Rossouw v North Metropolitan Health Service
[2024] WADC 64
•9 AUGUST 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROSSOUW -v- NORTH METROPOLITAN HEALTH SERVICE [2024] WADC 64
CORAM: CURWOOD DCJ
HEARD: 25 JANUARY 2024
DELIVERED : 9 AUGUST 2024
FILE NO/S: APP 48 of 2023
BETWEEN: ROSEMARY ROSSOUW
Appellant
AND
NORTH METROPOLITAN HEALTH SERVICE
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR MELVILLE
File Number : A96419
Catchwords:
Workers' compensation claim - Appeal from Workers' Compensation Arbitration Service - Whether claim for right hip injury was within proper scope of issues in dispute in the arbitration between the parties - Claim for payment of medical expenses under sch 1 cl 17 of the Workers' Compensation and Injury Management Act 1981 (WA)
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr J R Clyne |
| Respondent | : | Mr N F Morrissey & Mr L E M Bayly |
Solicitors:
| Appellant | : | Simon Walters |
| Respondent | : | HWL Ebsworth |
Case(s) referred to in decision(s):
Ainsworth v Criminal Justice Commissioner (1992) 175 CLR 564
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Catholic Education Office of WA v Granitto [2012] WASCA 266
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Christopher Ede v Alcoa of Australia Ltd (Unreported, CM 192/01 (Packington SM) 2 July 2002)
Clarke v Ramsay Health Care Australia [2017] WADC 117
Dodson v Woolworths Group Ltd [2020] WADC 157
Duracraft Pty Ltd v Rebecca Maree Beer (Unreported, CM 194/00 (Cockram PG) 22 May 2001)
Fisher v Nonconformist Pty Ltd [2024] NSWCA 32
Halida Nezic v Gracious Holdings Pty Ltd t/as Quantum Cleaning Services (Unreported, CM 33/04 (Packington SM) 19 July 2004)
Hart v JGC Accounting & Financial Services Pty Ltd [2015] WASCA 22
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
River Hill Contracting Pty Ltd v Moore [2023] WASCA 111
CURWOOD DCJ:
An overview and brief reasons why the appeal should be dismissed
On 30 March 2017 the appellant, Ms Rossouw, injured her left knee in a car accident.[1] She was driving in the course of her employment with the respondent, North Metropolitan Health Service. She claimed compensation and statutory expenses under the Workers' Compensation and Injury Management Act1981 (WA) (the Act) for the injuries which she says she suffered in the car accident, and for an alleged recurrence of those injuries, later in 2017.
[1] She alleged that she suffered other injuries beyond her left knee, but at the arbitration hearing the subject of the appeal, the arbitrator found that the only 'injury' suffered was one to her left knee.
On 31 August 2023, more than six years after the car accident, Ms Rossouw's claim for workers' compensation and statutory expenses under the Act was dismissed after an arbitration hearing before Mr S Melville, an arbitrator appointed by the Workers' Compensation Arbitration Service.
Ms Rossouw's central complaint in this appeal is that the arbitrator did not consider 'or determine' whether a fractured hip she suffered three years after the car accident, on 20 March 2020, was an 'injury' within the meaning of the Act. Further, the arbitrator ought to have made an order compelling the respondent to pay Ms Rossouw's medical expenses for her hip injury.
As I will refer to in greater detail below, an obvious difficulty the arbitrator had in making an assessment as to whether the respondent was liable to pay Ms Rossouw any sum for medical expenses was a paucity of evidence about the circumstances of the right hip injury or the treatment and expenses that were incurred as a result of it. No evidence was adduced of any medical expenses Ms Rossouw paid or incurred for the hip injury.
At a high level of generality, this appeal requires a consideration of injuries that Ms Rossouw says she suffered at three different time intervals. The first period is 30 March 2017 when she suffered injury in a car accident in the course of her employment with the respondent.
The second period is in October 2017 when Ms Rossouw claimed she suffered a recurrence of the injury (or injuries) she suffered in the motor vehicle accident and also developed a psychiatric injury.
The third period is on 20 March 2020 when Ms Rossouw had a fall at home and fractured her right hip. Ms Rossouw claimed that the fall which caused her hip injury was caused by weakness in her right leg. That weakness was, in turn, caused by an epidural infusion to her lower back which was administered earlier the same day.
At the arbitration hearing, Ms Rossouw sought from her employer the payment of weekly payments under the Act for a period which predated the hip injury, from October 2017 - May 2018. As noted, she did not tender any evidence of medical expenses that she had incurred (or was likely to incur) with respect to her hip injury. Ms Rossouw's evidence‑in‑chief in support of her claim before the arbitrator was given by a written statement. That statement did not mention her hip injury (nor the expenses she had incurred as a result of the injury).
Before Ms Rossouw's counsel commenced his closing address to the arbitrator, the only occasion that reference was made to the hip injury was during some questions the respondent's counsel asked of Ms Rossouw about the 20 March 2020 fall.[2]
[2] In the written material before the arbitrator, which was submitted before the hearing, were some references to the hip injury in a medical report which formed part of the arbitration bundle of documents (and which was referred to in Ms Rossouw's written submissions). I discuss the extent of those references later in these reasons.
The arbitrator found that the only 'injury'[3] Ms Rossouw suffered because of the car accident of 30 March 2017 was an injury to her left knee. Further, the arbitrator found that that injury had resolved, or fully recovered, by 20 December 2017. The arbitrator found that no other injury was suffered by Ms Rossouw in the car accident, nor was there any aggravation of her knee injury after 20 December 2017.
[3] Within the meaning of the Act.
In this appeal, Ms Rossouw does not complain about the arbitrator's dismissal of her claims for compensation for her alleged injuries to her neck, left shoulder, lower back and a consequent psychiatric injury. Those claims were propounded as having been caused by the March 2017 car accident.
The complaint raised by this appeal only seeks to challenge the decision of the arbitrator not to determine her claim for the hip injury which occurred on 20 March 2020. Ms Rossouw says the arbitrator made an error of law in deciding that a claim by her for compensation under the Act for a hip injury was not properly before him, or put another way, that a claim for compensation for the hip injury was not an issue in dispute between Ms Rossouw and the respondent. Further, he should have decided that Ms Rossouw's hip injury was an 'injury' within the meaning of the Act and ordered the respondent to pay her medical expenses which she could then submit to the respondent for verification and payment.
For the reasons that follow, Ms Rossouw's appeal has two separate hurdles which cannot be overcome:
1.Because Ms Rossouw, as the propounder of her own case before the arbitrator, did not give:
(a)oral evidence in support of a claim by her for compensation for a right hip injury, rather she was only asked some questions about the right hip injury in cross‑examination; and
(b)evidence of any loss that she had suffered, or costs that she had incurred, by virtue of the right hip injury;
an arbitrator could not, in my opinion, treat a claim for the right hip injury as being within the ambit of the dispute between the parties for the arbitration.[4]
2.Ms Rossouw's fall on 20 March 2020, on her own case, happened after she was treated for lower back pain. That pain treatment, a spinal infusion, Ms Rossouw says caused weakness in her right leg which caused her to fall later that day and fracture her hip. The difficulty with this formulation of the case is that her back injury was held by the arbitrator to not constitute an 'injury' within the meaning of the Act. That finding is not challenged in this appeal. As a consequence, if there was no 'injury' of Ms Rossouw's back within the meaning of the Act, the right hip injury cannot have been a recurrence or aggravation of an earlier 'injury' because the fall which resulted in the fracture of the right hip occurred after medical treatment to her lower back.
[4] Both parties conceded that there was no impediment to Ms Rossouw bringing a future claim under the Act for compensation to be paid to her for the medical expenses she had incurred with respect to her right hip injury.
For these reasons, and for the reasons further explained below, Ms Rossouw's application for leave to appeal should be refused and the appeal should be dismissed.
