Penrith Rugby League Club Limited v Morrissey
[2020] NSWWCCPD 62
•15 October 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Penrith Rugby League Club Limited v Morrissey [2020] NSWWCCPD 62 |
| APPELLANT: | Penrith Rugby League Club Limited |
| RESPONDENT: | Diane Morrissey |
| INSURER: | Hotel Employers Mutual Limited |
| FILE NUMBER: | A1-1862/20 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 9 June 2020 |
| DATE OF APPEAL DECISION: | 15 October 2020 |
| SUBJECT MATTER OF DECISION: | Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act); r 16.2(5) of the Workers Compensation Commission Rules 2011 – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Bryce v Department of Corrective Services [2009] NSWCA 188 applied; whether error of fact or law as required by s 352(5) of the 1998 Act; acceptance of and weight to be afforded to the evidence – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied; adequacy of reasons – ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21, Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr L Robison, counsel | |
| BBW Lawyers | |
| Respondent: | |
| Mr R Stanton, counsel | |
| Law Partners Personal Injury Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused. |
INTRODUCTION AND BACKROUND
Ms Diane Morrissey (the respondent) was employed by Penrith Rugby League Club Ltd (the appellant) as a food and beverage attendant. On 13 September 2016, the respondent was assisting a co-worker to move a table when she became caught in a leg of the table and fell over, with the table landing on top of her.
The respondent suffered an injury to her left knee and right calf and ankle. The left knee was subsequently diagnosed as a medial meniscal tear and chondral tear of the medial compartment. The right calf and ankle were diagnosed as chronic scarring, tendinosis and tendonitis of the right Achilles tendon, a peroneus lungus tear with tendonitis and a cartilage fissure tear of the Talar dome. The respondent underwent prolonged treatment for both injuries but managed to return to work. Following her return to work, the respondent said that she began to suffer low back symptoms. She did not report those symptoms to any of her treating doctors until 22 November 2018, when she complained of back symptoms to her treating general practitioner at that time, Dr Christopher Soo.
On 3 April 2019, the respondent, through her legal representatives, made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 18% whole person impairment (WPI), based on the opinion of Associate Professor Michael Ryan, orthopaedic surgeon. The assessment of the WPI included 7% WPI in respect of the lumbar spine.
The appellant denied liability for the lumbar spine, initially on the basis that the lumbar spine was not injured in the fall. Subsequently, the respondent clarified that her claim for compensation in respect of the lumbar spine was made on the basis that the symptoms in her back arose as a consequence of altered gait, which was caused by her bilateral leg injuries. The appellant maintained a dispute as to liability for the lumbar spine and the respondent commenced proceedings in the Commission in order to have the dispute determined.
The matter came before Arbitrator Wynyard and proceeded to arbitration. The Arbitrator determined that the injuries suffered by the respondent on 13 September 2016 caused her to walk with an altered gait, which consequently caused the respondent to suffer symptoms in her lumbar spine.
The appellant appeals that decision.
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.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the written submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
Time
Section 352(4) of the 1998 Act provides that an appeal from a decision of an arbitrator can only be made within 28 days after the date of the decision being appealed against.
The Arbitrator issued a Certificate of Determination on 9 June 2020. The time for lodging an appeal expired on 7 July 2020.[1] The appellant lodged the Appeal Against Decision of Arbitrator (appeal) on that date through the Commission’s online portal but it was not received by the Commission until 5.02 pm.
[1] Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53, [45].
Rule 8.1(4) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“A document that is lodged with or served on the Commission and correspondence directed to the Commission by [Electronic Case Management] system or email is received by the Commission at the time of entering the information system at the Commission but if that time is after 5.00 pm New South Wales standard time or New South Wales summer time on any day it is taken to have been received on the next day that is not a Saturday, Sunday or public holiday.”
Consequently, by the time the appeal was received, the time for lodging the appeal prescribed by s 352(4) of the 1998 Act had expired. A delegate of the Registrar directed the appellant to provide submissions as to whether the time to appeal should be extended. The appellant filed those submissions on 14 July 2020.
The appellant provided a chronology of the actions taken between 9 June 2020, when the Arbitrator’s Certificate of Determination (COD) was received, and the day upon which the appeal was lodged. The appellant explained that its solicitor forwarded the COD to counsel for the appellant on the day it was received. On 12 June 2020, the solicitor and counsel discussed and analysed the potential to appeal. The solicitor then forwarded an advice to the appellant and sought instructions to appeal on 19 June 2020. Instructions to proceed with the appeal were provided on 25 June 2020. The solicitor then prepared a draft of the appeal submissions, which he forwarded to counsel on 30 June 2020. On 3 July 2020, the solicitor and counsel conferred and agreed to a number of amendments to the submissions. Those amendments were incorporated into final submissions by counsel, who forwarded the final document by email to the solicitor at 4 pm on 7 July 2020.
The appellant’s solicitor then described the difficulties he experienced because he was working from home on basic technology, which caused him problems with collating and scanning the documents and affixing the signature. The solicitor said that he believed the appeal was lodged at 5 pm, but that he was subsequently advised by the Commission that the application was received on the Electronic Case Management System at 5.02 pm, which was out of time.
Rules 16.2(5) and 16.2(6) of the 2011 Rules provide as follows:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal [emphasis added].
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
In its Opposition to Appeal against Decision of Arbitrator (opposition) the respondent concedes that, in the circumstances of this case, the appellant’s situation was “exceptional.” The respondent submits that, if the Presidential member concluded that exceptional circumstances existed, she would have no objection to the discretion to extend time being exercised in the appellant’s favour.
The appellant relies on the explanation given by Campbell JA in Yacoub v Pilkington (Australia) Ltd[2] as to what constitutes “exceptional circumstances.”
[2] [2007] NSWCA 290 (Yacoub), [66].
In Yacoub, Campbell JA concluded (citations omitted):
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision, and
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.”
The circumstances described by the appellant (which particularly includes the fact that the appeal was filed only two minutes out of time) are in my view capable of being considered “exceptional circumstances.” The respondent does not contend otherwise.
I must also, however, consider whether a refusal to extend the time to appeal would work a “demonstrable and substantial injustice” in accordance with r 16.2(5) of the 2011 Rules. Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[3]
[3] Bryce v Department of Corrective Services [2009] NSWCA 188 (per Allsop P (Beazley and Giles JJA agreeing)), [10].
In order to determine whether such an injustice would result from a refusal to extend the time, it is necessary for me to consider the merits of the appeal.
THE EVIDENCE
The respondent’s statement
The respondent provided a statement dated 3 December 2019.[4] The respondent said that she commenced work with the appellant as a food and beverage attendant on or about 18 November 2009. She described her duties, which involved standing or moving around throughout the shift, and included moving furniture and unpacking stock deliveries of boxes of fruit juice and bottles of wine. The respondent said that, before the injury on 13 September 2016, she had arthritis in both knees, but the condition was well managed and did not impact on her ability to perform her full duties with the appellant. She described herself as very fit and capable prior to her injury.
[4] Application to Resolve a Dispute (ARD), pp 1–9.
The respondent stated that she injured her left knee and right ankle on 13 September 2016, which caused her to experience symptoms in her lower back. The respondent detailed how the injury occurred, which happened towards the end of the shift. She said that she was given first aid and went home. She consulted her usual general practitioner, Dr John Lee, who arranged for radiological scans to be performed. When the results of the scans became available, Dr Lee immediately referred the respondent to the emergency department of Nepean Hospital, where the respondent’s right leg was put in plaster below the knee.
