Slater v BHP Billiton Iron Ore Pty Ltd
[2016] WADC 148
•7 OCTOBER 2016
SLATER -v- BHP BILLITON IRON ORE PTY LTD [2016] WADC 148
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 148 | |
| Case No: | APP:78/2015 | 17 AUGUST 2016 | |
| Coram: | PARRY DCJ | 7/10/16 | |
| PERTH | |||
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | DEBBIE LOUISE SLATER BHP BILLITON IRON ORE PTY LTD |
Catchwords: | Workers' compensation Application for leave to appeal from decision of arbitrator Claim for medical expenses and weekly payments for four months during alleged incapacity for work Claim refused by arbitrator as arbitrator not satisfied that worker had proved she sustained 'injury' as defined in Workers' Compensation and Injury Management Act 1981 (WA) Whether question of law involved Whether arbitrator properly determined whether worker sustained 'injury' as defined Whether arbitrator provided legally adequate reasons Proper approach to construing reasons for decision of arbitrator |
Legislation: | Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Commonwealth Employees' Compensation Act 1930 (Cth) s 9A(1) Land and Environment Court Act 1979 (NSW) s 56A Planning and Development Act 2005 (WA) s 244 State Administrative Tribunal Act 2004 (WA) s 3(1) Workers' Compensation and Injury Management Act 1981 (WA) s 3(d), s 5(1), s 18, s 182ZQ(3), s 188(1), s 188(2), s 188(3), s 188(5), s 213(4), s 247, s 247(1), s 247(2)(a), s 247(2)(a)(i), s 247(2)(a)(i)(II), s 247(5) |
Case References: | Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Promnitz v Byblos Pty Ltd (Unreported, CM 59/97 (Heath SA) 29 October 1997) Svedas v Council of the City of Sydney [2011] NSWLEC 215 The Commonwealth v Hornsby (1960) 103 CLR 588 The Commonwealth v Ockenden (1958) 99 CLR 215 Thomas and Town of Cambridge [2013] WASAT 206 Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BHP BILLITON IRON ORE PTY LTD
Respondent
ON APPEAL FROM:
For File No : APP 78 of 2015
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR P EVANS
Citation : A15482
Catchwords:
Workers' compensation - Application for leave to appeal from decision of arbitrator - Claim for medical expenses and weekly payments for four months during alleged incapacity for work - Claim refused by arbitrator as arbitrator not satisfied that worker had proved she sustained 'injury' as defined in Workers' Compensation and Injury Management Act 1981 (WA) - Whether question of law involved - Whether arbitrator properly determined whether worker sustained 'injury' as defined - Whether arbitrator provided legally adequate reasons - Proper approach to construing reasons for decision of arbitrator
Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Commonwealth Employees' Compensation Act 1930 (Cth) s 9A(1)
Land and Environment Court Act 1979 (NSW) s 56A
Planning and Development Act 2005 (WA) s 244
State Administrative Tribunal Act 2004 (WA) s 3(1)
Workers' Compensation and Injury Management Act 1981 (WA) s 3(d), s 5(1), s 18, s 182ZQ(3), s 188(1), s 188(2), s 188(3), s 188(5), s 213(4), s 247, s 247(1), s 247(2)(a), s 247(2)(a)(i), s 247(2)(a)(i)(II), s 247(5)
Result:
Leave to appeal refused
Representation:
Counsel:
Appellant : Mr M J Lourey
Respondent : Mr J R Ludlow
Solicitors:
Appellant : Chapmans
Respondent : HWL Ebsworth Lawyers
Case(s) referred to in judgment(s):
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Promnitz v Byblos Pty Ltd (Unreported, CM 59/97 (Heath SA) 29 October 1997)
Svedas v Council of the City of Sydney [2011] NSWLEC 215
The Commonwealth v Hornsby (1960) 103 CLR 588
The Commonwealth v Ockenden (1958) 99 CLR 215
Thomas and Town of Cambridge [2013] WASAT 206
Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120
- PARRY DCJ:
Introduction
1 Ms Debbie Slater seeks leave to appeal, pursuant to s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act), against the decision of the Workers' Compensation Arbitration Service made on 1 October 2015 in which Arbitrator Evans dismissed Ms Slater's application for compensation against BHP Billiton Iron Ore Pty Ltd (BHP).
