One Steel Reinforcing Pty Ltd v Sutton - [2011] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Appeal to the Court of Appeal dismissed – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282
CITATION:		One Steel Reinforcing Pty Ltd v Sutton [2011] NSWWCCPD 34
APPELLANT:		One Steel Reinforcing Pty Ltd
FIRST RESPONDENT: SECOND RESPONDENT:		Barry James Sutton ECA Personnel Pty Ltd t/as Action Workforce
APPELLANT’S INSURER:		One Steel Limited
SECOND RESPONDENT’S INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-8320/10
ARBITRATOR:	Mr Brett Batchelor
DATE OF ARBITRATOR’S DECISION:		8 March 2011
DATE OF APPEAL DECISION:		24 June 2011
SUBJECT MATTER OF DECISION:		Causation of injury; weight of expert medical evidence; challenge to exercise of Arbitrator’s discretion
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
First Respondent:	Koutzoumis Lawyers
Second Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination made in Certificate of Determination dated 8 March 2011 is confirmed. The appellant is to pay Mr Sutton’s costs of the appeal. No order as to the second respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Barry Sutton was employed by One Steel Reinforcing Pty Ltd (the appellant) as a machine operator between June 2004 and April 2008. Shortly after termination of that employment he commenced work as a machine operator with ECA Personnel Pty Ltd (the second respondent). Mr Sutton ceased that employment in September 2008 by reason of incapacitating pain in his back and right leg.
Mr Sutton alleged that the “nature and conditions” of his employment with both the appellant and the second respondent had caused injury to his back and associated sciatic pain. Claims in respect of compensation benefits were made on his behalf against both the appellant and the second respondent. Each of the employers denied liability.
The dispute concerning Mr Sutton’s entitlement to compensation benefits came before Arbitrator Brett Batchelor on 11 February 2011 at which time the matter proceeded to arbitration. The Arbitrator reserved his decision and a Certificate of Determination issued on 8 March 2011.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 8 March 2011 records the Arbitrator’s orders as follows:
“1.     The applicant suffered injury to his lumbar spine arising out of or in the course of his employment with the first respondent.
2.     The applicant’s employment with the first respondent was a substantial contributing factor to such injury.
3.     As a result of the injury the applicant was totally incapacitated for work from 16 September 2008 until 28 February 2009 and partially incapacitated for work from 1 March 2009 to date.
4.     The first respondent is ordered to pay weekly compensation to the applicant for such periods of total and partial incapacity as follows:
(a)16/09/08 – 28/02/09 – s 36 $858.69 per week;
(b)01/03/09 – 31/03/09 – s 40 $542.10 per week;
(c)01/04/09 – 30/09/09 – s 40 $553.10 per week;
(d)01/10/09 – 31/03/10 – s 40 $563.00 per week;
(e)01/04/10 – 30/09/10 – s 40 $573.40 per week, and
(f)01/010/10 to date and continuing in accordance with the provisions of the Workers Compensation Act 1987 – s 40 $581.50 per week.
5.      The first respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act.
6.      The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the permanent impairment of the applicant’s lumbar spine as a result of injury sustained arising out of or in the course of the applicant’s employment with the first respondent.
7.      The date of that injury is 3 April 2008.
8.      There will be an award in favour of the second respondent.
9.      The documents to be referred are:
(a)     the Application and all attachments;
(b)     the Reply filed on behalf of the first respondent and all attachments, and
(c)     the Reply filed on behalf of the second respondent and all attachments.
10.    The first respondent is ordered to pay the costs of the applicant as agreed or assessed.
11.    A 20 per cent uplift of costs is granted to applicant and respondents.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The appellant filed this appeal with the Registry on 6 April 2011.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     determining that Mr Sutton received injury to his back arising out of or in the course of his employment with the appellant;
(b)     determining that Mr Sutton was, as a result of that injury, totally incapacitated from 16 September 2008 to 28 February 2009 and that he was partially incapacitated thereafter;
(c)     drawing certain inferences from the failure of the appellant to rely upon the evidence of Dr Spittaler;
(d)     determining that Mr Sutton remained totally incapacitated from 3 January 2009 to 28 February 2009;
(e)     failing to find that Mr Sutton’s injury and resultant incapacity arose out of or was received in the course of his employment with the second respondent, and
(f)      failing to direct that the statements of Mr Sutton dated 1 December 2010 and Mr Ly Quash dated 7 February 2011 be provided to the Approved Medical Specialist (AMS) to whom the Registrar referred the question of whole person impairment.
The issues enumerated above are taken from those matters found in the documents filed in support of this appeal under the heading “Grounds” (at [2.8]).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act (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, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
I note that the parties agree that the threshold requirements as to quantum and time as provided by s 352(3) and s 352(4) of the 1998 Act have been met.

THE ARBITRAL PROCEEDINGS

The documentary evidence before the Commission was noted by the Arbitrator at [18] of his Statement of Reasons (Reasons). No oral evidence was adduced at the hearing.
The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. That transcript records those submissions put by counsel on behalf of each party.

