Sami v Victory Lodge Pty Limited
[2020] NSWWCCPD 34
•3 June 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Sami v Victory Lodge Pty Limited [2020] NSWWCCPD 34 |
| APPELLANT: | Yankat Sami |
| RESPONDENT: | Victory Lodge Pty Limited |
| INSURER: | Racing NSW |
| FILE NUMBER: | A1-3039/19 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 24 October 2019 |
| DATE OF APPEAL DECISION: | 3 June 2020 |
| SUBJECT MATTER OF DECISION: | Injury; s 4(b)(ii) of the Workers Compensation Act 1987; findings of fact based on the evidence; s 9B of the Workers Compensation Act 1987; drawing of inferences; adequacy of reasons |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr S Moffett, counsel | |
| Walker Law Group | |
| Respondent: | |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| ORDERS MADE ON APPEAL: | 1. The name of the respondent, wherever it appears, is amended to read ‘Victory Lodge Pty Limited’. 2. The Arbitrator’s Certificate of Determination dated 24 October 2019 is confirmed. |
INTRODUCTION
On 11 March 2015, Mr Sami (the appellant) suffered a heart attack whilst working at the premises of the respondent employer Victory Lodge Pty Limited. There is some confusion as to whether the heart attack occurred on 13 March 2015 (as the Arbitrator notes in his Award) or on 11 March 2015. The precise date is of no significance.
Mr Sami brought proceedings for lump sum compensation against Victory Lodge Pty Limited, the name of the respondent having been amended by the Arbitrator by consent.[1] I note that respondent is named in the Application – Appeal Against Decision of Arbitrator as ‘Racing NSW (Victory Lodge Pty Ltd)’. On 20 March 2020, the appellant made an application to amend the name of the respondent to ‘Victory Lodge Pty Limited’ by consent. The name of the respondent, wherever it appears, is amended to read ‘Victory Lodge Pty Limited’.
[1] Transcript of arbitration, 25 September 2019, 2.10.
On 21 October 2019, an Arbitrator of the Commission rejected Mr Sami’s claim and entered an award for the respondent.
This appeal is from that determination.
BACKGROUND FACTS
Mr Sami commenced working as a stable hand at Victory Lodge from an unspecified date in 2010.
There is no dispute that the appellant suffered a myocardial infarction.
At the commencement of his oral reasons, the Arbitrator summarised the circumstances of the appellant’s injury.[2] He quoted from the appellant’s statement dated 1 June 2018:
“I was carrying water. It was heavy and I started getting pain in the chest and the legs started giving way and then I fell onto my back and I lost consciousness. The next thing I woke up I was in Liverpool Hospital. I was then told I had a heart attack.”[3]
[2] Transcript of oral reasons, 21 October 2019 (T) 1.27–40.
[3] Application to Resolve a Dispute (ARD), p 1.
In a second statement dated 8 June 2019, Mr Sami described his work in the following terms:
“I gained employment at Victory Lodge as a full-time stable hand in 2010 and my daily work was very demanding. It was labour intensive work. It involved me having to clean stables. There were not enough staff. I had to dig up sawdust. I had to shovel sawdust and manure. I had to drag very heavy dust pans to the tip and had to also perform truck driving and had to carry many buckets of water to the stables to feed the horses and it was not just water, it was hay and other items that horses need. They were cumbersome. They were difficult to carry and I had very little help … It is well known on 11 March 2015, I sustained the injury at work. It involved a heart attack. At the time, I was carrying a heavy bucket of water that I had to dip into a container which was quite high, it was tall as me really … I had acute chest pain and my legs gave way and I fell onto the ground on my back. I was unconscious.”[4]
[4] ARD, p 3.
THE ARBITRAL PROCEEDINGS AND DECISION
The proceedings were commenced by an Application to Resolve a Dispute (ARD) registered in the Commission on 21 June 2019.
Part 4 of the ARD particularised the injury as:
“physical injuries in the form of plaque rupture in the circumflex coronary artery as a result of heavy manual work. In the alternative, aggravation of disease is alleged. He also suffered physical injuries to his lumbar spine, right shoulder, left shoulder right knee as a result of his employment which were aggravated by the injuries of 11 March 2015”.
In the course of the hearing counsel for the worker informed the Arbitrator that the injury relied upon was limited to the heart injury which occurred on 11 March 2015.