2 Ms Slater sought payment of medical expenses and weekly payments for incapacity for the period from 14 April 2014 to 18 August 2014, which she quantified at $35,000 - $40,000. Ms Slater contended that the incapacity resulted from an 'injury', as defined in s 5(1) of the WCIM Act, which allegedly occurred on 2 December 2011 and/or on an unspecified date in 2012 and/or in August 2013 and/or in December 2013 and/or on 10 April 2014, whilst she was working at BHP's Eastern Ridge Iron Ore Mine near Newman.
3 Under s 18 of the WCIM Act, if 'an injury' of a worker occurs, then, subject to the Act, the employer is liable to pay compensation in accordance with Sch 1. Ms Slater contended that she suffered an 'injury', within the meaning of par (a) and/or par (d) of the definition of that term in s 5(1) of the WCIM Act, which state as follows:
injury means -
(a) 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; or
…
(d) 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;
…
4 The term 'disease' is defined in s 5(1) of the WCIM Act to include 'any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development'.
5 BHP denied liability on the basis that Ms Slater has not suffered an 'injury' for the purposes of the WCIM Act. Furthermore, BHP did not accept that Ms Slater was incapacitated during the period from 14 April 2014 to 18 August 2014 on the basis of the opinion of Dr Martyn Flahive, a consultant occupational physician, who said that Ms Slater was not unfit to undertake alternative duties and in particular truck driving or office work during that period.
6 The arbitrator dismissed Ms Slater's application for compensation, because he was not satisfied by Ms Slater that it was more probable than not that she suffered an 'injury' in terms of either par (a) or par (d) of the definition of that term in s 5(1) of the WCIM Act.
7 Ms Slater seeks leave to appeal from the arbitrator's decision on five grounds. Leave to appeal may not be granted unless a question of law is involved. In order to establish that a question of law is involved, Ms Slater must show that an error of law or an error of mixed law and fact has occurred. For reasons set out below, I am not satisfied that the arbitrator erred in law or erred in mixed law and fact. Leave to appeal should therefore be refused.
Factual background
8 In June 2010, when she was working for a different employer in South Australia, Ms Slater sustained a fracture of her left distal fibula while she was at work. The fracture was treated with plaster for six weeks. Ms Slater then wore a 'moon boot' for a period of time.
9 At the arbitration in this case, Ms Slater presented medical evidence by Dr Nicole Leeks, an orthopaedic surgeon. In her report dated 15 January 2015, Dr Leeks said that after the plaster was removed following the fracture sustained in June 2010, Ms Slater 'received no formal rehabilitation or physiotherapy'. In the same report, Dr Leeks said that Ms Slater is 'morbidly obese' and has 'bilateral pes plano valgus feet' (commonly known as 'flat feet').
10 After moving to Western Australia, Ms Slater was employed by BHP on 20 October 2011 to work as a dump-truck operator at the Eastern Ridge Mine.
11 On 2 December 2011, Ms Slater was at the Eastern Ridge Mine work site. She alighted from a bus outside the crib-rooms near Pit 3 and walked over a level surface to fill her water bottle. In Dr Leeks' report dated 15 January 2015, she relates that Ms Slater 'was outside, undercover on concrete ground and she states her left ankle just "gave way"'. Ms Slater gave very similar evidence at the arbitration that, 'whilst outside the crib-rooms near Pit 3[,] I felt a sharp pain in my left foot and my leg gave way causing my left ankle to roll'.