The Evidence

There are two statements made by Mr Sutton in evidence. The first, dated 5 October 2010, included a description of the work he performed for the appellant. The machine on which Mr Sutton worked at all times processed reinforced mesh. The work included loading the machine and removing any buckled sheets. Mr Sutton was also required to clean the machine and to remove ash and rust. All waste was placed in a bucket which weighed 30 or 40 kilograms which he was required to tip into a container. All that work was described as being “heavy”.
Mr Sutton stated that he first noticed back pain in 2004. He informed his supervisor, Mr Ly Quash, of his back problem.
Mr Sutton’s employment was terminated on 8 April 2008 by reason of his alleged misconduct.
On 13 April 2008 Mr Sutton commenced employment with the second respondent. It was stated that “the work was not heavy and involved making aluminium cans”. Mr Sutton also “worked on the forklift and packing cans onto pallets”.
Mr Sutton stated that he experienced “sciatic pain” in his right leg in July or August 2008. At that time the back pain he had experienced had “deteriorated a lot at about this time”. He ceased work on 16 September 2008.
The statement describes medical treatment received which included surgical treatment on “25 November 2009” [sic, 25 November 2008] at the hands of Dr Shivalingam.
The second statement dated 1 December 2010 recorded that Mr Sutton is married and is the father of three children. Other evidence establishes that he is presently 50 years of age. Detail of Mr Sutton’s employment history is provided. That evidence establishes that Mr Sutton had been consistently employed in manual labour since 1978.
The statement contained detail concerning the alleged misconduct which led to the termination of his employment. The employer alleged that he had smoked marijuana at work. Mr Sutton states “I am adamant that I was not smoking marijuana on the job”.
Mr Sutton described his work duties with the second respondent in the following terms:
“20.   I commenced employment with the Second Respondent ECA Personnel on or about 13 April 2008. My duties were to work on the ‘decorator machine’ which puts colour on drinking cans such as ‘FANTA, COKE, etc …
21.    My job was to monitor the machine and make sure the imprint stayed in place and make sure that there were no misprints etc.
22.    Whilst there was no heavy lifting, my job was to bend over and pick up cans that had missed the imprint, or fell off the conveyor and these would be placed into a bigger type bin that I would lift and carry over to a vaccum [sic] type system that sucked the cans up and into another bin.
23.    My job was repetitive in that I was constantly picking up cans off the floor, bending, twisting, and turning and always hunched over whilst picking these up.”
By reason of persistent back and right leg pain Mr Sutton consulted his general practitioner in “about August 2008”. A CT scan was arranged. By reason of continuing pain he ceased work with the second respondent on 16 September 2008. Treatment continued and back surgery was carried out in November 2008.
Mr Sutton returned to the workforce in February 2010, when he commenced work for an organisation described as “Sentinel Security”. That position, as contractor, does not involve any physical work.
The balance of the statement addressed matters which were not relevant given the manner in which the matter was conducted before the Arbitrator.
There are two short reports in evidence of Dr Brindha Shivalingam dated 8 October 2008 and 8 January 2009. Dr Shivalingam reported that:
“The CT clearly shows a broad central disc prolapse at L5/S1 causing impingement of the nerve roots bilaterally”.
The history recorded in the first of those reports was of “considerable problems with right-sided sciatica for the past two months. He states that the pain came on one morning”.
The second report of Dr Shivalingam was prepared following “surgery for radiculopathy of the lumbar spine”. Symptomatic improvement is recorded and Dr Shivalingam records that she had “advised [Mr Sutton] that he can certainly start to increase his level of activity from here on”.
Two Centrelink medical certificates issued by Mr Sutton’s general practitioner Dr Kristen Gibbes and Dr Rod Foley of the Five Dock Medical Centre dated 29 September 2008 and 22 January 2009 are in evidence. Those documents certified that Mr Sutton was unfit for work up to 2 February 2009.
A report of Dr James G Bodel, orthopaedic surgeon, dated 10 March 2010 was relied upon by Mr Sutton. Dr Bodel had been qualified to provide a report for the purposes of a lump sum claim made pursuant to s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act). The following occupational history was recorded by Dr Bodel:
“Mr Sutton indicates that he has worked for many years in fairly physical factory work. Between about the middle of 2004 and April 2008 he worked at OneSteel. He worked full time in the reinforcing mesh factory at Revesby. He states that he was dismissed from that company in April 2008. Soon after that he found agency work and he was sent to work at Amcor. He states that this was a much lighter work activity, working on a canning line. There was no significant bending, twisting or lifting. The cans were past [sic] before him at about waist level and he simply had to pick out the reject cans. He also worked in the palletiser and did some forklift driving.”
Dr Bodel recorded that Mr Sutton had experienced “intermittent backache at work at OneSteel over the four years of his employment at that workplace”. It was also recorded that he “associated the pain with the heavy nature of the work in general. The pain was never severe however and he was able to manage and did not seek treatment or take time off work”. It is also recorded that “on 16 September 2008 he states that he awoke from sleep with pain in the right leg”.
Following a physical examination as recorded in his report, Dr Bodel expressed the opinion that Mr Sutton “should not return to his pre-injury style of work”. Reference was made to the opinion of Dr Matheson concerning causation of injury, and Dr Bodel expressed agreement with his colleague. An assessment of whole person impairment of 11 per cent was made and recorded by Dr Bodel.
