Sikoski v Dolci Doro Pty Ltd - [2020] NSWWCCPD 60

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sikoski v Dolci Doro Pty Ltd [2020] NSWWCCPD 60
APPELLANT:	Pero Sikoski
RESPONDENT:	Dolci Doro Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-786/20
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	6 May 2020
DATE OF APPEAL DECISION:	25 September 2020
SUBJECT MATTER OF DECISION:	Alleged error in fact finding – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, the rule in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; 98 ER 969
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Koutzoumis, solicitor
Koutzoumis Lawyers
Respondent:
Mr L Robison, counsel
BBW Lawyers
ORDERS MADE ON APPEAL:	1. The decision of the Arbitrator dated 6 May 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Pero Sikoski (the appellant) was employed by Dolci Doro Pty Ltd (the respondent), which manufactured confectionary. He was a process worker with the respondent for many years. He suffered injury to the lower back (which is not disputed) on 8 August 2011 when he fell while operating a machine.[1] He suffered a compression fracture of L2.[2] He came under the care of a general practitioner, Dr Nigro, from 15 August 2011.[3] He had little time off work, but stated that he suffered ongoing back pain.[4] There are varying histories of the duties carried out after the injury, some of the medical histories state the appellant performed lighter duties thereafter, others do not.[5] The appellant ceased working with the respondent when it closed in about March 2017,[6] and he then worked for another company performing process work to about February 2019.[7]
[1] Appellant’s statement 4/2/20, [4]–[8], Application to Resolve a Dispute (ARD), p 1.
[2] Dr Travers’ CT scan report 16/8/11, ARD, p 35.
[3] ARD, p 92.
[4] ARD, p 2.
[5] For example, see Dr Giblin’s report 24/9/18, ARD p 22, contra Professor Young’s report 17/9/19, Reply, p 22.
[6] Dr Giblin’s report, ARD, p 22.
[7] Professor Young’s report, Reply, p 22.
The appellant was assessed at his solicitors’ request by Dr Giblin, an orthopaedic surgeon, who reported on 24 September 2018, assessing 12 per cent whole person impairment (WPI) in respect of the lumbar spine.[8] The appellant was assessed at his solicitors’ request by Dr Herman, a cardiologist, who reported on 12 March 2019 and 1 July 2019.[9] Dr Herman diagnosed “hypertension … in the setting of several cardiac risk factors which started after his work related injury”. These were described as “weight gain, chronic pain, anti-inflammatory consumption, decreased mobility and the development of sleep apnoea (all of which provoke hypertension)”. Dr Herman assessed WPI of 10 per cent in respect of the cardiovascular system. The appellant was assessed at his solicitors’ request by Dr Hamor, a respiratory and sleep physician. Dr Hamor reported on 22 February 2019, making a diagnosis of mild sleep apnoea, which he said was “related to his weight gain and due to inactivity following the accident in 2011”. The doctor assessed WPI at 9 per cent in respect of ear, nose, throat and related structures.
[8] ARD, p 26.
[9] ARD, pp 28–32.
On 9 July 2019, the appellant made a claim for lump sum compensation in respect of 31 per cent WPI, based on the above assessments.[10] The respondent’s insurer disputed liability for this claim in a s 78 notice dated 18 October 2019.[11] The dispute was on the basis that the insurer denied the “claim for consequential injuries of hypertension and sleep apnoea”.
[10] ARD, pp 14–16.
[11] ARD, pp 9–13.
The current proceedings, seeking lump sum compensation on the above basis, were listed for arbitration hearing on 15 April 2020. The hearing was conducted by telephone consistent with the Commission’s revised procedures associated with the COVID-19 pandemic. Mr Petrie appeared for the appellant and Mr Robison appeared for the respondent. There were no applications to cross-examine or to adduce oral evidence. Counsel for both parties addressed and the Arbitrator reserved her decision.
The Commission issued a Certificate of Determination dated 6 May 2020, accompanied by 17 pages of reasons.[12] The Arbitrator did not accept that the necessary causal connection was established between the injury on 8 August 2020 and the allegedly consequential conditions of hypertension and sleep apnoea. There was an award for the respondent in respect of those conditions. This appeal is brought against that decision. There was also an award for the appellant on the basis of 12 per cent WPI in respect of the lumbar spine, that injury having been conceded and the assessments of both parties for the lumbar spine being the same at 12 per cent.
[12] Sikoski v Dolci Doro Pty Limited [2020] NSWWCC 140 (reasons).

