Raulston v Toll Pty Ltd - [2011] NSWWCCPD 25

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Raulston v Toll Pty Ltd [2011] NSWWCCPD 25
APPELLANT:		Anthony Raulston
RESPONDENT:		Toll Pty Ltd
INSURER:		Self-insured
FILE NUMBER:		A1-9002/10
ARBITRATOR:	Mr J Wright
DATE OF ARBITRATOR’S DECISION:		18 February 2011
DATE OF APPEAL DECISION:		17 May 2011
SUBJECT MATTER OF DECISION:		Failure to give adequate reasons; unsatisfactory pleadings; inappropriate use of the expression “nature and conditions” of employment; approach to appeals from decisions after 1 February 2011; s 352 Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Lawyers
Respondent:	Lucas & Staggs Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 18 February 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination. 2. Costs of the first arbitration are to follow the event of the second arbitration. 3. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The appellant worker, Mr Raulston, worked for the respondent employer, Toll Pty Ltd (Toll), as a truck driver from about 1997. He drove a car carrier. That work required him to load, unload, and transport cars between Melbourne and Wagga Wagga. He alleges that he injured his neck in the course of or arising out of his employment with Toll. Because of the unsatisfactory pleadings and evidence, and the unusual way his solicitor presented his case at the arbitration, the exact nature of his claim is unclear.
Mr Raulston submitted a claim form on 6 November 2006 in which he alleged that he injured his “neck & shoulder” in the course of his employment on 30 October 2006 while pulling a winch bar to tighten a chain to secure a car. He saw his local doctor and was certified unfit for two days because of a sprained right shoulder. A second certificate certified Mr Raulston fit for suitable duties from 4 November 2006 until 7 November 2006 because of a sprained right shoulder and neck pain. Mr Raulston returned to his normal duties on 8 November 2007.
A history recorded by Dr Evans (a specialist retained by Mr Raulston’s solicitor) in his reports of 15 August 2008 and 14 January 2010 suggested that Mr Raulston experienced similar neck pain when he again pulled down on the handle of a winch at work on 23 March 2007. He was said to have been off work for a week or two, but there is no corroborative evidence of that and Mr Raulston made no reference to it in his evidence.
Dr Evans also recorded a history that, from about 2002, Mr Raulston noted occasional neck pain at work when his head would bump on the roof of his carrier. Mr Raulston did not refer to this in his evidence.
In the course of unloading his trailer at Melbourne on 17 September 2007, a car door struck the bridge of his nose. He continued with his work and returned to Wagga Wagga with a load of cars. Over the next few weeks, he had headaches, pain in his nose and difficulty breathing. He also had pain when he sneezed, which he did a lot more after the accident. Mr Raulston gave evidence that, in the week up to 20 November 2007, there had been a “build up” of pain in his neck and shoulders. He believed the pain had increased over time with normal work and movement.
On 20 November 2007, Mr Raulston was at home. He said that, as he was walking from his lounge to his kitchen to make a cup of coffee, he sneezed and felt extreme pain in the region of his neck and shoulders and under his armpits. He said he also felt a crack somewhere in his neck. The pain caused him to fall to the ground. He felt like he had been paralysed for a short time and he remained on the ground for 20 to 30 minutes. The pain was across his back and shoulders.
Because of his symptoms, Mr Raulston did not return to work on 21 November 2007. An MRI scan on 11 March 2008 showed a disc prolapse at C5/6. On 23 October 2008, Mr Raulston underwent a C5/6 discectomy and fusion.
In an Application to Resolve a Dispute (the Application) filed on 1 November 2010, as amended at the arbitration, Mr Raulston claimed weekly compensation from 21 November 2007 to 1 March 2009, lump sum compensation in respect of a 25 per cent whole person impairment, and a general order for the payment of hospital and medical expenses.
The Application has been so poorly drafted that it is impossible to determine the exact nature of Mr Raulston’s claim. Under “Describe how the injury occurred”, the following appears:
“(i) nature and conditions of the Applicant’s employment with the Respondent have materially caused, exacerbated, aggravated and/or deteriorated [sic] injury to the Applicant’s neck
(ii) On or about 17 September 2007 the Applicant was attempting to open a door of a car situated on his car carrying trailer and as he did so, the door struck the Applicant in the face thereby causing injury to the Applicant’s neck.”
The Commission has repeatedly held that the expression “nature and conditions” is meaningless and should not be used (Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70). Practitioners are again directed to cease using this expression without properly explaining the nature of the claim and the cause of injury. Pleadings must properly identify the cause of injury, the nature of the injury, and whether it is alleged that the worker received a personal injury, under s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), or a disease injury under either s 4(b)(i) or s 4(b)(ii). The Application in the present matter did none of those things.
In a Reply filed on 23 November 2010, Toll relied on the issues identified in its three s 74 notices. In summary, Toll conceded that Mr Raulston suffered an injury to his nose when a car door struck him at work on 17 September 2007, but said that he made a full recovery from that injury and “the nature and conditions” of his employment. It alleged that the sneezing episode at home on 20 November 2007 had not resulted from any injury arising out of or in the course of Mr Raulston’s employment and that employment had not been a substantial contributing factor to Mr Raulston’s injuries. Whether it disputed the occurrence the other injuries alleged by Mr Raulston is unclear.
The Commission listed the matter for conciliation and arbitration on 8 December 2010. The Arbitrator identified the issue in dispute to be whether Mr Raulston’s incapacity, whole person impairment, and need for medical treatment had been caused by “the work injuries relied upon by the applicant”. This implied that Toll did not dispute that Mr Raulston had received an injury to his neck, but that is far from clear. In any event, neither party has challenged this description of the issues.
The Arbitrator gave Mr Raulston leave to give brief oral evidence about his education and work history and heard lengthy submissions from Mr Raulston’s solicitor, Mr Bucknell, and from Toll’s counsel, Ms Goodman. In a reserved decision delivered on 18 February 2011, the Arbitrator made an award in favour of the respondent and ordered that each party bear its own costs.
The Arbitrator was not persuaded that Mr Raulston had “established any connection between the earlier work injuries and [the] clear incapacity that followed immediately the sneezing event and fall at home” (Statement of Reasons (Reasons) at [38]). He found that the only injury received on 17 September 2007 was a soft tissue injury to Mr Raulston’s nose and face. He did not think there was any “reliable evidence of any substantial injury having occurred in September 2007 nor before that date” (Reasons at [40]).
In an appeal filed on 16 March 2011, Mr Raulston challenges the Arbitrator’s determination.