Grounds of appeal
By her appeal notice filed 19 September 2023, Ms Rossouw raises two grounds of appeal:
1.The Learned Arbitrator erred in finding there was no dispute in connection with a claim for compensation in respect of the appellants claimed 20 March 2020 hip injury.[5]
2.The Learned Arbitrator erred in finding that medical expenses claimed under Schedule 1 clause 17 must actually have been incurred, rather than being merely likely to be incurred.[6]
[5] The effect of that ground is that the claim with respect to the right hip was part of the ambit of the arbitration and that the arbitrator made an error of law in not making findings with respect to that claim.
[6] This ground centres on the fact that although no evidence of medical expenses was provided by the appellant in the arbitration hearing, the arbitrator's error of law was in not considering that medical expenses had been incurred and thereby ought to have deferred the quantification of medical expenses to a later date. It was conceded in the course of the hearing that ground 2 did not need to be considered if ground 1 failed.
The appeal grounds do not challenge any of the factual findings made by the arbitrator.
As I have noted, the only injury the arbitrator found that the appellant suffered as a result of the car accident on 30 March 2017 was to the appellant's left knee, whereby an underlying degeneration was aggravated.
The arbitrator also found that Ms Rossouw was able to perform the duties she was employed by the respondent to do over the period 2 October 2017 - 3 May 2018. As a consequence, there could not have been any error in the dismissal of her claim for weekly payments for that period.
The requirement for the appeal to involve a question of law
Ms Rossouw requires leave to appeal against the arbitrator's decision. In order to justify a grant of leave, the appeal must concern an issue of law.[7] An appeal involves a question of law when either an error of law, or error of mixed law in fact, is involved.[8] A detailed summary of the legal principles which apply to a grant of leave and what constitutes an error of law is set out in Dodson v Woolworths Group Ltd.[9]
[7] Secion 247(2) of the Act.
[8] Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] (Murphy JA with whom Pullin & Newnes JJA agreed).
[9] Dodson v Woolworths Group Ltd [2020] WADC 157 [17] ‑ [24] (Lonsdale DCJ).
A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[10] A consideration of whether there is a realistic possibility that the error could have made a difference to the result is consistent with the requirement for materiality in establishing jurisdictional error.[11]
[10] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ with whom Brennan J agreed with); see also Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ); CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [111] (Gaudron J).
[11] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 [50] (Kirk JA with whom Meagher JA & Simpson AJA agreed with).
In this respect, the High Court recently considered the issue of materiality in errors of law in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs where the plurality said the following:[12]
6In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a 'threshold of materiality' in the event of non‑compliance.
…
14The question in these cases is whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error. 'Realistic' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
15What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicants further evidence or submissions with an open mind. In those cases, it is 'no easy task' for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision‑maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
[12] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [6], [7], [14] ‑ [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson & Jagot JJ). Beech-Jones J agreed with their Honours, but wrote separately about other aspects of the case (at [38]).
What are the issues to be determined in the appeal?
The issues which must be determined to resolve Ms Rossouw's two appeal grounds, are as follows:
1.Did Ms Rossouw's claim under the Act include a claim for compensation for an 'injury' within the meaning of the Act to her right hip?
2.If so, was the arbitrator able to make any award of compensation for an injury to Ms Rossouw's right hip without specific evidence of what costs had been incurred by her (or would be incurred by her) in treatment of the injury?
Issue 2 arises in a context where Ms Rossouw conceded in the appeal that the claim before the arbitrator did not include any claim for weekly payments under the Act from 20 March 2020 being the date of her hip injury.
What injuries did Ms Rossouw claim she suffered in the 30 March 2017 car accident?
As I have noted, Ms Rossouw alleged that in the car accident she suffered injuries to her neck, left shoulder, lower back and knees.
During the arbitration hearing it emerged that Ms Rossouw had a history of neck and back pain, shoulder pain and depression.
In his final decision, the arbitrator found that the car accident did not cause any injury to Ms Rossouw's back, neck or shoulders. Rather, the car accident caused Ms Rossouw to suffer an injury to her left knee, but this injury had recovered fully by 20 December 2017. Further, the knee injury did not result in Ms Rossouw suffering any inability to perform the duties she was employed to carry out.[13]
When did Ms Rossouw lodge a workers' compensation claim and what did she notify her employer about in her claim?
[13] Arbitrator's reasons [141].
On 6 April 2017 Ms Rossouw submitted to the respondent a workers' compensation claim form.[14] In the claim form she described the bodily location of the injury she sustained, to her 'knees, legs, neck and back'.
[14] Appeal book, page 211 (AB). In preparation of the hearing of the appeal, the parties prepared an appeal book which contained each party's book of documents for the hearing before the arbitrator (containing medical and other evidence) together with the arbitrator's reasons for decision and a transcript of the proceedings. The AB ran to more than 760 pages.
On 24 April 2017 the respondent's insurer advised liability for the weekly payments of compensation and for statutory benefits was accepted.
From 30 March 2017 until 19 April 2017 Ms Rossouw was certified as being unfit for work by a general practitioner.
On 20 April 2017, Ms Rossouw returned to work for the respondent. On 2 October 2017 she resigned from her employment with the respondent.
What was Ms Rossouw's case about the fracture of her right hip which occurred on 20 March 2020?
On 20 March 2020, Ms Rossouw fractured her right hip after a fall at home. Ms Rossouw's case was that she was administered an epidural infusion to her lower back as part of a treatment for lower back pain. Further, she contended that the lower back pain was caused by the car accident of 30 March 2017. According to Ms Rossouw, the epidural infusion caused weakness to her right leg. Further, that weakness caused her to fall at home during the evening of 20 March 2020 and fracture her right hip. She subsequently had two operations to her hip.[15]
[15] AB, pages 7, 223.
Did Ms Rossouw later claim a recurrence of the injuries she suffered on 30 March 2017?
Ms Rossouw alleged she suffered a recurrence of the injuries she sustained in the car accident.
On 1 March 2022, as part of her claim for compensation under the conciliation process mandated by the Act, Ms Rossouw lodged particulars of recurrence of injury with respect to her application. That document refers to Ms Rossouw seeking a determination of liability regarding a recurrence of accident injuries culminating in October 2017, with the date of recurrence being noted as 26 October 2017. The document alleged the recurrence of various injuries to her neck, shoulder, back and knees. There was no mention of her hip injury, notwithstanding that the document was filed almost two years after the hip injury had occurred.
Claim proceeds through the conciliation process
What documents did Ms Rossouw lodge to outline her claim in the conciliation conference?
In 2021, Ms Rossouw applied for the resolution of her claim by conciliation under div 3 of the Act. A conciliation conference was conducted (by teleconference) initially on 16 March 2021 and continued on 9 June 2021.
On 9 June 2021 a conciliation officer of the Workers' Compensation Conciliation Service issued a certificate of outcome concluding the conciliation process.[16] The certificate of outcome recorded that Ms Rossouw was seeking a determination of liability regarding:
[R]ecurrence of accident injuries on 31/03/2017 [sic] with respect to payment of weekly payments and any incurred and outstanding medical expenses since the date of injury and ongoing, and other statutory allowances.
[16] AB, page 208.
The certificate of outcome also recorded that 'there was minimal chance of agreement being reached, conciliation has now ended'. As part of the conciliation process, a proof of evidence which was signed by Ms Rossouw and dated 30 March 2018 had been submitted to the Workers' Compensation Arbitration Service.
How did Ms Rossouw advance her claim against the respondent to arbitration?
On 1 July 2021 Ms Rossouw lodged an application for arbitration.[17] The application records the nature and description of injury as follows:
Whilst under the employment of the respondent, Ms Rossouw was involved in a work‑related motor vehicle accident on or about 30/3/2017 where she sustained injuries of: - a cervical flexion - extension soft tissue injury resulting in chronic neck pain and restriction; a left shoulder soft tissue injury resulting in left shoulder pain and restriction; exacerbation of lumbosacral spondylosis; and bilateral soft tissue injuries on her knees. Further, on 2/10/2017 the worker suffered a recurrence of the above injuries.