THE ARBITRATOR’S REASONS

The Arbitrator described the matters in issue:
“(a)    Whether the [appellant] suffers from the condition of hypertension and, if so, whether the condition has resulted from the injury on 8 August 2011;
(b)     Whether the [appellant’s] sleep apnoea has resulted from the injury on 8 August 2011; and
(c)     The degree of permanent impairment resulting from the injury on 8 August 2011 and quantification of the [appellant’s] entitlement to lump sum compensation.”[13]
[13] Reasons, [8].
The Arbitrator summarised the appellant’s statement.[14] She summarised the evidence of the treating doctors, particularly that of Dr Nigro, the general practitioner.[15] She summarised the evidence of the appellant’s medicolegal experts (Dr Giblin, Dr Herman and Dr Hamor)[16] and the respondent’s medicolegal case (Dr Powell, Dr Haber and Professor Young).[17] She summarised the parties’ submissions.[18]
[14] Reasons, [11]–[15].
[15] Reasons, [16]–[35].
[16] Reasons, [36]–[50].
[17] Reasons, [51]–[69].
[18] Reasons, [70]–[95].
The Arbitrator noted the issue was whether the alleged consequential conditions of hypertension and sleep apnoea resulted from the conceded lumbar spine injury on 8 August 2011. She referred to the decision of Roche DP in Moon v Conmah: it was unnecessary to establish that the disputed conditions were ‘injuries’ within the meaning of s 4 of the 1987 Act.[19] She said what was required was a “commonsense evaluation of the causal chain”, referring to Kooragang Cement Pty Ltd v Bates.[20] The Arbitrator also referred to Nguyen v Cosmopolitan Homes and the need for a fact-finder to be actually persuaded of the occurrence or existence of a fact before it can be found.[21]
[19] [2009] NSWWCCPD 134, [45]–[46].
[20] (1994) 35 NSWLR 452; 10 NSWCCR 796, 463–464.
[21] [2008] NSWCA 246.
The Arbitrator referred to the appellant’s evidence that he had gained about 20 kilograms in weight in association with pain, medication and lack of movement. She referred to the appellant’s evidence that due to the weight gain he could not sleep as previously, and that he was diagnosed with hypertension in 2012 despite not having “issues with his blood pressure prior to the injury”. She referred to his evidence that the injury caused a considerable degree of stress and that he was less active than he used to be. The Arbitrator said this account of events was accepted by the appellant’s medicolegal experts in explaining the causal link. The Arbitrator said it was necessary to consider the totality of the evidence. She said the respondent’s evidence “casts doubt over the diagnosis of hypertension and the opinions on causation”. There was a “lack of corroboration in the contemporaneous medical evidence”.[22]
[22] Reasons, [101]–[103].
The Arbitrator accepted the appellant suffered from “mild sleep apnoea”, a diagnosis made by both Dr Hamor (in the appellant’s case) and Professor Young (in the respondent’s case). It was consistent with the polysomnography report dated 19 April 2018, although that report gave no indication of the cause. She noted Dr Hamor took a history of “a 15 kg weight gain since the injury which the [appellant] blamed on the fact that he was unable to be as active as he had been prior to the accident”. Dr Hamor considered the sleep apnoea was “almost certainly related ‘in part’ due to inactivity following the injury in 2011 and the [appellant’s] weight gain”. Professor Young agreed the weight gain “could account for a connection”. The Professor was given a history of a weight increase from 72 kilograms to 84 kilograms (the appellant’s weight when examined by Professor Young). The Arbitrator said the Professor could not find any evidence to corroborate this history.[23]
[23] Reasons, [104]–[106].
The Arbitrator said the earliest record of the appellant’s weight which she could locate was 85 kilograms on 19 April 2018 (the polysomnography report) and the last was 84 kilograms on 17 September 2019 (Professor Young’s report). She referred to four measurements of the appellant’s weight, taken by medicolegal practitioners, during the intervening period. These ranged from 85.9 kilograms to 89 kilograms. She observed there was a fluctuation of about 5 kilograms, peaking at 89 kilograms on 12 March 2019 and returning to 84 kilograms on 17 September 2019. She observed there was no evidence of the appellant’s weight prior to the accident in August 2011, except for his assertion that it had been 72 kilograms.[24]
[24] Reasons, [107]–[109].