12 Ms Slater's left ankle became swollen and bruised. She was treated with anti-inflammatory tablets at the on-site medical facility and then taken to Newman Hospital where Dr Green put an ice pack on her left foot and took x-rays. The diagnostic imaging report by Dr Gabby Freilich, consultant radiologist, dated 4 December 2011, states as 'findings' (among other things) 'soft tissue induration anteriorly ankle mortise' and 'no acute fracture or malalignment'. In relation to the first of these findings, the arbitrator observed [35] 'I understand this to be a classic ankle sprain'. The correctness of this statement has not been disputed. Similarly, a workers' compensation medical certificate by Dr Green on 2 December 2011 states as 'medical assessment clinical findings/diagnosis' 'bruising (L) ankle'.
13 Dr Green said that Ms Slater was 'fit to return to pre-injury duties [from 3 December 2011], but requires further treatment'. Ms Slater returned to work on the day after the incident, that is on 3 December 2011. However, on 6 December 2011, as a consequence of Ms Slater still experiencing pain in her left ankle, on-site staff arranged for her to leave the site and return to Perth for medical review and to recover. After returning home, Ms Slater saw her general practitioner, Dr Richard Spencer, who, after an assessment, cleared her to return to work. Ms Slater returned to the mine site before Christmas 2011.
14 Ms Slater gave evidence at the arbitration that, in January 2012, while operating a truck on a rough surface that caused the cabin to vibrate and bounce, the jarring motion caused pain in her left foot. Ms Slater was treated on-site with icepacks and anti-inflammatory medication for two days, after which she returned to work. She also gave evidence at the arbitration that, on an unspecified date in 2012, she had another incident with 'immense pain' in her left foot caused by the vibration of the truck and gear changing, and she was subsequently treated in the same manner as in January 2012.
15 Ms Slater gave evidence at the arbitration that, in August and in December 2013, she experienced incidents of the same nature and received the same treatment as in January 2012. She stated that while she 'had immense pain, a limp and … was hopping around the workplace', she continued working as she was afraid of losing her job.
16 Over the night of 9 – 10 April 2014, whilst she as at the accommodation serving the work site, Ms Slater had her sleep disturbed because of a family medical emergency which kept her up on the telephone. Because of BHP's fatigue restrictions, Ms Slater was moved from her usual duties as a dump-truck driver to the road crew. As part of those duties, Ms Slater was required to assist in the installation of signage in an area of roadwork construction. Ms Slater gave evidence at the arbitration that while performing these duties and walking on uneven terrain, she started to develop 'sharp pains' in her left foot.
17 Ms Slater was not at work from 14 April 2014 to 18 August 2014. During the period 14 April 2014 to 30 April 2014, Ms Slater was on sick leave. From 1 May 2014 to 18 August 2014, she did not receive any income.
18 On 2 May 2014, Ms Slater lodged a compensation claim.
19 Ms Slater returned to work after 18 August 2014.
Arbitrator's decision
20 After referring to the background to the dispute, the terms of s 18 of the WCIM Act and the definition of 'injury' in s 5(1) of that Act, the arbitrator observed, correctly, as follows [13]:
With respect to the burden of proof, where a worker alleges that he has received an injury, or exacerbation of a pre-exiting injury as a consequence of his employment and where the employment was a contributing factor and contributed to a significant degree so that the employer is liable for the injury then the employee as the Applicant carries the burden of proof of establishing its case to the requisite standard. Put simply, he who asserts must prove. (See Westralian Farmers Cooperative Ltd v Bunce (unreported: FCSCWA; Lib No 7691, 31 May 1981) and Mitchell v Canal Rocks Beach Resort [2002] WASCA 331.
21 The arbitrator identified the issues for determination in the arbitration as follows [25]:
The relevant issues are as follows;
(a) Did the left ankle injury occur at the workplace on 2 December 2011?; and
(b) Does the evidence support a finding that any of the symptoms reported by the Applicant are related to her employment with the Respondents by way of her having suffered;
i. A personal injury by accident for the purposes of s 5(a) of the Act; or
ii. The recurrence, aggravation or acceleration of a pre-existing disease to which her employment contributed and contributed to a significant degree for the purposes of s 5 (d) of the Act?
In view of the uncontested details in the Applicant's Witness Statement and oral testimony and together with the details provided in the medical examination reports referred to above, the applicant did suffer some form of injury to her left ankle at the worksite on 2 December 2011.