The respondent reported that ten weeks later she was provided with a Cam boot, which made her walk in a lop-sided manner. The respondent indicated that by early 2017, she was struggling to mobilise because of left knee pain which made her limp and rely on her right leg, while the right leg symptoms and need to wear the brace required her to rely on her left leg. She said that this was problematic, because she needed to balance both injuries.
The respondent stated that, at first, it was an inconvenience, but then the altered way she was walking began to cause pain in her hips and lower back. She said that, initially, the pain was manageable, but she had returned to work in her usual role and the constant lifting and bending accelerated her lower back issues. She said that at times the pain was extreme and debilitating. The respondent said that she did not consult a doctor and would manage her work duties by taking Panadeine Forte, which had been prescribed for her husband. The respondent said that she was not the type of person to complain about pain and, in the context of already suffering from work related injuries, did not want to report her lower back symptoms.
The respondent reported that she was unhappy with the treatment provided by Dr Lee who, in her view, had rushed her back to work when she was still in a lot of pain. The respondent said that, on or about 9 January 2017, she began consulting Dr Christopher Soo, general practitioner, who arranged MRI scans of her left knee and right ankle and referred her to Dr Anthony Kwa, orthopaedic surgeon. The respondent stated that at the first consultation with Dr Kwa, she was still wearing the Cam boot and was experiencing intense pain in her left knee.
The respondent indicated that she attended Dr Kwa on two occasions during which surgery to her left knee was discussed and she was referred for physiotherapy. The symptoms in the knee did not improve and Dr Kwa performed surgery to the left knee on 23 March 2017. The respondent reported that, following the surgery, she avoided using the left knee because it was very sore. She could not weight bear, which meant that she had to hop and limp to move around and was very reliant on her right leg. The respondent said that this made the pain in her right calf and ankle worse. The respondent reported that by the time of a consultation with Dr Kwa on 28 June 2017, the pain in her right ankle became unbearable and she was referred for further physiotherapy.
The respondent stated that by mid to late 2018, her back symptoms had become more frequent and more intense, so she sought medical attention from Dr Soo. Dr Soo referred her for a CT scan of her lower back and, according to the respondent, advised her that her lower back symptoms were as a result of altered weight bearing on both sides because of her work injury, in conjunction with the nature of her work duties over time.
The respondent described the ongoing impact and extent of her disabilities resulting from the injuries and the lower back condition.
The medical evidence
Dr Christopher Soo
Dr Soo provided a report dated 23 August 2019.[5] He confirmed that the respondent had first consulted him on 9 January 2017 in relation to the injuries received on 13 September 2016, at which time the respondent was undergoing physiotherapy. Dr Soo described how the injury occurred and the treatment provided at Nepean Hospital. Dr Soo said that the respondent was off work for approximately 10 weeks and returned to work two weeks before Christmas, working five and a half hours on three days a week, working on the till. Dr Soo referred to the results of an x-ray of the left knee dated 14 September 2016, an ultrasound of the right ankle dated 15 September 2016, and MRI scans of the right ankle and left knee.
[5] ARD, pp 38–41.
Dr Soo advised that he referred the respondent to Dr Kwa, who performed surgery to the left knee on 23 March 2017, following which the respondent underwent further physiotherapy. Dr Soo said that the respondent was certified fit for pre-injury duties from 12 October 2017. Dr Soo reported that, on 22 November 2018, the respondent complained of pain in the hips and back which had been present since the work injury and was especially painful after working long hours.
Dr Soo described the injuries as:
(a) left medial and lateral meniscus tear;
(b) right Achilles tendinosis and partial tear, and
(c) back and hip pain due to altered mechanic as a result of the two injuries above.
Dr Soo detailed the ongoing difficulties the respondent experienced as a result of the injuries and the back condition, opined that the fall on 13 September 2016 was the main contributing factor to the lower limb injuries and that the altered mechanics caused by both lower limb injuries “can contribute to the pain in her hips and back.”[6] Dr Soo discussed the respondent’s capacity for work, detailed the past and future treatment provided and indicated that the respondent’s prognosis was guarded.
[6] Dr Soo’s report dated 23 August 2019, ARD, p 40, [3].
Dr Soo’s clinical notes were also in evidence.[7] The notes do not address the issues raised in the appeal.
[7] ARD, pp 68–81.
Dr Anthony Kwa, orthopaedic surgeon
Dr Kwa’s operation report and reports directed to Dr Soo were in evidence.
Dr Kwa reported to Dr Soo on 8 February 2017, following the respondent’s first consultation with him.[8] Dr Kwa noted that, at the consultation, the respondent was wearing a Cam boot, was experiencing tenderness in the right Achilles tendon and left knee, and was able to walk, fully weight bearing on both legs. Dr Kwa diagnosed a resolved partial tear of the Achilles tendon with persisting tendonitis and a torn medial meniscus in the left knee. Dr Kwa foreshadowed that surgery to address the left knee pathology may be necessary. Dr Kwa recommended continued physiotherapy, rehabilitation and restricted duties at work.
[8] ARD, p 42.
On 1 March 2017, Dr Kwa reported that the respondent had attended for review and was still complaining of symptoms in the left knee and right ankle, which had not improved. Dr Kwa opined that a left knee arthroscopy was indicated.[9]
[9] ARD, p 43.
The arthroscopy of the left knee was performed on 23 March 2017.[10] Dr Kwa reviewed the respondent again on 28 June 2017. In a report to Dr Soo on that date, Dr Kwa noted the respondent’s main complaint was of pain in the region of the right Achilles tendon “especially after mechanical stress.” Dr Kwa noted that the respondent was able to stand and walk with a normal gait. Dr Kwa recommended physiotherapy and avoidance of activities that exacerbated the problem. He discharged the respondent’s care into the hands of Dr Soo.[11]
[10] Dr Kwa’s operation report dated 23 March 2017, ARD, p 24.
[11] ARD, p 44.
Crystal Physiotherapy
The respondent was referred (initially by Dr Lee) to Crystal Physiotherapy. Mr Hai Le, physiotherapist at that practice, reported to Dr Lee on 19 December 2016.[12] Mr Le advised that he had provided the respondent with a “moon” boot to support her Achilles tendon. Mr Le recommended the respondent wear the boot for a further two weeks, remain on alternate duties, upgrade strengthening exercises and continue with physiotherapy.
[12] ARD, p 47.
In a report dated 6 January 2016 [sic, 2017], Mr Clarence Chew, physiotherapist of the same practice, advised Dr Soo that the respondent was still experiencing discomfort at the distal end of her Achilles tendon when walking for a period of time and at the end range of dorsiflexion. Mr Chew queried whether an ultrasound should be arranged before further progressing the treatment.[13]
[13] ARD, p 84.
Mr Le reported to Dr Soo on 28 April 2017, after the respondent had undergone the arthroscopic surgery to her left knee. Mr Le advised that the respondent’s left knee symptoms had improved but she was still reporting unresolved right calf pain, which made walking a challenge. There was also muscle spasm and pain in the patella when bending and occasional flares of knee pain[14]
[14] ARD, p 50.
Central West Orthopaedic & Sports Physiotherapy
Following the surgery to the left knee, Dr Kwa referred the respondent to Central West Orthopaedic & Sports Physiotherapy and the respondent attended for the first time on 24 March 2017. Relevantly, Mr Shuichi Araoka, physiotherapist, reported to Dr Kwa on 27 March 2017, noting that the respondent walked with a moderate limp and recommended gait retraining with the help of a “gait aid.”[15]
[15] ARD, pp 48–49.