The Arbitrator observed there was no recording of the appellant’s weight, at all, in the material from Dr Nigro. She said there was an assertion in the doctor’s letter dated 27 November 2018 of a weight gain of 18 kilograms, with no explanation of the evidence on which the doctor relied. She said there was no explanation by the appellant of the basis of his belief that he weighed 72 kilograms prior to the accident.[25]
[25] Reasons, [110]–[111].
The Arbitrator said she accepted there had been a reduction in the appellant’s activity as a result of the injury. The appellant gave evidence of being less active. The evidence did not suggest he was rendered “completely inactive or sedentary”. He took little if any time off work following the injury. There were discrepancies in the appellant’s evidence about his duties after the injury. Some doctors recorded a graduated return to pre-injury duties (Dr Powell and Professor Young). Dr Giblin’s history suggested a return to supervisory or light duties only. The topic was not addressed in the appellant’s written statement. The Arbitrator said she could not find, with confidence, what the appellant’s post-injury duties involved. She was not satisfied the duties following the injury were only sedentary.[26]
[26] Reasons, [112]–[115].
The Arbitrator said she was satisfied there was “a link” between the appellant’s weight and his sleep apnoea. The appellant needed to demonstrate that his “excessive weight” resulted from the injury in 2011. She accepted the lumbar injury resulted in “continuing pain and restriction”. She accepted it may have reduced his ability to engage in certain activities. She was not satisfied the lumbar injury rendered the appellant “significantly sedentary or inactive”. She said the appellant was diagnosed with sleep apnoea in April 2018, prior to him ceasing work in early 2019. She was not satisfied the appellant’s work after the injury was “sedentary in nature other than for a period of several months”. The Arbitrator concluded she did not accept the injury caused a “significant weight gain”, ranging between 12 and 18 kilograms on the histories, which resulted in sleep apnoea.[27]
[27] Reasons, [117]–[120].
The Arbitrator said that in reaching this view she had not placed weight on the opinion of Professor Young, who applied an incorrect test, considering whether the requirements of s 4 of the 1987 Act were satisfied, to meet the definition of an ‘injury’. The Arbitrator said she was not satisfied the condition of sleep apnoea resulted from the lumbar injury on 8 August 2011.[28]
[28] Reasons, [121]–[122].
The Arbitrator then dealt with the allegation of hypertension. She rejected the history (recorded by Dr Herman) that the appellant was diagnosed with hypertension in 2012. She said this was unsupported by the records of Dr Nigro, the general practitioner who treated the appellant from 2011. The Arbitrator said she was prepared to accept that, at some point in 2019, probably after the review by Dr Roy in April 2019, the appellant was diagnosed with hypertension for which he was prescribed medication. The Arbitrator said the question remained of whether the condition resulted from the lumbar injury in 2011.[29]
[29] Reasons, [123]–[128].
The Arbitrator said the appellant’s case on the issue depended largely on Dr Herman. Dr Herman took a history of hypertension being diagnosed in 2012, together with an 18 kilogram weight gain, chronic pain, anti-inflammatory drugs, decreased mobility and sleep apnoea, all said to provoke hypertension. The Arbitrator said she was not satisfied hypertension was diagnosed until 2019. She was not satisfied there was a weight gain of 18 kilograms due to the 2011 injury, or that sleep apnoea resulted from that injury. She said in those circumstances there was not a “fair climate” for acceptance of Dr Herman’s opinion on causation of the hypertension which was diagnosed. The Arbitrator said Dr Nigro also supported the appellant’s case on causation of the condition of hypertension, but on the basis that there was an 18 kilogram weight gain as a result of the lumbar injury in 2011, which proposition the Arbitrator did not accept. The Arbitrator said she was not satisfied the appellant’s hypertension resulted from the lumbar injury on 8 August 2011.[30]
[30] Reasons, [124]–[133].
The Arbitrator found the appellant had not discharged his onus of establishing the conditions of sleep apnoea and hypertension resulted from the lumbar injury on 8 August 2011. She entered an award pursuant to s 66 of the 1987 Act in respect of 12 per cent whole person impairment (lumbar spine), that aspect of the pleaded injury being common ground.[31]
[31] Reasons, [134]–[136].