However the central issue of this dispute relates to the significance of the injury. That is does the evidence support a finding that any of the symptoms reported by the Applicant are related to her employment with the Respondent by way of her having suffered a personal injury by accident for the purposes of s 5(a) of the Act; or the recurrence, aggravation or acceleration of a pre-existing disease to which her employment contributed and contributed to a significant degree for the purposes of s 5 (d) of the Act?
23 As discussed later in his reasons, the arbitrator used loose and unfortunate language in this discussion and, in particular, in the expression of the finding [36] that Ms Slater suffered 'some form of injury' to her left ankle at the work site on 2 December 2011 and in the expression of the observation in the first sentence [37] that the central issue of the dispute related to 'the significance of the injury'. As will be seen below, the arbitrator's loose and unfortunate use of the word 'injury' in [36] and the first sentence in [37] has given rise to Ms Slater's first ground of appeal.
24 The term 'injury' is a core, defined term in the WCIM Act and should not be used loosely in the way the arbitrator did [36]. Apart from again using the word 'injury' loosely in the first sentence [37], the expression 'the significance of the injury' (emphasis added) is also loose and unfortunate, because, without obtaining guidance from elsewhere in the arbitrator's reasons for decision, the meaning of 'the significance of the injury' is unclear.
25 However, as discussed below, in an application for leave to appeal and, where leave is granted, in a review under s 247 of the WCIM Act, the reasons for decision of the arbitrator must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or unhappy phrasing. When read this way and in the context, in particular, of the second sentence of [37] and [83] – [84] of the arbitrator's reasons set out below, it is clear that (contrary to Ms Slater's first ground of appeal) the arbitrator did not make a finding [36], or was not bound to proceed from what he said [36] to make a finding, that Ms Slater suffered an 'injury' within the meaning of the WCIM Act on 2 December 2011 and correctly understood that the key question for determination in the arbitration was whether Ms Slater had discharged the persuasive burden of proving that it is more probable than not that she did in fact suffer an 'injury' within the meaning of the WCIM Act on that day. When read fairly in this way, it is apparent that what the arbitrator found [36] is that on 2 December 2011 there was an incident (a word that the arbitrator used [2], [42], [44], [50], [60], [61], [78(a)], [78(d)] and [83(a)] when describing what occurred on that day) at the work site concerning Ms Slater's left ankle, and not that she sustained an 'injury' to her left ankle for the purposes of the WCIM Act on that day.
26 The arbitrator then provided a detailed review of the medical evidence over some 42 paragraphs and 18 pages (about half of his reasons for decision).
27 The arbitrator found that [42] '[t]he medical reports written at the time of the injury at first sight appear to indicate that the incident of 2 December 2011 has resulted in relatively minor damage' and [43] 'the injury was a sprained ankle and bruising which prevented the applicant from returning to work for one day but the issue needs to be addressed further in light of the additional medical opinion submissions'.
28 The arbitrator noted [45] that in Dr Leeks' report dated 27 November 2013 she expressed the opinion that Ms Slater 'fractured her distal fibula in December 2011'. Dr Leeks' opinion in this regard is inconsistent with her opinion in her subsequent report dated 15 January 2015 in which, as noted by the arbitrator [51], she said 'I believe' that the clinical findings in relation to the 2 December 2011 incident 'were that she was swollen and bruised on the medial aspect of the ankle' and 'x-rays … showed no fracture'. It appears that Dr Leeks expressed these inconsistent opinions while viewing the same x-rays. Furthermore, the arbitrator determined that Dr Leeks' opinion in her report dated 27 November 2013 is not only inconsistent with her subsequent report, but is also against [83(a)] 'the weight of medical opinion [which] was that [Ms Slater] suffered "bruising" and "swelling" of the ankle and that it was a "sprain injury"'.
29 The arbitrator noted [46] Dr Leeks' opinion in her report dated 27 November 2013 that the incident on 2 December 2011 'is a work related injury with ongoing sequelae I guess secondary perhaps to some management of her fracture'. The arbitrator observed [47] 'I accept that Dr Leeks is unequivocal that the injury (fracture) was "work related" on the basis of her opinion of the x-rays taken at the time of the 2 December 2011 injury'.
30 The arbitrator referred [48] to a further report by Dr Leeks based on an assessment of Ms Slater on 9 January 2014 in which Dr Leeks said that an MRI scan indicated that 'everything that is going on with [Ms Slater's] ankle is post traumatic in nature and has occurred sometime in the past and I would suspect is perfectly consistent with her history of an injury in December 2011 followed by recurrent inversion injuries'.
31 The arbitrator then discussed, in detail, Dr Leeks' last report dated 15 January 2015. As noted earlier, in this report Dr Leeks expressed an opinion, inconsistent with her first report, that x-rays of the incident on 2 December 2011 'showed no fracture'.
32 In relation to the incident that occurred on 10 April 2014, Dr Leeks reported (as quoted in the arbitrator's reasons [54]):
Ms Slater describes no injury or injurious mechanism on the 10th April 2014. She states that her ankle just started hurting. It is my opinion that the soreness of the left ankle is not work related.
33 As also quoted in the arbitrator's reasons [54], Dr Leeks said the following in answer to Ms Slater's solicitors' question 'Could you please identify all casual [sic] factors you consider material to our client's current incapacity to perform her pre-injury role …?':
In my opinion the major factor with Ms Slater’s ongoing ankle issues relates directly to the fracture of the fibula, sustained in 2009 [sic] out of the work place. She received no appropriate physiotherapy or proprioceptive rehabilitation and is likely to have injured the ankle mortise at the time, which is now causing early post-traumatic osteoarthritis. In addition, Ms Slater is morbidly obese with bilateral pes plano valgus feet and in her case that is a situation of mechanical overload. I note that with appropriate orthotic use her symptoms have decreased.
34 It is common ground that Dr Leeks incorrectly referred to 'the fracture of the fibula' as having been sustained in 2009. In fact, as noted earlier, Ms Slater fractured her left distal fibula in June 2010.
35 The arbitrator then reviewed Dr Flahive's reports, including a report dated 16 February 2015 following his assessment of Ms Slater on that day and his review of medical notes from Whyalla Hospital concerning the fracture sustained by Ms Slater in June 2010 as well as x-rays taken on 1 June 2010 (following the fracture sustained on that day), 2 December 2011 (following the incident at the Eastern Ridge worksite that day), and 23 April 2014. As noted by the arbitrator [73], Dr Flahive said that the x-rays in June 2010 'show evidence of the fracture of the distal fibula as well as disruption of the ankle joint' and that a comparison of the x-rays of 1 June 2010 and 2 December 2011 'does suggest the presence of early degeneration in the ankle joint with the narrowing of the tibiotalar articulation', which Dr Flahive said 'suggests that earlier changes were well established as a result of the prior injury'.
36 As noted by the arbitrator [74], Dr Flahive referred to an MRI scan of Ms Slater's left ankle on 18 December 2013 which Dr Flahive said:
clearly shows the subsequent consequences of her June 2010 injury with thickening of the anterior talar ligament and low grade thickening and fibrous healing of the calcaneofibular ligament as well as mild heterogeneity in the deep deltoid ligament again consistent with a prior injury as well as evidence of a 2mm ossicle at the anterior inferior medial malleolus.
37 Dr Flahive said that '[t]his all would be consistent with a significant ankle injury associated with the significant trauma that occurred in June 2010'.
38 At set out by the arbitrator (other than the first paragraph quoted below) [74] – [75], Dr Flahive then said the following:
Of additional significance is some evidence of degenerative change within the ankle joint with some chondral loss involving the posterior medial tibial plafond and anterior medial tibial plafond with spurring of the posterior medial tibial plafond.
It is very probable that these changes are post-traumatic, although are related to her June 2010 injury, rather than the December 2011 injury as suggested by Dr Leeks, given the radiological evidence of significant derangement of the ankle joint with a fracture of the fibular and ligamentous disruption in June 2010, followed by some eighteen months later x-rays (2 December 2011) showing early degenerative changes within the ankle joint.
In relation to Ms Slater's onset of ankle pain in December 2012 [sic], she reports that she developed ankle pain when walking across a flat surface to fill up her drink bottle when her ankle went out on her and she developed bruising and swelling. There was no specific report of her twisting or stepping on uneven ground and thus it would seem this was more likely to be an episode of instability that she was predisposed to as a result of her previous injury and ligamentous disruption. It would seem this was subsequently treated conservatively and she recovered, although has since continued to be troubled reports of recurrent ankle pain the most recent being in April 2014 when she again reported an onset of ankle pain which she related had arisen as a result of undertaking work at a mine that was involving standing and walking.
As I indicated in my report of 23 April 2014, Ms Slater was having pain predominantly around the medial aspect of the joint and it would seem the issue was relating to overloading of this part of the ankle joint. She does have significant evidence of previous ankle injury relating to her June 2010 fracture and ligamentous disruption and it would seem this had led to a degree of instability within her ankle joint and this is leading to recurrent ankle pain.
39 As noted by the arbitrator [76], Dr Flahive then answered a number of questions posed by BHP's solicitors. In answer to the question 'Having regard to the above medical documents and your previous assessments of Ms Slater, please confirm your diagnosis of Ms Slater's left ankle injury', Dr Flahive said:
It is my opinion that the 2 December 2011 incident led to a sprain injury to the ankle following an episode of instability.
40 In answer to the question 'Having regard to the information available to you, in your opinion, did Ms Slater suffer an injury on 2 December 2011?', Dr Flahive said:
As indicated, it would seem from the medical reports provided that Ms Slater has sustained a significant ankle injury as a result of her June 2010 trauma. Subsequent to this, she has developed degenerative changes within the ankle joint and it would seem is suffering from recurrent episodes of instability and ankle pain. She did suffer a recurrence of this when walking over flat ground on 2 December 2011 which appeared to have settled and resolve [sic]. In my view, it would be reasonable to suggest that this would be defined as a (sprain) injury given that she had evidence of swelling and pain. Although there is no evidence that she suffered significant further injury to her ankle (given the MRI findings), it is clear that she has suffered a recurrence or aggravation of the previous injury and this resolved with her returning to her normal work duties.
41 In answer to the question 'Having regard to the above medical documents and your previous assessment of Ms Slater, in your opinion, has Ms Slater's employment with BHP contributed to her left ankle injury on 2 December 2011 and, and [sic] contributed to a significant degree?', Dr Flahive said the following:
As indicated, it would be reasonable to assess, given no significant aggravating factor or trauma that led to the onset of pain and her ankle 'giving', that Ms Slater suffered a recurrence of her left ankle pain and instability in the course of her work on 2 December 2011.
Although the nature of employment did not contribute to a significant degree to this, (that is she was simply walking over a flat area of ground when her ankle failed) it seems to have been an unforeseen incident that occurred in the course of employment.
42 In answer to the question 'Having regard to the information available to you, in your opinion did Ms Slater suffer an injury in April 2014?', Dr Flahive said the following:
It would seem Ms Slater did suffer a further aggravation to her ankle symptoms in April 2014. She reported that it had become increasingly painful with her work activities which were requiring her to stand and walk for prolonged periods.
Clearly, as detailed in Dr Leek's [sic] correspondence of 27 November 2013, this has been an ongoing and recurrent problem for some time where she had been reporting quite debilitating ankle pain and feelings of instability. Therefore, this recurrence of pain had been simply a recurrence and the most significant contributing factors are her significant ankle ligamentous injury and fracture of the distal fibula that had occurred in June 2010 and the biomechanical abnormality and ongoing overloading of the joint. As detailed by Dr Leeks on 9 January 2014, everything in her ankle is post-traumatic in nature and is consistent with the significant trauma that occurred in June 2010 (not as suggested by Dr Leek's [sic] December 2011).