Of further relevance, Mr Veeral Patel, physiotherapist, reported to Dr Kwa in relation to the respondent’s right Achilles tendon pain. In a report obviously incorrectly dated 20 March 2016, Mr Patel advised that the respondent was experiencing difficulty with prolonged weight bearing. Mr Patel noted that, on examination, the respondent displayed an antalgic gait secondary to left knee pain, the range of motion of the right ankle was reduced because of stiffness and the respondent’s calf length was reduced because of pain. Mr Patel provided a physiotherapy management plan, which included gait retraining exercises.[16]
[16] ARD, pp 45–46.
Associate Professor Michael Ryan, orthopaedic surgeon
The respondent’s legal representatives arranged for the respondent to be examined and assessed by A/Prof Michael Ryan, a medico-legal specialist. A/Prof Ryan examined the respondent on 11 March 2019 and provided a report of the same date.[17]
[17] ARD, pp 25–34.
A/Prof Ryan took a detailed history of the injuries to the left knee, right calf and right Achilles tendon and the treatment that followed. He considered the pathology present in the left knee and right ankle. A/Prof Ryan noted that the respondent complained of pain in the hips that, in his view, did not clinically correlate with pain arising from the hips but appeared to be somatic pain radiating from the lumbar spine.
Under the heading “Disabilities consequential upon the injuries or treatment received,” A/Prof Ryan said that the respondent “injured her left knee, right posterior calf and ankle, and her low back in her work injury on 13 September 2016.”[18] A/Prof Ryan noted difficulties the respondent was experiencing as a result of the injuries, which included negotiating steps, difficulty standing and walking (mainly as a result of the left knee condition), and an inability to walk more than short distances.
[18] ARD, p 29.
Following a physical examination, A/Prof Ryan said that the most significant finding was a fixed flexion deformity of the left knee joint with somewhat limited range of motion and that the main limitation in the right limb was caused by Achilles tendinosis. A/Prof Ryan also noted that flexion of the lumbar spine caused radiating pain.
In response to the request that A/Prof Ryan provide an opinion as to whether the respondent’s employment was the main contributing factor to the injuries and/or conditions, A/Prof Ryan described the respondent’s employment demands as “intense” activities, with lack of support and physical assistance. A/Prof Ryan opined that the respondent’s physical abilities declined. A/Prof Ryan considered that the respondent’s employment was the main contributing factor to the injuries and/or conditions, her need for treatment, and her subsequent incapacity. A/Prof Ryan discussed the respondent’s present and future incapacity for employment and need for treatment.
A/Prof Ryan provided an assessment of the respondent’s whole person impairment. He assessed the respondent’s total WPI as 18%, of which 7% WPI was attributable to the lumbar spine.
At the request of the respondent’s legal representatives, A/Prof Ryan provided a further report dated 23 January 2020.[19] The legal representatives asked A/Prof Ryan to advise whether there had been a direct injury to the respondent’s lumbar spine in the incident on 13 September 2016. A/Prof Ryan stated that there was not an injury to the lumbar spine in that incident.
[19] ARD, pp 35–37.
The respondent’s legal representatives also asked whether the condition in the lumbar spine was as a consequence of the injury to the right Achilles tendon and left knee injury. A/Prof Ryan indicated that the respondent suffered acute injuries to her left knee and right tendo-Achilles region in the work-related injury. He noted the lack of documentation from the Nepean Hospital Emergency Department, reviewed the radiological investigations and noted the surgery to the left knee and continuing symptoms in the right tendo-Achilles region. A/Prof Ryan concluded that the respondent’s left knee and right calf conditions prevented the respondent from standing up straight and when she attempted to do so, she developed low back pain. A/Prof Ryan clarified his opinion, saying that the condition in the respondent’s lumbar spine developed as a consequence of skeletal deformities which developed gradually in the sagittal plane, caused by fixed flexion of the left knee joint and to a lesser extent the right tendo-Achilles condition.
Dr Raymond Wallace, orthopaedic surgeon
The appellant arranged for the respondent to be examined by Dr Raymond Wallace, medico- legal specialist. Dr Wallace examined the respondent on 9 May 2019 and provided a report dated 13 May 2019.[20] Dr Wallace took a consistent history of the injuries to the respondent’s left knee, right Achilles tendon and right ankle, as well as the subsequent treatment, including the surgery to the left knee performed by Dr Kwa. Dr Wallace noted that the respondent’s right ankle was immobilised in a plaster slab for eight weeks and then placed in a Cam boot.
[20] Reply to Application to Resolve a Dispute (reply), pp 7–15.
Dr Wallace recorded the respondent’s complaints, which included a constant, aching, radiating pain in the left knee, worse when walking down hill, climbing stairs, walking long distances and when performing work duties. Dr Wallace noted that the respondent experienced intermittent stinging and a constant burning pain at the tendo-Achilles region. Dr Wallace further noted the pain was worse when weight bearing or standing.
Dr Wallace performed a physical examination of the respondent. He noted the same degree of limited range of movement recorded by A/Prof Ryan and tenderness at the tendo-Achilles area. Dr Wallace remarked that the respondent’s gait was normal, and she did not have a limp. He reviewed the radiological investigations and diagnosed an aggravation of pre-existing osteoarthritis in the left knee and traumatic Achilles tendinopathy of the right ankle as a result of the fall at work on 13 September 2016, to which the respondent’s employment was a substantial contributing factor.
Dr Wallace was asked to comment on the opinion of A/Prof Ryan. In a report dated 18 March 2020,[21] Dr Wallace said that he disagreed with A/Prof Ryan’s conclusion that the respondent suffered an injury to the lumbar spine as a result of the work-related injury. Dr Wallace said that there was no objective medical evidence that the respondent suffered any work-related injury to her lumbar spine. Dr Wallace was of the opinion that the pathology in the respondent’s lumbar spine was constitutional and unrelated to her employment.
[21] Reply, pp 16–18.
Dr Wallace was asked to provide a supplementary report. In the report dated 18 March 2020, Dr Wallace said that when he examined the respondent on 9 May 2019, she did not walk with an altered gait, her gait was normal, and she did not limp, despite the limited flexion in the left knee. Dr Wallace added that when Dr Kwa reviewed the respondent on 28 June 2017, Dr Kwa observed that the respondent could stand and walk with a normal gait. Dr Wallace opined that the respondent did not suffer a consequential lumbar spine condition as a result of her injuries.
Dr Wallace referred to the respondent’s age and the severe degenerative changes in the respondent’s lumbar spine. He concluded that the pathology pre-dated the respondent’s work-related injury, was constitutional and entirely unrelated to the injury on 13 September 2016. He was of the view that the respondent would have experienced lumbar symptoms at about the same time or stage of her life regardless of her employment with the appellant.
THE ARBITRATOR’S REASONS
The Arbitrator noted that the claim before him was a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of the respondent’s left knee, right Achilles tendon and lumbar spine. The Arbitrator further noted that the only issue to be determined was whether the symptoms in the lumbar spine were consequential upon the respondent’s accepted injuries of the left knee and the right Achilles tendon.