A notice issued by the appellant pursuant to s 74 of the 1998 Act together with attached documents was tendered by Mr Sutton. The terms of that notice were broad. However the issues, as noted below at [51], were narrowed once the matter came before the Arbitrator. One document attached to the notice was a report of Dr J M Matheson, consultant neurosurgeon, dated 27 November 2010. That report was prepared by Dr Matheson following a consultation on an unknown date. The following history was there recorded:
“His onset of low back pain occurred about five years ago while he was working for One Steel. This work was quite heavy work with a lot of lifting. He said he was getting back pain especially after lifting; however, he ignored it from a medical point of view and kept working. He then left that position to work for Amcor. This is an aluminium company and the work was much lighter. He was with One Steel from June 2004 to April 2008 and with Amcor from April 2008 to 16/06/08 [sic]. He left that job because while he was working there he got sciatica. He said the job was light and not particularly worrying him, but he was developing leg pain which was going from the hip down to the lateral ankle. He was also getting some tingling in all the toes. He has not been employed since September 2008. On 28/08/06 he went to see Dr. C. Gibbs [sic], GP, and later saw Dr. Rod Foley at the same practice. Dr. Gibbs [sic] had a CT scan done and told him he had a bulging disc. He was offered physiotherapy and acupuncture initially, but this was of no use to him and he abandoned them. Dr. Foley then referred him to Dr. B. Shivalingam. She arranged an MRI scan and then proceeded to surgery. This was performed on 20/11/08 when he had a microdiscectomy at the lumbosacral level.”
Dr Matheson expressed an opinion as to causation of Mr Sutton’s injury and as to his capacity for work in the following terms:
“Mr Sutton has done well. The onset of his disc problems appear to be during One Steel employment, but eventually he went on to develop sciatica which I think would have been inevitable had he been employed or not. Thus, I am not sure that Amcor played much part in the matter, but that is debatable. The condition is present and it seems to relate to the onset of disc damage with One Steel. He has done as well as one could expect and is now fit to resume lighter work. He will never go back to his old employment.”
Dr Matheson expressed the view that Mr Sutton was not fit for his pre-injury occupation of heavy lifting and assessed whole person impairment as being 15 per cent.
Clinical notes of the Five Dock Medical Centre concerning treatment of Mr Sutton were tendered in evidence. The first recorded complaint relevant to this claim was made at a consultation with Dr Gibbes on 28 August 2008 where, in part, the following is noted:
“Right sided hip and leg pain ‘sciatica’ for one month. Has never had this before. Some low back pain in past, but not now.”
A revised notice issued by the second respondent pursuant to s 74 of the 1998 Act dated 7 September 2010 is in evidence. That notice is in broad terms. As earlier noted, the issues in dispute before the Arbitrator were considerably narrowed when the matter was heard by the Arbitrator.
Mr Sutton relied upon a number of other documents including hospital notes produced by the Royal Prince Alfred Hospital and taxation records concerning his earnings, which documents are not directly relevant to the issues raised on his appeal.
The appellant filed a Reply to Mr Sutton’s application which had attached a great many of those documents relied upon by Mr Sutton. Included amongst the documents in evidence is a workplace assessment report dated 27 August 2008 prepared by a rehabilitation consultant, Ms Vanessa Pitt, an employee of the appellant. The physical demands of Mr Sutton’s job with the appellant are summarised in a table which appears at page 3 of that assessment. The tabulation addresses the requirement to exercise strength; a worker’s position tolerance including flexion/extension, as well as mobility which addressed stair climbing, crawling, walking and trunk rotation. The notations to be found in that table are addressed below.
The appellant tendered a letter dated 3 April 2008 addressed to Mr Sutton. That correspondence gave notice of termination of his employment and outlined the allegations concerning use of marijuana on the employer’s premises. That correspondence indicated that Mr Sutton was to receive four weeks payment in lieu of notice. The decision to terminate was founded upon the outcome of an investigation into the allegations of misconduct.
A number of late documents were admitted by the Arbitrator upon the application of the appellant. Those documents included a handwritten note relating to a meeting at the appellant’s premises concerning the misconduct allegations made against Mr Sutton as recorded by Mr Brenton Michaels dated 27 March 2008. That file note records suggested admissions made by Mr Sutton concerning possession and use of marijuana at the premises and other matters. The document is signed by both Mr Michaels and Mr Sutton.
A statement of Mr Ly Quash dated 7 February 2011 was tendered on behalf of the appellant. Mr Quash states that between September 2004 and June 2010 he was employed as a supervisor and later as a team leader by the appellant. During that period he was the direct supervisor of Mr Sutton. Mr Quash states that in the course of his employment Mr Sutton “never reported nor made any complaints of suffering from any back pain”.
The appellant also tendered a statement of Mr Jason McMartin dated 8 February 2011. Mr McMartin states that he commenced employment with the appellant in June 1988. He states that in April 2008 he was employed as the Mesh Production Manager at the appellant’s site at Revesby. Mr McMartin further states that on 27 March 2008 he witnessed Mr Sutton “placing something to his mouth, then tapping what appeared to be a small pipe on the ground then placed the pipe into his pants pocket right hand side and grind/rub the contents from the pipe into the concrete”. It is further stated that “after questioning Mr Sutton, he admitted that he had been smoking marijuana. I escorted Mr Sutton to the main office”. A file note prepared by Mr McMartin is annexed to that statement. That note includes a record of an alleged admission by Mr Sutton that he was smoking marijuana.