43 In answer to the question 'Having regard to the above medical documents and your previous assessment of Ms Slater, in your opinion, has Ms Slater's employment with BHP contributed to her left ankle injury on 10 April 2014 and, and [sic] contributed to a significant degree?', Dr Flahive said the following:
As I indicated in my report, it was my view that her symptoms were relating to some overload of the posterior tibialis tendon which is partly related to the pes planovalgus deformity and significantly contributed by her overloading with her being overweight.
Thus, the most likely factors contributing to a significant degree had been the prior trauma (1 June 2010 injury) in addition to lack of active rehabilitation after this, the biomechanical dysfunction with the pes planovalgus deformity and other constitutional factors, noting that she is significantly overweight leading to her overloading.
It would seem with any activity involving standing and walking that this would become symptomatic and thus I have difficulty in suggesting that the employment per se was the significant factor that rendered this to be symptomatic, noting the clear and pre-existing factors.
44 In answer to the question 'In your opinion, was Ms Slater incapacitated for her preinjury duties as a result of a left ankle injury during [the] period [from 10 April 2014 to August 2014]?', Dr Flahive said the following:
As I have detailed in my report of 26 May 2014, it was not my view that she was unfit to undertake truck driving work or alternatively office work. Restriction from this type of work would have little benefit in terms of either reducing her pain or improving her recovery.
45 In answer to the question 'In your opinion, was Ms Slater incapacitated for full time alternative duties during [the] period [from 10 April 2014 to August 2014]?', Dr Flahive said the following:
As I indicated, it is my opinion that Ms Slater has not been incapacitated in terms of work for alternative duties.
46 The arbitrator then proceeded to determine and refuse Ms Slater's application for compensation as follows [83] – [85]:
Upon hearing the parties and in consideration of the medical reports, witness statement and the testimony of the Applicant at the hearing I find and determine as follows;
(a) The Applicant did not fracture her ankle in the course of employment on 2 December 2011. Whilst Dr Leeks was of the opinion from viewing the x-ray, that there was a fracture, the weight of medical opinion was that the Applicant suffered 'bruising' and 'swelling' of the ankle and that it was a 'sprain injury.' (See Dr Guen [sic], Newman Hospital Medical Triage Assessment, Dr Freilich (Consultant Radiologist) and Dr Flahive.) In particular Dr Freilich noted that there was no acute fracture and Dr Flahive has had the benefit of sighting later x-rays and scans in addition to those taken at the time of the incident.
(b) The injury of 2 December 2011 is not 'work related' for the purposes of the Act. There is consensus that the Applicant was suffering from degenerative changes in her left ankle as a result of the June 2010 fracture which did lead to instability from time to time. There was also agreement between the medical experts that there was biomedical dysfunction with the pes planus deformity and other constitutional factors such as the obesity of the Applicant which was overloading the ankle joint. These symptoms and issues were referred to in the reports of both Drs Leeks and Flahive.
(c) The Applicant stated that she developed ankle pain when walking across a flat surface to fill up her water bottle when her ankle 'went out' on her and she developed bruising and swelling. As noted above the bruising and swelling has been confirmed by others. Whilst acknowledging that the Applicant was suffering to some degree from degenerative changes there was the contributing issue of the pes planus deformity and other constitutional factors such as the obesity of the Applicant which was overloading the ankle joint. I do not consider that the nature of the employment activity (walking on a flat surface) was a contributing factor to a recurrence, aggravation, or acceleration and contributed to a significant degree for the purposes of the Act. That is, the employment on 2 December 2011 was not a significant factor to any recurrence or aggravation.
(d) The Applicant describes no injury or injurious mechanism on the 10thApril 2014. She stated that her ankle just started hurting. It was the opinion of both Drs Leek and Flahive that the soreness of the left ankle was not work related. (See paragraphs 54, 56, 76 and 77.)
(e) The 2 December 2011 injury resolved by 13 [sic] December 2011 when the Applicant returned to her normal pre injury duties. (See Drs Guen [sic] and Spencer).