The Arbitrator summarised in some detail the respondent’s evidence in relation to the injury, the subsequent extensive medical treatment, as well as the onset of lumbar spine pain after the respondent returned to work. The Arbitrator reviewed the medical evidence, including the radiological findings. In particular, the Arbitrator noted the respondent’s evidence that her right leg was put in plaster below the knee, she was provided with a Cam boot (which caused her to walk in “a lop-sided manner”) and the left knee pain caused her to put more weight on the right leg.
The Arbitrator referred to the respondent’s description of the relatively heavy nature of some of her work tasks, which the respondent said were manageable prior to the work-related injury. The Arbitrator noted references to the respondent’s difficulty walking, walking with a limp and having an antalgic gait recorded in the evidence from the physiotherapists. The Arbitrator further noted that the respondent’s back pain worsened, resulting in the respondent seeking medical treatment for lumbar symptoms from Dr Soo.
The Arbitrator summarised the medical opinions of Dr Soo and A/Prof Ryan in relation to the cause of the respondent’s lumbar symptoms, as well as the opinion of Dr Wallace that the lumbar symptoms were not causally related to the work-related injury. The Arbitrator also summarised the submissions made by both parties.
The Arbitrator cited the decision of Roche DP in Murphy v Allity Management Services Pty Ltd,[22] referred to my decision in Ozcan v Macarthur Disability Services Limited,[23] and quoted from Kooragang Cement Pty Limited v Bates,[24] in which Kirby P (as his Honour then was) said:
“… a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”[25]
[22] [2015] NSWWCCPD 49.
[23] [2020] NSWWCCPD 21.
[24] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[25] Kooragang, 463–464.
The Arbitrator observed that each case must be determined on its own facts and, applying Kooragang, the test involves a common-sense evaluation of the causal chain of connection.
The Arbitrator said that the appellant disputed liability on the basis that:
(a) the causal chain had been broken;
(b) there was no material contribution to the respondent’s lumbar symptoms from the injury on 13 September 2016;
(c) there was a significant delay between the injury and the respondent’s complaint to a medical practitioner of the onset of the lumbar symptoms, and
(d) the respondent had not discharged her onus of proving the connection between the injury on 13 September 2016 and the lumbar symptoms.
The Arbitrator observed that if he were to find in favour of the appellant, it would involve a rejection of the respondent’s evidence. The Arbitrator said that in order to reject the respondent’s evidence, he would be required to find that the evidence was so unreliable that he could not feel an actual persuasion that the symptoms in the respondent’s back were a consequence of the work-related injury.
The Arbitrator said that there was no evidence to suggest that the respondent’s evidence was inherently unbelievable. The Arbitrator noted that the respondent continued to work, despite her back pain, and there was no suggestion in the medical evidence that the respondent suffered from a co-morbid chronic pain condition that might have impacted the reliability of her statement evidence. The Arbitrator accepted the respondent was a stoic individual who had returned to work early (potentially too early), was having difficulty mobilising in the beginning of 2017 and was still wearing a Cam boot when she saw Dr Kwa on 8 February 2017.
The Arbitrator rejected the appellant’s submission that the respondent’s evidence was compromised by the observation made by Dr Kwa on 28 June 2017 that the respondent walked with a normal gait. The Arbitrator said that, firstly, Dr Kwa was not aware of the respondent’s back symptoms because the respondent had not reported those symptoms and in those circumstances, Dr Kwa would have been unlikely to observe the respondent’s altered gait. Further, the respondent was using her husband’s pain medication and continued to work despite her back symptoms. The Arbitrator accepted the respondent’s evidence that she did not want to make further complaints in the context of already having a workers compensation claim.
The Arbitrator said that, secondly, the respondent’s evidence that she walked with an uneven gait and had mobility problems was amply supported by the evidence from the physiotherapists recorded on three occasions. The Arbitrator considered that the corroborative evidence from the physiotherapists impacted the weight to be afforded to the evidence of Dr Wallace, who relied on Dr Kwa’s observation and his own recollection some ten months afterwards of what he observed in the consultation. The Arbitrator said that Dr Wallace’s assumption was inconsistent with the evidence from the physiotherapists, was incorrect and was of no assistance.
The Arbitrator further observed that, in any event, Dr Wallace’s opinion was that the respondent’s back condition was caused by constitutional degenerative change. The Arbitrator noted that Dr Wallace did not examine or question the respondent about her back condition, saw the respondent on one occasion only, and did not turn his mind to whether the respondent’s mobility problems could have aggravated the back condition. The Arbitrator considered that Dr Wallace’s failure to address that question compromised the validity of Dr Wallace’s opinion. The Arbitrator rejected Dr Wallace’s opinion that the respondent would have suffered the back symptoms in any event, regardless of the work-related injury. The Arbitrator said that the opinion was not explained, was devoid of supportive facts and was speculative.
The Arbitrator turned to the evidence of A/Prof Ryan. He agreed with the appellant’s submission that A/Prof Ryan appeared to “change emphasis” between his first report, in which he referred to the lumbar spine having been injured in the 2016 injury, and the second report, in which he said it was not. The Arbitrator said, however, that A/Prof Ryan was asked to report on the respondent’s “disability,” so that the Arbitrator was not sure that A/Prof Ryan intended to convey that in his opinion, the lumbar spine was injured in the incident on 13 September 2016. The Arbitrator considered that A/Prof Ryan’s opinion did not suggest that it was injured in that incident. In fact, the Arbitrator observed, in his first report, A/Prof Ryan did not give consideration to the cause of the back condition so that it was necessary for the respondent’s legal representatives to draw that issue to A/Prof Ryan’s attention.
The Arbitrator referred to A/Prof Ryan’s second report, in which A/Prof Ryan opined that the causal nexus between the back condition and the injury was the development of skeletal deformities primarily caused by the left knee injury but also contributed to by the Achilles tendon injury. The Arbitrator noted the appellant’s submission that the subsequent opinion had little in common with the opinion in the first report. The Arbitrator said, however, that considering A/Prof Ryan’s opinion as a whole, and the terms of the questions posed, he did not consider there was any inconsistency in A/Prof Ryan’s views. The Arbitrator pointed out that the question posed to A/Prof Ryan was:
“Whether our client’s employment was the main contributing factor to our client’s subject injury and/or condition, subsequent incapacity and need for treatment.”[26]
[26] ARD, p 30.
The Arbitrator concluded that A/Prof Ryan’s answer could therefore not be considered to be an opinion on the cause of the lumbar condition.
The Arbitrator further referred to the appellant’s submission that Dr Soo’s evidence should be afforded little weight because he did not describe the qualifications and experience he had in order to provide the opinion that the cause of the respondent’s back condition was the “altered mechanics” that resulted from the work-related injury. The Arbitrator observed that Dr Soo had been the respondent’s treating general practitioner since January 2017. Further, the Arbitrator considered that, although it was not until 22 November 2018, Dr Soo confirmed that the respondent had experienced back symptoms since she had suffered her injury.
The Arbitrator accepted the respondent’s submission that, when assessing the evidence as a whole, the reference to “altered mechanics” meant mobility problems, limping and antalgic gait. The Arbitrator pointed out that the respondent had simultaneously suffered injury to both legs, which resulted in her having to favour each limb while working. The Arbitrator accepted that the respondent’s back symptoms persisted but that she put up with them with the assistance of medication. The Arbitrator remarked that it was to the respondent’s credit that she was a hard worker and did not change her general practitioner until she realised that she had returned to work too early after the injury. The Arbitrator concluded that there was no evidence to suggest that the respondent was not genuine in her recollection, or in her complaints.