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

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

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[32] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[33] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[34]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[35]
[32] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[33] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[34] [1996] HCA 140; 140 ALR 227.
[35] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[36] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[37]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[38]
[36] [2017] NSWWCCPD 5, [67].
[37] [2001] FCA 1833, [28].
[38] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[39] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[40]
[39] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[40] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[41] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[42]
[41] [2020] NSWCA 54 (Hill).
[42] Hill, [20].

GROUNDS OF APPEAL

The pleaded grounds of appeal do not adequately identify the errors alleged. The grounds state there was error of fact and law in the Arbitrator’s factual findings on the issues that were decided against the appellant, in that she decided:
(a) the appellant did not suffer significant weight gain as a result of the subject accident;
(b) the appellant did not suffer a consequential injury of sleep apnea [sic, apnoea], and
(c) the appellant did not suffer a consequential injury of hypertension.
The respondent, in making its submissions, seeks to identify the grounds the appellant raises by reference to the subject matter of the appellant’s submissions. The respondent identifies two grounds on this basis. The first is that there was alleged error in the Arbitrator’s fact finding dealing with the “intermediate factual matter” of the appellant’s weight gain, and the causal chain the appellant needed to establish to prove that his sleep apnoea and hypertension resulted from the lumbar spine injury in 2011. The second is whether there was error in the Arbitrator reaching her factual conclusion on causation of the alleged consequential conditions, in the absence of cross-examination of the appellant.

Prior to the current appeal document being accepted and registered on 3 June 2020, the appellant unsuccessfully sought to lodge earlier versions of his Application to Appeal on 25 May 2020, 28 May 2020 and 1 June 2020. On each of these occasions the appeal documents were rejected and returned to the appellant’s solicitors, under cover of letters from the delegate of the Registrar. The letters detailed procedural non-compliance and drew the attention of the appellant to the requirements of Practice Direction No. 6. The Application to Appeal remains non-compliant with Practice Direction No 6. I note the provisions of s 354 of the 1998 Act. As a practical matter, I propose dealing with the appeal by reference to the two grounds identified by the respondent in its submissions. I will do so by reference to the submissions of the parties and the findings that the appellant alleges were erroneous. I note the Direction of the delegate of the Registrar, dated 3 June 2020, contained a timetable for the appeal proceedings. The timetable provided for the appellant to lodge and serve submissions if required, in reply to those of the respondent, by 29 July 2020. The appellant did not lodge any submissions in reply. The appellant did not suggest that the approach taken by the respondent, to identifying the substance of the grounds the appellant sought to raise, was wrong or inappropriate.
It is convenient to deal initially with the ground dealing with whether the Arbitrator erred in reaching her findings in the absence of cross-examination.

APPELLANT’S SUBMISSIONS ON THE CROSS-EXAMINATION GROUND

The appellant submits that the appellant was not cross-examined. It was not put to him that he had not put on a significant amount of weight after the accident, that his physical activity had not been reduced as a result of the accident, or that he had not weighed 72 kilograms at the time of the accident. The appellant refers to Browne v Dunn.[43] The appellant submits it was an error of law to make a finding contrary to the appellant’s evidence, when the matters were not put to him in cross-examination.[44]
[43] [1894] 6R 67 (HL).
[44] Appellant’s submissions, [4.2].
The appellant submits this breach of the rule in Browne v Dunn constituted a denial of natural justice. The appellant submits that the appellant’s evidence of weight gain should have been accepted, with the consequence that the allegations of consequential injury should have been accepted.[45]
[45] Appellant’s submissions, [4.3].

RESPONDENT’S SUBMISSIONS ON THE CROSS-EXAMINATION GROUND

The respondent submits the appellant’s evidence did not need to be challenged by cross-examination. There is no automatic right to cross-examine in the Commission. The respondent submits there was no suggestion the appellant was being untruthful, but rather that one would have reservations about accepting his evidence of weight gain when it had not been recorded across time.[46]
[46] Respondent’s submissions, [12].
The respondent refers to Karakurt v Vickson Australia Pty Ltd in which Wood DP said:
“It is well settled that where documentary evidence is adduced in proceedings in the Commission it is open to the Arbitrator to determine issues of credit without the necessity to hear oral evidence or hear and observe evidence by cross-examination and the rule in Browne v Dunn does not apply.”[47]
[47] [2018] NSWWCCPD 3, [167].
The respondent notes there is no automatic right to cross-examine in the Commission.[48] It refers to West v Mead in which Campbell J said:
“Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness’s account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness’ account is not challenged in cross-examination.”[49]
[48] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34.
[49] [2003] NSWSC 161, [97].
The respondent submits that material was served clearly setting out its position regarding weight gain, and the declinature notice made the respondent’s position plain, that there was a lack of contemporaneous records relating to weight gain. There was no breach of the principles of procedural fairness.[50] The respondent submits the appellant’s Browne v Dunn argument is misconceived.[51]
[50] Respondent’s submissions, [22].
[51] Respondent’s submissions, [23].