A number of wages schedules and copies of earnings records are in evidence. The detail of these documents, where relevant, is addressed below.
Correspondence concerning a medical examination of Mr Sutton by Dr Peter Spittaler on behalf of the appellant which, it was agreed, took place on 12 November 2010 was in evidence.
The Reply filed on behalf of the second respondent has attached to it the report of Dr Matheson dated 27 January 2010 referred to above and a copy of the insurer’s notice issued and served in accordance with s 74 of the 1998 Act dated 7 September 2010.

Submissions before the Arbitrator

Counsel appearing on behalf of the appellant informed the Arbitrator that the matters in issue included the occurrence of injury; the existence and extent of incapacity; quantum of weekly entitlement and entitlement to lump sums.
Counsel appearing on behalf of the second respondent indicated that the question in issue was that of causation of Mr Sutton’s back injury.
Counsel appearing on behalf of Mr Sutton conceded before the Arbitrator that his client had made no report of back injury during the course of his employment with the appellant nor during that time had he lost time from work by reason of any back disability. It was put that Mr Sutton’s evidence concerning complaint of back pain made to Mr Quash should be accepted and it was suggested that Mr Quash “might have forgotten” those complaints. The true history, it was argued, was as recorded by Dr Gibbes, that “there was intermittent lower back pain” during employment with the appellant. Counsel emphasised in the course of submissions the heavy nature of the work performed by Mr Sutton whilst employed by the appellant.
Reliance was placed by counsel upon the evidence of Dr Bodel and Dr Matheson and attention was drawn to the views expressed by Dr Matheson as noted between [32] and [34] above. It was argued that:
“the likelihood is [Mr Sutton] damaged his back – damaged a disc whilst employed by [the appellant] and that damage having been done, it then totally ruptured it appears at the end of July 2008 and got worse quite quickly necessitating the surgery that he underwent”.
It was put that the appellant was liable in respect of the occurrence of injury and that the “notional date of injury” would be the last day of employment with the appellant which was 3 April 2008.
It was argued that, notwithstanding the absence of direct evidence, Mr Sutton was totally incapacitated for a period of three months following the conduct of spinal surgery. Mr Sutton’s incapacity thereafter was partial, he being fit for restricted duties as suggested by Dr Bodel and Dr Matheson. Since commencing work on 15 February 2010 entitlement would be calculated having regard to an assumption that he has, since that date, demonstrated his full economic capacity having regard to his physical limitations resulting from injury.
During the course of Mr Sutton’s submissions counsel appearing on behalf of the appellant stated that his client no longer relied upon a defence founded upon failure to give notice of injury and notice of claim.
Counsel appearing on behalf of the appellant submitted that Mr Sutton had not “discharged the necessary onus of proof” in relation to a number of matters. Counsel drew attention to an apparent inconsistency concerning the assumption made by Dr Bodel as to the nature of work performed by Mr Sutton whilst employed by the second respondent. The inconsistency relied upon concerned Mr Sutton’s description of his work as found in the second of his statements. It was argued that Dr Bodel had made assumptions that had not been borne out by the evidence. It was argued that there was no medical opinion before the Commission based upon the facts as appear in the second statement.
Counsel made reference to the absence of any evidence from Dr Spittaler and accepted that the Arbitrator “can draw the inference that [the evidence of Dr Spittaler] doesn’t support [the appellant’s] case”. It was put that such an inference may be drawn having regard to that which was stated in the decision of Jones v Dunkel (1959) 101 CLR 298.
It was argued that the disputed circumstances concerning Mr Sutton’s dismissal from the employ of the appellant gives rise to questions as to his credit. It appears to have been argued that the employer’s witnesses would be preferred by the Arbitrator and that real questions concerning credit arise for consideration. The relevance of that matter concerns, it was put, the question as to whether Mr Sutton’s history as stated to the various medical practitioners is to be accepted.
It was further argued that there was not sufficient medical evidence before the Commission to enable a proper assessment of any residual and continuing incapacity suffered by Mr Sutton.
During the course of submissions agreement was reached between the parties concerning probable earnings and that the relevant current weekly wage rate was $858.69 (T.33).
Counsel appearing on behalf of the second respondent argued that the evidence does not support an inference that the “major disc prolapse” suffered by Mr Sutton was caused by work performed whilst employed by the second respondent. It was argued that the evidence of Dr Bodel and Dr Matheson should be accepted. That evidence supports the proposition that the discal damage was caused by the work performed by Mr Sutton with the appellant. Reference was again made to the absence of evidence from Dr Spittaler and the Arbitrator was invited to draw an inference that “what was in that report would not assist [the appellant]”. Counsel noted that there was an absence of evidence suggesting that the injury to the lumbar spine was occasioned by a disease process within the meaning of the 1987 Act.