The Certificate of Determination issued on 9 June 2020 records:
“Accordingly, the Commission finds:
1. On 13 September 2013 the applicant suffered injuries to her right and left lower extremities.
2. These injuries caused the applicant to adopt an altered gait, which caused the onset of a consequential condition in her lumbar spine.
The Commission orders:
1. I remit this matter to the Registrar for referral to an Approved Medical Specialist for placing in the medical assessment pending list on the following bases:
(a)Date of injury: 13 September 2013
(b)Matters for assessment:
·Left lower extremity
·Right lower extremity
·Lumbar spine – consequential
(c)Evidence: ARD and attached documents; Reply and attached documents.”
GROUNDS OF APPEAL
The appellant brings two grounds of appeal, alleging:
(a) Ground One: The Arbitrator erred in fact by finding that the respondent suffered an injury to her lumbar spine as a condition consequent upon her altered gait, and
(b) Ground Two: The Arbitrator erred in law by failing to provide adequate reasons.
SUBMISSIONS
The appellant concedes that s 352(5) of the 1998 Act provides that an appeal can only be made where it can be established that the Arbitrator erred in fact, law or discretion. The appellant acknowledges that, in order to establish such error, the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[27] apply to appeals in the Commission, as summarised by Roche DP in Raulston v Toll Pty Ltd.[28]
[27] (1996) 39 ALJR 505 (Whiteley Muir).
[28] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
The appellant’s submissions otherwise address each ground of appeal separately, in accordance with the Commission’s Practice Direction No 6.
The respondent points out that there are two typographical errors in the Arbitrator’s findings and orders, where the Arbitrator refers to the work-related injury having occurred on 13 September 2013. The respondent indicates that the year of the injury should be read as “2016.” Otherwise, the respondent’s submissions also address each ground of appeal separately.
Ground One: The Arbitrator erred in fact by finding that the respondent suffered an injury to her lumbar spine as a condition consequent upon her altered gait
The appellant’s submissions
The appellant submits that the Arbitrator was aware that there was a temporal gap between the work-related injury on 13 September 2016 and the respondent’s first complaint to a medical practitioner, which was on 22 November 2018. The appellant contends, however, that the Arbitrator proceeded to determine the matter on the basis that he could only find in favour of the appellant by rejecting the respondent’s evidence. That is, by finding the respondent’s evidence was so unreliable that he could not feel an actual persuasion that the lumbar spine was injured as a consequence of the injuries to the left knee and right lower limb.
The appellant asserts that the Arbitrator appeared to have proceeded on the premise that the respondent’s evidence should prevail, unless she was manifestly lacking in good character. The appellant says that this was borne out by the Arbitrator’s observations that:
(a) the respondent was a “stoic character;”[29]
(b) there was nothing put to him that would suggest the respondent’s evidence was “inherently unbelievable,”[30] and
(c) the respondent had shown herself to be a “hard worker”, had continued to work, and nothing would suggest that she was not genuine.[31]
[29] Morrissey v Penrith Rugby League Club Ltd [2020] NSWWCC 190 (reasons), [75].
[30] Reasons, [91].
[31] Reasons, [103].
The appellant submits that it did not contend that the respondent’s allegation was manufactured or the product of dishonesty. The appellant says that its case was that the medical evidence did not support that the respondent’s lumbar symptoms resulted from altered gait. The appellant asserts that the evidence from the respondent about the mechanics of her walking style was incapable of overcoming the preponderance of medical opinion that favoured the appellant’s case. The appellant maintains that this was not an issue going to the respondent’s credit, but the Arbitrator determined the matter as if it were.
The appellant contends that, while the respondent held the belief that her lumbar condition resulted from her altered gait, the Arbitrator erred by finding, on the balance of probabilities, that there was a variation of gait which caused the lumbar condition. The appellant says that the conclusion was not supported by the medical evidence and points to the evidence of Dr Kwa in his report dated 28 June 2017 that the respondent was able to stand and walk with a normal gait. The appellant refers to the evidence of Dr Soo that altered mechanics “can contribute to” lumbar symptoms[32] and submits that this evidence proposes a mere possibility, rather than a probability, which falls below the requisite civil standard of proof.
[32] Dr Soo’s report dated 23 August 2019, ARD, p 40, [3].
The appellant says that the respondent qualified A/Prof Ryan to provide an opinion and submits that A/Prof Ryan did not detail any clinical findings or describe what examination of the respondent was conducted. The appellant submits that, oddly, A/Prof Ryan indicated that there was a psychological component to the injuries, which was clearly outside of A/Prof Ryan’s expertise. The appellant submits that, in A/Prof Ryan’s subsequent report, he again referred to psychological matters, not merely as part of the factual matrix but, in his ultimate opinion, as a component of the orthopaedic injuries.
The appellant refers to the concept of intense physical activities, proposed by A/Prof Ryan, where the word “activities” is used in the plural form, and submits that such an expression must be reference to what is conventionally described as the “nature and conditions of employment.” The appellant asserts that the opinion excludes the concept of an injury simpliciter.
The appellant points out that A/Prof Ryan explicitly stated that the respondent injured her left knee, right calf, ankle and low back in the frank injury on 13 September 2016. The appellant submits that this evidence was undoubtedly a reference to a frank injury rather than the “intense activities” of the respondent’s employment. The appellant contends that A/Prof Ryan’s evidence could not possibly support the respondent’s case of a consequential condition resulting from a frank injury.
The appellant asserts that further confusion arises from A/Prof Ryan’s second report, in which A/Prof Ryan contradicted his earlier opinion, without explanation, when he “emphatically refuted” the notion of a frank lumbar injury. The appellant asserts that, notwithstanding A/Prof Ryan’s complete change in his opinion, the highest his evidence could be characterised is that the flexion of the left knee may have required the respondent to compensate by increasing her lumbar lordosis. The appellant submits that this evidence falls short of the requisite civil standard of proof. The appellant asserts that no weight should be afforded to A/Prof Ryan’s evidence.
The appellant notes that the Arbitrator conceded that there had been “a change of emphasis”[33] between the two reports by A/Prof Ryan. The appellant asserts, however, that without providing any reasons, the Arbitrator inferred that A/Prof Ryan did not intend to convey the opinion that the lumbar spine was injured in the work-related injury, which was evidenced by the respondent’s legal representatives specifically drawing A/Prof Ryan’s attention to the issue.
[33] Reasons, [98].
The appellant submits that the Arbitrator’s conclusion that A/Prof Ryan’s opinion did not suggest that there had been a lumbar injury in the work-related incident, is entirely erroneous.
The appellant submits that, despite the “mass of confusion” in relation to A/Prof Ryan’s opinions, the Arbitrator did not find any inconsistency and referred to the appellant’s submissions as comparing “apples with oranges.”[34]
[34] Reasons, [99].
The appellant says that it qualified Dr Wallace to provide an opinion and, in his first report, Dr Wallace’s account of the respondent’s symptoms did not make reference to the respondent’s gait. The appellant refers to Dr Wallace’s opinion that, on the basis of the injuries to both lower extremities, the respondent was fit to work without restrictions. The appellant contends that it is logical that if the injuries had improved, altered gait would not be present.