CONSIDERATION OF THE CROSS-EXAMINATION GROUND

An Arbitrator is not obliged to accept the evidence of a witness (including a party) on the basis that the witness was not cross-examined. In New South Wales Police Force v Winter Campbell JA reviewed authorities relating to the rule in Browne v Dunn, in the context of procedures in the Commission. His Honour quoted a footnote from Cross on Evidence (6^th Australian edition) in which it was said “... the rule in Browne v Dunn did not apply where all parties were on notice of the evidentiary issues, eg by reason of affidavits having been exchanged.” His Honour said:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.
Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. ...”[52]
[52] [2011] NSWCA 330 (Winter), [81].
In JB Metropolitan Distributors Pty Ltd v Kitanoski Roche DP, applying Winter, said:
“The apparent suggestion that, if an Arbitrator has not heard oral evidence from a party, it is not open to the Arbitrator to form a view about that party’s credit or consistency is plainly wrong. Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined …”.[53]
[53] [2016] NSWWCCPD 17 (Kitanoski), [121].
The respondent refers to its s 78 notice.[54] The notice states:
“You allege in your lump sum claim you are now suffering from consequential sleep apnoea related to weight gain and inactivity following the accident in 2011. You also claim your diagnosis of hypertension is related to the accepted workplace injury.”
[54] Reply, pp 1–5.
The notice referred to the respondent’s medical case:
“Dr Young confirmed the employment was not a ‘significant contributing factor’ to your respiratory diagnosis of obstructive sleep apnoea. The only mechanism that could account for such association would be weight gain following the accident in 2011 however, Doctor stated that this was uncorroborated by any other evidence from your local doctor’s record or elsewhere.”[55]
[55] Reply, p 3.
The notice also referred to Professor Young’s history that the appellant was “able to undertake pre-injury employment”.
The transcript of the arbitration hearing demonstrates that both parties had the opportunity to address on the matters taken into account by the Arbitrator. The appellant’s counsel raised the absence of recordings of the appellant’s weight in Dr Nigro’s notes.[56] He addressed on Dr Nigro’s estimate of an 18 kilogram weight gain in his report.[57] He submitted that the doctor’s estimate of 18 kilograms should be accepted as evidence of “significant weight increase over the years”.[58] The respondent’s counsel referred to the lack of contemporaneous recordings of the appellant’s weight,[59] and to the lack of any suggested basis for the estimated gain of about 20 kilograms.[60] This estimate was submitted to be “simply guesswork”.[61] The respondent submitted the appellant was not in a position to comment on the cause of any weight gain,[62] contrary to the appellant’s statement at [18].[63]
[56] Transcript of arbitration hearing 15/4/20 (T), T 3.30–32.
[57] T 7.11–13.
[58] T 23.29–24.3.
[59] T 15.29–30.
[60] T 16.28–30.
[61] T 17.34–18.3.
[62] T 16.34–17.6.
[63] ARD, p 2.
Both counsel addressed the Arbitrator on the varying histories regarding the nature of the appellant’s duties after the 2011 injury. The appellant’s counsel correctly accepted that this was “not canvassed by the [appellant] in his statement”.[64] The appellant conceded that he worked with the respondent until March 2017.[65] The appellant’s counsel submitted on Dr Giblin’s history, saying that the appellant “only ever performed light duties” following the injury in 2011.[66] On this basis, the appellant submitted that the history recorded by Professor Young, that the appellant “continued with his usual pre-injury duties until the factory closed in March 2017”, was “incorrect”.[67]
[64] T 11.11–12.
[65] T 13.32–14.5.
[66] T 11.13–21.
[67] T 11.1–24.
At the arbitration hearing, the respondent’s counsel referred to the different histories regarding work duties after the 2011 back injury. He submitted that the appellant, after being provided with the different histories in the doctors’ reports, could have put on a supplementary statement dealing with the accuracy of the different histories, but failed to do so.[68] The respondent submitted:
“He doesn’t do that and he does not deal with the subject matter sufficiently at all with respect to discharge the onus which he has.”[69]
[68] T 17.8–21.
[69] T 17.21–23.
The respondent’s counsel referred to the history recorded by Dr Hamor, the respiratory and sleep physician qualified in the appellant’s case. That history recorded a history of work following the lumbar injury:
“He was able to go back to work however, with the proviso that he did not lift any significantly heavy objects and he received some rehabilitation as well as exercises to perform at home.
He continued to work full-time until the company was liquidated in 2017. After a few weeks of being unemployed however he was able to get a similar position with a different employer, again avoiding heavy lifting but he was only employed on a part-time basis and performing relatively light duties. Unfortunately this employment ceased about a month prior to the review, in part because of worsening fatigue and also the lack of light duties available at the firm.”[70]
[70] ARD, p 33.
The respondent submitted that the above was “consistent with the [appellant] continuing to have a reasonably significant amount of physical work to do.”[71] It submitted that there was “not in truth any significant level of inactivity”.[72] The appellant’s counsel described Dr Hamor’s history as “a more comprehensive description in the history”.[73]
[71] T 19.3–5.
[72] T 22.9–10.
[73] T 24.27.
The Commission is under an obligation to afford procedural fairness to the parties before it.[74] The rule in Browne v Dunn is essentially one based on procedural fairness. The appellant makes a general submission that he was denied natural justice because the rule in Browne v Dunn was not complied with. The appellant’s submissions do not identify a basis for the assertion that procedural fairness was not afforded to him, other than this general submission. It is apparent that there was an exchange of documentary evidence between the parties, and that both parties had a full opportunity to address on the merits of the case, which they did. This included the appellant having a right to make submissions in reply. There is not, in my view, any argument successfully made out that the appellant was denied procedural fairness. The conduct of the arbitration was consistent with the issues in the matter having been fully and fairly ventilated between the parties, both in the documentation that was exchanged and in the submissions made at the arbitration hearing. The requirements of procedural fairness identified in Winter were satisfied.
[74] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421, [90].
The cross-examination ground fails.

APPELLANT’S SUBMISSIONS ON THE GROUND ALLEGING ERROR IN FACT FINDING

The appellant quotes from the reasons at [103] to [120]. The appellant refers to the appellant’s evidence in his statement at paragraphs [16] to [18]. This includes the appellant’s statement that he was not as active as he used to be after the accident, and that he had put on “about 20 kilos” after the accident, “with all of the pain medication and lack of movement”.[75] The appellant states the Arbitrator referred to the medical evidence of Dr Giblin and Dr Powell in her reasons at [112]. He states both of those orthopaedic surgeons assessed WPI at 12 per cent, which included a component of 2 per cent for activities of daily living (ADL). The appellant quotes from the relevant Guidelines:
“2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vaccuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances.”
[75] Appellant’s submissions, [4.1].
The appellant submits the Arbitrator failed to give sufficient weight to the “seriousness of the [appellant’s] back injury”, as evidenced by Dr Giblin and Dr Powell, and the WPI assessments.
The appellant refers to the absence of any entries in Dr Nigro’s notes recording the appellant’s weight, a matter referred to by the Arbitrator. The appellant says Dr Nigro’s report dated 27 November 2018 corroborated the evidence of weight gain. The doctor said the appellant was “unable to exercise as a result of this workplace injury and resultant chronic pain”, and that this resulted in “significant weight gain of 18 kg” and the development of sleep apnoea. The appellant submits the Arbitrator failed to give any or any sufficient weight to this evidence. The doctor had seen the appellant on a regular basis since the accident and “his report should carry great weight”.
The appellant submits that if the Arbitrator had been satisfied of the significant weight gain, she would have been satisfied the appellant had suffered the consequential conditions of hypertension and sleep apnoea. [76]
[76] Appellant’s submissions, [4.1].

RESPONDENT’S SUBMISSIONS ON THE GROUND ALLEGING ERROR IN FACT FINDING

The respondent submits the appellant’s submissions on the causation issue do not identify relevant error pursuant to s 352 of the 1998 Act, and “merely cavil with an Arbitrator’s factual findings”. There was no expert evidence, for example from a bariatric specialist, about how or why the appellant gained weight. The respondent submits that “often, people gain weight during middle age”. It submits judicial notice could be taken of this. There were no contemporaneous records across time demonstrating the increase in the appellant’s weight, much less why this had happened.[77]
[77] Respondent’s submissions, [9]–[10].
The respondent submits it is unclear what is alleged to flow from the appellant’s submission about the weight given to medical evidence regarding seriousness of the back injury. WPI in respect of the back injury was agreed.
The respondent submits the appellant correctly observes there was no corroborating evidence dealing with weight gain in the clinical notes. The respondent submits its arguments and the evidence against the appellant’s case were summarised in the reasons commencing from [80]. It submits the Arbitrator correctly took account of:
(a)    the authorities as to the standard of proof;
(b)    the ageing process;
(c)    the lack of detail in the appellant’s statement, and
(d)    the references to weight (or the lack thereof) in the medical evidence.

CONSIDERATION OF THE GROUND ALLEGING ERROR IN FACT FINDING

The appellant submits the Arbitrator failed to give sufficient weight to aspects of the evidence. In Shellharbour City Council v Rigby Beazley JA (as her Honour then was) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[78]
[78] [2006] NSWCA 308, [144].
The appellant submits the Arbitrator failed to give sufficient weight to the seriousness of the injury to the appellant’s lumbar spine, having regard to the evidence of Dr Giblin and Dr Powell, and the WPI assessment of 12 per cent.
The Arbitrator summarised Dr Giblin’s reports dated 24 September 2018 at [36] to [40] of the reasons. She noted the appellant reported that he got back to supervisory duties with the respondent. At the time of assessment by Dr Giblin, the appellant was working for a packaging company 22 hours per week, he had physiotherapy, saw his general practitioner every couple of weeks, and he had a constant ache. Walking, standing and sitting were restricted and sleep was disturbed. His WPI was assessed at 12 per cent.
The Arbitrator summarised Dr Powell’s report dated 16 September 2019 in her reasons at [51] to [53]. Dr Powell recorded a history that the appellant, after a graduated return to work program, got back to “his full pre-injury duties”. He subsequently performed these normal duties in a part-time role for 32 hours per week until the respondent went into liquidation in 2016. (I note it was common ground that the appellant in fact worked for the respondent until March 2017.[79]) The appellant then worked in a part-time role with a packing company to February 2019, when he was terminated. Dr Powell also assessed WPI at 12 per cent.
[79] T 14.2–5.
The histories of post-accident work recorded by Dr Giblin and Dr Powell were not identical. On Dr Powell’s history, following a return to work program over approximately six months, the appellant carried out his pre-injury duties for 32 hours per week until 2016.[80] On Dr Giblin’s history the appellant performed supervisory duties following his injury. The argument involves a consideration of whether the evidence (both lay and medical) supports the proposition that any weight gain, sufficient to have caused the alleged secondary conditions, results from the injury in 2011. The extent of the orthopaedic disability is relevant to the extent that it allegedly caused inactivity with associated weight gain. The Arbitrator noted that there was support in the appellant’s medicolegal reports, and in the report of Dr Nigro, for the causal link between the injury in 2011 and the alleged consequential conditions. She said it was necessary to consider the totality of the evidence.[81] There were other histories.
[80] Reply, p 14.
[81] Reasons, [102].
Dr Herman, in the appellant’s case, recorded the appellant “stopped work following his injury two years ago”.[82] Dr Hamor, in the appellant’s case, recorded the appellant “continued to work full time until the [respondent] was liquidated in 2017”, and then worked on part time light duties with a different employer until early 2019.[83]
[82] ARD, p 29.
[83] ARD, p 33.
Dr Haber, in the respondent’s case, recorded a history that following the injury in 2011, the appellant “continued to work light duties in spite of the pain”. Dr Haber recorded the appellant then worked for another company for two years until February 2019 when he stopped as “he could not stand in the factory because of pain”.[84] Professor Young’s history recorded that following the injury, after one day off work, and then three to four months on lighter duties, the appellant resumed his “usual pre-injury activities on the conveyor belt”, 7 am to 3 pm five days per week, “until the factory closed in March 2017”. The doctor recorded the appellant then found “similar work food packing … working in a standing position up to January 2019 when he was declared ‘not fit for the job’”.[85]
[84] Reply, p 7.
[85] Reply, p 22.

The Arbitrator specifically referred to “a discrepancy in the evidence as to the nature of the [appellant’s] employment duties following the injury”. She referred to the differing histories recorded by Dr Powell, Dr Giblin and Professor Young. The Arbitrator noted that the appellant did not address the discrepancy in his written statement.[86] Against this background, the Arbitrator found that it was “not possible to find with confidence what the [appellant’s] duties post-injury entailed”. She was “not satisfied on the evidence before [her] that the [appellant] engaged in only sedentary work after the injury”.[87]
[86] Reasons, [114].
[87] Reasons, [115].
In Blatch v Archer Lord Mansfield CJ stated:
“It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”[88]
[88] [1774] EngR 2; (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.
In Ho v Powell Hodgson JA said:
“… in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.
...
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so”.[89]
[89] [2001] NSWCA 168; 51 NSWLR 572, [14]–[15].
This was the point the respondent made to the Arbitrator in its submission referred to at [44] above. It was the point the Arbitrator made in her reasons referred to at [63] above.
The Arbitrator accepted “that the [appellant] experienced continuing pain and restriction following his lumbar injury … these symptoms may have reduced his ability to engage in the kinds of activities he participated in prior to injury”.[90] This was consistent with an acceptance of the restrictions inherent in the allowance for activities of daily living in the WPI assessment by the orthopaedic surgeons, referred to in the appellant’s submissions. The Arbitrator said there was “no contemporaneous, corroborative evidence of any weight gain following the injury”. She was not satisfied the injury “rendered the [appellant] significantly sedentary or inactive. [He] was able to continue working until early 2019 …”.[91]
[90] Reasons, [118].
[91] Reasons, [119].
The Arbitrator had regard to the orthopaedic evidence including the WPI assessments. This was insufficient to satisfy her that the appellant had discharged his onus on the causation issue. There was a lack of contemporaneous evidence of weight gain in the years following the 2011 injury. There was a lack of evidence from the appellant of his post-injury work duties, in the face of conflicting histories regarding such duties from time to time following the 2011 injury.
The other specific point raised by the appellant is that the Arbitrator failed to give sufficient weight to Dr Nigro’s report dated 27 November 2018. The Arbitrator summarised this report in her reasons at [34]. She acknowledged in her reasons at [102] that this report supported the relevant causal link, consistent with the appellant’s medicolegal evidence. She said it was necessary to consider the causation issue on “the totality of the evidence”. She noted in her reasons at [109] that Dr Nigro’s notes contained no record of the appellant’s weight “at any point in time”. She said that Dr Nigro did not explain the evidence on which he relied in saying there had been a weight gain of 18 kilograms. She accepted a submission that Dr Nigro, like the specialists, “was relying on the history given to him by the [appellant]”. She noted the appellant had not given a basis for his belief that he weighed 72 kilograms prior to his injury in 2011.[92] The Arbitrator made the following finding regarding weight gain:
“After carefully weighing all the evidence, whilst I am prepared to accept that the injury may have resulted in some degree of weight gain, I do not feel a sense of actual persuasion on the balance of probabilities that the injury has caused a significant weight gain (ranging between 12 and 20 kg) which has resulted in the applicant’s sleep apnoea.”[93]
[92] Reasons, [110]–[111].
[93] Reasons, [120].
The Arbitrator gave clear reasons for why she did not accept the appellant’s case regarding inactivity and associated weight gain. The conclusion that she reached was open to her on the evidence and did not reflect error consistent with the principles discussed at [22] to [26] above.
The Arbitrator’s reasons for rejecting the appellant’s case on causation of the condition of hypertension are summarised at [16] to [17] above. The appellant’s submissions do not separately challenge the Arbitrator’s reasoning and conclusion on that issue, beyond the extent to which the reasoning on weight gain is challenged. The challenge to the reasoning on weight gain is dealt with above. The appellant, in his submissions, accepts that the allegations in respect of both sleep apnoea and hypertension relied on whether “the subject accident caused the [appellant] to have significant weight gain”.[94] The above reasoning by the Arbitrator was sufficient to dispose of the allegations in respect of both conditions.[95]
[94] Appellant’s submissions, [4.1], p 9.
[95] Reasons, [128]–[133].
It follows from the above that the ground alleging error in fact finding fails.
The above is sufficient to deal with the various matters raised in the appellant’s submissions. It is sufficient to dispose of an allegation that the various factual findings referred to at [27] above involved error.

CONCLUSION

The appellant’s appeal fails.

DECISION

The decision of the Arbitrator dated 6 May 2020 is confirmed.

Michael Snell

DEPUTY PRESIDENT

25 September 2020