The Arbitrator’s Reasons

Following a detailed and careful summary of submissions put by each party the Arbitrator proceeded to consider those arguments advanced concerning the credit of Mr Sutton. The circumstances of the termination of Mr Sutton’s employment with the appellant were considered and the conflict between the appellant’s witnesses and Mr Sutton was noted. The Arbitrator did not accept Mr Sutton’s denial of smoking marijuana on the appellant’s premises.
The Arbitrator proceeded to consider the conflict between the evidence of Mr Sutton and that of Mr Quash concerning complaints of back pain. The Arbitrator acknowledged that Mr Quash may have “forgotten” the complaints made by Mr Sutton. However, he ultimately concluded that the evidence of Mr Quash should be preferred to that of Mr Sutton. In the circumstances the Arbitrator expressed his view that careful attention needed to be given to contemporaneous evidence concerning complaint of back disability including that which appears in the clinical notes produced by Five Dock Medical Practice and the history as recorded by the treating neurosurgeon Dr Shivalingam.
The Arbitrator noted that there was no dispute concerning the heavy nature of the work performed by Mr Sutton with the appellant. In the circumstances he accepted that during almost four years of employment there Mr Sutton carried out the heavy duties as described by him in evidence and as described to both Dr Bodel and Dr Matheson.
With respect to the inconsistent descriptions made by Mr Sutton concerning his work conditions whilst employed by the second respondent, the Arbitrator reached the conclusion that both descriptions of the work conditions demonstrate that the work with the second respondent was very much lighter than that performed with the appellant. Reference is made in the course of Reasons to the medical evidence, in particular the history given to Dr Matheson and Dr Bodel. Notwithstanding the arguments advanced on behalf of the appellant, the Arbitrator concluded that there was a “fair climate” for the acceptance of the views of Dr Matheson and Dr Bodel concerning causation of the disc injury suffered by Mr Sutton. That conclusion was reached having regard to the totality of the evidence, and particular attention was given to complaints made by Mr Sutton contemporaneous with the onset of his sciatic pain.
The Arbitrator found as a fact that Mr Sutton’s work with the second respondent did not involve heavy lifting and was nothing “like the employment that he engaged in with the first respondent”. It was also determined by the Arbitrator that the sciatic pain suffered by Mr Sutton came on one morning after sleep on a date approximately one month before Mr Sutton first consulted his general practitioner, Dr Gibbes, on 28 August 2008. The evidence of Dr Matheson noted at [33] above was accepted by the Arbitrator concerning causation and an inference was drawn by the Arbitrator from the failure to rely upon the evidence of Dr Spittaler that such evidence would not have assisted the first respondent. The Arbitrator went further and stated “I think it would be reasonable to infer that, having regard to the undisputed heavy nature of the work in which [Mr Sutton] was engaged with the first respondent, Dr Spittaler may have made findings similar to those of Dr Matheson and Dr Bodel”.
The Arbitrator proceeded to find that Mr Sutton suffered injury to his back arising out of or in the course of his employment with the appellant and that such employment was a substantial contributing factor to the injury. The Arbitrator expressly found that the injury was not a disease of gradual onset. It was further found that the injury “was a result of multiple traumata” to Mr Sutton’s spine and the date of injury was found to be the last date of employment with the appellant, being 3 April 2008. Having regard to that finding as to the occurrence of injury, an award was entered in favour of the second respondent.
The Arbitrator proceeded to consider the question of the existence of incapacity. It was determined that Mr Sutton was totally incapacitated for employment from the date he ceased work for the second respondent, namely 16 September 2008, until the date he underwent surgery on 25 November 2008. Having regard to the medical evidence a finding was made that total incapacity continued thereafter until the end of February 2009. A further finding was made that Mr Sutton was partially incapacitated from 1 March 2009 to date and continuing.
The Arbitrator proceeded to calculate Mr Sutton’s entitlement to weekly compensation as a partially incapacitated worker. That entitlement was assessed having regard to the Arbitrator’s finding that Mr Sutton was able to earn $520 per week at all times since 1 March 2009. The probable earnings during that period were determined in accordance with the evidence and the agreement reached between the parties during the course of conduct of the arbitration. Those findings appear at [103] of Reasons. The Arbitrator proceeded to make the orders as set forth in [4] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010: Sch 6 Pt 19G cl 8 to the 1987 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The grounds relied upon by the appellant suggest errors both of fact and of law. Complaint is also made that the Arbitrator erred in the exercise of his discretion when directions were made concerning the provision of relevant documents for the consideration of the AMS to whom the Registrar was to refer the question of whole person impairment.
The first ground relied upon by the appellant suggests both factual and legal error on the part of the Arbitrator with respect to his finding that Mr Sutton received injury arising out of or in the course of his employment with the appellant. Lengthy submissions are provided in support of this ground. Those submissions set out extracts of the evidence including that of Mr Sutton, the medical expert witnesses and the lay witnesses Mr Michaels and Mr McMartin. Those submissions emphasise the description given by Mr Sutton of the nature of his work performed with the second respondent. It is argued that the opinions of Dr Bodel and Dr Matheson, upon which the Arbitrator relied in reaching his factual conclusions concerning injury, were based upon a history as to the nature of work with the second respondent which was significantly different to those matters found in Mr Sutton’s second statement. The difference between the assumptions made by the medical expert witnesses and the later evidence of Mr Sutton is such, it is argued, that there was not a “fair climate” for the acceptance of the opinions of those witnesses and that, as a consequence, Mr Sutton had failed to discharge the onus of proof upon him to establish the cause of his injury. Reliance in respect of that argument is placed upon the decision in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) and particular attention is drawn to the judgment of Heydon JA (as he then was) (at [85]). The appellant also relies upon those authorities noted at [12] of submissions in support of the primary submission that there “was no such ‘fair climate’ for the acceptance of that medical opinion”.