The appellant asserts that Dr Wallace’s conclusion that the changes in the respondent’s lumbar spine were degenerative and constitutional in nature, which was based on the objective radiology, was correct. The appellant points out that the issue in relation to the respondent’s gait was considered by Dr Wallace in his second report. The appellant says that, when asked, Dr Wallace advised that he did not witness the respondent as having an altered gait. He excluded the respondent’s lumbar condition as being a consequence of the injury on 13 September 2016 because the respondent had displayed a normal range of motion and a normal gait. The appellant says that Dr Wallace was able to refute the evidence of A/Prof Ryan on the basis of the objective CT scan which demonstrated constitutional degenerative changes.
The appellant refers to the evidence that the respondent was certified fit for normal duties without restriction in respect of her leg injuries from 12 October 2017 and submits that in the light of her lower limb injuries having significantly healed, it was unlikely that she developed an altered gait because of those injuries.
In conclusion, the appellant submits that the respondent’s treating surgeon, Dr Kwa, excluded the involvement of altered gait, the opinion of A/Prof Ryan, the respondent’s medico-legal expert was incomprehensible, the opinions as to the causal connection were possibilities and not probabilities, and the opinion of Dr Wallace constituted clear and well-reasoned evidence.
The respondent’s submissions
The respondent also referred to Roche DP’s summary of principles in Raulston in respect of what is required to establish error in the context of an appeal from an arbitrator’s decision. The respondent refers to the Arbitrator’s finding that the respondent suffered injuries to her right and left lower extremities on 13 September 2016 and that those injuries caused the respondent to adopt an altered gait, which caused the onset of the symptoms in the lumbar spine. The respondent submits that, before arriving at that finding, the Arbitrator noted a number of mostly uncontentious factual matters and made the following preliminary findings:
(a) the right leg injury involved a partial tear of the Achilles tendon, and Achilles tendonitis, cartilage fracture of the talar dome, synovitis, tendonitis and a tear of the peroneus lungus;
(b) the right Achilles tendon injury led to the application of a plaster cast to the respondent’s lower leg, which was in place for ten weeks, following which a Cam boot was provided which caused the respondent to walk in a lop-sided manner;
(c) the pathology in the left knee led to a partial medial and lateral meniscectomy on 23 March 2017, which led to the respondent avoiding use of her knee by hopping and limping;
(d) the respondent had difficulties recovering from the surgery;
(e) the physiotherapists observed that:
(i)at presentation to Mr Araoka on 24 March 2017, the respondent was walking with a moderate limp;
(ii)on 28 April 2017, Mr Le recorded that the right calf pain made walking a challenge for the respondent, and
(iii)on 3 July 2017, Mr Patel reported that the respondent displayed an antalgic gait secondary to left knee pain and recommended gait retraining exercises;
(f) there was no evidence to suggest the respondent’s evidence was inherently unbelievable, and
(g) the respondent was a stoic individual and not the type of individual who complains.
The respondent submits that the Arbitrator specifically accepted the evidence that:
(a) by early 2017 the respondent was struggling to mobilise;
(b) the respondent was still wearing a Cam boot on 8 February 2017 (prior to the knee surgery);
(c) the combination of both the right and left leg injuries caused the respondent to attempt to balance, favouring each leg;
(d) the injuries caused mobility problems, an antalgic gait, a challenge with walking, or walking with a limp;
(e) the respondent’s back symptoms continued unabated since their onset, and
(f) the respondent tolerated the symptoms by self-medicating.
The respondent submits that the Arbitrator also took into account that the respondent had eventually sought treatment form Dr Soo, who opined that injuries to both legs could contribute to the pain in the hips and back.
The respondent refers to the appellant’s submission made to the Arbitrator that Dr Kwa observed that the respondent could stand and walk without an altered gait, so that it could not be accepted that the respondent had an altered gait that contributed to the onset of lumbar symptoms. The respondent submits that the Arbitrator dealt with the submission by:
(a) explaining that Dr Kwa was not aware of the respondent’s back condition;
(b) observing that, in the confines of a surgeon’s rooms, Dr Kwa would be unlikely to pay attention to the respondent’s gait, and
(c) noting that Dr Kwa’s observation was inconsistent with the evidence of the three physiotherapists.
The respondent refers to the Arbitrator’s conclusion that, because Dr Wallace assumed the respondent did not have an altered gait, the weight of the opinion was affected, and the Arbitrator was “not assisted” by the evidence of Dr Wallace. The respondent also refers to the Arbitrator’s conclusion that, because Dr Wallace failed to engage with the question of whether mobility issues may have aggravated the respondent’s lumbar pathology, Dr Wallace’s opinion was further compromised.
The respondent further refers to the Arbitrator’s reasons for rejecting the appellant’s submission that A/Prof Ryan’s two reports were inconsistent with each other.
The respondent submits that the above reasoning, observations and findings made by the Arbitrator were comprehensive, logical, consistent with and supported by the evidence, to which the Arbitrator afforded weight and which he accepted. The respondent submits that the above reasoning, observations and findings collectively explain and support the Arbitrator’s ultimate finding that the respondent suffered injuries to her right and left lower extremities on 13 September 2016 and that those injuries caused the respondent to adopt an altered gait, which resulted in the onset of the symptoms in the lumbar spine.
The respondent further refers to the appellant’s concluding submissions that:
(a) the respondent’s treating surgeon, Dr Kwa, excluded the involvement of an altered gait;
(b) the opinion of A/Prof Ryan, the respondent’s medico-legal expert, was incomprehensible;
(c) the opinions as to the causal connection were possibilities and not probabilities, and
(d) the opinion of Dr Wallace constituted clear and well-reasoned evidence.
The respondent says that it is useful to consider each of those matters individually. The respondent contends that the argument that Dr Kwa’s evidence excluded the presence of an altered gait appears to assert that because Dr Kwa reported a normal gait at the consultation, it was an error to conclude that the respondent in fact had an altered gait since at least that time. The respondent submits that the appellant fails to explain why this must be so, in the face of the evidence of three physiotherapists. The respondent says that it also fails to take into account the Arbitrator’s acceptance of the respondent’s own evidence, in which she described how she walked with an altered gait.
The respondent submits that given:
(a) the evidence from the physiotherapists;
(b) the respondent’s accepted statement evidence, and
(c) the uncontradicted evidence of the nature and extent of the left and right lower leg injuries,
the appellant’s assertion is not capable of demonstrating that other probabilities so outweigh those chosen by the Arbitrator that the decision is wrong. The respondent submits that the evidence of the simple and brief observation by Dr Kwa was not sufficient to displace the relevant primary fact found by the Arbitrator.
The respondent further contends that the appellant’s submission that the evidence of A/Prof Ryan was incoherent is not made out. The respondent asserts that the evidence of A/Prof Ryan, when read in context and together, is logical and persuasive. The respondent submits that the Arbitrator’s reasons for finding no inconsistency in that evidence were well explained by the Arbitrator and the Arbitrator was entitled to consider A/Prof Ryan’s opinion as supportive of the findings the Arbitrator finally made.
The respondent points to the appellant’s assertion that the opinion of Dr Wallace constituted clear and well-reasoned evidence, so that it was sufficiently powerful to outweigh the probability chosen by the Arbitrator to the extent that the Arbitrator must have been wrong. The respondent says that this submission fails to deal with the Arbitrator’s criticism of Dr Wallace’s evidence. The respondent submits that firstly, it was fundamental that Dr Wallace’s opinion was premised on an assumption that there was an absence of altered gait. The respondent submits that the Arbitrator concluded that this assumption was wrong, the opinion carried less weight and was of no assistance to the Arbitrator. The respondent points out that the appellant’s submission also fails to take into account that Dr Wallace did not address the question of whether the respondent’s lumbar pathology could have been aggravated.
The respondent contends that the Arbitrator gave ample and appropriate reasons for not accepting the opinion of Dr Wallace, no error is disclosed, and Ground One of the appeal is not made out.
The respondent asserts that the Arbitrator was entitled to conclude that she was a stoic person who did not like to complain. The respondent submits that those observations were relevant to explain the delay in reporting her symptoms to a medical practitioner. The respondent says that those considerations disclose no error on the part of the Arbitrator. Further, the respondent submits that the Arbitrator did not proceed on the basis that she should succeed in her case unless she was lacking in good character. The respondent asserts that the Arbitrator determined the matter on the basis of numerous pieces of evidence, discussed above, and not just on an acceptance of the respondent’s statement evidence.
The respondent maintains that Dr Kwa’s observations of the respondent’s ability to walk and the flawed opinion of Dr Wallace did not constitute a “a preponderance of opinion” in favour of the appellant. Additionally, the respondent maintains that the Arbitrator’s finding that a variation in gait caused the lumbar spine condition was well supported by the evidence discussed above.
Ground Two: The Arbitrator erred in law by failing to provide adequate reasons
The appellant’s submissions
The appellant asserts that the Arbitrator failed to give adequate reasons for finding that there was a nexus between the injuries to the lower limbs and the lumbar pathology, caused by the respondent’s altered gait. The appellant contends that the Arbitrator failed to give any adequate explanation for dismissing the evidence of Dr Kwa that there was no altered gait. The appellant maintains that, if there was no altered gait, there could be no connection between the injuries sustained on 13 September 2016 and the lumbar pathology. The appellant says that this was the crux of the issue in dispute, so that the Arbitrator was required to provide clear reasons for rejecting the appellant’s case.
The appellant refers to Karabolovska v Comcare[35] as authority for the proposition that a failure to give adequate reasons amounts to an error of law, and Pollard v RRR Corporation Pty Ltd[36] and Soulemezis v Dudley (Holdings) Pty Ltd[37] as authorities as to what constitutes adequate reasons.
[35] [2019] FCA 2153.
[36] [2009] NSWCA 110 (Pollard).
[37] (1987) 10 NSWLR 247 (Soulemezis).
The appellant observes that, in the Commission, the Arbitrator’s requirement to give reasons arises from the appeal process, which, by operation of s 352(5) of the 1998 Act, is predicated by error. The appellant asserts that the error must be manifest in the reasons, unless the error is a failure to give adequate reasons. The appellant submits that the general principles in relation to the giving of reasons apply in the Commission in that the decision maker on an appeal should not be left to speculate as to the basis for the particular finding, applying Pollard and Soulemezis. The appellant observes that it was confirmed in Anshaw v Woolstar Pty Ltd[38] that this principle applies in the Commission.
[38] [2020] NSWWCCPD 30.
The appellant refers to the Arbitrator’s observation that the reports of A/Prof Ryan “appeared to change emphasis” and asserts that the Arbitrator’s assessment of A/Prof Ryan’s evidence does not constitute proper reasons for the radical change of opinion both within and between the reports. The appellant contends that the Arbitrator’s reference to “the evidence as a whole” is unclear as to what evidence he was referring, or how the medical evidence summarised above “interfaced” in the Arbitrator’s thought process with the lay and physiotherapy evidence.
The appellant concludes that the lack of persuasive evidence, in particular medical evidence, to support the Arbitrator’s finding in respect of the causal connection leaves the appellant to speculate as to how that conclusion was reached, an error of the kind described in Pollard and Soulemezis. The appellant submits that, as a result, the Arbitrator has fallen into error.
The respondent’s submissions
The respondent submits that the Court of Appeal decision in Mitchell v Central West Health Service[39] succinctly states the extent of the required obligations to give reasons. That is, that the reasons should enable the reader to understand the essential steps in the decision-making process. The respondent points to the Arbitrator’s reasons set out in her earlier submissions above and says that those reasons more than adequately explain the steps taken by the Arbitrator in arriving at his decision. She says there is, therefore, no error of law.
[39] (1997) 14 NSWCCR 526.
The respondent contends that there was no “paucity” of evidence in relation to the respondent’s altered gait and refers to the evidence summarised in her earlier submissions at [97]–[98] above. The respondent submits that there was a perfectly adequate basis for accepting that the respondent experienced an altered gait. That evidence included the evidence of three physiotherapists, including one who implemented gait retraining exercises, and the respondent’s own evidence, which was accepted, in which she described difficulties mobilising. The respondent submits that this evidence explained and formed part of the Arbitrator’s reasoning process.
The respondent submits that the Arbitrator dealt with the evidence from A/Prof Ryan in some detail and the analysis of that evidence provided more than an adequate reasoning process in order to accept that evidence. The respondent contends that it was “quite apparent” from the Arbitrator’s reasons that he did not accept Dr Kwa’s brief comment that the respondent walked normally, because that comment was in conflict with the evidence of the three physiotherapists and the respondent’s own evidence. The respondent submits that the short comment from Dr Kwa as to the respondent’s gait could not be sufficient to mandate a conclusion that the respondent’s gait was normal.
In conclusion, the respondent submits that there was no inadequacy in the Arbitrator’s reasoning process, the Arbitrator’s conclusions were explained, and there is no need for the reader to speculate as to how the Arbitrator reached his ultimate conclusions.
CONSIDERATION
Ground One: The Arbitrator erred in fact by finding that the respondent suffered an injury to her lumbar spine as a condition consequent upon her altered gait
The Arbitrator’s determination that the respondent’s lumbar symptoms resulted from altered gait caused by the injuries to the left knee, the right calf and right ankle is a factual determination. Both parties submit that the principles enunciated by Barwick CJ in Whiteley Muir, as summarised by Roche DP in Raulston, apply in this appeal. In his summary of the principles, Roche DP explained:
“…
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”[40]
[40] Raulston, [19].
The Court of Appeal in Northern NSW Local Health Network v Heggie[41] considered the above principles in the context of the Commission’s powers on appeal and said as follows:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”
[41] [2013] NSWCA 255; 12 DDCR 95, [72].
The appellant’s first ground of appeal is that the Arbitrator proceeded to determine the matter on the basis that he could only find in favour of the appellant by rejecting the respondent’s evidence because her evidence was inherently unreliable. This submission cannot be accepted. Apart from giving consideration to the respondent’s own evidence of her difficulties, which the Arbitrator found plausible, the Arbitrator’s approach involved noting the uncontested facts, which included:
(a) the nature of the injuries to each leg;
(b) the application of plaster to the right leg and subsequently the use of the Cam boot, which the respondent was still wearing in February 2017;
(c) the effect of the left knee surgery on the respondent’s ability to walk, and
(d) that between March and July 2017, three physiotherapists recorded issues with the respondent’s gait.