PRELIMINARY MATTERS

As the Arbitrator issued his decision after 1 February 2011, the appeal provisions introduced by the Workers Compensation Legislation Amendment Act 2010 apply. As amended, s 352 now states:

“352 Appeal against decision of Commission constituted by Arbitrator

(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the procedural requirements of this section and any applicable Rules and regulations as to the making of an appeal have been complied with. The Registrar is not required to be satisfied as to the substance of the appeal.

(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:

(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.

(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(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.

(5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.
(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.

(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.
Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction.”

There are a number of points to note about the new s 352:
(a)     an appeal from an Arbitrator to a Presidential member is no longer a “review” and is not a hearing de novo. It is an appeal that is limited to the 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. It is the establishment of error and the correction of that error that now defines the process under s 352;
(b) save for interlocutory decisions, it is no longer necessary to seek leave to appeal. For decisions that are not interlocutory, once the monetary threshold in s 352(3) is satisfied, the appeal proceeds as of right;
(c)     the Commission is not to grant leave to appeal an interlocutory decision unless of the opinion that determining such an appeal is necessary or desirable for the proper and effective determination of the dispute;
(d)     fresh evidence or additional evidence or evidence in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal except with leave. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case;
(e)     the lodging of an appeal does not operate as a stay or otherwise affect the operation of a decision as to weekly payments of compensation and those payments remain payable despite the filing of an appeal. In respect of other orders, the appeal stays the operation of the decision appealed against pending the determination of the appeal, and
(f)      on appeal, the decision appealed against may be revoked and a new decision made in its place, or, in the alternative, the matter may be remitted to the Arbitrator or another Arbitrator for determination in accordance with any decision or directions of the Commission.
In applying the above provisions, the Commission will have regard to the following general principles and authorities.
First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted “Arbitrator” for “trial judge” where appropriate):
(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.”
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”