Submissions provided by Mr Sutton and the second respondent concerning this first ground of appeal appear to acknowledge that there is a distinction between that which was told by Mr Sutton to the expert medical witnesses and his description of work with the second respondent as found in his second statement. Argument is advanced that the Arbitrator addressed the contemporaneous evidence concerning the onset of symptoms and the demands of his work and it is further argued that, notwithstanding the different descriptions of work, there remained a significant distinction between work performed with the appellant and that performed with the second respondent.
It is argued by Mr Sutton that the “Arbitrator was entitled to make the finding” found at [70] of Reasons where he stated:
“Notwithstanding what the applicant says at [23], it must be borne in mind that the job description given by the applicant is of very much lighter work than that engaged in with the first respondent. The drinking cans he was monitoring were made of aluminium, and even when the applicant says that the cans which fell off the conveyor would be placed into a bigger type bin that he would lift and carry over to a vacuum type system, I accept that there was no heavy lifting involved in that activity. When the applicant says he was bending down to pick up cans off the floor, these were obviously aluminium cans, certainly not heavy.”
The significant factual finding made by the Arbitrator to be found at [70] of Reasons set forth immediately above was “that there was no heavy lifting involved in [the work with the second respondent]”. I accept Mr Sutton’s submission that the factual findings as found at [70] of Reasons were open to the Arbitrator on the evidence. Both Dr Bodel and Dr Matheson had taken a history of heavy work performed by Mr Sutton with the appellant. Dr Matheson’s expression of opinion that the “onset of [Mr Sutton’s] disc problems appear to be during One Steel employment” plainly addresses the question of causation of the discal damage which ultimately gave rise to disabling sciatic pain and the need for surgical intervention. Dr Bodel agrees with Dr Matheson concerning this question (page 4 of Dr Bodel’s report dated 10 March 2010). A significant aspect of Dr Matheson’s evidence, which is noted by the Arbitrator at [80] of Reasons was that he considered it inevitable that Mr Sutton would develop sciatica following the occurrence of that discal damage “eventually” and that such a development was “inevitable had he been employed or not”.
The appellant correctly emphasises the difference between the history recorded by Dr Bodel and the second statement of Mr Sutton concerning the nature of his duties with the second respondent. Dr Bodel has recorded that such work was:
“much lighter work activity, working on a canning line. There was no significant bending, twisting or lifting. The cans were past [sic] before him at about waist level and he simply had to pick out the reject cans. He also worked in the palletiser and did some forklift driving”.
Mr Sutton states at [23] of his statement “my job was repetitive in that I was constantly picking up cans off the floor, bending, twisting, and turning and always hunched over whilst picking things up”.
Notwithstanding the contrasting descriptions of the work performed it is clear that Dr Matheson’s opinion concerning causation of discal damage is founded upon the requirement for heavy lifting on a repetitive basis in the course of his work with the appellant. It is this view which is the subject of agreement by Dr Bodel.
The totality of the evidence demonstrates that there was a stark difference between the work performed in each of Mr Sutton’s jobs. The workplace assessment report dated 27 August 2008 in evidence which includes a table of physical activity makes it clear that the work performed with the appellant involved the performance of physically demanding lifting activities as well as pushing and pulling the welding machine on its track and wire on a spool.
As argued on behalf of the second respondent, the significant point of distinction between the duties in the relevant occupations was that the appellant’s required heavy lifting whereas the second respondent’s, as stated at [22] of Mr Sutton’s second statement, did not involve heavy lifting. The question arises as to whether the discrepancy between Mr Sutton’s description of his duties with the second respondent and the history as recorded by the expert medical witnesses, in particular Dr Bodel, has the consequence that the opinions of those experts should have carried no weight in the Arbitrator’s deliberations.
The matters raised for consideration in such circumstances were addressed by Samuels JA in Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 at 509 where it was stated:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal. In other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess the factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish and certainly it was open to the learned judge to come to that conclusion”.
In the present case the Arbitrator has acknowledged the discrepancy relied upon by the appellant upon which the challenge to the weight of the expert medical witness’s evidence is founded. The Arbitrator addressed the appellant’s argument at [76] and [77] of his Reasons where it was stated:
“I must have regard to all of the evidence in the proceeding to find if there is sufficient material to enable acceptance of the opinions of Dr Matheson and Dr Bodel. It is not necessary that all of the evidence be found in the reports themselves. This was made clear by the NSW Court of Appeal in ASIC v Rich [2005] NSWCA 152; 218 ALR 764, and more recently in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [70-78]. What is stated there by Beazley JA is that all of the facts on which an expert basis [sic] his or her opinion need not appear in the expert’s report. If there are facts in such a report which are assumed, providing there is other admissible evidence of such facts, the evidence of the expert may be accepted.
It was submitted by Mr Hickey on behalf of the first respondent that, because the facts as related by the applicant in his supplementary statement were so different from those given to Dr Matheson and Dr Bodel, the opinions of the two doctors in their reports as to the causation of the applicant's back injury should not be accepted. I do not necessarily accept this submission. Providing there is sufficient other evidence to satisfy me that:
(a)the applicant's work over the nearly four years he worked for the first respondent was heavy (and of this there is no doubt), and
(b)in comparison, the applicant's work during the period he worked for the second respondent was not heavy.
I think that there is a ‘fair climate’ for the acceptance of the views of Dr Matheson and
Dr Bodel. The period of the applicant's employment with the second respondent was from 13 April 2008 to 15 September 2008. However, a more relevant period of that employment is in my view from 16 April 2008 until 28 August 2008 when the applicant first consulted Dr Kristen Gibbes at the Five Dock Medical Practice. On that day he complained of right sided hip and leg pain and sciatica, experienced for one month as set out in Dr Gibbes’ clinical notes. This history was used by Dr Gibbes when completing the Centrelink Medical Certificate, page 15 of the Application. In that certificate Dr Gibbes dated the onset of the applicant's symptoms in his hip, leg, buttock and back from 28 July 2008 (i.e. one month prior to 28 August 2008).”