[17] AB, page 199.
In her claim, Ms Rossouw alleged that she suffered 'secondary psychiatric injury of an adjustment disorder with anxious mood' as a consequence of the motor vehicle accident.
In the section of the form relating to 'issues remaining in dispute following conciliation and which require arbitration' it was stated:[18]
Determination of liability -
Issues remaining in dispute are as contained within the Certificate of Outcome regarding case no. C96594 … issued by Murray Champion. 1. Determination of Liability - The Applicant seeks a determination of liability regarding recurrence of accident injuries culminating on 2 October 2017, with the date of recurrence being noted as 26 October 2017, with respect to payment of weekly payments an any incurred and outstanding reasonable medical expenses since the date of injury and ongoing, and other statutory allowances.
…
[18] AB, pages 199 - 202. The application form made reference to a number of foreshadowed documents and information including a supplementary statement of Ms Rossouw, AB, page 202. It does not appear that this statement was prepared or submitted, as the only statement of Ms Rossouw was the proof of evidence dated 30 March 2018.
On 1 March 2022 Ms Rossouw lodged particulars of recurrence of injury with respect to her application. I have summarised that document at [33] above.
In the documents lodged with the Workers' Compensation Arbitration Service, what claim was made for a right hip injury?
The Workers' Compensation Arbitration Service listed the hearing of Ms Rossouw's claim for 27 June 2023.
In advance of the arbitration hearing, each party filed a book of documents containing the medical and other evidence they intended to rely upon at the arbitration hearing. Ms Rossouw filed her book of documents on 19 June 2023.[19] The book of documents contained Ms Rossouw's claim documents including her claim form, proof of evidence and recurrence of injury forms. The book also contained 175 pages of medical reports, various medical progress certificates and a schedule of incurred and outstanding statutory expenses for radiological and medical expenses which were incurred in the period April 2017 - 31 May 2018.
[19] AB, pages 195 - 398.
On 23 June 2023, Ms Rossouw filed her outline of submissions for the arbitration hearing. Based upon those submissions, Ms Rossouw was seeking orders for weekly payments of compensation for total incapacity from 3 October 2017 - 7 January 2018 and for partial incapacitation for the period of 8 January 2018 - 3 May 2018.[20] Ms Rossouw also sought orders in respect of statutory allowances from 3 October 2017, providing evidence in respect thereof for the period of 3 April 2017 ‑ 31 May 2018.[21]
[20] AB, pages 4 - 5, 706 - 707.
[21] AB, pages 4 - 5, 706 - 707.
Ms Rossouw's written submissions dated 23 June 2022 quoted extensive references to provisions of the Act, precedent cases and extracts of medical reports. Paragraph 6.11 of the submissions read as follows:
6.11The applicant will rely on the medical evidence of Dr Jenkins who in his 18 October 2021 report stated the following:
Ms Rossouw has had a rather torrid time of it since I saw her just over three years ago. While undergoing treatment for her chronic lower back condition which arose as a result of the work-related accident on 30 March 2017 she had a lumbosacral spinal injection on 20 March 2020. This resulted in weakness and numbness of her right leg, causing her to fall and fracture her right hip that night. She subsequently had two operations for her right hip, with open reduction and internal fixation not successfully resulting in fracture union and she then had a right THR (total hip replacement) just over a year ago in July 2020. This has left her unsightly bodily scarring in addition to a somewhat stiff right hip.
Dr Jenkins was then asked whether he was of the opinion that Ms Rossouw's injuries were caused in the course of her work on or around 30 March 2017, or alternatively whether Ms Rossouw's injuries were caused by the recurrence, aggravation or acceleration of any pre‑existing disease, and if so whether the employment was a contributing factor and contributed to a significant degree. He said:
Yes. Please see my previously provided response to this question with regard to your client's injuries with the exception of the right hip which was a secondary consequence of numbness and weakness of the right leg caused by a lumbosacral epidural injection, which in turn was done as treatment for her chronic lower back condition which was work related. On that basis I consider that her right hip fracture and the need for a THR is also work related, albeit indirectly. That is, had she not been involved in an accident at work on 30 March 2017 she would not have suffered the unfortunate sequence of events resulting in a right THR.
In the Form AMS 5 accompanying this report, Dr Jenkins went on to say, regarding the hip injury:
Ms Rossouw's right fractured hip sustained on 20 March 2023 [sic] was a direct consequence of a lumbosacral epidural injection administered for her chronic low back condition which was a direct consequence of the work-related MVA she had on 30 March 2017. That is, her iatogenic right leg paresis and numbness resulted in a fall and a fracture of the hip which subsequently resulted in a right leg THR. Were it not for her lower back injury with the need for lumbosacral injections she would not have had an iatrogenic right leg weakness and degree of numbness causing her [to] fall as and when she did and I consider that her right hip injury and the need for a THR was work related, albeit indirectly, on that basis.
Ms Rossouw's book of documents did not contain any records of medical expenses incurred or likely to be incurred with respect to her right hip injury. The only claim made for weekly payments predated the occurrence of the hip injury.
What does the Workers' Compensation and Injury Management Act1981 require a worker to supply by way of evidence for an arbitration hearing?
In the paragraphs which follow, I have set out a number of sections of the Act and provisions of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (the Rules) which are relevant for the determination of this appeal.
Section 5(1) of the Act provides that, 'injury' means, relevantly, 'a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions';[22] or 'the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree'.[23]
[22] Section 5(1)(a) of the Act.
[23] Section 5(1)(d) of the Act.
Before turning to other relevant statutory provisions, I note that in Napier v BHP Billiton (Worsley Alumina) Pty Ltd,[24] the Court of Appeal observed that the existence of a compensable injury as defined in s 5(1) of the Act is the core concept of the Act, because, it is the occurrence of an injury to a worker that triggers the entitlement of a worker and the liability of the employer, subject to the Act, to pay compensation.
[24] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230 (Napier).
Section 18 of the Act provides that:
[I]f an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
Schedule 1 of the Act is headed 'Compensation entitlements'.
By cl 9 of sch 1 of the Act:
Where a total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental, physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A, and 19 apply in so far as they may be made applicable.
Clause 17 of sch 1 provides, relevantly:
In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of ‑
(1)first aid and ambulance or other service to carry the worker to hospital or other place for medical treatment; medicines and medical requisites; medical or surgical attendance and treatment, including where necessary, medical or surgical attendance and treatment by specialists; … physiotherapy or chiropractic attendance and treatment; attendance and treatment that is approved treatment; charges for hospital treatment and maintenance, in accordance with clause 18 but not including charges for a nursing home unless a medical practitioner certifies that the worker is totally and permanently incapacitated and requires continuing medical treatment and maintenance which cannot be administered in the worker's domestic environment; the provision of hearing aids, artificial teeth, artificial eyes, and where the injury renders their use necessary, spectacles or contact lenses, in so far as that attendance, treatment, or other item does not include vocational rehabilitation, but not exceeding, in the aggregate, a sum equal to 30% of the prescribed amount, unless clause 18A applies, and there shall be no revival of, or increase in, the entitlement to such expenses upon any subsequent increase in the prescribed amount.
Section 178(1) of the Act provides that proceedings for recovery of compensation for an injury are not maintainable unless:
(a)a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b)the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury …
However, under s 178(1)(c) of the Act:
[T]he want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; …
Section 189 of the Act provides:
(1)The granting of relief or redress under this Act is not necessarily to be restricted to the specific claim made nor to the subject matter of the claim.
(2)However subsection (1) does not prevent the arbitrator from determining that a matter is beyond the scope of the application for conciliation that preceded the application for arbitration and should be the subject of another application for conciliation.
I also note that, to the extent Ms Rossouw was seeking compensation for her hip injury, s 178(1) of the Act required Ms Rossouw to give notice of the occurrence of the injury, and to do so within 12 months from the occurrence of the injury. Whilst other information was arguably provided, there was no compliance with s 178 with respect to the hip injury.
To recover medical expenses there must be a connection between a worker's injury as that term is defined in s 5(1) of the Act on the one hand, and the relevant medical or surgical treatment on the other. The connection was explained by Buss JA in Napier.[25] For the purposes of this appeal, the relevant connection may be summarised as follows:
[25] Napier [99] - [114].
1.The terms 'medical treatment' and 'surgical treatment' in cl 17 of sch 1 of the Act are to be construed by their ordinary and natural meaning. The terms include any medication, procedure, or therapy recommended, prescribed, or carried out by a medical practitioner. Further, the medical or surgical treatment must be provided by a qualified medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of:
(a)the 'injury' covered by the Act that the worker has; or
(b)the disability caused by the compensable injury; or
(c)any symptoms or effects related to the compensable injury or the disability caused by the injury.
2.Expenses incurred or likely to be incurred in respect of medical or surgical attendance or treatment will be 'reasonable' expenses if:
(a)the treatment was reasonable given the circumstances; and
(b)the cost of the treatment was reasonable given the circumstances.[26]
[26] See also the discussion of these matters in Clarke v Ramsay Health Care Australia [2017] WADC 117 [46] (Bowden DCJ).
As may be discerned from the Court of Appeal decision in Napier, to determine whether expenses for medical or surgical treatment are reasonable, a qualitative assessment is required. An arbitrator must decide whether it was reasonable for the medical services in issue to be or have been provided and, further, whether the expenses incurred (or expected to be incurred) were reasonable under the circumstances. That will involve a question of fact. In my view, trying to resolve a dispute over compensation for medical expenses without evidence of those expenses, and then requiring a separate hearing to evaluate the reasonableness of later-claimed amounts, undermines the efficiency of the arbitration process. The lack of evidence of medical expenses, where such evidence is available, also informs a question of what was really in dispute in the arbitration.
Finally, I note that the Rules, specifically at r 25 and r 29, require an applicant to file the evidence she intended to rely upon at the arbitration with her application. Further by virtue of r 4, it was at all times open for Ms Rossouw to make an application under r 30 to adduce evidence to support her treatment expenses claim. No such application was made by Ms Rossouw.
What references, if any, were made in the pre-arbitration case materials to Ms Rossouw's right hip injury?
Based upon the application form, particulars of recurrence and pre‑arbitration submissions, Ms Rossouw was seeking orders for weekly payments of compensation for total incapacity from 3 October 2017 - 7 January 2018 and for partial incapacitation for the period of 8 January 2018 ‑ 3 May 2018 and statutory allowances (including medical expenses) for the same period.
On the materials before the arbitrator, it was most difficult to discern that any claim was being made for Ms Rossouw's right hip injury, whether for medical expenses or otherwise.
Whilst Ms Rossouw's pre-arbitration written submissions referred to her sustaining a right hip fracture on 20 March 2020, no reference was made to any medical expenses that arose from the right hip fracture. The opinion of Dr Jenkins as expressed in his report of 18 October 2021 (which I have extracted at [44] above) was that the right hip injury was a 'secondary consequence of numbness and weakness of the right leg' caused by the epidural injection.
Dr Jenkins said in his report that the injection was performed as treatment for her lower back condition which was work-related. That statement presupposed Ms Rossouw's back injury was caused in the course of her employment with the respondent. I have already noted the arbitrator's ultimate finding, which was that Ms Rossouw's back condition was not an 'injury' within the meaning of the Act, and, therefore, not a work-related injury.
At best, the reference to that medical report in the opening submissions was an oblique reference to an injury which may or may not be advanced. Given that Ms Rossouw's written statement, which constituted her evidence‑in‑chief, predated her hip injury, and no evidence of medical expenses to treat the hip injury was tendered, it is difficult to see how an objective observer could ascertain that a claim for the recovery of medical expenses for the right hip injury formed part of her case in the arbitration.
The pre-arbitration submissions also made reference to a medical report of Dr Easton, an occupational physician who reviewed Ms Rossouw in June 2021, at the request of the respondent. Ms Rossouw's submissions say that the report of Dr Easton, which was prepared in June 2021, did address the issue of causation relating to Ms Rossouw's hip injury and subsequent total hip replacement. Ms Rossouw's pre-arbitration submissions went on to say that the report of Dr Jenkins of 18 October 2021, which Ms Rossouw says disclosed a medical opinion as to a causal link between the injuries she suffered in the car accident and her hip injury, had been provided to Dr Easton. This point was presumably made to say that the issue of causation had not been taken up by the respondent employer. However, beyond these comments any issue between the parties about the right hip injury does not appear to have been explored in the arbitration beyond the written opening submissions, until closing.
During the appeal hearing I asked both parties whether there was any factual or legal impediment that would preclude Ms Rossouw making a claim for her right hip injury in a future arbitration if I concluded that the arbitrator was correct in determining that claim was not before him. Both parties accepted that Ms Rossouw could bring a claim to recover medical expenses for her right hip injury in a further arbitration.
How did the parties deal with the right hip injury at the hearing before the arbitrator?
At the hearing of the appeal, counsel for Ms Rossouw:
(a)confirmed that at the hearing before the arbitrator Ms Rossouw made no claim for weekly payments for her right hip injury;[27] and
(b)said that Ms Rossouw's position:
(i)with respect to the inclusion of a claim for the right hip injury was that it was a claim for medical expenses only; and
(ii)was that her employer knew from 25 October 2021, being the date when Dr Jenkins' report was sent to the solicitors for the employer (the relevant parts I have highlighted as derived from par 6.11 of the pre‑arbitration submissions at [44] above), that she was making a claim in the arbitration for her right hip injury.
[27] Further the only claim before the arbitrator for weekly payments of compensation had an end date in early 2018 which predated the right hip injury; AB, page 190.
Ms Rossouw submitted that the respondent was not taken by surprise and had notice that the right hip injury formed part of the dispute for arbitration. The respondent's knowledge of the claim could be inferred from the fact that counsel for the respondent asked Ms Rossouw questions about the hip injury and queried the circumstances in which the injury occurred given that it was an unwitnessed fall.[28]
[28] AB, pages 153 - 154.
The respondent's position was that Dr Jenkins' evidence, simply by being included in the arbitration materials, did not give the respondent sufficient notice of a claim being brought as to the right hip when throughout the arbitration and from the documents filed in advance, it was not mentioned as part of the claim until raised by counsel for Ms Rossouw in the closing submissions before the arbitrator.
Further, the respondent says that questions asked of Ms Rossouw at the hearing before the arbitrator about her right hip were with respect to her credibility generally. As a consequence, put at its highest, the inclusion of the report of Dr Jenkins[29] gave the employer an awareness that there was an injury to the right hip but, for the purposes of the proceedings, it was 'not brought in'. The respondent's position was guided by what Ms Rossouw, through her legal representatives, had done in terms of the application for arbitration, the issues raised in the conciliation process, the particulars of the recurrence and what was included in the opening submissions.[30] Although there was a reference to statutory expenses, no information was included about the quantification of any medical expenses relating to her hip injury.
[29] AB, page 715.
[30] ts 43 - ts 44.
To consider the merits of the complaint raised by ground 1 that the arbitrator failed to consider a relevant issue raised by Ms Rossouw (and joined by the respondent), it is necessary to consider how the hearing before the arbitrator was conducted.
For use in the arbitration hearing, Ms Rossouw's solicitors filed a book of documents comprising 203 pages of medical and other records. The employer/respondent also produced a book of documents of medical records comprising 304 pages of material. As noted, the parties also filed written submissions. Whilst Ms Rossouw's submissions did make mention of an injury to her right hip, those submissions, in my opinion, did not expressly state that an issue for determination by the arbitrator was whether the hip injury was a recurrence of an existing compensable injury within the meaning of the Act and, if so, what compensation would flow from a determination that the arbitrator made that Ms Rossouw had suffered such an injury. The respondent in its submissions made no reference to a hip injury.
At the commencement of the arbitration hearing, counsel for Ms Rossouw made only very brief introductory comments about the case being advanced. No mention was made of a hip injury. At the commencement of the hearing, counsel tendered the book of documents on behalf of Ms Rossouw. In the course of tendering Ms Rossouw's book of documents, the following exchange occurred:[31]
[31] AB, pages 64 - 66.
ARBITRATOR: … My concern is the whole heap of medical certificates. Are you going to refer me to all of these certificates? Am I supposed to just - what am I supposed to do with them?
COUNSEL: Sir, in the event that … you come to a finding positive for the applicant, then they are tended [sic] as evidence of the applicant's incapacity. I've not intended to refer to them individually.
…
COUNSEL: Sir, it's not my intention to try and trap you into anything of that nature, just simply to note that they are, we say, the record of the applicant's incapacity at their various points and in the event that you make the determination of liability that we seek on this application, then we say they stand as evidence of incapacity …
ARBITRATOR: Doesn't that put the cart before the horse? Don't I need to consider them to decide the question of incapacity?
COUNSEL: I'm happy to take you through them in my closing submissions.
ARBITRATOR: Well I just find that there's the practice in this jurisdiction of the parties, both applicants and respondents, just dumping hundreds of documents on the Arbitrator and never referring to them. What's the Arbitrator supposed to do with these documents if they're not referred to by the parties in the course of the arbitration?
COUNSEL: Well, they are referred to in my submissions, sir.
ARBITRATOR: All right … So I'm required to have regard to those. Okay … So that book of documents can go in as Exhibit 1 …
…
ARBITRATOR: Okay. Does that mean you won't be calling the applicant to give evidence …?
COUNSEL: No … the applicant will be called for the purposes of cross‑examination …
…
COUNSEL: … I will call the applicant to give evidence as to the veracity of the statements contained in the applicant's proof of evidence.
ARBITRATOR: All right, so that's your case. No, you've got to call your witness.
COUNSEL: I do have to call my witness, yeah.
Counsel conferred and then tendered Ms Rossouw's contract of employment with the respondent. Ms Rossouw was sworn in, and her counsel took her to her proof of evidence in the book of documents.[32]
[32] As noted, the proof of evidence did not make any reference to Ms Rossouw's hip injury; AB, pages 66 - 67, 214.
Counsel for Ms Rossouw asked the appellant to confirm the contents of the proof of evidence and she did so. Ms Rossouw was then cross‑examined by counsel for the respondent.
The proof of evidence which Ms Rossouw confirmed by way of her evidence‑in‑chief predated her hip injury.
Accordingly, to the extent that her evidence was adduced from the proof of evidence included in the book of documents, that statement simply dealt with her version of the circumstances of the motor vehicle accident, her (then) current employment as a mental health Beyond Blue counsellor, her future work capacity (which she said was unknown) and the extent of her symptoms of back, left knee, shoulder and neck pain after the car accident. The statement also referred to a stress condition that she was suffering from and that chronic back and left side pain had become acute which led to various long‑term issues. The statement was dated 30 March 2018 but filed with the Workers' Compensation Arbitration Service on 2 July 2021. Notwithstanding that the witness statement was filed with the Workers' Compensation Arbitration Service after the hip injury had occurred, the document had been prepared more than three years earlier.
No supplementary statement or evidence was sought to be adduced, notwithstanding a supplementary statement had been foreshadowed in the arbitration application itself (see [39] and footnote 18 above). The Rules require an applicant to file the evidence they intended to rely upon at arbitration with their application.[33] Further, by virtue of r 4 of the Rules, it was at all times open for Ms Rossouw to make an application under r 30 of the Rules to adduce evidence to support her treatment expenses claim. She did not do this.
[33] Rule 25, r 29.
Although Ms Rossouw's evidence‑in‑chief did not raise any issue about her hip injury which was sustained in March 2020,[34] counsel for the respondent did ask her some questions about her injury, including how the fall occurred. In this respect, the fall was unwitnessed. Counsel for the respondent submitted at the appeal hearing that Ms Rossouw's credibility on the claims she advanced was in issue and the questions about the fall went to that issue. The questions raised about the fall centred on whether Ms Rossouw was holding a drink and trying to reach for a blanket at the time of the fall and whether she had slipped.[35] Counsel for the respondent also confirmed with Ms Rossouw that she subsequently had surgery and a total hip replacement.[36]
[34] AB, pages 67 - 68 (transcript of hearing before arbitrator).
[35] AB, pages 153 - 154.
[36] AB, pages 155 - 156.
The closing addresses before the arbitrator
In closing submissions, Ms Rossouw's counsel raised with the arbitrator the issue of the hip injury. The following exchange occurred:[37]
COUNSEL: … the applicant is a 69-year-old senior social worker who sustained injury in a motor vehicle accident in the course of her employment with the respondent on 30 March 2017 which injury was then aggravated - or exacerbated on or about 2 October 2017 whilst working in the course of her employment for the respondent. Further to this, we say on 20 March 2020, following the administration of an epidural to treat low back pain, we say remained the result of her workplace injury.
She suffered weakness in her right leg causing her to fall and fracture her right hip which ultimately require a total hip replacement. Now, we have filed medical evidence which we say will lead you to the conclusion that not only was there an aggravation to which the employment was a contributing factor and contributed to a significant degree - - -
ARBITRATOR: Sorry, how is that relevant?
…
ARBITRATOR: You're talking - the employment was an aggravating factor to what?
[37] AB, pages 171 - 172.
A discussion then followed about the state of the medical evidence and the recurrence of the injuries Ms Rossouw alleged she had suffered. The arbitrator then continued:[38]
ARBITRATOR: … for the sake of clarity and to be fair to the respondent, to understand your submission, … the claim for weekly payments predates the 20th of March 2020, so for medical expenses for an injury, as that term is defined in the Act, being more particularly a personal injury by accident arising out of the course of employment on the 20th of March 2020.
COUNSEL: We say that it occurred away from the place of employment and to which the employment was a contributing factor and contributed to a significant degree.
ARBITRATOR: … how do you say the employment contributed to the fall and contributed to a significant degree?
COUNSEL: Because were not for the back injury for which liability has been accepted,[39] we say that Ms Rossouw would not have required a pain procedure … on 20 March 2020. Having had that … on 20 March 2020, Ms Rossouw then fell … She could not have needed the epidural. We say that the epidural resulted in her fall and her broken hip and ultimately the total hip replacement.
[38] AB, pages 176 - 177.
[39] It is not clear from the record of the proceedings what may have been accepted between the parties as to the extent of any back injury of Ms Rossouw, but the arbitrator found that the only injury suffered by Ms Rossouw within the meaning of the Act was to her knee. That finding is not challenged.
After questions from the arbitrator, counsel said he wished to provide written submissions. Although counsel for the respondent said 'no' in response to a question from the arbitrator about whether the questions he had raised with counsel for Ms Rossouw took him by surprise, counsel for the respondent did say:[40]
With respect to the claim for psychiatric disease, the respondent has obtained psychiatric evidence from Dr Cheng and so a position cannot be put forward that the respondent is prejudiced on account of the psychological injury. What can be said though, sir, is that there may be prejudice on account of the fall at home, noting that the fall occurred in March 2020, and … this application was only filed before the conciliation services in 2021, … But the respondent would say that he [sic] is prejudiced from undertaking relevant investigations as to the nature of the fall at the time.
[40] AB, page 178.
So as to deal with the issue of whether the hip injury formed part of the arbitration claim, the hearing was adjourned to 2 August 2023 and both parties were ordered to file submissions.
At the adjourned hearing, Ms Rossouw relied upon the Court of Appeal decision in River Hill Contracting Pty Ltd v Moore[41] which I refer to in greater detail below. Ms Rossouw submitted that to not permit an argument over the hip injury would be, in effect, one of form over substance and the River Hill Contracting case was binding authority to the effect that any issue that was raised should be considered notwithstanding non-compliance with the formal requirements of s 178 of the Act.
[41] River Hill Contracting Pty Ltd v Moore [2023] WASCA 111 (River Hill Contracting).
Ms Rossouw's position at the resumed hearing was also to the effect that the respondent did not, by reference of s 178 of the Act, advance any submission that it had been prejudiced by a consideration of the hip injury in the arbitration.
The respondent's written submissions filed after the adjournment of the hearing, but before the resumed hearing, stated as follows:[42]
1.Ms Rossouw litigated her workers' compensation claim for a period of 123 weeks, such period being from the date of filing the conciliation application to the first day of hearing, on the basis that her claim was for injuries which did not include her hip injury.
2.In the entire period of 123 weeks Ms Rossouw was legally represented.
3.If the arbitrator was minded to make a determination on Ms Rossouw's hip injury, caution should be exercised in making findings, given the gaps in the respondent's evidence and Ms Rossouw's failure to particularise that aspect of her claim in the conciliation and arbitration.
4.Whilst the respondent accepted that the jurisdiction of the Workers' Compensation Arbitration Service ought to be flexible and informal, unincumbered by technical arguments that detract from the determination of the substantial merits of a dispute, it was the case that:
(a)the respondent as the employer had no notice of a hip injury forming part of the dispute; and
(b)it would be both unreasonable and unfair to require the respondent to guess which further matters may arise for dispute, without notice having had no opportunity to obtain and adduce evidence to respond to the issue and that the respondent's obligation is to meet only the case in dispute as put by Ms Rossouw in her application.[43]
[42] AB, pages 724 - 744.
[43] AB, pages 765 - 766.
After the second hearing day, the arbitrator reserved his decision. In his final decision the arbitrator excluded consideration of the hip injury and ruled that it did not form an issue before him in the arbitration hearing.
What did the arbitrator decide about the right hip injury?
The arbitrator provided reasons for his decision to exclude from his determination a claim for compensation for the hip injury at [27] ‑ [29] of his reasons, relevantly as follows:[44]
27In my view the application insofar as it purports to seek orders in respect of a fresh and distinct injury, being the hip injury suffered on 20 March 2020, (and as being distinct from a claim based on the proposition it results from the injuries suffered on the 30 March 2017 or a recurrence thereof suffered on or about the 2 October 2017) cannot be dealt with as part of this application, not because the respondent would be prejudiced if it was properly required to defend an application for compensation resulting therefrom, but because it was never required by this application to do so. In this regard I accept the submission of the respondent.
28… there is no 'dispute in connection with a claim for compensation' in respect of the alleged hip injury … insofar as there is no claim for weekly payments arising therefrom, the claim for weekly payments concluding with the expiration of the period ending 3 May 2018. Effectively the application is for a declaration the applicant suffered an injury on the 20 March 2020, something I have no jurisdiction to make.[45] This is more than a technicality that can be swept aside in the interests of economy and quickness.
29Further, to meet the requirements for an order for payment of medical expenses the applicant must satisfy the requirements of Schedule 1 Clause 17 which provides 'In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of …'. The expression 'incurred' has been held to be an indemnity provision that applies where the expensed have actually been incurred. The evidence in support of the claim for medical expenses concludes with expenses incurred on the 18 May 2018, well before the date of the hip injury. Clearly those expenses are not in respect of the hip injury. Whilst there is an irresistible inference that the applicant has incurred medical expenses in respect of the fractured hip, I have no evidence of what exactly is claimed in this regard and cannot begin to assess whether they are reasonable expenses.
What was the arbitrator's decision on Ms Rossouw's claims he determined were before him in the arbitration?
[44] AB, page 17.
[45] The arbitrator referred to two decisions being Christopher Ede v Alcoa of Australia Ltd (Unreported, CM 192/01 (Packington SM) 2 July 2002) [8]; Halida Nezic v Gracious Holdings Pty Ltd t/as Quantum Cleaning Services (Unreported, CM 33/04 (Packington SM) 19 July 2004) [18].
Before turning to a specific consideration of the hip injury, which the arbitrator did not make a decision about in his final decision on 31 August 2023, the arbitrator published written reasons for his decision dismissing Ms Rossouw's claim. The arbitrator found that Ms Rossouw had not proved on the balance of probabilities that:
1.She was incapacitated either totally or partially over the periods claimed.
2.The statutory allowances she claimed were expenses incurred in respect of the only 'injury' he found she had suffered, being the injury to her left knee.
In arriving at his decision, the arbitrator made the following factual findings:
(a)Ms Rossouw had experienced ongoing back pain from an operation on her lumbar spine in 2008;[46]
(b)in the years prior to the motor vehicle accident, Ms Rossouw had experienced generalised body aches from a body boarding accident which resulted in ongoing problems in her neck;[47]
(c)Ms Rossouw experienced shoulder pain, particularly in the left shoulder, as a result of a kayaking incident which occurred prior to the car accident;[48]
(d)from 2016 - 13 March 2017, Ms Rossouw suffered from an exacerbation of back pain from assisting and continuously lifting her elderly mother who developed dementia and suffered a fractured hip in January 2017;[49]
(e)in the years leading up to the vehicle accident, Ms Rossouw was highly stressed as a result of the events occurring in her life and had become depressed, a condition for which she was prescribed antidepressant medication in February 2017;[50]
(f)the motor vehicle accident did not cause any injury to Ms Rossouw's back, neck or shoulders or any aggravation of her pre-existing injuries;[51]
(g)the vehicle accident did not cause any mental condition or psychological injury;[52] and
(h)Ms Rossouw did suffer an injury to her left knee in the motor vehicle accident of 30 March 2017, however this injury recovered fully by 20 December 2017 and did not result in an inability to perform the duties she was employed to do, and that Ms Rossouw had recovered fully.[53]
[46] Arbitrator's reasons [131].
[47] Arbitrator's reasons [132].
[48] Arbitrator's reasons [132].
[49] Arbitrator's reasons [133].
[50] Arbitrator's reasons [134].
[51] Arbitrator's reasons [136].
[52] Arbitrator's reasons [62].
[53] Arbitrator's reasons [141].
The arbitrator made further findings that the reason Ms Rossouw ceased work with the respondent was because she was unhappy there, not because she was unfit to continue with her employment. Further, that any aggravation of her left knee injury (being the only injury in consideration being caused by the 30 March accident) had fully recovered as at 20 December 2017. In this respect, the arbitrator relied upon the medical evidence of Dr Jenkins.[54]
[54] Arbitrator's reasons [143], [146].
The arbitrator also found, with respect to Ms Rossouw's claim for medical expenses for the treatment of her left knee, that because she did not give evidence of which of the invoices for medical treatment covering a period 3 April 2017 - 17 November 2017 related solely to treatment to her left knee (as against for treatment of Ms Rossouw's back, neck, shoulder, or other conditions which she had been seeing her doctor in that period), that no award could be made for medical expenses.[55]
[55] Arbitrator's reasons [147].
Finally, if in fact Ms Rossouw was partially incapacitated in the period 7 January 2018 - 3 May 2018 as a result of the injury sustained on 30 March 2017, (or any recurrence during October 2017), the arbitrator could not undertake a calculation as required by the Act because Ms Rossouw had not adduced evidence of her gross earnings with the respondent or with Beyond Blue.[56]
[56] Arbitrator's reasons [148].
As a result of those matters, the arbitrator found that Ms Rossouw did not prove, on the balance of probabilities, that she was either totally or partially incapacitated during the claimed periods. Additionally, she did not establish that the medical expenses for which she provided invoices were related to her injury to her left knee.[57]
Ground 1 - Was a claim for compensation by Ms Rossouw for her right hip injury an issue in dispute before the arbitrator?
[57] Arbitrator's reasons [149].
Although ground 1 states that the arbitrator made an error 'in finding there was no dispute in connection with a claim for compensation' for the hip injury it seems that, properly construed, the alleged error is a failure by the arbitrator to exercise the jurisdiction available to him to resolve the justiciable issue (if any) between the parties as to whether compensation was payable by the respondent to the appellant for the hip injury.
Accordingly, I will treat ground 1 as being that the arbitrator failed to decide a material issue raised by the appellant. Specifically, whether she had suffered a compensable 'injury' to her right hip and, if so, what compensation was payable to her by the respondent. In this respect, where a court or tribunal fails to consider a material issue raised by the parties in their respective cases, there will be a constructive failure to exercise jurisdiction, and thus an error of law.[58]
[58] See for example Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 [9] (Basten JA with whom Beazley JA agreed with).
In support of her arguments on ground 1, Ms Rossouw relied on the Court of Appeal's decision in River Hill Contracting. Ms Rossouw also relied upon that decision on the second day of the arbitration hearing before the arbitrator. In substance the argument, as developed, was that for the arbitrator to not hear and determine a claim by Ms Rossouw for an 'injury' to her hip enabled form to prevail over substance. Further, the River Hill Contracting case was binding authority for the proposition that any issue for compensation raised in the course of the arbitration should be considered notwithstanding non‑compliance with the formal requirements of s 178 of the Act.
Given the reliance on the case in River Hill Contracting, I will explore the facts of that case in some detail. As I have said, the argument of Ms Rossouw based upon River Hill Contracting was that the case established that an arbitrator had power to consider a claim for an 'injury' beyond the injury specified on the original claim documentation.[59] This proposition is most attractive, but, it must be applied considering all of the circumstances of the case.
[59] Appellant's submissions, par 12.
The decision in River Hill Contracting primarily addressed an argument by an employer that a worker was estopped from making a claim for specific injuries that were raised (but not decided) in an earlier arbitration.
In the context of arbitration proceedings under the Act, River HillContracting is an important case in which the Court of Appeal made the following observation with respect to the resolution of compensation disputes under the Act:[60]
The Workers Compensation and Injury Management Act 1981 … aims to establish a system for resolution of compensation disputes which is timely, cost effective, accessible and in which arbitrated disputes are determined according to their substantial merits with as little formality and technicality as practicable. The length and complexity of the legislative labyrinth which successive amendments to the Act have created challenges the achievement of that objective. Too often, workers' compensation disputes seem to become mired in technical procedural arguments, resolved by long and over-elaborate reasons for arbitral decisions which take many months to produce. It is important that those charged with the difficult responsibility of navigating through the legislative maze bear in mind the need to focus on the fair and efficient determination of the substantive merits of the case.
[60] River Hill Contracting [1].
The Court of Appeal went on to make the observation that the compensation dispute in that case should have been relatively simple to resolve, but it was not resolved by the arbitrator according to the substantial merits of the case that were before him.
In this respect, the relevant facts in the River Hill Contracting case were as follows:
1.On 5 May 2017, Mr Moore was employed as a plant operator/truck driver with River Hill Contracting and suffered a back injury on 5 May 2017.
2.On 10 May 2017 a medical certificate was issued specifying that Mr Moore suffered from 'tender L3 L5 region with paraspinal tenderness, no focal neurologic deficit' and '[l]ow back injury, needs further investigation, background of [chronic] back pain'.
3.On 19 May 2017, Mr Moore underwent a MRI and a CT scan of his lumbosacral spine revealing fractures at L2, L3 and degeneration at L4/5.[61]
4.On 29 May 2017, Mr Moore made a claim for compensation under s 178(1)(b) of the Act, identifying his 'most serious injury' as 'L2 L3 fractures' and the bodily location of the injury as 'lower back'.[62]
5.On 7 June 2017, River Hill Contracting's insurance company, Allianz accepted liability for Mr Moore's 'lower back fractures in L2 and L3' pursuant to s 57A of the Act and commenced weekly payments of compensation backdated to 17 May 2017.[63]
6.On 23 October 2017, a doctor certified that Mr Moore had full capacity to return to work from 24 October 2017.[64]
7.On 24 October 2017, Mr Moore returned to work performing light duties.[65]
8.On 24 October 2017, Allianz ceased weekly compensation payments to Mr Moore on the grounds that he had returned to work pursuant to s 61 of the Act.[66]
[61] River Hill Contracting [34].
[62] River Hill Contracting [35].
[63] River Hill Contracting [36].
[64] River Hill Contracting [38].
[65] River Hill Contracting [39].
[66] River Hill Contracting [40].
An arbitrator dismissed Mr Moore's application, finding that he had failed to establish that his weekly payments of compensation were unlawfully terminated and that he had failed to establish any incapacity from July 2018 as a result of the admitted injury, and his arbitration application was accordingly dismissed.[67] Mr Moore led evidence and made submissions about an injury to his L4/5 at the arbitration hearing, but the arbitrator declined to decide a claim for that injury due to non‑compliance by Mr Moore with s 178 of the Act (for the wording of that section see [53] - [54] above).
[67] River HillContracting [61].
On 6 April 2020 Mr Moore completed a second workers' compensation application form in relation to the injuries sustained on 5 May 2017 and identified the 'most serious injury' as including his L4/5 injury and L5/S1 injury. In October 2020 Mr Moore lodged a second conciliation application,[68] and in December 2020 he made a second arbitration application.[69] River Hill Contracting argued that Mr Moore was estopped from bringing a claim in the second arbitration for compensation for his L4/5 injury, notwithstanding that the arbitrator had not made any determination on the merits of that issue in the first arbitration. On 6 May 2021 a different arbitrator hearing the second arbitration rejected River Hill Contracting's argument and application to dismiss the arbitration claim. The appeal to the Court of Appeal was with respect to the arbitrator's dismissal of River Hill Contracting's application that Mr Moore was estopped from making a claim for injury to his L4/5 in a second arbitration application.
[68] River HillContracting [63].
[69] River HillContracting [64].
The Court of Appeal held that Mr Moore's claim regarding his L4/5 and L5/S1 injuries was raised in the first arbitration but not resolved on its merits.[70] Specifically, in the first arbitration Mr Moore led evidence and made submissions about these injuries, but the arbitrator declined to address a claim for those injuries due to Mr Moore not giving proper notice of the claim under s 178 of the Act. As I have noted, River Hill Contracting argued that issue estoppel prevented Mr Moore from maintaining any claim for the L4/5 injury in the second arbitration. The Court of Appeal upheld the arbitrator's decision rejecting the employer's application. The Court of Appeal observed that all of Mr Moore's claims should have been determined in the first arbitration. In rejecting the primary argument about issue estoppel, the Court of Appeal also emphasised the point I have made that an arbitration hearing under the Act should proceed efficiently without excessive technical focus on forms. That approach is consistent with modern case management generally.
[70] River Hill Contracting [86].
There can be no argument about the sentiments expressed by the Court of Appeal in River Hill Contracting that the resolution of compensation disputes under the Act should not be impeded by technical issues and arguments about non‑compliance with the forms under the Act which a worker is required to lodge. Having said that, that general principle must still yield to the facts of each case and whether the compensation claim for a specific injury is properly raised in the arbitration and is an issue joined by the parties to the dispute.