After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
“The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.”
Second, subject to a Presidential member granting one or both parties leave to tender fresh evidence or additional evidence on appeal, the appeal will be conducted on the transcript of the evidence presented at the arbitration.
Third, parties will usually be bound by the presentation of their case at the arbitration and neither party to an appeal will be permitted to raise new issues on appeal, where those issues could have affected the outcome or course of the arbitration and been met with additional evidence in response (Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7; University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; Water Board v Moustakas [1988] HCA 12; 180 CLR 491; Suttor v Gundowda (1950) 81 CLR 418 at 438). This principle is subject to the Commission’s power to allow (with leave) fresh evidence or additional evidence in the limited circumstances stated in s 352(6).
Fourth, given the discretionary power to allow fresh evidence or additional evidence on appeal, and the power to not only confirm or revoke a decision but to make a new decision in place of the Arbitrator’s decision, an appeal under s 352 is properly characterised as a rehearing where the Presidential member’s powers are exercisable “only where the appellant can demonstrate that, having regard to all the evidence now before the [Presidential member], the order that is the subject of the appeal is the result of some legal, factual or discretionary error” (Allesch v Maunz [2000] HCA 40; 203 CLR 172 per Gaudron ACJ, McHugh, Gummow and Hayne JJ at [23]; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [14] (Coal & Allied)). The power to admit further evidence is of a remedial nature conferred “to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures” (per McColl JA, Mason P and Giles JA agreeing, in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [66], quoting CDJ v VAJ (No 1) [1998] HCA 67; 197 CLR 172 at [109]).
Fifth, what constitutes an appealable error of fact, law or discretion will be determined on a case-by-case basis. However, the Commission will be guided by the principles stated in Fox v Percy [2003] HCA 22; 214 CLR 118 at [22] to [31]. Mistakes can occur in the “comprehension, recollection and evaluation of evidence” (Fox v Percy at [24]). If, after making a proper allowance for the advantages of the Arbitrator in seeing and hearing the witnesses, the Presidential member concludes “that an error has been shown” (Fox v Percy at [27]), he or she is obliged to correct that error.
Sixth, credibility based findings may be overturned if “incontrovertible facts or uncontested” evidence (Fox v Percy at [28]) establish that they were wrong. In rare cases, although the facts fall short of being “incontrovertible”, such findings may be overturned if they are “glaringly improbable” or “contrary to compelling inferences” in the case (Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10).
Seventh, challenges to an Arbitrator’s exercise of discretion will be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504–5. Those principles were articulated by Heydon JA (as his Honour then was) (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef). To succeed with an appeal against an Arbitrator’s exercise of discretion, the appellant must demonstrate that the Arbitrator:
“(a) made an error of legal principle,

(b)     made a material error of fact,

(c)     took into account some irrelevant matter,

(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.” (Micallef at [45])

In an appeal against a discretionary decision, a Presidential member will not overturn the decision because he or she “might have reached a different conclusion or because intuitive feelings suggest to them a different outcome in the particular case” (The Queen v Taufahema [2007] HCA 11; 234 ALR 1).
Eighth, the same general approach that applies to appeals against discretionary decisions also applies to appeals against compensation for pain and suffering under s 67 of the 1987 Act. The appellant must establish that the decision was “outside the limits of a sound discretionary judgment” (Alvorac General Engineering Pty Ltd v Arlotta (1993) 9 NSWCCR 177 at 182B; Moran v McMahon (1985) 3 NSWLR 700 at 716-21). A Presidential member will not disturb an award of compensation for pain and suffering, or a decision analogous to a decision involving the exercise of a discretion as to be assimilated to a discretionary judgment, unless the Arbitrator has acted on a wrong principle of law or has misinterpreted the facts or made a wholly erroneous estimate of the damage suffered (Moran v McMahon at 702E, 722G, 726F; Wilson v Peisley (1975) 7 ALR 571 at 585, and Costa v The Public Trustee of NSW [2008] NSWCA 223 at [105]).
Ninth, in respect of an error involving a departure from the rules of natural justice or procedural fairness, the appellant needs to show that the departure deprived him of the possibility of a successful outcome. To negate that possibility, it is necessary for the Presidential member to find that a properly conducted arbitration could not possibly have produced a different result (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147).
In summary, the role of a Presidential member is to determine if the decision appealed against is affected by error and, if so, to correct that error. The error must be one that has affected the outcome (Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 cited in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [110]).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, 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.

THE ARBITRATOR’S REASONS

In the course of stating the issues and setting out a brief summary of the evidence, the Arbitrator observed:
(a)     he did not need to determine if the incident on 30 October 2006 (referred to by the Arbitrator as having occurred in November 2006) was encompassed in the nature and conditions allegation or was a frank injury;
(b)     there was an absence of consultations by Mr Raulston with his general practitioner between the September and November incidents. Though that did not lead him to conclude that Mr Raulston had no symptoms in the cervical area, it was a “factor to be considered” (Reasons at [26]);
(c)     Dr Evans was “far from definitive in his view”;
(d)     Dr Smith (a specialist qualified by Toll) thought that the genesis of the worker’s disability was the sneezing fit at home, and
(e)     Dr Krishnan (also qualified by Toll) thought that there was no connection between the work-related blow to the head (in September) and the “home injury” in November.
Under “Summary”, the Arbitrator concluded:
“38. On the basis of the totality of the medical evidence I am not persuaded that the applicant has established any connection between the earlier work injuries and clear incapacity that followed immediately the sneezing event and fall at home. The treating doctors hold no unequivocal view as to nexus. The general practitioner, Dr Oliver expresses his view in terms of possibility, although I note he did provide WorkCover certificates that indicated that work was a substantial contributing factor.
39.    The applicant’s solicitor in his address suggested that the applicant’s incapacity was the inevitable result of the injury in September 2007 and the onset of the incapacity following the non work incident was merely co-incidental. I reject that submission.
40.    I do not think that there is any reliable evidence of any substantial injury having occurred in September 2007 nor before that date. There is no evidence of any significant period of incapacity flowing from the September incident. The clinical records from the general practitioner disclose no treatment in respect of the September accident. I find the only injury on that date was some soft tissue injury to the nose and face. I note the history in the applicant’s statement of some neck and shoulder symptoms, but I don’t think they could have been substantial.
41.    I prefer the opinions of Dr Smith and Dr Krishnan to those of Dr Evans.
42.    I do not think that the earlier injuries in any way rendered the applicant susceptible to further injury of [sic, by] reason of any predisposition or vulnerability. I find that the incapacity and impairment results from the non work injury of 20 November 2007.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     determining that Mr Raulston had not given any reliable evidence of any substantial injury having occurred in September 2007, nor before that date;
(b)     failing to give any, or any adequate, reasons as to the basis for his determination that there was inadequate reliable evidence of any substantial injury having occurred in September 2007, nor before that date;
(c)     preferring the evidence of Dr Krishnan having regard to there being no evidence from Mr Raulston with respect to any history of hay fever, and
(d)     preferring the evidence of Drs Smith and Krishnan to that of Dr Evans without giving adequate reasons for doing so.
As I have determined the appeal on the basis of the “reasons” issue, and as the matter must be re-determined by a different Arbitrator, it is neither necessary nor appropriate for me to deal with the medical issues.

SUBMISSIONS, DISCUSSION AND FINDINGS

Mr Raulston’s argument is that the Arbitrator has failed to give any or any adequate reasons for determining that there was no “reliable evidence of any substantial injury having occurred in September 2007”. He relies on the evidence in his statement dated 6 March 2008 in which he said, after recounting the incident of 17 September 2007:
“Over the ensuing weeks and leading up to the 20^th November 2007, there was a build up of pain in my neck and shoulders. I believe this pain had increased slowly overtime [sic] with normal work and movement. I did not report the pains in my neck and shoulders to work.”
Mr Raulston also relies on his claim form completed on 19 February 2008, in which he said he injured his “nose – shoulder – neck” on 17 September 2007, and the report from his general practitioner, Dr Oliver, dated 18 February 2008 in which it was recorded:
“Mr Raulston suffered nasal and sinus trauma at work 17^th September and since then he has had problems with his neck shoulders and back. There could be a connection. He is still having treatment for his soft tissues [sic] injuries, and is making progress.”
Next, he argues that the best evidence is the evidence in his statement and claim form, which was “uncontroverted” and was “neither inconsistent with other evidence” nor “inherently incredible” (Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (Masterton Homes)). Accordingly, so it is argued, the Arbitrator erred in determining Mr Raulston’s evidence to be “unreliable” and failed to give any reasons why the evidence about the injury on 17 September 2007 was unreliable.
Toll has submitted that:
(a)     the dispute was not whether Mr Raulston had injured his nose on 17 September 2007, but whether he injured his neck in that incident;
(b)     after the injury on 17 September 2007, Mr Raulston continued his normal duties until the incident at home on 20 November 2007;
(c)     the Arbitrator carefully analysed the evidence and was not persuaded that any substantial injury had occurred on 17 September 2007, nor before that date, which had resulted in the incapacity that followed immediately after the sneezing incident at home on 20 November 2007;
(d)     at the arbitration, Ms Goodman took the Arbitrator to the histories given to the doctors and demonstrated the inconsistencies between Mr Raulston’s evidence and that of the contemporaneous notes of the doctors. It is clear that the Arbitrator did not accept the worker’s evidence, at least so far as it was inconsistent with the evidence of his treating practitioners;
(e)     it is not true that Mr Raulston’s evidence was uncontroverted and unchallenged. Toll’s submissions at the arbitration challenged Mr Raulston’s evidence, which was inconsistent with the contemporaneous histories recorded by the treating general practitioners;
(f)      the Arbitrator gave two reasons why Mr Raulston’s evidence as to the incident on 17 September 2007 was unreliable, namely, there was no evidence of any significant period of incapacity flowing from that incident, and the clinical records from the general practitioner disclosed no treatment for that incident;
(g)     there was no evidence before the Arbitrator to support any ongoing incapacity flowing from either the injury on 17 September 2007 or from any injury prior to that date. Mr Raulston’s incapacity stemmed from the non-work related injury at home on 20 November 2007, and
(h)     the Arbitrator referred to Mr Raulston’s evidence and the medical evidence. It is quite clear that the Arbitrator was not persuaded by Mr Raulston’s evidence in the claim form and in his statement because that evidence was not consistent with his complaints recorded in his treating doctors’ records.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. It is not disputed that Arbitrators have a statutory and common law obligation to provide adequate reasons for their decisions (s 294(2) of the 1998 Act; Pt 15 r 6 of the Workers Compensation Commission Rules 2010 (the Rules); Absolon v NSW TAFE [1999] NSWCA 311 (Absolon)).
Relevantly, Pt 15 r 6 of the Rules provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead [sic] the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground, the appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis), McHugh JA (as his Honour then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127).
In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
Her Honour’s comments in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [100] are also relevant:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.”
On reading the Arbitrator’s decision as a whole, I am not satisfied that he has given adequate reasons explaining why he reached his conclusions and, in particular, why he rejected Mr Raulston’s evidence.
The Arbitrator did not explain why he did not think there was any reliable evidence of any “substantial injury” having occurred in September 2007 or before that date. If Mr Raulston’s evidence was accepted, it provided support for his claim. The Arbitrator did not say if he accepted or rejected Mr Raulston’s evidence. His decision implies that he rejected the worker’s evidence, but, if that was the case, he did not say why he rejected it. More importantly, the issue identified by the Arbitrator was not whether Mr Raulston suffered a “substantial injury” at work, but whether his incapacity and impairment resulted from his (apparently) accepted injuries.
It is true, as Toll has submitted on appeal, that the Arbitrator said there was “no evidence of any significant period of incapacity flowing from the September incident” and that the clinical records did not disclose any treatment “in respect of the September accident”. However, those statements did not provide adequate reasons for the conclusion that there was no “reliable evidence of any substantial injury having occurred in September 2007 nor before that date”. The statement that there was “no evidence of any significant period of incapacity flowing from the September incident” (emphasis added) was incorrect; Dr Evans provided evidence on the causation issue (the Arbitrator’s rejection of this evidence is discussed below). Whilst it is correct that the clinical records did not disclose treatment in respect of the September incident, other than to say that the absence of attendances on the general practitioner did not lead him to conclude that Mr Raulston had no symptoms in the cervical area, the Arbitrator did not say what weight he attached to those notes but merely observed (at [26]) that they were “a factor to be considered”. That did not indicate an acceptance or rejection of the submissions from either side.
The Arbitrator’s finding that the only injury Mr Raulston suffered on 17 September 2007 was to his nose and face was inconsistent with the next sentence, where he said that he noted Mr Raulston’s statement of “some neck and shoulder symptoms” which he did not think could have been “substantial”. I assume, though it is far from clear, that the reference to “some neck and shoulder symptoms” was reference to Mr Raulston experiencing those symptoms after the incident on 17 September 2007. Symptoms do not have to be “substantial” to constitute an injury or for an incapacity to result from them. More importantly, the Arbitrator’s statement implied, contrary to his statement that Mr Raulston only injured his nose and face, an acceptance of Mr Raulston’s case that he had injured his neck on 17 September.
The issues at the arbitration required the Arbitrator to determine whether he accepted Mr Raulston’s evidence that he injured his neck on several separate occasions in the course of his employment, that he had a build up of pain in his neck and shoulders after 17 September 2007, that he felt extreme pain in his neck and shoulders when he sneezed on 20 November 2007, and that his incapacity and impairment resulted from his work injuries, or, whether he accepted Toll’s argument that all of Mr Raulston’s problems resulted from a non-work event at home on 20 November 2007. Though he concluded that the worker’s incapacity and impairments resulted from the non-work incident on 20 November 2007, he did not properly explain how he reached that conclusion and did not properly deal with the issues or the parties’ submissions. He made only one relevant reference to the submissions when he said (at [39]) that he rejected Mr Bucknell’s submission that the incapacity was the inevitable result of the September 2007 injury. He did not say why he rejected that submission.
With regard to expert evidence, an Arbitrator is required to “engage with the evidence and to explain why the evidence of one expert is preferred over that of another” (Sant v Tsoutsas [2009] NSWCA 3 at [77]). The Arbitrator said that he preferred the opinions of Drs Smith and Krishnan to those of Dr Evans. However, other than saying (at [29]) that Dr Evans was “far from definitive in his view”, the Arbitrator gave no reasons for preferring the opinions of Drs Smith and Krishnan. He provided no analysis of those opinions. It may well be that he rejected the evidence from Dr Evans because that evidence was, according to Ms Goodman’s detailed submissions at the arbitration, based on an inaccurate history, but he did not say if he accepted or rejected Ms Goodman’s submissions. He did not refer to those submissions at all.
If, as Toll has submitted, the Arbitrator was not persuaded by Mr Raulston’s evidence in the claim form and in his statement because that evidence was not consistent with his complaints recorded in his treating doctors records, he did not say so. He did not refer to the claim form or to Ms Goodman’s submissions about the significance of the clinical notes.
The Arbitrator’s reference (at [42]) to the “earlier injuries” was (presumably) a reference to the injury to Mr Raulston’s neck and shoulder on 30 October 2006 and a similar incident on 23 March 2007. Whilst it may well have been open to conclude that those incidents did not render Mr Raulston “susceptible” to further injury by way of predisposition or vulnerability, that was not Mr Raulston’s case. His case was that, based on the evidence from Dr Evans, one fifth of his disability resulted from his duties as a truck driver, including the incidents on 30 October 2006 and 23 March 2007. The Arbitrator’s only other reference to those injuries was where he said (at [15]) that none of the “prior injuries” appeared “to be significant to this claim”. According to Dr Evans, they contributed to the current impairment and were clearly relevant. Other than saying that he preferred the opinions of Drs Smith and Krishnan to the opinions of Dr Evans, the Arbitrator did not deal properly or fairly with Mr Raulston’s allegations about the “earlier injuries”.

Though it is not necessary for the determination of the appeal, I make the following observation about Mr Bucknell’s submission based on Masterton Homes. His submission that Mr Raulston’s evidence was “uncontroverted” and was not “inconsistent” with other evidence was plainly wrong. Arguably, the clinical notes contradict Mr Raulston’s evidence as to when his neck symptoms developed and that was and is a significant issue in the case. The Arbitrator did not deal adequately with the significance of the clinical notes.

CONCLUSION

It follows that the Arbitrator erred in failing to exercise his statutory duty to determine fairly and lawfully the issues presented. His determination must be revoked and the matter re-determined. Because of the unsatisfactory state of the evidence, pleadings and submissions, I am unable to conduct that re-determination and the matter will be remitted to another Arbitrator.
The future conduct of the case is a matter for Mr Raulston and his solicitor. However, I recommend that Mr Raulston retain experienced counsel at the next hearing and that the pleadings be amended to indicate whether Mr Raulston alleges that he received a personal injury under s 4(a) of the 1987 Act or whether he relies on the disease provisions under either s 4(b)(i) or s 4(b)(ii). The reference to “nature and conditions” should be deleted and the exact cause of injury pleaded. If Mr Raulston wishes to rely on the incidents on 30 October 2006 and 23 March 2007, they should be properly pleaded. The expression “nature and conditions” does not encompass injuries of the kind described as having occurred on 30 October 2006 and 23 March 2007.
I note that, apart from very brief oral evidence as to his education and work history, the only evidence from Mr Raulston is his statement dated 6 March 2008. An investigator retained by Toll took that statement and, not surprisingly, it does not adequately deal with the issues in dispute. I would have thought that, as a bare minimum, a detailed statement would have been taken from Mr Raulston by his solicitor properly setting out the relevant history in the matter. Once that is done, Toll will no doubt wish to consider whether, in light of the issues involved, it wishes to seek leave to cross-examine Mr Raulston. Toll will also need to clarify (in a single document) the issues alleged to be in dispute.
There was considerable confusion at the arbitration as to the relevance of the 20 November 2007 incident. Mr Bucknell’s submissions were inconsistent, unhelpful and demonstrated a misunderstanding of the fundamental principles involved. The parties may find some assistance on the question of whether Mr Raulston’s incapacity and impairment has resulted from his work injuries in the principles discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Last, given the issues involved, the next Arbitrator may be assisted by supplementary medical evidence on the causation issue.

DECISION

The Arbitrator’s determination of 18 February 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination.
Costs of the first arbitration are to follow the event of the second arbitration.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
17 May 2011

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

ASSOCIATE