I have reached the conclusion that the Arbitrator’s finding that there was a “fair climate” for the acceptance of the views of Dr Matheson and Dr Bodel was reached following a correct application of principle which is required to determine the weight of expert evidence which is before the Commission. In the circumstances I reject the appellant’s apparent argument that the manner in which that evidence was evaluated by the Arbitrator demonstrated an error of law. Having ascribed weight to that evidence the Arbitrator proceeded to accept the views of Dr Bodel and Dr Matheson concerning causation of the discal damage suffered by Mr Sutton. It was open to the Arbitrator to accept that evidence and I reject the appellant’s argument that an error of fact had been made by the Arbitrator in so concluding. The Arbitrator, in my view, was correct to adopt a cautious view when addressing the evidence of Mr Sutton given his earlier finding concerning the credibility of his evidence generally. It may be seen (at [80] of Reasons) that the Arbitrator has had regard to the balance of the evidence, in particular that contemporaneous evidence concerning onset and development of symptoms in Mr Sutton’s back. The Arbitrator, correctly in my view, took into consideration the failure on the part of the appellant to rely upon the evidence of Dr Spittaler. It was open to the Arbitrator to draw the inference which he expressed at [81] of Reasons that the contents of Dr Spittaler’s evidence “would not have assisted [the appellant]”. I note in passing that another inference was drawn by the Arbitrator from those circumstances which I address at [83] below.
The second ground relied upon by the appellant challenges the Arbitrator’s findings that Mr Sutton was totally incapacitated from 16 September 2008 to 28 February 2009 and partially incapacitated thereafter as a result of injury with the appellant. The appellant reiterates those submissions put in support of the first ground which I have addressed above. Further submissions are furnished in support of this challenge to the Arbitrator’s findings which appear to be founded upon the history and presentation of symptoms giving rise to the subject incapacity. The point is made in argument that the sciatic pain was “first noticed” at the end of July 2008 and that Mr Sutton had been working with the second respondent since 13 April 2008. It is asserted that “the cause of the incapacity was clearly the work performed with the second respondent and as such that work with the second respondent amounted to the incapacitating injury”.
The arguments raised by the appellant fail to take account of the opinion expressed by Dr Matheson concerning the inevitability of the occurrence of sciatic nerve pain given the discal damage occasioned during the appellant’s period of employment of Mr Sutton. Dr Matheson went so far as to say that such a deterioration involving the manifestation of sciatic pain was inevitable regardless of whether Mr Sutton was employed or otherwise. In my view, as earlier expressed, the Arbitrator was correct to conclude that Mr Sutton was injured in the course of his employment with the appellant. There was abundant evidence to establish the resultant incapacity as found by the Arbitrator and in those circumstances the appellant’s assertion that there should be an award in its favour must be rejected. Whilst this ground appears to challenge the Arbitrator’s findings concerning the duration of total incapacity and the existence of partial incapacity, no argument is advanced in support of that suggestion. Some attention is given to the Arbitrator’s findings concerning the question of incapacity below.
The third ground relied upon by the appellant suggests error on the part of the Arbitrator when he drew an inference from the failure to adduce the evidence of Dr Spittaler that “Dr Spittaler may have made findings similar to those made by Dr Matheson and Dr Bodel”.
I have earlier, at [79] above, expressed my agreement with the Arbitrator that an inference could be drawn, from failure to rely upon Dr Spittaler’s evidence, that such evidence would not have assisted the appellant’s case. Such an inference is permitted by the rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298. However that decision is not authority which permits an inference that the untendered evidence would in fact have been damaging to the party not tendering it. As was stated in Cross on Evidence (LexisNexis, Eighth Australian ed) at [1215] “the rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference”. The Arbitrator acknowledged that his view was a matter of speculation. In the circumstances I conclude that the inference that Dr Spittaler “may have made findings similar to those made by Dr Matheson and Dr Bodel” was not open to be drawn. The error identified was not one essential to the Arbitrator’s reasoning concerning the primary question of causation which was agitated before him and, as such, does not vitiate his decision.
The fourth ground relied upon by the appellant suggests that the Arbitrator’s finding that Mr Sutton was totally incapacitated up until 28 February 2009 was unsupported by the evidence and was the product of “speculation”. It appears that there was no dispute that Mr Sutton was totally incapacitated between the date of his surgery, being 16 September 2008, and 2 January 2009.