With respect to ground 1, the arbitrator was correct in determining that no claim was raised in the arbitration for compensation for Ms Rossouw's hip injury. Further, he was correct in declining to make any decision with respect to the respondent's liability to pay any compensation to Ms Rossouw for her medical expenses for her hip injury for the following reasons:
1.Ms Rossouw did not identify any claim for compensation, either by way of weekly payments or medical expenses for an injury to her hip in any workers' compensation claim form, nor in the documents filed in the conciliation and arbitration process, including her particulars of recurrence filed on 1 March 2022.[71]
2.Whilst Ms Rossouw's pre‑arbitration written submissions made reference to the existence of a right hip injury by quoting from the medical report of Dr Jenkins dated 18 October 2021, that reference did not clearly articulate to the respondent (and to the arbitrator) that Ms Rossouw was pursuing a claim for compensation in the arbitration for the hip injury she suffered on 20 March 2020.[72]
3.In opening, Ms Rossouw's counsel did not say that Ms Rossouw was seeking compensation for a hip injury which was caused or contributed to by her employment with the respondent.[73]
4.The evidence led at the arbitration hearing in the form of Ms Rossouw's evidence-in-chief did not raise a claim for compensation for her hip injury. Further, Ms Rossouw did not make any application at any time to supplement the evidence she relied upon, to set out the circumstances in which the hip injury occurred (or the medical expenses she has incurred or would incur) as a consequence of that injury.[74]
5.The documents that Ms Rossouw submitted for the arbitration expressly stated that she was not making any claim for weekly payments except for the closed period from October 2017 ‑ May 2018 which predated the occurrence of the hip injury.[75]
6.The only evidence of medical expenses before the arbitrator was for a period of time which predated the occurrence of the hip injury. Ms Rossouw did not make any attempt to put on any evidence of medical expenses incurred with respect to the hip injury.[76]
[71] See [27], [32] - [40], [60] and [61] above.
[72] See [43] - [45], [62] - [65] above.
[73] See [71] - [73] above.
[74] See [74] - [79] above.
[75] See [8], [42], [43], [60] and [67(1)] above.
[76] See [42], [43] and [60] above.
When these matters are taken together, on the objective evidence I have outlined, I do not consider that the employer had notice of a hip injury forming part of the case it had to meet in the arbitration. Whilst the procedures for determining disputes at arbitration hearings under the Act must be flexible, and applied without a slavish adherence to the lodgement of forms and compliance with formal notice requirements, there is a limit to which any departure from an adherence to the required forms and procedures which govern the arbitration process can go to.
In these circumstances, I consider that the arbitrator was correct in his reasons at [27] ‑ [29] to conclude that the application for compensation which he was required to decide did not include a claim for Ms Rossouw's hip injury suffered on 20 March 2020.
Notwithstanding, if the arbitrator had made an error of law in not determining that Ms Rossouw's hip injury was a claim properly brought in the proceedings and upon which the respondent had notice, then, as I have noted in my introductory comments, such an error was not material to the decision that was made. Moreover, there is no realistic possibility that the decision that was made in fact, could have been different if the error had not occurred (see generally [20] - [21] above).
In this respect, on the case as litigated:
1.The only injury that the arbitrator found was caused by the March 2017 car accident was an injury to Ms Rossouw's left knee.
2.Coupled with that finding was the arbitrator's further finding that the left knee injury had resolved by 20 December 2017, more than two years before Ms Rossouw had an epidural infusion as treatment for her lower back pain.
3.Ms Rossouw's case was that the epidural infusion caused weakness in her right leg which caused or contributed to her fall. There was no causal connection between the treatment administered on 20 March 2020 and the 'injury' found by the arbitrator.[77]
[77] See generally [90] - [92] above.
Accordingly, the effect of any error by the arbitrator could not have had any material impact on the decision he made.
For all of these reasons, I consider that ground 1 does not raise an error of law. Leave to appeal on ground 1 is refused.
Ground 2
I have noted that ground 2 is framed on the basis that the arbitrator made an error of law in finding that medical expenses claimed under sch 1 cl 17 of the Act must actually have been incurred rather than being merely likely to be incurred.
As I have already noted, Ms Rossouw did not put on any evidence of medical expenses she had incurred, or would incur, as a consequence of her right hip injury. Whilst an inference may well be capable of being drawn that some expenses would have been incurred, or could be incurred in the future the award of compensation in the form of the payment of money for medical treatment and surgical treatment, required the arbitrator to determine the reasonableness of expenses by a qualitative assessment as I have referred to in [57] and [58] above.
Ms Rossouw, as I have noted in my introductory comments,[78] says that the arbitrator ought to have made an order compelling the respondent to pay her medical expenses for her hip injury. In circumstances where Ms Rossouw did not put on any evidence of the medical expenses that she had incurred, or would incur, the complaint underlying ground 2 is that the arbitrator should have made some form of declaratory order that the respondent pay reasonable medical expenses for her hip injury.
[78] See [3] above.
In his reasons at [28],[79] the arbitrator said he was being invited to treat the application of Ms Rossouw as one for a declaration that she had suffered an injury on 20 March 2020. Further, that he had no jurisdiction to make such an order or declaration. The arbitrator referred in his reasons at [28] to two decisions of compensation magistrates in which it was held that an arbitrator does not have power to make a declaration.[80] In my opinion, there is merit in the approach that the arbitrator took.
[79] See [88] above.
[80] The respondent also referred to another decision by way of example, Duracraft Pty Ltd v Rebecca Maree Beer (Unreported, CM 194/00 (Cockram PG) 22 May 2001).
Putting these decisions to one side, there is a difficulty in simply assuming that an arbitrator exercising a statutory power under the Act can make a declaration in the sense that term is used when superior courts make declaratory judgments. In this respect, the nature of a declaratory judgment has been described as follows:[81]
A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs. It is to be contrasted with an executory, in other words coercive, judgment, the courts determine the respective rights of the parties and then order the defendant to act in a certain way, for example, by an order to pay damages or to refrain from interfering with the claimant's rights; if the order is disregarded, it can be enforced by official action, usually by levying execution against the defendant's property or by imprisoning him for contempt of court. A declaratory judgment, on the other hand, pronounces upon a legal relationship but does not contain any order which can be enforced against the defendant.
[81] See Lord Woolf, Woolf J, Zamir & Woolf: The Declaratory Judgment (4th ed, 2011) par 1-02.
A court's jurisdiction to make a declaration derives from an inherent power of being a superior court of record.[82] Whilst in certain circumstances a statutory tribunal may be conferred with jurisdiction to make declarations of an administrative character, to which statutory consequences attach, that jurisdiction must be conferred by statute. Such a form of declaration is also distinct from a superior court's jurisdiction to make declaratory remedies.
[82] See for example Ainsworth v Criminal Justice Commissioner (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey & Gaudron JJ).
By its nature a judicial declaration is a formal statement about a specific matter which may be of fact or law or mixed fact and law. The subject matter of a declaration must concern a justiciable controversy, upon which there must be a joinder of issues between the parties. An applicant or plaintiff must also have standing, or a sufficient or real interest, in the question raised in the litigation. The question raised must be a real one and not hypothetical.[83] For the reasons I have set out in ground 1, this pre‑condition did not exist in this case. There was no joinder between the partes on the issue of what medical expenses Ms Rossouw has incurred as a consequence of her hip injury.
[83] See for example, Hart v JGC Accounting & Financial Services Pty Ltd [2015] WASCA 22 [53] - [55] (Murphy JA with whom Martin CJ & Newnes JA agreed).
Whilst ground 2 cannot, in any event, give rise to an independent ground of appeal given the failure of ground 1, I do not consider that ground 2 holds any merit.
An arbitrator does not hold a power to make an order, in the form of a declaration, as to the payment of expenses that are not sought to be proved in the arbitration hearing. I have already noted that the parties conceded that the issue of the quantification of Ms Rossouw's expenses for her hip injury is capable of being litigated in a further arbitration.
I do not consider that the arbitrator made any error of law as contended in ground 2. Put simply, there was no evidence that Ms Rossouw incurred expenses for medical or surgical treatment. As I have noted, a qualitative of assessment is required to be undertaken by an arbitrator to determine what reasonable expenses for medical or surgical treatment are. In the absence of any evidence on the issue, the arbitrator cannot be criticised for failing to make any decision as to what medical expenses were incurred as a consequence of an 'injury' to Ms Rossouw's hip and which of those expenses were reasonable in amount.
Ground 2 does not raise an error of law. I refuse leave to appeal on ground 2.
Conclusion
For all these reasons leave to appeal should be refused and the appeal dismissed. I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LM
Associate to Judge Curwood
9 AUGUST 2024
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