The Arbitrator’s observations that the respondent was a stoic, hard-working character and did not appear to be dishonest were made in the process of an evaluation of the respondent’s statement evidence. The acceptance or rejection of and weight to be afforded to evidence is generally a matter for the primary decision-maker unless the finding was so against the weight of the evidence that some error must have been involved.[42] It cannot be said that the respondent’s statement evidence was contradicted by sound evidence that would establish the respondent’s evidence could not be accepted. In any event, the Arbitrator did not determine the matter solely on the basis of the respondent’s character. The fact asserted by the respondent was that, since the injuries, she had had difficulty walking. That assertion was borne out by the physiotherapists’ records and was consistent with the right leg being put in plaster and then in a Cam boot, which she wore for some time. The respondent also required knee surgery, which was performed in March 2017. Those were all matters that were relevant to the issue of whether the respondent walked with an altered gait and were all matters taken into account by the Arbitrator before he accepted the respondent’s assertion.
[42] Shellharbour City Council v Rigby [2006] NSWCA 308.
The contrary evidence put forward by the appellant, which was said to be so preponderant that it outweighed the above evidence, was the evidence of Dr Kwa and that of Dr Wallace. Dr Kwa’s observation that the respondent walked with a normal gait was made at his examination of the respondent on 28 June 2017, after the respondent ceased wearing the Cam boot and some three months after the surgery to the left knee. The Arbitrator reasoned that Dr Kwa was unaware of the respondent’s low back symptoms and would therefore not have had occasion to examine the respondent’s gait pattern. Additionally, the Arbitrator noted that that evidence was inconsistent with the evidence of the physiotherapists. The Arbitrator also gave reasons for rejecting the opinion of Dr Wallace, who saw the respondent on one occasion and not until 9 May 2019. The reasons included the fact that Dr Wallace‘s opinion was based on there being an absence of altered gait, which was wrong. The Arbitrator also reasoned that Dr Wallace failed to address the notion that the lumbar condition may have been aggravated by an altered gait and did not give any basis for his conclusion that the respondent would have suffered those symptoms at about that time in any event. The fact that two medical specialists who examined the respondent did not observe an altered gait does not eclipse the fact that three other medical providers did. The conclusions reached by the Arbitrator were supported by the evidence and the contrary evidence was not of sufficient weight to be so preponderant that the Arbitrator’s decision must be wrong.
The appellant submits that the Arbitrator erred in finding a causal link between the altered gait and the onset of lumbar symptoms because the opinions relied upon by the respondent were expressed as possibilities and not probabilities. Dr Soo opined that “the altered mechanics” caused by both lower limb injuries “can contribute to the pain in her hips and back”. A/Prof Ryan, in his response to the question posed by the respondent’s legal representatives specifically and unequivocally explained that the lumbar condition resulted from the injury on 13 September 2016. The Arbitrator reconciled the apparent conflict between A/Prof Ryan’s earlier report and that opinion, noting that in the earlier report, A/Prof Ryan did not take a history or describe the mechanics of any frank injury to the lumbar spine.
The only evidence that negated the causal connection was that of Dr Wallace, whose opinion was rejected by the Arbitrator on the basis of sound and logical reasons and A/Prof Ryan’s observation in his first report that the lumbar spine was injured in the frank incident. As the Arbitrator pointed out, that observation must be read in its context, and it appears to arise from an assumption rather than any reasoned medical opinion.
In the circumstances of this case, there was strong evidence of the respondent experiencing concurrent difficulties with each lower limb that required her to undertake “gait retraining,” and medical evidence that such difficulties “can contribute” to symptoms as well as an explained medical opinion as to the causal connection. Applying the principles in Whiteley Muir (as summarised by Roche DP in Raulston), having found the primary facts, the Arbitrator is entitled to draw a particular inference from them and, in order to succeed on an appeal, the ‘fact of the [Arbitrator’s] decision must be displaced’. That is, it must be shown that the Arbitrator was wrong. On the basis of the evidence before him, it was open to the Arbitrator to find that the lumbar symptoms were consequent upon the injury on 13 September 2016.
It follows that this ground of appeal has no merit.
Ground Two: The Arbitrator erred in law by failing to provide adequate reasons
The appellant asserts that the Arbitrator failed to give adequate reasons for:
(a) determining there was a nexus between the lower limb injuries and the lumbar “pathology”;
(b) dismissing the evidence of Dr Kwa that there was no altered gait;
(c) accepting the opinion of A/Prof Ryan in the face of that expert’s radical change of opinion, and
(d) failing to accept the evidence of Dr Wallace.
The appellant submits that there was a lack of persuasive evidence, in particular medical evidence, to support the Arbitrator’s conclusion in relation to the causal connection, so that the appellant is left to speculate on how that conclusion was reached.
In ADCO Constructions Pty Ltd v Ferguson,[43] Deputy President Fleming set out the approach to be taken in assessing the adequacy of reasons. The case involved an application to file a reply out of time. The Deputy President made the following observations:
“The standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker. The decision to refuse to allow the filing of a Reply, in the context of the Commission’s informal and expeditious process, does not require lengthy, detailed written reasons. The Commission is not a court (Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146) and is obliged to act according to equity and good conscience and the demands of the instant case. The purpose of giving reasons is to enable the parties to understand why the decision has been made.”[44]
[43] [2003] NSWWCCPD 21 (Ferguson).
[44] Ferguson, [31].
The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case.[45] The Arbitrator is not required to give lengthy reasons. When giving consideration to the adequacy of the Arbitrator’s reasons, the decision must be read as a whole, and not with an eye attuned to find error.[46]
[45] Mifsud v Campbell (1991) 21 NSWLR 725, 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed).
[46] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
The appellant submits that the crux of its case was that there was no altered gait, so that there could be no connection between the lumbar symptoms and the leg injuries. The respondent submits that there was ample evidence to support the Arbitrator’s finding that there was an altered gait (summarised at [97]–[98] above) and the Arbitrator’s reasoning process included a consideration of all of that evidence.
It is abundantly clear from the Arbitrator’s reasons that he rejected the opinion of Dr Wallace because it was based on a premise that the respondent did not suffer from an altered gait, which was contrary to the evidence from three physiotherapists who had treated the respondent and the respondent’s own credible evidence.
Further, the Arbitrator reasoned that Dr Wallace:
(a) did not address the issue of whether an altered gait could cause lumbar symptoms;
(b) similarly, did not address the issue of whether an altered gait could cause an aggravation to the lumbar pathology, and
(c) did not explain why it was likely that the respondent would have experienced lumbar symptoms at about that time, regardless of her employment with the appellant.
The Arbitrator explained that, in the context of examining the respondent in respect of her leg injuries, Dr Kwa was not aware of the respondent’s lumbar symptoms and was unlikely to have spent the time examining the respondent’s gait. He further pointed out that Dr Kwa’s observation of a normal gait was inconsistent with the observations made by the physiotherapists.
The Arbitrator’s reasons embraced the evidence and disclosed that he examined that evidence and provided detailed reasons as to why the evidence was either accepted or rejected. The Arbitrator took a common sense approach in the evaluation of the causal chain, consistent with the approach described by Kirby P in Kooragang. In accordance with Deputy President Fleming’s observations in Ferguson, long and detailed reasons are not required. It is tolerably clear from the Arbitrator’s reasons as to why he came to the conclusions reached by him and his ultimate determination that the respondent’s lumbar symptoms resulted from the injury on 13 September 2016.
Ground Two of the appeal, therefore, has no merit.
CONCLUSION
The appeal grounds raised by the appellant have no prospects of success. It follows that the failure to extend the time to file the appeal would not result in a substantial injustice to the appellant as required by s 352(4) of the 1998 Act. In accordance with r 16.2(5) of the 2011 Rules, I therefore decline to extend the time to lodge an appeal.
DECISION
The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Rules 2011 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
15 October 2020
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