I agree with the Arbitrator’s observation that evidence concerning the duration of incapacity was “sparse”. It appears that the Arbitrator has inadvertently overlooked the Centrelink medical certificates which were before him as noted at [28] above. The certificate issued by Dr Foley on 22 January 2009 certified that Mr Sutton was incapacitated up to 2 February 2009. That evidence established that Mr Sutton had undergone spinal surgery and the certificate indicated that he was “improving”. Whilst the Commission may not fill gaps in evidence (Wallaby Grip (BAE)Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 per Beazley JA at 365), it is a specialist tribunal, not bound by the rules of evidence, and has certain advantages founded upon extensive experience of adjudicating matters concerning not only the general labour market and wage levels but also disputes concerning the persistence or otherwise of incapacity following injury and surgical intervention. Whilst the evidence expressly addresses the concept of total incapacity only up to 2 February 2009, I am of the view that the Arbitrator’s finding that total incapacity persisted until 28 February 2009 was one open to him having regard to the medical evidence and the Commission’s specialist knowledge and experience concerning the degree and persistence of incapacity occurring as a consequence of an injury such as the present with subsequent surgical intervention. Whilst the Arbitrator appears to have speculated as to the content of Dr Foley’s certificate, I am of the view that his conclusion, in all the circumstances, was one open to him and should be confirmed on this appeal.
The fifth ground relied upon by the appellant asserts error on the part of the Arbitrator in failing to find that Mr Sutton’s injury and resulting incapacity arose out of or was received in the course of his employment with the second respondent. There can be no doubt on the evidence that Mr Sutton received a significant discal injury. I have earlier affirmed the Arbitrator’s findings as to causation of that injury, being the result of heavy lifting in the course of his employment with the appellant. The arguments raised have been addressed between [68] and [78] above. Given my conclusion as to the correctness of the Arbitrator’s finding as to causation of injury it follows that this ground relied upon by the appellant must fail.
The sixth ground relied upon by the appellant makes complaint concerning the Arbitrator’s direction that Mr Sutton’s supplementary statement dated 1 December 2010 and the statement of Mr Quash dated 7 February 2011 be omitted from the list of documents to be made available to the AMS to whom the Registrar refers the question of determination of whole person impairment. It appears that the remedy sought by the appellant is that, should the appeal fail and the matter proceed to an assessment by an AMS, an order be made on this appeal that those statements earlier mentioned be included among those documents made available to that practitioner.
The Arbitrator, in determining the dispute between the parties, was exercising that jurisdiction bestowed upon the Commission by the provisions of s 105 of the 1998 Act. The parties in submissions have not given attention to the nature of the order made by the Arbitrator concerning the referral of the specified documents. In my view that order, which included the exclusion of the identified statements, was one made concerning procedure which now is addressed by Pt 15 r 15.1(1) of the Workers Compensation Commission Rules 2010 which provides:
“Where proceedings are referred to an Arbitrator, the Arbitrator may, while the referral continues, make any order relating to the procedure to be followed in the proceedings (including an order striking out the proceedings or any step in the proceedings) that could be made by the Registrar.”
The Arbitrator’s order concerning procedure to be adopted with respect to the referral to the AMS was made in the exercise of his discretion. On appeal the Commission will only be satisfied that an error has been committed by the Arbitrator in the exercise of his discretion if it is established that, as is summarised in Halsbury’s Laws of Australia (current to 18 June 2008) at [125-695] (omitting footnotes), the Arbitrator:
“(1)   has proceeded under a wrong principle;
(2)     has failed to give proper weight to a relevant matter;
(3)     has given undue weight to a particular matter, or
(4)     has given weight to an irrelevant matter.”
Mr Sutton and the second respondent argue that the Arbitrator’s exclusion of those statements was proper given the irrelevance of the contents of those documents to the issue to be determined by the AMS, namely the determination of whole person impairment resulting from the injury as found proven by the Arbitrator.
The controversy concerning causation of the discal injury and the consequences of that event have been resolved by the Arbitrator. The question of liability having been resolved, the matter is, in accordance with the Acts, remitted to the Registrar for referral to an AMS for the purpose of determining whether whole person impairment has been suffered and if so the extent of that impairment. I accept the arguments advanced concerning the irrelevance of the excluded statements to the task to be performed by the AMS. The arguments advanced by the appellant appear to be a reiteration of those matters earlier raised in submissions concerning the question of causation. The appellant has not, in my view, established any relevant error in the manner of exercise of the Arbitrator’s discretion concerning the exclusion of those statements. In the circumstances the Arbitrator’s order must stand.
It may be seen that I have rejected each of the grounds advanced on behalf of the appellant which seek to challenge the findings and orders made by the Arbitrator. In the circumstances the appeal fails.

DECISION

The appeal is dismissed and the Arbitrator’s determination made in Certificate of Determination dated 8 March 2011 is confirmed.

COSTS

The appellant is to pay Mr Sutton’s costs of the appeal. The second respondent in submissions has sought an order that its costs be paid by the appellant. Having regard to all the circumstances I decline to make such order.

Kevin O'Grady

Deputy President
24 June 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE