly compensation be re-determined. As Ms Fusarelli submitted, the wage schedules in the amended Application alleged no loss in the period from 1 July 2009 to 18 May 2010. It follows that the basis for Mr Dodd’s assertion that Ms Black worked between July 2009 and May 2010 “at a much lesser rate” (T7.13) is unclear. That assertion is not supported by any evidence to which I have been referred, or by the wage schedules in the amended Application.
There are two conflicting wage schedules in the amended Application. It was asserted, in the amended Application, that Ms Black relied on one “or” the other but it was never made clear which one. The first wage schedule asserted that actual earnings and comparable earnings between 1 July 2009 and 18 May 2010 were $318.80 per week and that comparable earnings from 19 May 2010 to date were also $318.80. As the wage schedule did not say what Ms Black’s earnings were prior to 1 July 2009, it is impossible to know, from that schedule, if Ms Black worked “at a much lesser rate” from 1 July 2009.
The second wage schedule asserted that actual earnings and comparable earnings between 1 July 2009 and 18 May 2010 were $557.40 per week and that comparable earnings from 19 May 2010 to date were also $557.40. The note attached to the schedules explained that the figure of $318.80 was Ms Black’s average weekly earnings for the period from 1 July 2009 to 18 May 2010 ($14,666 divided by 46 weeks). Thus, it was the figure for her actual earnings in that period.
The figure of $557.40 was the average for Ms Black’s weekly income for two weeks from 25 January 2010 to 7 February 2010. It was asserted in the amended Application that, therefore, “on average [Ms Black] earned a gross weekly wage of $557.40”. That assertion was incorrect. It does not follow from these figures that comparable earnings for the period from 1 July 2009 to date were $557.40 per week. It is simply impossible to say what the comparable earnings were.
As Ms Fusarelli submitted, the wage schedules do not support a claim for the period from 1 July 2009 to 18 May 2010. That is because each asserted that actual earnings and comparable earnings were the same. It was only by subtracting the figure in the first schedule ($318.80) from the figure in the second schedule ($557.40) that any loss could be sustained. That is, the figures in the schedules had to be combined to give an entitlement to weekly compensation.
In the absence of evidence of comparable earnings, that is, in the absence of a proper wage schedule, that approach was not open. Mr Gaitanis was therefore correct when he submitted that the Arbitrator erred in accepting $557 as the figure for Ms Black’s probable earnings but for injury in the period from 1 July 2009 to 18 May 2010. The figure of $557.40 was clearly not a figure for comparable earnings in that period, that is, earnings Ms Black would have received but for her injury on 17 November 2005. That was the figure for Ms Black’s actual earnings for the two weeks from 25 January 2010 to 7 February 2010.
It is no answer to say that Ms Black’s wage schedules have not been challenged. The wage schedules, when considered separately, did not support the claim for the period from 1 July 2009 to 18 May 2010 and it was not open to combine the schedules in the way the Arbitrator appears to have attempted to do. I say attempted to do because, in any event, his calculations were wrong (see [30]–[31] above) and this reason, and the fact that the second respondent’s liability must be re-determined, requires that this part of the claim be set aside.
Thus, Ms Black’s entitlement to weekly compensation from 1 July 2009 to 18 May 2010 must be re-determined. The issue of comparable wages, which will also be relevant to the claim for weekly compensation from 19 May 2010, will have to be considered in light of the above comments and the evidence tendered at the next arbitration.

CONCLUSION

The Arbitrator’s finding that Ms Black injured her left knee in the fall on 17 November 2005, and that, as a result of that injury, and the altered gait caused by it, she developed symptoms in her right knee and back, is confirmed and is no longer in dispute. Nor is it open to dispute that that injury, and the consequential conditions that resulted from it, caused Ms Black to suffer an incapacity for work.
However, for the reasons explained above, the orders made by the Arbitrator for the payment of weekly compensation are revoked and the matter remitted to a different Arbitrator for determination of whether, in addition to the injury on 17 November 2005, Ms Black also suffered an aggravation injury due to the work she performed with the second respondent up to 18 May 2010 and any necessary consequential orders that may be necessary once that matter is determined.
The extent of Ms Black’s incapacity (not whether an incapacity exists), her entitlement to weekly compensation, and whether that entitlement (for the period from 19 May 2010) is for total or partial incapacity, will also have to be re-determined in light of the evidence tendered and findings made at the second arbitration. If it is found that Ms Black’s incapacity, need for medical treatment and her whole person impairment has resulted from two injuries, the question of apportionment will need to be addressed and determined.
If a claim is pressed for the period from 1 July 2009 to 18 May 2010, the amended Application will need to be further amended so that it properly reflects the claim made. Given the history of the matter, it is difficult to see how that amendment will cause any prejudice to the appellant or the second respondent. It may be helpful if the parties address the issue of comparable wages but for the injury. The wages schedules in the amended Application have not done that.
I have not revoked the costs order made in favour of Ms Black, or the order that the appellant pay Ms Black’s s 60 expenses. However, depending on the outcome of the second arbitration, further orders may need to be made in respect of those matters. In view of the history of the matter, and as Ms Black is entitled to an award, the details of which must be re-determined, she is entitled to her costs of the first arbitration and of the second arbitration, regardless of the outcome of the second arbitration. The issue will be whether those costs are to be paid by the appellant alone or by both the appellant and the second respondent in proportions yet to be determined.
The end result is regrettable but unavoidable in circumstances where the Arbitrator failed to deal with a critical part of the claim and where counsel failed to address on apportionment, either at the arbitration or on appeal. As several contentious issues have now been resolved, it is hoped that commonsense will prevail and that the parties will make an earnest attempt to resolve the remaining issues in dispute without the need for a further arbitration.

DECISION

Paragraphs 1, 2 and 4 of the Certificate of Determination of 4 August 2014 are revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
Paragraphs 3, 5 and 6 of the Certificate of Determination of 4 August 2014 are confirmed.

COSTS

The appellant employer is to pay the first respondent’s costs of the appeal, as agreed or assessed.
The second respondent is to pay its own costs of the appeal.
The worker’s costs of the first arbitration, and of the second arbitration, are to be paid by the appellant, or, depending on the findings made at the second arbitration, by the appellant and the second respondent in proportions determined at the second arbitration.

Bill Roche
Acting President

27 January 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE