Renew God's Program Pty Ltd v Kim - [2019] NSWWCCPD 45

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Renew God’s Program Pty Ltd v Kim [2019] NSWWCCPD 45
APPELLANT:	Renew God’s Program Pty Ltd
RESPONDENT:	Ki Jung Kim
INSURER:	icare Insurance for NSW
FILE NUMBER:	A1-189/19
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	19 March 2019
DATE OF APPEAL DECISION:	30 August 2019
SUBJECT MATTER OF DECISION:	Section 9B of the Workers Compensation Act 1987; duty to give reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Young & Muggleton
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 19 March 2019 is confirmed.

INTRODUCTION

Ki Jung Kim (the worker) was employed by Renew God’s Program Pty Ltd (the employer). He suffered a cardiac incident on 26 July 2018,[1] which resulted in his admission to the Ryde Hospital from 31 July 2018 to 2 August 2018. His background is Korean, and he did not have an entitlement to “Medicare eligibility or valid private insurance”.[2] Ultimately a pleaded claim for weekly compensation was not pressed, and the claim was pursued solely as one for medical and related expenses pursuant to s 60 of the Workers Compensation Act1987 (the 1987 Act). The issues were whether the worker suffered ‘injury’, and whether the requirements of s 9B of the 1987 Act were satisfied. The worker succeeded on both counts, and an award was made for the payment of his “reasonable medical expenses for treatment of his heart attack injury”. This appeal is brought by the employer against that award, and turns solely on the issue pursuant to s 9B.
[1] Worker’s statement, [4], Application to Resolve a Dispute (ARD), p 87.
[2] Ryde Hospital discharge referral, ARD, pp 46–50.

BACKGROUND

The worker described his work as that of a “furniture removalist and cleaner”. He stated it “involved cleaning out the contents of deceased persons from Housing Commission Units”. He described the duties:
“There was a lot of lifting of heavy objects, bending, carrying furniture being television units, washing machines. Refrigerators and accumulated rubbish. The items had to be carried from the unit to the ground and out to transport trucks. It was very heavy and difficult work”.[3]
[3] Worker’s statement, [2]–[3], ARD, p 87.
The worker said of his work on the date of injury:
“On 26^th July 2018, I was at work lifting and removing furniture from a vacated unit on the third level to the ground floor. I started at 8.00 am, and worked all day. There was no lift in the building. I was working by myself. At 5.30 pm, I noticed my right ankle was swollen and I was in a lot of pain. At 7.00 pm, I developed tightness in my chest as I was about to return home. I had disrupted sleep that night”.[4]
[4] Worker’s statement, [4], ARD, p 87.
The worker stated that he could not work on the following day (a Friday) due to chest pain, and made an appointment to see his general practitioner, Dr Oh, on the following Monday. After a blood test was conducted, Dr Oh arranged for the worker to be taken to Ryde Hospital. He was an inpatient from 31 July 2018 to 2 August 2018, when he discharged himself against medical advice, as he could not afford the cost of treatment.[5]
[5] ARD, p 45, Associate Professor Haber’s report, ARD p 2.
The employer issued a notice of dispute dated 7 September 2018, which stated the worker was “not entitled to workers compensation for [his] injury”. It described the material considered in making the decision as the Discharge Referral and notes, and Certificate of Capacity, from Ryde Hospital, respectively dated 2 August 2018 and 14 August 2018. It outlined how this evidence “supports our decision”:
“On 26 July 2018, you were noted to have sudden onset right sided chest pain when driving following a day of lifting items up and down stairs in the course of your work duties.
You were admitted to Ryde Hospital on 31 July 2018 where a history was provided of heart episode that self resolved after 10 minutes. It was noted further that ‘a few days later had similar episode whilst walking to car to drive. Two days ago had a third episode again, whilst walking to car.
A diagnosis was confirmed as myocardial infarction.
The history provided on the hospital discharge summary confirms multiple episodes, both inside and outside the workplace. Based on the information available, it has been determined that your employment did not give rise to a significantly greater risk of a heart attack or stroke injury. As such, no compensation is payable.”[6]
[6] ARD, pp 101–103.
In the absence of any medical evidence explaining the significance (or lack of it) of the history recorded at Ryde Hospital, how the material relied on by the employer supported the declinature is quite unclear. The worker sought a review of this decision,[7] relying on a report from Associate Professor Haber, a cardiologist qualified by his solicitors, dated 12 November 2018.[8] The insurer issued a review outcome dated 28 December 2018.[9] The only additional evidence considered appears to have been the report of Associate Professor Haber. The insurer maintained its denial of liability. It relied on an alleged absence of evidence to establish that employment was the main contributing factor to any aggravation, etcetera of the workers coronary artery disease, and an absence of evidence to satisfy s 9B of the 1987 Act.
[7] Reply, pp 6–7.
[8] ARD, pp 1–4.
[9] Reply, pp 8–10.

THE ARBITRAL PROCEEDINGS AND DECISION

The proceedings were commenced by the ARD registered on 15 January 2019. They were listed for an arbitration hearing on 7 March 2019. Mr S Hickey appeared for the worker, and Ms Hogan appeared for the employer. The weekly payments claim was withdrawn. There were no applications to adduce oral evidence or to cross-examine. Ms Hogan identified the issues as ‘injury’ within the meaning of s 4 of the 1987 Act, and whether s 9B of the 1987 Act was satisfied.[10] Counsel addressed and the Arbitrator reserved his decision. A Certificate of Determination was issued on 19 March 2019, accompanied by 8 pages of reasons.[11]
[10] Transcript of Proceedings, Kim v Renew God’s Program Pty Ltd ([2019] NSWWCC 109, Arbitrator Isaksen, 7 March 2019), 4.33–34.
[11] Kim v Renew God’s Program Pty Ltd [2019] NSWWCC 109 (Reasons).
The Arbitrator summarised the worker’s statement,[12] and some of the material from Ryde Hospital, including the histories recorded.[13] He referred to the history recorded by Dr Sheriff, a treating cardiologist.[14] He referred to the history recorded by Associate Professor Haber,[15] and the Associate Professor’s views on causation:
“The onset of his heart attack (myocardial infarction) was brought on by the physical work he did carrying heavy pieces of furniture from third floor to ground floor and then onto the truck. Raised troponin confirmed presence of myocardial infarction. It is possible that the onset of the heart attack was stuttering initially brought on by the physical exertion and later another episode occurred for no apparent reason.”[16]
And:
“In my opinion his work involved in repetitive heavy lifting has brought on recent heart attack (myocardial infarction) almost certainly related to his previously asymptomatic coronary artery disease. As he did not have coronary angiogram it is difficult to be certain of the pre-existing state of his coronary arteries.”[17]
[12] Reasons, [18]–[24].
[13] Reasons, [25]–[28].
[14] Reasons, [29].
[15] Reasons, [32].
[16] Reasons, [33].
[17] Reasons, [34].
The Arbitrator noted a submission by the worker’s counsel, that the opinion of the Associate Professor was the only opinion from a cardiologist on causation.[18] The employer arranged no medical evidence of its own.
[18] Reasons, [39].
The Arbitrator referred to the employer’s submission that the worker’s case did not address and meet the requirements of s 9B.[19] The employer relied on my previous decision, when a Senior Arbitrator, in De Silva v Secretary, Department of Finance, Services and Innovation,[20] in which it was said:
“Section 9B(1) does not require a significant risk. It requires a comparison of (1) the risk to which the nature of the employment concerned gives rise and (2) the risk had the worker not been employed in employment of that nature. It is necessary that the first of these be ‘significantly greater’ than the second, if compensation is to be payable.”[21]
[19] Reasons, [40]–[41].
[20] [2015] NSWWCC 279 (De Silva).
[21] De Silva, [105].
The Arbitrator referred to Ms Hogan’s reliance on the episodes of chest pain outside the workplace (recorded by Associate Professor Haber and in the Ryde Hospital notes), which she submitted were not addressed by the worker, and meant the worker had not discharged his onus regarding s 9B. She said there was a pre-existing asymptomatic cardiac condition, and the Associate Professor did not address whether the heart attack would have happened in any event, such that the employment did not significantly increase the risk. Ms Hogan referred to the existence of invoices created by the employer, for work performed on 27 July 2018 and 31 July 2018. She said the worker was the owner of the business of the employer, and this pointed to him working on dates after the commencement of symptoms on 26 July 2018. She submitted this supported the submission that the worker had not discharged his onus under s 9B. [22]
[22] Reasons, [42]–[44].
The Arbitrator referred to the decision of Roche DP in State Transit Authority v El-Achi,[23] in which the Deputy President said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”[24]
[23] [2015] NSWWCCPD 71 (El-Achi).
[24] El-Achi, [72].
The Arbitrator described it as “surprising” that Associate Professor Haber had not provided an opinion dealing with the specific question posed by s 9B.[25] The Arbitrator said he accepted the opinion of Associate Professor Haber in the passages set out at [8] above. He said:
“50. It is clear from the opinion provided by A/Prof Haber that he concluded that the heavy work undertaken by the applicant on 26 July 2018 brought on the heart attack. There is no opinion to the contrary. I consider that it is implicit in this opinion that A/Prof Haber has engaged in a consideration of the comparison of the risk to which the nature of the employment concerned gave rise to and the risk had the worker not been employed in employment of that nature, because A/Prof Haber is categorical in his opinion that the heart attack has been brought on by the heavy work and does not identify any other factors or events or conditions that could have created such a risk.
51. A/Prof Haber is made aware that the applicant did suffer further chest pain after the day’s work on 26 July 2018 and has read the clinical notes from Ryde Hospital which refer to further episodes of chest pain after the onset of chest pain at work, but remains of the opinion that the physical work undertaken by the applicant brought on the heart attack. Notwithstanding A/Prof Haber’s failure or omission to provide an opinion which specifically uses the terminology required of section 9B there is from my reading of his opinion little doubt that his opinion is predicated on the risk of a heart attack being made significantly greater by the heavy work that was undertaken by the applicant on 26 July 2018.”[26]
[25] Reasons, [47].
[26] Reasons, [50]–[51].
The Arbitrator referred to a discrepancy between the worker’s evidence and the history in the notes from Ryde Hospital, regarding the occasions when chest pain was experienced. He said he accepted this bolstered the employer’s argument that there was doubt regarding whether the employment gave rise to a significantly greater risk of the worker suffering the heart attack than if he was not so employed. The Arbitrator referred to a line of authority, including Nominal Defendant v Clancy,[27] regarding the caution to be exercised when relying on clinical notes. He referred to a consistency in the histories recorded by Dr Sheriff, Associate Professor Haber, and on the worker’s admission to hospital, that the worker first experienced chest pain when undertaking heavy work with the employer. He described this as compelling evidence of the heart attack most likely occurring on 26 July 2018, notwithstanding further episodes of chest pain outside the workplace.[28]
[27] [2007] NSWCA 349 (Clancy).
[28] Reasons, [54].
The Arbitrator noted the worker’s counsel confirmed that the worker was the owner of the employer’s business. He said there were further invoices issued by the employer from August 2018 to November 2018. He said he had no reason, on the evidence, to doubt the worker’s incapacity over those times, after the heart attack. It was reasonable to infer the business continued to operate, notwithstanding such incapacity. The worker may have engaged other employees or contractors. The Arbitrator said there was “insufficient evidence to persuade me that the applicant undertook actual physical work for the respondent on 27 July 2018 or 31 July 2018”.[29]
[29] Reasons, [55]–[56].
The Arbitrator accepted Associate Professor Haber’s evidence that “it was the heavy work undertaken by the applicant upon a background of this pre-existing coronary artery disease which caused the applicant to suffer the heart attack”.[30] He said:
“While A/Prof Haber has not employed the specific wording required under section 4(b)(ii), I am in no doubt that a reading of his opinion leads to a finding that the applicant’s employment, which involved heavy lifting and carrying on 26 July 2018, was the main contributing factor to the aggravation and acceleration of the applicant’s coronary artery disease, which caused the applicant to suffer a heart attack on that day.”[31]
[30] Reasons, [57].
[31] Reasons, [58].

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 both 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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.”
In Raulston v Toll Pty Ltd,[32] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[33] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[34]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(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’.”[35]
[32] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[33] (1966) 39 ALJR 505, 506.
[34] [1996] HCA 140; 140 ALR 227.
[35] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[36] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[37]
“… 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.”[38]
[36] [2017] NSWWCCPD 5, [67].
[37] [2001] FCA 1833 (Branir), [28].
[38] Raulston, [20].
In Northern NSW Local Health Network v Heggie[39] Sackville AJA said:
“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”.
[39] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

LEGISLATION

Section 9B of the 1987 Act provides:
“9B   No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1)     No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2)     In this section:
heart attack injury means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with:
(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.
stroke injury means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with:
(a) any stroke, or
(b) any cerebral infarction, or
(c) any cerebral ischaemia, or
(d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(e) any subarachnoid haemorrhage, or
(f) any haemorrhage from such a blood vessel, or
(g) any harm or damage to such a blood vessel or to any associated plaque, or
(h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j) any consequential physical harm or damage, including neurological harm or damage, or
(k) any consequential mental harm or damage.”

GROUNDS OF APPEAL

The employer raises the following grounds of appeal:
(a)    The Arbitrator made an error of law in finding that the respondent had discharged his onus under s 9B of the 1987 Act. (Ground No. 1)
(b)    The Arbitrator made errors of law in finding that the opinion of Associate Professor Haber held that the nature of the employment gave rise to a significantly greater risk of a heart attack than had the worker not been employed in employment of that nature, when Associate Professor Haber gave no such opinion. (Ground No. 2)
(c)    Arbitrator Isaksen failed to provide adequate reasons for his conclusions. (Ground No. 3)
There is considerable overlap between Grounds Nos 1 and 2, in which both deal with whether it was open to the Arbitrator to conclude that s 9B was satisfied, on the evidence before him. It is convenient to deal with these grounds together.

GROUNDS NOS. 1 AND 2

Employer’s submissions

The found injury was a ‘heart attack’, which enlivened s 9B of the 1987 Act. The employer, referring to an arbitral decision in Herbert v American Express Australia Ltd,[40] states there are no Presidential decisions dealing with s 9B. The appellant refers to my previous decision, as a Senior Arbitrator, in De Silva. It submits weight should be placed on that decision, on the construction of s 9B and the process to be taken in determining matters to which s 9B applies.[41]
[40] [2018] NSWWCC 107, [192].
[41] Employer’s submissions, [10]–[13].
The employer submits the Arbitrator made a finding of causation under s 4 of the 1987 Act, but “failed to undertake the separate and additional evaluative task required under s 9B.” It submits it “was not possible for the Arbitrator to undertake the evaluative task because [the worker] failed to provide him with the necessary evidence to enable such task to be completed”. The employer refers to the reasons at [48]–[49], where the Arbitrator said:
“48. Having said that, I do accept that the opinion provided by A/Prof Haber in his report dated 12 November 2018 does satisfy the requirements of both sections 4 and 9B in establishing that the heart attack suffered by the applicant was sustained in the course of his employment and that the nature of his employment gave rise to a significantly greater risk of suffering that heart attack than if he were not so employed.
49. I agree with the submission made by Mr Hickey that it is difficult to see how the applicant has not discharged the onus of proof under sections 4 and 9B when A/Prof Haber, having taken a history form the applicant and reviewed the relevant medical material, opines:
‘The onset of his heart attack (myocardial infarction) was brought on by the physical work he did carrying heavy pieces of furniture from third floor to ground floor and then onto the truck.’
And:
‘In my opinion his work involved in repetitive heavy lifting has brought on recent heart attack (myocardial infarction) almost certainly related to his previously asymptomatic coronary artery disease.’”
The employer submits the above findings are wrong, and inconsistent with the analysis in De Silva. The employer submits ss 4 and 9A require a finding of a causative element, s 9B requires an evaluation of risk. Associate Professor Haber dealt with causation, but did not evaluate “the relative risk of the employment”. The Arbitrator referred to the absence of evidence from a cardiologist in the employer’s case. The employer submits this did “not derogate from the onus that was on the [worker] to make out his case”. The employer submits there should have been a finding that the worker had failed to discharge his onus under s 9B.[42]
[42] Employer’s submissions, [16]–[22].
The employer submits the Arbitrator, in the reasons at [50] (reproduced at [13] above), found that he “could infer that Associate Professor Haber had undertaken the evaluative process under s 9B”. The employer submits this was erroneous. It submits the Arbitrator conflated causation under s 4 with the evaluation of relative risk in s 9B. The employer submits a decision maker may not infer evidence where there is none. Associate Professor Haber’s report did not suggest he had considered s 9B, much less that he had carried out the evaluative task required under the section. The employer submits the inference the Arbitrator drew was not supported by evidence and was an error of law. The employer also submits the Arbitrator erred when he said there were no other relevant factors or conditions identified, when there was pre-existing coronary artery disease. This was of significant relevance to the evaluative task.[43] The employer submits the finding, that Associate Professor Haber’s report evidenced satisfaction of s 9B, was not open.
[43] Employer’s submissions, [24]–[26].

Worker’s submissions

The worker does not challenge the proposition that the relevant injury was a ‘heart attack injury’, and that s 9B has application. The worker accepts that s 9B requires an evaluative process, to determine whether the risk of a heart attack injury from the employment undertaken is significantly greater than were he not so employed.[44] The worker’s submissions refer to the passage from El-Achi quoted (in part) at [12] above. The Arbitrator recognised that he was obliged to undertake an evaluative process, having regard to the whole of the evidence. This, it is submitted, the Arbitrator did.
[44] Worker’s submissions, [13]–[14].
The worker submits the Arbitrator had the necessary evidence to engage in, and did engage in, the evaluative task. The necessary evidence was to be found in the report of Associate Professor Haber, which was uncontested.[45] The worker refers specifically to the reasons at [50]–[51] (reproduced at [13] above).
[45] Worker’s submissions, [19]–[21].
The worker disputes the assertion that the Arbitrator conflated issues of injury and causation, with the evaluative task referred to in s 9B. The worker refers to the reasons at [48]–[50]. The worker submits the Arbitrator, appropriately, dealt with the issue of causation raised by the dispute regarding injury, and then determined the issue pursuant to s 9B.[46]
[46] Worker’s submissions, [22]–[23].
The worker’s submissions then refer to how s 9B was applied in De Silva, and a number of other arbitral decisions.[47] The worker’s submissions described Associate Professor Haber’s opinion on causation as “forthright and incontrovertible”. He submits there was “clear evidence that the heavy nature of the work caused the heart attack”. He submits there is “obviously some overlap where in a significant sense the actual work caused the injury”. He submits that providing the Arbitrator applied the s 9B test, there was no error.
[47] Worker’s submissions, [27]–[30].

Employer’s submissions in reply

The employer submits the effect of the worker’s submission is that if causation is satisfied, s 9B is satisfied. However, both parties accept that an evaluative test was required under s 9B. The employer reiterates that there is no evidence the s 9B test was satisfied. It submits the worker’s submission would leave s 9B with no work to do; evidence sufficient to satisfy ss 4 or 9A would also be sufficient to satisfy s 9B. The intention of Parliament was to provide a further test under s 9B, in addition to the tests under ss 4 and 9A.[48]
[48] Employer’s submissions in reply, [1]–[2].
The employer refers to the arbitral decisions referenced in the submissions of the worker. In respect of De Silva, it submits the decision turned on the phrase ‘significantly greater risk’ and a comparator, the deceased being at home with his wife, compared to being alone in a motel room due to the nature of the employment concerned. It submits that, in the present case, no comparator is given in the reasons at [49]–[50]. The employer submits the arbitral decisions other than De Silva referred to either are wrongly decided, or irrelevant to the issues on this appeal.

Consideration

The issue of ‘injury’ was decided in the worker’s favour, the Arbitrator finding:
“1. The [worker] sustained a heart attack injury in the course of his employment with the respondent on 26 July 2018.
2. The [worker’s] employment was the main contributing factor to the aggravation and acceleration of the [worker’s] coronary artery disease, which caused the [worker] to have a heart attack on 26 July 2018.”[49]
[49] Certificate of Determination dated 19 March 2019.
The above findings are not challenged on this appeal. It is inherent, in the finding of ‘injury’, that the worker’s employment was the ‘main contributing factor’ to the aggravation and acceleration of coronary artery disease which caused the heart attack injury. The parties accept that s 9B of the 1987 Act applies, and that if it is not satisfied, no compensation is payable in respect of the injury. The employer submits that the worker carries the onus of satisfying s 9B; there is no submission to the contrary.[50] Both parties have referred to the decision in De Silva. The employer has submitted that weight ought to be placed on that decision, which is “detailed and well-reasoned”, regarding “how one ought to construe s 9B and the process which ought to be undertaken when determining matters under the provision”.[51] Neither party submits that the consideration of s 9B in De Silva is wrong, in any specific respect.
[50] Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, [9], 302–3.
[51] Employer’s submissions, [13].
De Silva refers to the exercise under s 9B(1) involving a “comparison of the level of risk”[52] The passage from De Silva quoted at [10] above describes the nature of the comparison. Neither party suggested it was inappropriate to apply the reasoning in De Silva. There was discussion in De Silva regarding the meaning of the phrase ‘the employment concerned’, where that phrase is used in s 9B(1). In De Silva, I concluded that phrase has the same meaning as when the same words are used in s 9A(1), being a reference to “what the worker in fact does in the employment that caused or contributed to the injury”. That is, the reference is to “the particular employment in which a worker suffered injury”, rather than to “a class or classification of employment”.[53] Neither party challenges that aspect of the reasoning in De Silva on this appeal.
[52] De Silva, [93].
[53] De Silva, [56]–[73], particularly at [70] and [73].
The test in s 9B requires that the relevant risk in the employment concerned be “significantly greater” than the risk “had the worker not been employed in employment of that nature”. In De Silva I concluded that satisfaction of this test required a risk in the employment concerned that was greater, in a way that was “important; of consequence”.[54] This aspect of the reasoning in De Silva is not challenged on this appeal.
[54] De Silva, [105]–[106].

The evidence relevant to s 9B

The employer’s argument based on s 9B flows, to a significant extent, from the failure of the worker’s medical case to specifically address the requirements of the section (see the employer’s submissions summarised at [28]–[30] above). In cases where the injury is of such a nature that s 9B is raised, it is clearly desirable that the parties’ medical evidence address it. In this instance, neither party had evidence that specifically dealt with the topic; in the worker’s case because it does not appear that Associate Professor Haber was asked, and in the employer’s case because it arranged no medical evidence of its own.
The Arbitrator, correctly, referred to the passage from El-Achi quoted at [12] above. It was necessary that he consider, on the whole of the evidence, whether the requirements of s 9B were satisfied or not. He referred to the test briefly, but appropriately, as whether “the nature of the employment gave rise to a significantly greater risk of suffering the heart attack than if he were not so employed”.[55] The employer, in its submissions, refers to the existence of a comparator in De Silva, where there was comparison of the risk to the worker at home, compared with the risk on his own in a motel room in the course of his employment. The employer submits that, in the current matter, the Arbitrator refers to no comparator for the nature of the worker’s employment.[56]
[55] Reasons, [48].
[56] Employer’s submissions in reply, [3a].
The worker’s evidence of his duties is found in his statement, summarised at [2]–[3] above. The statement refers to both the worker’s duties in a general sense, and more specifically on 26 July 2018. This was the date on which, in Associate Professor Haber’s opinion, uncontradicted by other medical evidence, the worker suffered a myocardial infarction, after work carrying heavy pieces of furniture from the third floor to the ground floor and then to his truck.[57] The Arbitrator clearly accepted the worker’s evidence regarding “the nature of the employment concerned”, as he accepted the evidence on causation of Associate Professor Haber, who recorded a history consistent with the worker’s statement. The section supplies its own comparator, which is if the worker had “not been employed in employment of that nature”. The nature of the duties described in the worker’s statement was clearly of a very heavy nature.
[57] Associate Professor Haber’s report, ARD p 3, at ‘My opinion’.
The Arbitrator accepted the opinion of Associate Professor Haber, that the “onset of his heart attack (myocardial infarction) was brought on by the physical work he did carrying heavy pieces of furniture from third floor to ground floor and then onto the truck”.[58] From this opinion on causation, the Arbitrator reasoned there was “little doubt that [Associate Professor Haber’s] opinion is predicated on the risk of a heart attack being made significantly greater by the heavy work that was undertaken by the [worker] on 26 July 2018”.[59] The logic of this is straightforward. For the doctor to conclude that the work on 26 July 2018 caused the myocardial infarction, he must have held the opinion that there was a significant risk of it doing so, compared with a situation where the worker did not carry out such duties. On the evidence, there was another factor to be considered, the presence of “previously asymptomatic coronary artery disease”.[60] However, the doctor was aware of the presence of that disease and formed his view on causation, notwithstanding its presence.
[58] Reasons, [49].
[59] Reasons, [51].
[60] Associate Professor Haber’s report, ARD p 4.
I accept the employer’s submission that, consistent with what was said in De Silva, s 9B involves an evaluative task, applying the comparison that is inherent in the section. I accept that it involves an assessment of comparative risks, and is not a test of true causation. Such issues in ‘heart attack’ cases are frequently multifactorial. The simple logical extension of Associate Professor Haber’s opinion on causation, to the issue of whether the test in s 9B was satisfied, will not be appropriate in all cases. I do not accept the employer’s submission that the Arbitrator failed to undertake the evaluative task required under s 9B. He clearly turned his mind to the nature of the test, and whether the evidence was sufficient to satisfy it. He concluded, in the circumstances of the particular case, that the opinion of Associate Professor Haber was sufficient to do so. The employer submits that Associate Professor Haber’s report does not suggest that he had considered s 9B. This to some extent misses the point. The section does not require that there be medical evidence to some particular effect. Rather it was necessary, on all of the evidence, that the Arbitrator determine whether the test in s 9B was satisfied.
In this matter, there was evidence of previously asymptomatic coronary artery disease, the aggravation and acceleration of which constituted the injury found pursuant to s 4(b)(ii) of the 1987 Act. On the uncontroverted evidence of the worker, his employment duties were physically heavy. There was evidence of plainly heavy, physical work over a lengthy working day, on 26 July 2018, followed by the commencement of tightness and discomfort in the chest at the end of that day.[61] The only specialist medical evidence dealing with matters of causation or risk was from Associate Professor Haber, who considered the myocardial infarction “was brought on by the physical work he did [carrying] heavy pieces of furniture”.[62] The employer relied on no competing evidence to the contrary. The specialist medical evidence did not raise other risk factors.
[61] Worker’s statement, [4], Associate Professor Haber’s report, ARD p 2.
[62] Associate Professor Haber’s report, ARD p 3.
The employer submits the Arbitrator drew an inference which was not supported by evidence (see [30] above). The Arbitrator’s reasons did not approach his finding regarding s 9B as involving the drawing of an inference.
In Bradshaw v McEwans Pty Ltd[63] the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”[64]
[63] (1951) 217 ALR 1 (Bradshaw).
[64] Bradshaw, [5].
The above passage from Bradshaw was described as “the test to be applied” in Luxton v Vines.[65]
[65] [1952] HCA 19; 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [8].
The conclusion the Arbitrator drew, about Associate Professor Haber’s opinion on comparative risk and whether the requirements of s 9B were satisfied, was open to him on the basis of inference (see [44] above).
In Northern NSW Local Health Network v Heggie[66] Sackville AJA (Basten and Ward JJA agreeing) referred to the passage from Branir quoted at [22] above, saying:
“… as Roche DP pointed out in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, at [20], the observations of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) need to be borne in mind, particularly (I would add) where the challenge is to an evaluative judgment such as the reasonableness of actions by an employer with respect to discipline.”[67]
[66] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[67] Heggie, [71].
Although the subject matter is different, the test contained in s 9B of the 1987 Act also involves an evaluative judgment. The above passage from Heggie is relevant.
The employer submits the approach taken by the Arbitrator leaves s 9B with no work to do, if causation is satisfied in finding ‘injury’. In the circumstances of this particular case, the Arbitrator concluded that the medical opinion evidence that satisfied the test of causation was also sufficient to satisfy the requirements of s 9B. It was a case where the competing causal factors were very limited. The worker suffered from pre-existing asymptomatic coronary artery disease. The Arbitrator found, consistent with the uncontradicted opinion of Associate Professor Haber, that that condition was aggravated and accelerated by the worker’s employment duties on 26 July 2018. On that day, the worker carried out duties which were physically very arduous. The evidence did not identify any other contributory factors. It will be common for such cases to involve more complex medical scenarios with a range of competing causal factors. It will be common for the factual scenarios that lead to injury to be more varied, with work and non-work factors simultaneously in operation. I do not accept that, as a general proposition, the approach taken by the Arbitrator, which the worker seeks to defend on appeal, leaves s 9B with no work to do.

On the evidence as a whole, the finding made by the Arbitrator regarding s 9B of the 1987 Act was open to him, and does not reveal error. Grounds Nos. 1 and 2 fail.

GROUND NO. 3

Ground No. 3 raises the adequacy of the Arbitrator’s reasons.

Employer’s submissions

The employer refers to a decision of Acting Deputy President King SC in which it was said:
“The written submissions of both parties collect and cite the body of authority which has come into existence in relation to judicial reasons. To my mind the essential propositions are uncontroversial and the important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.”[68]
[68] NSW Police Force v Hahn [2017] NSWWCCPD 51, [61].
Reference is also made to a passage in Raulston where Roche DP adopted[69] McHugh JA’s comment in Soulemezis v Dudley (Holdings) Pty Ltd,[70] that “[i]n many cases the reasons for preferring one conclusion to another also need to be given”.
[69] Raulston, [46].
[70] (1987) 10 NSWLR 247, 280.
The employer refers to the reasons at [45]–[49], stating that the Arbitrator there “expressed some concerns”, but then concluded “Associate Professor Haber’s report satisfied the requirements of s 9B”, without providing adequate reasons. The employer describes this ground as having “some overlap” with Ground No. 2.[71]
[71] Employer’s submissions, [30].
The employer then refers to the reasons at [52]–[54]. It submits the Arbitrator expressed some concerns regarding discrepancies in the clinical notes, but then “jumped to the finding that the records constituted ‘compelling evidence’.” The employer submits the line of reasoning for this conclusion was not exposed.

Worker’s submissions

The worker submits that, having expressed concerns at [46]–[47] of the reasons, the Arbitrator said he was persuaded by the uncontested evidence of Associate Professor Haber. The Arbitrator gave reasons for this at [49]–[51].[72]
[72] Worker’s submissions, [33].
Dealing with the employer’s argument based on the reasons at [52]–[54], the worker submits the records, which the Arbitrator described as “compelling evidence”, are referred to in the reasons as the worker’s evidence (confirmed in the report of Associate Professor Haber), the history recorded by Dr Sheriff and the history recorded by Associate Professor Haber. The Arbitrator gave reasons for accepting this evidence, rather than the “total histories in the Ryde Hospital material”. The worker submits the Arbitrator referred to the decision in Clancy and associated authorities, regarding the caution to be exercised when relying on clinical notes. The worker submits the Arbitrator preferred the evidence of the worker, and the histories recorded by Dr Sheriff and Associate Professor Haber, the “compelling evidence” to which he had referred. Associate Professor Haber had regard to the clinical notes from Ryde Hospital in preparing his report. The worker submits the Arbitrator clearly preferred to accept one body of evidence over another, and gave detailed reasons for doing so.[73]
[73] Worker’s submissions, [34]–[36].

Consideration

A significant number of authorities dealing with the duty to give reasons are helpfully summarised by McColl JA in Pollard v RRR Corporation Pty Ltd.[74] It is unnecessary to recite her Honour’s summary at length. The extent and content of the requirement for reasons will depend on the particular case. As a minimum, reasons must be sufficient for the exercise of a facility of appeal. It is necessary to expose the reasons for deciding a point critical to the contest between the parties. The reasons should be sufficient to enable the parties to understand the basis of the decision and why one case is preferred over another. The reasons for the decision under review are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[75] It is necessary that the reasons be read as a whole.[76]
[74] [2009] NSWCA 110 (Pollard), per McColl JA (Ipp JA and Bryson AJA agreeing), [56]–[66].
[75] Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280, 287. See also Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, [30].
[76] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The reasons at [45]–[49] referred to the fact that Associate Professor Haber’s report did not provide a specific opinion on the test contained in s 9B, which the Arbitrator found “surprising”. The Arbitrator then said that the Associate Professor’s report satisfied the requirements of s 9B (in addition to s 4) in any event. He referred (in part) to the passages of the report quoted at [8] above, and said he accepted the worker’s submission that it was “difficult to see how the [worker] has not discharged the onus under sections 4 and 9B”, given those passages. He described the Professor as being “categorical in his opinion that the heart attack has been brought on by the heavy work and does not identify any other factors or events or conditions that could have created such a risk”.[77] The Arbitrator concluded:
“Notwithstanding A/Prof Haber’s failure or omission to provide an opinion which specifically uses the terminology required of section 9B there is from my reading of his opinion little doubt that his opinion is predicated on the risk of a heart attack being made significantly greater by the heavy work that was undertaken by the applicant on 26 July 2018.”[78]
[77] Reasons, [50].
[78] Reasons, [51].
In my view, the Arbitrator’s reasons for reaching this conclusion are quite adequate. The “concerns” identified by the employer referred to the fact that Associate Professor Haber’s report did not specifically address the requirements of s 9B. The Arbitrator then referred to specific passages from the Associate Professor’s report, and accepted a submission from the worker’s counsel that these were sufficient to satisfy the test in s 9B. There is no merit to the argument that the reasons are deficient in this regard.
The submissions also raise the adequacy of the reasons at [52]–[54]. The employer submits the Arbitrator identified “concerns with discrepancies in the clinical notes and the history taken by Associate Professor Haber” and then “jumped to the finding that the reasons constituted ‘compelling evidence’”. The employer submits the line of reasoning was not exposed.
The Arbitrator did not identify concerns with the history recorded by Associate Professor Haber. The Arbitrator said there was a discrepancy between the evidence of the worker, which was confirmed in Associate Professor Haber’s report, when compared with the history in the “clinical notes from Ryde Hospital as to when the [worker] experienced chest pain”. He then described the clinical notes recorded on admission at the hospital. He said the discrepancies bolster an argument made by the employer, that there were episodes of chest pain not related to the worker’s work, which would put in doubt whether s 9B was satisfied.[79]
[79] Reasons, [52]–[53].
There is a line of authority going to the need for caution when dealing with clinical notes recorded by treating medical practitioners. It is dealt with in Winter v New South Wales Police Force,[80] in which Roche DP said:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).”
[80] [2010] NSWWCCPD 121 (Winter). The decision was set aside on appeal in New South Wales Police Force v Winter [2011] NSWCA 330, on a different issue.
The Arbitrator referred to a “number of decisions” that say caution should be exercised when relying on clinical notes, referring specifically to Clancy, one of the decisions cited in Winter. The reasons for the caution were explained in Mason v Demasi,[81] where Basten JA said:
[81] [2009] NSWCA 227 (Mason).
“… the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[82]
[82] Mason, [2].
The worker’s statement recorded that he experienced chest tightness at the end of his day’s work on 26 July 2018 (a Thursday), and could not work on the following day due to chest pain. He saw Dr Oh (his general practitioner) on 30 July 2018 (a Monday).[83] He was admitted to Ryde Hospital on 31 July 2018 (a Tuesday). The history recorded by Associate Professor Haber was consistent with this.[84] Following the worker’s release from hospital on 2 August 2018, he saw a cardiologist, Dr Sheriff, who on 6 August 2018 reported that he had seen the worker on that day. He recorded the history:
“Mr Kim developed chest discomfort two weeks ago. He is a housing manager and was disposing of some heavy items when he developed sudden onset retrosternal chest discomfort. Despite his family advising him to go to the hospital, he did not attend. He was reviewed by yourself a few days later. His troponins at the time was [sic] significantly elevated and he was referred appropriately to Ryde Hospital for investigation.”[85]
[83] Worker’s statement, [4]–[6], ARD, p 87.
[84] Associate Professor Haber’s report, ARD, p 2.
[85] Dr Sheriff’s report dated 6 August 2018, ARD, pp 82–83.
The “History of Present Illness” on admission to Ryde Hospital was recorded as follows:
“Last Sunday whilst cleaning house and frequently walking up and down stairs developed sudden onset right sided chest pain. No radiation or associated N +V/SOB/clamminess. Episode self resolved after 10 minutes. A few days later had similar episode whilst walking to car to drive. Two days ago had a third episode again, whilst walking to car.
Presented to GP yesterday who arranged blood test for today – troponin 700 (taken at 0900), therefore GP advised to attend ED. Patient called ambulance but no medication was administered.
Currently pain free. Denies any SOB. Systemically well.
Non smoker, no drinker.
No known history of HTN, high chol
Healthy BMI
Physically active in job”.[86]
[86] ARD, p 17.
Essentially, the worker’s statement, and the histories recorded by Dr Sheriff and Associate Professor Haber, were consistent. The history recorded at Ryde Hospital of the onset of chest symptoms was also generally consistent, subject to the description of it occurring on a Sunday (the history was taken on a Tuesday). On a literal reading of the history recorded at the hospital, the onset was on the Sunday, two days prior to the history being recorded. This literal reading raised difficulties of its own, given the other episodes of chest symptoms recorded in that history. The Arbitrator referred to having noted the discrepancies. He said there was “a consistency in the history taken upon the [worker’s] admission to hospital, the history recorded by Dr Sheriff and the history recorded by A/Prof Haber, that the [worker] first experienced chest pain when undertaking heavy work for the respondent, notwithstanding further episodes of chest pain outside of the workplace”.[87]
[87] Reasons, [54].
Associate Professor Haber, whose opinion the Arbitrator accepted, had access to the notes from Ryde Hospital. He said the myocardial infarction “was brought on by the physical work he did [carrying] heavy pieces of furniture from third floor to ground floor and then onto the truck”. The Associate Professor referred to the possibility “that the onset of the heart attack was stuttering initially brought on by the physical exertion and later another episode occurred for no apparent reason”.[88] This possibility did not affect the Professor’s conclusion that the “repetitive heavy lifting” brought on the heart attack.
[88] ARD, p 3.
When the reasons are read as a whole, it is apparent that the Arbitrator approached the contents of the Ryde Hospital clinical notes with caution, consistent with the line of authority to which he referred. He identified a common thread in the histories recorded at the hospital, by Dr Sheriff and by Associate Professor Haber, which was that chest symptoms commenced when undertaking heavy work for the respondent.[89] He concluded this provided “compelling evidence that the [worker] did sustain a heart attack while undertaking heavy work for the respondent”, and that it “was most likely to have occurred on 26 July 2018”.
[89] Reasons, [54].
In my view the Arbitrator’s reasons dealing with this issue adequately complied with his obligations.
Ground No. 3 fails.

DECISION

The three grounds of appeal raised by the employer have all been unsuccessful.
The Arbitrator’s decision dated 19 March 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

30 August 2019