A Reply to the Application was received by the Commission on 27 June 2019.
On 21 October 2019, the Arbitrator delivered oral reasons for orders.
A Certificate of Determination dated 24 October 2019 was issued in which the orders are recorded as follows:
“1. There will be an award for the respondent.
2. I grant leave to the respondent to lodge the Application to Admit Late Documents dated 21 December 2019.
3. On the applicant’s application the claim for injury to the lumbar spine, the right upper extremity and the left upper extremity (shoulders) and left lower extremity and right lower extremity (knees) is discontinued and I dispense with the necessity for the applicant to lodge a Notice of discontinuance.”
The appellant filed an Application to Appeal Against Decision of an Arbitrator on 21 November 2019.
The respondent filed a Notice of Opposition to Appeal Against Decision of an Arbitrator dated 15 January 2020. The filing was out of time and the respondent seeks leave to rely on the out of time filing. I deal with this later.
STATEMENT OF REASONS
The Arbitrator’s findings are not explicitly stated in the oral statement of reasons.
The Arbitrator dismissed the attacks on Mr Sami’s credit.[5] The credit issues concerned a number of matters. Firstly a letter dated 26 May 203 that the Arbitrator concluded was probably not written by Mr Sami. Secondly the Arbitrator rejected a submission that the heart attack may have occurred in the Ambulance or elsewhere on the basis evidence of the witness “Joanne” and the hospital records. Thirdly he did not accept that Mr Sami was misleading as to how the heart attack occurred. Fourthly accepted that Mr Sami was ignorant of the requirements to give notice and make a claim within time.[6]
[5] T13.15.
[6] 13.29 -14.30
The Arbitrator accepted that the heart attack occurred whilst Mr Sami was carrying water[7] and that he was a popular worker. The Arbitrator did not accept Mr Sami’s description of the work as “very heavy” or “heavy duty labouring work”.[8] He preferred Mr Connor’s evidence that the work was arranged to suit a not very fit large gentleman.
[7] T2.5.
[8] T13.16–27.
The issue determinative of the parties’ dispute was, which of the conflicting opinions of Dr Berger and Dr Herman should be preferred.
Dr Berger expressed the opinion that Mr Sami had multiple risk factors, including a very strong family history of premature coronary disease: all of his brothers had had infarcts and his father died of an infarct in his mid-50s. Mr Sami had poorly controlled diabetes and at the time Dr Berger saw him, he continued to smoke. Dr Berger expressed the opinion that the act of lifting a 10 kilogram container of water was nothing more than a trivial contributor to the myocardial infarction. Dr Herman was of the contrary opinion.
The Arbitrator isolated the differences between the two specialist Cardiologists. He preferred the opinion of Dr Berger that a heart attack in Mr Sami’s case was inevitable.[9]
[9] T12.23.
The Arbitrator preferred Dr Berger’s opinion because:
(a) Dr Berger treated Mr Sami at hospital after the first heart attack.
(b) When he was treating Mr Sami at hospital, Dr Berger said that his recollection and the hospital documentation were to the effect that Mr Sami had developed chest pain during stable work with no specific mention of water containers.
(c) Dr Berger regarded the assertion that the event in question represented a plaque rupture as speculative.
(d) On the Arbitrator’s findings immediately before the heart attack, there was no sudden excessive work effort. Rather, Mr Sami was performing his usual work duties.[10]
(e) The Arbitrator accepted Dr Berger’s opinion that whilst myocardial infarction in the context of physical exertion was well described, but so too were plaque complications occurring spontaneously while at rest.[11]
(f) The Arbitrator directed attention to Dr Berger’s opinion that Mr Sami had subsequent to the original heart attack, suffered multiple myocardial infarctions including on occasions when asleep. This confirmed that Mr Sami experienced spontaneous infarctions without physical activity.
[10] T13.9–10.
[11] T11.20.
The preference for Dr Berger’s opinion led the Arbitrator to reject Dr Herman’s opinion that the heart attack resulted from the worker having repeatedly lifted 10 to 15 kilogram drums of water causing atherosclerotic plaque to rupture occasioning thrombosis.
The Arbitrator accepted the opinion of Dr Berger that:
“… the moderate levels of physical activities he was undergoing at the time of the event [were] … only a small contributor to the event, the main proximate causes of which were multiple poorly controlled cardiovascular risk factors, including smoking, diabetes and poor glycaemic control and obesity.”
The Arbitrator said that he was satisfied that what happened was that the underlying cardiovascular risk factors came to “visit” him at the time of the heart attack.[12]
[12] T13.10.
The dispositive conclusion was expressed briefly at page 15:
“Another problem is as to the nature of the injury. It was pleaded as the aggravation of a disease and there is no doubt that Mr Sami, on the evidence I have referred to, has arteriosclerotic disease. If it was, then it was a section 4b(ii) (of the 1987 Act) claim, to which along with s16 being applied, it would have to be shown that the employment was the main contributing factor. For the reasons I have already given the risk factors that were found and mentioned by Dr Berger as the treating Cardiologist a week or so after the injury, it could not be said that the employment was the main contributing factor.”
The Arbitrator discussed ss 9A and 9B in response to submissions made by the appellant’s counsel at the hearing. However, the critical dispositive finding was that Mr Sami had not persuaded the Arbitrator that the main contributing factor to the heart attack was the employment.
In the result there was an award for the respondent.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act1998 (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.”
The respondent submits that the matter is one in which an oral hearing before a Presidential Member is necessary having regard to the complex and somewhat novel issues involved in the matter. I am of the contrary view.
I am satisfied, having regard to Practice Directions Numbers 1 and 6, the documents before me and the submissions by the parties, that the appeal can proceed to be determined on the basis of those 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 an appropriate course in the circumstances.
THRESHOLD MATTERS
The threshold requirements as to quantum and time pursuant to s 352(3) and s 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:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
THE RESPONDENT’S APPLICATION FOR LEAVE TO RELY ON SUBMISSIONS AND NOTICE OF OPPOSITION LODGED OUT OF TIME
The respondent seeks leave to rely upon its submissions and the Notice of Opposition which were received by the Commission on 16 January 2020. The explanation proffered at paragraph [7] of the respondent’s submissions is that the date for the filing of the Notice of Opposition was incorrectly recorded as 17 January 2020.
The Application – Appeal Against Decision of Arbitrator registered 21 November 2019 in paragraph 1.4 does specify that the respondent is required to serve a sealed copy of its Notice of Opposition and supporting documentation on the appellant by 17 January 2020.
The Notice of Opposition to Appeal Against Decision of the Arbitrator is dated 15 January 2020 and was received in the Registry on 16 January 2020.
The Notice of Opposition should have been lodged on 10 January 2020.
Rule 3.2(1) of the Workers Compensation Commission Rules 2011 (2011 Rules) provides a general power to extend time. Excluded from that power are applications to extend the time for appeal under s 352(4) of the 1998 Act.
An application to extend time to rely on a Notice of Opposition to the appeal is within r 3.2(1) of the 2011 Rules and is not excluded.
Time stipulations are intended to advance the administration of justice in the context of the Workers Compensation Commission’s dispute resolution function. The jurisdiction granted to extend time by the rules is intended to enhance that function by permitting time to be extended in appropriate cases where the interests of justice so require.
Although the respondent’s explanation for the delay is not accurate and does not fully acknowledge that party’s non-compliance with the Rules, for the reasons that follow I grant leave to the respondent to rely on the Notice of Opposition to the Appeal.
The appellant has not filed a submission in reply objecting to time being extended. I therefore assume that the appellant has not suffered any prejudice as a result of the failure to lodge the Notice of Opposition and submissions within time. I am unable to see any prejudice to the appellant if the time is extended.
The period of delay is short: 6 days. It occurred during the Christmas/New Year period.
The delay is not such as to be likely to result in a waste of public resources, impose strain and uncertainty on the parties or otherwise undermine confidence in the Workers Compensation Commission or the system of dispute resolution.
The respondent would be prejudiced if it is prevented from advancing submissions in support of the Arbitrator’s findings and the Commission would not have the benefit of submissions contradicting those advanced by the appellant.
In my view the interests of justice and the objects of the Workers Compensation system are best served by permitting an extension of time.
In the circumstances I grant leave to the respondent to rely upon the Notice of Opposition to Appeal Against Decision of Arbitrator and the supporting submissions filed 16 January 2020.
GROUNDS OF APPEAL
The grounds of appeal appear as headings to the written submissions rather than clearly identified grounds of appeal in the Application – Appeal Against Decision of Arbitrator. This creates considerable difficulty in identifying the alleged “errors” complained of by the appellant.
To demonstrate the difficulty, I set out the “grounds” from the headings in the appellant’s submissions:
Ground 1: Identifying the wrong test for injury.
Ground 2: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons.
Ground 3: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons.
Ground 4: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons.
Ground 5: Making findings of fact based on error of discretion.
Ground 6: Drawing a false inference.
Ground 7: Failing to make a determination on s 9B and inadequacy of reasons.
Ground 8: Failing to make a determination on s 9B or inadequacy of reasons.
Practice Direction Number 6 – ‘Appeal Against a Decision of an Arbitrator’ (Practice Direction 6) provides under the heading “Grounds of Appeal” that the grounds of appeal must be clearly and succinctly stated.
It further directs that the grounds of appeal must identify:
“(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the arbitrator should or should not have made, and
(c) any material facts it is said the arbitrator should or should not have found.”
The Practice Direction specifically states:
“18. It is not acceptable to merely allege that the arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
The appellant’s grounds of appeal in this matter are far short of the specific directions given in Practice Direction 6. The grounds of appeal do not identify the specific error that the appellant complains of; the contested material findings or the contested facts the subject of the appeal.
This problem is particularly acute in relation to Grounds 2, 3 and 4 which do not identify the precise complaint(s) to the reasons for the determination made by the appellant. Further, these grounds of appeal may overlap.
Ground 1: Identifying the wrong test for “injury”
This ground of appeal highlights the difficulty with the manner in which the appellant has articulated the grounds of appeal.
The complaint made by the appellant is at paragraphs [9]–[11] of its submissions, which I set out in full:
“9. Although the Arbitrator correctly identified the nature of the injury as one of an aggravation, etc, of a disease (p 15 line 13), the Arbitrator then determined the issue by treating as relevant to an aggravation those factors relating to the disease itself (p 15 line 19). Those factors were: a very strong family history of premature coronary disease; poorly controlled diabetes; and smoking (Dr Berger dated 20 April 2015 at the Reply p 45). It was an error of law to take those factors into account when determining whether the applicant’s employment was the main contributing factor to the aggravation, etc, of the disease (Murray v Shillingsworth [2006] NSWCA 367, and State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 (16 December 2015)). In Murray v Shillingsworth Hodgson JA rejected the proposition that smoking was a factor to be considered as part of the aggravation, etc, saying instead it was part of the pre-existing disease (par [8]).
10. The error was material. The Arbitrator went on to find that the employment actually contributed to the heart attack (p 16 line 15). Given that the Arbitrator had already found that Mr Sami’s pathology was a disease (p 15 line 15) and there being no suggestion on the evidence of a frank injury, it follows that the work contribution referred to on page 16 was an aggravation, etc, of the underlying disease. Even though, on the Arbitrator’s view, the contribution was minor in the overall picture, the Arbitrator did not address whether it was the main contributing factor to the aggravation of the disease.
11. If the Arbitrator had addressed the issue, it is our submission that, on the evidence, there were no competing aggravating factors and, regardless medically of the size of the aggravation, the applicant’s task of lifting the water bottles was wholly or mainly responsible for it.”
I have set the appellant’s submission out in relation to Ground 1 for two reasons:
(a) the first is so that the precise ground of appeal is identified, and
(b) the second is that it seems to me that the determination of this ground is critical to determination of the appeal.
The respondent’s submissions in answer to Ground 1 are brief but to the point:
“9. Contrary to the Submissions made on behalf of the Appellant, the Arbitrator has rather not only correctly identified the allegation of injury but applied precisely the correct test to the issues in dispute. The reference by the Appellant to Page 15 and Line 13 of the decision is a reference to the pleadings. The Arbitrator has then proceeded to determine, as a matter of fact, that the worker’s employment was neither a substantial contributing factor to any injury nor the main contributing factor to the cause or aggravation of any disease. That finding was clearly open on the evidence particularly in circumstances where the Arbitrator rejected the opinion expressed by Dr Herman (Page 13, Line 3).
10. Again, contrary to what is submitted on behalf of the Appellant (in Paragraph 10 of the Submissions) the Arbitrator specifically found that ‘it could not be said that the employment was the main contributing factor’ (Page 15, Line 23).”
The finding dispositive of the matter is set out at paragraph [27] above and need not be repeated.
As the appellant correctly concedes, the Arbitrator, relying on the opinion of Dr Berger, found as a fact that the work was a “minor contributor” to the heart attack.[13]
[13] T16.15.
The appellant submits that the Arbitrator found the work made some contribution albeit minor in the overall picture. He did not find that there were other relevant contributors. The Appellant’s submission is that as there were no competing aggravating factors and regardless medically of the size of the aggravation, the appellant’s task of lifting the water bottles was wholly or mainly responsible for the myocardial infarction.
I do not accept the logic of the argument. The Arbitrator was required to consider whether the work was the “main contributing” factor to the myocardial infarction. He determined that it was a “minor contributor”. He thereby necessarily determined that the work was not the “main contributing” factor.
Even if contrary to my view the logic of the appellant’s argument is correct, the Arbitrator found on the materials that the work was not the “main contributing factor”. That finding means the appellant had not satisfied the definition of injury within s 4(b)(ii).
The Arbitrator quoted from Dr Berger’s report of 17 August 2018 to the effect that the lifting of 10 kilogram containers of water, which immediately preceded the cardiovascular event, was no more than a “trivial contributor to his myocardial infarction”.[14]
[14] Reply to Application to Resolve a Dispute (Reply), p 3.
In so far as the Arbitrator preferred the opinion of Dr Berger, the appellant did not satisfy the definition of “injury” within s 4 of the 1987 Act. A trivial contribution was insufficient to satisfy s 4(b)(ii).
In State Transit Authority of New South Wales v El-Achi,[15] Roche DP referred to the decision of Einstein J at [62] of Murray v Shillingsworth[16] to the effect that for the purpose of s 9A of the 1987 Act, the employment had to be a substantial contributing factor to the aggravation. That is to say, the aggravation had to be a substantial contributing factor to the aggravation and not to the original disease that is the underlying condition.
[15] [2015] NSWWCCPD 71 (El-Achi).
[16] [2006] NSWCA 367.
Roche DP adapting what was there said for the purpose of s 4(b)(ii) in the form in which it appeared in El-Achi said the employment needed to be the main contributing factor to the aggravation injury not to the disease process as a whole.
In the present matter, the Arbitrator addressed the relevant test for the purpose of s 4(b)(ii): “it would have to be shown that employment was the main contributing factor”. That comment was made in the context of a discussion concerning the case pleaded as the aggravation of a disease.[17]
[17] T15.16–19.
The Arbitrator said, having accepted Dr Berger’s opinion, “it could not be said that the employment was the main contributing factor”.[18]
[18] T15.22–23.
The Arbitrator’s finding was:
“… I am not, regrettably, able to find that work was any more than a minor contributor to the heart attack, which is what Dr Berger opined.”[19]
[19] T16.13–16.
The appellant’s proposition at paragraph [11] of his submissions ignores the thrust of Dr Berger’s opinion that the plaque rupture could have been spontaneous but that, in any event, the employment activity was a minor contributing factor.
I am not persuaded the Arbitrator failed to address the correct test or that the negative conclusion that the employment was not the main contributing factor was in error.
Ground 1 of the appeal fails.
Grounds 2 and 3: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons
The appellant at paragraph [12] of his submissions misquotes the Arbitrator’s conclusion at T13. The Arbitrator said that he was “not persuaded by Dr Herman’s opinion”.
This ground of appeal is not clearly particularised or articulated. The complaint as articulated in the submissions at paragraph [13] is that in the quoted passage the expression “that sort of work” must be a reference to lifting heavy buckets of water “as per our submission at [7(g)]”.
Paragraph [7(g)] of the appellant’s submissions is as follows:
“7. The following express and implicit findings by the Arbitrator are not in dispute.
…
(g) The implicit finding that the heart attack occurred while the applicant was successively lifting and carrying heavy buckets of water. The Arbitrator found that there were no eyewitnesses (p2 line 10). The Arbitrator referred without criticism to the applicant’s evidence (p2 line 3), to the histories given to Dr Herman (p9 line 6 and p10 line 29) and, in response, to the assumptions made by Dr Berger based on those histories (p8 line 10 and p11 line 30). The Arbitrator did not find otherwise. The more general description in the discharge notes that the applicant was ‘feeding horses’ at the time was not during the proceedings suggested to mean that the applicant was doing something other than what he said or developed in any way by the Arbitrator.”
The appellant’s submission is that there was “no evidence to support the factual proposition that the applicant was lifting the buckets ‘all the time’ or even that it was something that he had to do regularly throughout the day as the Arbitrator may have meant.”[20]
[20] Appellant’s submissions, [13].
The response by the respondent to Ground 2 addresses the point by reference to causation and does not really address the appellant’s submissions.[21] This is not a criticism of the respondent’s attempts to address the appellant’s submissions, rather it is a function of the imprecise way in which the Ground 2 is articulated.
[21] Respondent’s submissions, [11]–[13].
In my view, the difficulty with the appellant’s submissions in relation to this ground of appeal is that 7(g) does not record accurately either the facts or the evidence before the Arbitrator.
The sort of work the appellant was doing before the heart attack is described in the passage from his statement quoted at paragraph [9] above.
The passage from the Arbitrator’s reasons that includes the words “that sort of work all the time”[22] is a reference by the Arbitrator to the general work performed by Mr Sami as a stable hand. The Arbitrator was simply concluding that there was nothing unusual in the work performed by Mr Sami on the day of the heart attack.
[22] T.13.6.
The submission that there was no evidence that Mr Sami was lifting buckets “all the time” misquotes the Arbitrator’s award which does not say that Mr Sami was lifting buckets of water all the time.
The activities being performed by Mr Sami immediately before the heart attack were relevant to the foundation of the medical opinions. Neither Dr Berger nor Dr Herman obtained a history comparable to that contended for by the appellant in paragraph [7(g)]. Dr Berger obtained a history that the myocardial infarction occurred when Mr Sami was “carrying a heavy bucket of water”.[23] Dr Herman obtained a history that Mr Sami was “filling a container with 10 litres of water …, walking some distance with it and then lifting the container for 1 ½ metres to pour out the contents”.[24]
[23] Reply, p 5.
[24] ARD, p 21.
Accordingly, the appellant’s submissions at [7(g)] and at [13] are factually inaccurate and irrelevant to the histories given to the doctors.
Further the submission misquotes the Arbitrator’s findings as to the work Mr Sami usually performed in his daily employment activities (see paragraph [19] above).
There is nothing in the evidence of either Dr Herman or Dr Berger which gives support to the view that Mr Sami was doing anything other than his normal ordinary duties, including the carrying of a single bucket of water, when he experienced the myocardial infarction.
The respondent’s submission at [14] is correct “at no time did the Appellant seek to suggest that his activities on the date the subject of the claim differed in anyway from the activities that he had been carrying out over a protracted period of time.” Mr Sami was doing what he did in the course of his employment day in and day out. There was nothing on the occasion of the heart attack to distinguish the duties that he was at that time performing from the duties he usually undertook as a stable hand.
The conclusions expressed in the reasons provided by the Arbitrator at T13.5–27 concerning the work performed by Mr Sami at Victory Lodge are brief but those passages are a summary of the quite detailed recounting of the lay evidence that occurs at T1–5.
The Arbitrator’s reasons for his conclusion that the work being performed by Mr Sami on 11 March 2015 was the same as that which he usually performed are adequate. The articulation of the reasons make sufficiently apparent the matters taken into account to enable appellate review and to explain to the parties the basis for reaching the conclusion the Arbitrator reached.
I am not persuaded that the Arbitrator’s finding that the appellant was performing his ordinary and usual duties on the day of the heart attack occurred was wrong. Although the ultimate conclusion in this regard is economically expressed at T13, when considered in the context of the previous consideration of the lay evidence the reasons are adequate.
Grounds 2 and 3 of the appeal are not made out and are dismissed.
Ground 4: Making findings of fact based on no evidence or evidence not properly weighed and failing to give adequate reasons
The appellant’s submission is that the weight of the evidence was that the appellant was engaged in a task of repetitively lifting a large number of these heavy buckets of water.[25] On the basis of the evidence of Connors and McKienan the Appellant submits that this was not something he always did and it was sufficiently strenuous to cause plaque rupture that caused heart attack.[26]
[25] See GP’s notes, ARD, p 9.
[26] Dr Herman, ARD, p 27.
The appellant cites Doohan v North Shore Transport Pty Limited.[27] The reliance on this decision is not entirely apparent from the submission which is cited without pinpoint reference. I assume the citation is intended to support the submission that it is an error of fact to wrongly weigh the evidence.
[27] [2012] NSWWCCPD 42 (Doohan).
In Doohan Roche DP found “though the Arbitrator set out a detailed summary of the evidence, she did not analyse or weigh the evidence in an attempt to resolve the conflicts in it, and did not indicate which evidence she accepted and which she rejected, but merely expressed a conclusion that is not supported by the evidence.”[28] That is not what occurred here.
[28] Doohan, [43].
The appellant refers to the manuscript notation in the clinical notes of Mr Sami’s general practitioner, Dr Chan.[29]
[29] ARD, p 98.
Importantly:
(a) The manuscript note made by the general practitioner was made on 25 May 2015. It was thus a historical recounting by the appellant to his general practitioner.
(b) There is no fair copy of the manuscript.
(c) It is extremely difficult to decipher, but it seems to me that the myocardial infarction is described as having happened after the appellant lifted a bucket of water (10 kilograms) from the floor. There is a notation of repetitive lifting of 23 buckets in the morning and then again in the evening, but the precipitating event is the lifting of a bucket of water and that accords with the history given by the appellant in his statement, recorded by Drs Berger and Herman.
The evidence does not support the conclusion that the appellant engaged in repetitively lifting a large number of heavy buckets of water.
The appellant’s proposition that “[the work] was sufficiently strenuous to cause the plaque rupture that caused the heart attack” because it was repetitive is not made out on the evidence.
The evidence (see paragraphs [7] and [8] above and Mr Sami’s statements) does not support the proposition that Mr Sami was lifting 10-kilogram buckets of water above shoulder height and pouring these into troughs. The evidence was and the Arbitrator was correct in finding that Mr Sami was dealing with a single bucket of water.
Dr Berger and Dr Herman relied upon a single instance of carrying the bucket of water as being relevant to the myocardial infarction.
The history contended for by the appellant based on the GP’s manuscript of Mr Sami “repetitively lifting a large number of these heavy buckets of water” is not supported by the other evidence and was not relied on by the medical specialists to support their opinions.
In any event even if the correct history was as recorded in the GP’s notes, namely that Mr Sami was “repetitively lifting a large number of these heavy buckets of water”, Dr Herman’s opinion would carry less weight because the opinion in Dr Herman’s reports is based on a different history.
Dr Herman recorded the history on which he relied in his report dated 28 March 2018,[30] namely that before the heart attack Mr Sami carried a single container of 10 litres of water, walking some distance with it and lifting it one and a half metres to pour out the contents.
[30] ARD, p 21.
The further report by Dr Herman dated 18 December 2018[31] contains no additional history. There is a reference in that report to more than one container of water but there was no evidence as to the source of that information. The appellant told Dr Herman that he was carrying a single container. The history as recorded in the GP’s notes was not the basis of Dr Herman’s opinion, was not the appellant’s evidence before the Arbitrator and cannot now be relied on to support the doctor’s opinion as to causation.
[31] ARD, p 27.
If the appellant wanted to make a case that Mr Sami’s myocardial infarction was caused by his repetitively lifting a large number of buckets of water it was necessary for two conditions to be satisfied: first, there needed to be acceptable evidence of that history; and second, the specialist needed to offer a supportive opinion based on that evidence. In my view the appellant has not satisfied either condition.
No submission is advanced as to the adequacy of the reasons. The Arbitrator makes clear in his statement of reasons the history that he accepted. I see no error as to the adequacy of the reasons.
Ground 4 of the appeal is dismissed.
Ground 5: Discretionary objection to the evidence of Dr Herman
The Arbitrator did not reject the evidence of any witness as a matter of discretion.
The Workers Compensation Commission, though not bound by strict rules of evidence, is nevertheless required to give the matter “proper consideration” and determine the matter “according to equity, good conscience and the substantial merits”.[32]
[32] Section 354(2) and (3) of the 1998 Act.
The Arbitrator did not reject Dr Herman’s evidence as a matter of discretion. He rejected it for the reasons given as a matter of forensic determination.
The Arbitrator firstly discussed and analysed the competing opinions of Drs Herman and Berger.[33]
[33] T6.10–12.34.
He isolated the point of disagreement between the specialists, namely:
(a) Dr Berger regarded the lifting of the container as “a trivial contributor to his myocardial infarction”;[34]
(b) whereas Dr Herman said “the plaque rupture probably occurred as a result of the physical stress of lifting the container.”[35]
[34] T8.13–14.
[35] T9.33–10.1.
The Arbitrator analysed the basis for each expert’s differing opinion. He preferred Dr Berger’s opinion because:
(a) Dr Berger had a recollection, and the hospital notes confirmed, that at the time Dr Berger treated Mr Sami in hospital for the original myocardial infarction, there was no complaint that the chest pain had been associated with activities using the water container.[36]
(b) Although Dr Berger accepted that a myocardial infarction could occur in the context of physical exertion, he pointed out that plaque complications could occur spontaneously.[37]
(c) It was significant to Dr Berger that Mr Sami had experienced subsequent myocardial infarctions. On one occasion this had occurred when Mr Sami was asleep.[38]
(d) Dr Berger thought that the moderate physical activity at the time was “only a small contributor to the event, the main proximate causes of which were multiple poorly controlled cardiovascular risk factors, including smoking, diabetes and poor glycaemic control and obesity.”[39]
(e) The discussion of the relevant advantages and roles played by physical activity in coronary events given by Dr Herman did not persuade the Arbitrator to accept Dr Herman’s opinion.[40]
[36] T11.10.
[37] T11.20.
[38] T11.25.
[39] T11.33.
[40] T12.9–13.3.
The Arbitrator was not satisfied that Dr Herman’s opinion was based on a correct view of Mr Sami’s activities at the time of the heart attack. The Arbitrator was persuaded that at the time of the heart attack Mr Sami was working performing the same duties that he routinely performed in his daily employment.
The Arbitrator concluded:
“What happened was that his underlying cardiovascular risk factors came to visit him at that time.”[41]
[41] T13.10.
The Arbitrator’s preference for Dr Berger was soundly based and reasoned. He did not reject Dr Herman’s opinion on discretionary grounds.
Ground 5 of the appeal has not been established.
Ground 6: Drawing a false inference
It is difficult to determine the appellant’s precise ground of appeal in paragraph [17] of his submissions. The appellant does not identify the inference or where in the Arbitrators statement of reasons the implied inference is to be found.
The Arbitrator did not say expressly or by implication “that moderate exercise frequently performed would probably not cause a heart attack”. That may be an inference that could be drawn from the medical evidence but it is not an inference the Arbitrator drew or was required to be draw.
Acceptance of Dr Berger’s opinion gave rise to an inference that the work activities on 11 March 2015 were not the main contributor to the myocardial infarction. But in my view, the appellant has not demonstrated that the Arbitrator drew an incorrect inference about the efficacy of exercise in preventing heart attacks by accepting the opinion of Dr Berger.
Ground 6 of the appeal is not established and is dismissed.
Grounds 7 and 8: The Arbitrator’s discussion of the application of s 9B of the 1987 Act is in many respects unsatisfactory, inadequacy of reasons
It is difficult to work out precisely what the Arbitrator decided having regard to s 9B.
The Arbitrator did not refer to Renew God’s Program Pty Limited v Kim.[42] If the Arbitrator’s conclusions about s 9B were decisive in determining the appeal, then the appeal would need to be allowed.
[42] [2019] NSWWCCPD 45.
The Arbitrator did not determine the matter on the basis of s 9B. The respondent is correct in its submission (paragraph [18]) that the Arbitrator determined that in the circumstances where employment was not a substantial contributing factor to the injury (or the main contributing factor to the aggravation), that the appellant failed on the issue of injury irrespective of a less than adequate consideration of s 9B.
Although the Arbitrator’s expression of the determination under s 9B is, in my view, inadequate, given his preference for the views of Dr Berger, it is plain that he did not regard Mr Sami’s employment as giving rise to a “significantly greater risk” of suffering injury in the form of a myocardial infarction than Mr Sami’s risk had he not engaged in the employment. If as I find the Arbitrator was correct to accept Dr Berger’s opinion it is patent that the employment did not give rise to a significantly greater risk in Mr Sami’s case.
Grounds of appeal 7 and 8 are made out but are not determinative of the outcome of the appeal.
CONCLUSION
Grounds 7 and 8 of the appeal are upheld but the appellant’s failure to establish an injury within s 4(b)(ii) of the 1987 Act means the appeal must be dismissed.
The appellant has failed to establish error of fact, law or discretion on the critical issue of injury.
DECISION
The Arbitrator’s Certificate of Determination dated 24 October 2019 is confirmed.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
3 June 2020
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