In summary, I find that the Applicant has not proved to the requisite burden of proof, that the injury and symptoms reported by the Applicant are significantly related to her employment with the Respondent by way of her having suffered;
(a) A personal injury by accident for the purposes of s 5(a) [sic] of the Act; or
(b) The recurrence aggravation or acceleration of a pre-existing disease to which the Applicants [sic] employment contributed to or contributed to a significant degree for the purposes of s 59 (d) [sic] of the Act.
Consequently the Application is dismissed.
47 The arbitrator incorrectly referred to Dr Green as 'Dr Guen'. The arbitrator also incorrectly referred [84(a)] to 's 5(a)', which should in fact be a reference to 'par (a) of the definition of "injury" in s 5(1)', and [84(b)] to 's 59 (d)', which should in fact be a reference to 'par (d) of the definition of "injury" in s 5(1)'. However, nothing turns on these errors, because it is clear that from the arbitrator's reasons for decision read as a whole that he understood that the key question for determination was whether Ms Slater had suffered a compensable 'injury' within the meaning of par (a) and/or par (d) of the definition of that term in s 5(1) of the WCIM Act.
Legal framework and principles
48 Section 3 of the WCIM Act sets out the 'purposes' of the Act which include:
(d) to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers’ compensation matters in a manner that is fair, just, economical, informal and quick.
49 Part XI div 4 of the WCIM Act establishes the Workers' Compensation Arbitration Service and provides for disputes under the WCIM Act, which have not been resolved by conciliation, to be determined by arbitration.
50 Section 247 of the WCIM Act states as follows:
(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2) Subject to subsection (3) [which has been deleted], the District Court is not to grant leave to appeal unless -
(a) in the case of an appeal in which an amount of compensation is at issue -
(i) a question of law is involved and the amount at issue in the appeal is both —
(I) at least $5 000 or such other amount as may be prescribed by the regulations; and
(II) at least 20% of the amount awarded in the decision appealed against;
or
(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b) in any other case, a question of law is involved.
(4) An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.
(7) On hearing an appeal made under this section, the District Court may -
(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
52 However, in my view, when the meaning of s 247(2)(a)(i)(II) of the WCIM Act is determined having regard to the context of s 247(2)(a) of the WCIM Act as a whole, this is an unusual case where the proper interpretation of s 247(2)(a)(i) of the WCIM Act does not accord with the grammatical meaning of that provision (see City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 [47]).
53 It is clear that s 247(2)(a) of the WCIM Act is intended to provide an exhaustive statement of the circumstances in which the District Court is not to grant leave to appeal in the case of an appeal in which an amount of compensation is at issue. In this context, it appears that the intended demarcation between sub-paragraphs (i) and (ii) is that sub-paragraph (i) is intended exhaustively to cover cases in which the amount at issue is above the prescribed thresholds in dollar and percentage terms and sub-paragraph (ii) is intended exhaustively to cover cases in which the amount at issue is less than either prescribed threshold. Where the amount at issue is less than either prescribed threshold, sub-paragraph (ii) imposes a requirement in addition to 'a question of law is involved', namely that 'in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie'. Clearly, the intention of the legislation is to further restrict appeals (beyond the requirement that 'a question of law is involved') in cases in which an amount of compensation is at issue which is relatively minor, by imposing an additional requirement for leave in such cases for the matter to be 'of such public importance that, in the public interest, an appeal should lie'.
54 In my view, it could not have been the intention of the legislation to require an applicant for compensation of an amount which satisfies the requirement of (I) of s 247(2)(a)(i) of the WCIM Act and who has been unsuccessful in obtaining any award of compensation at arbitration to have to establish not only that there is a question of law involved, but also that the matter is of such public importance that, in the public interest, an appeal should lie, while an employer who has been unsuccessful in opposing an application for compensation in the same amount does not have to show that the matter is of such public importance that, in the public interest, an appeal should lie.
55 In my view, on its proper interpretation, s 247(2)(a)(i) of the WCIM Act only imposes the further requirement to obtain leave to appeal that the amount at issue in the appeal is at least 20% of the amount awarded in the decision appealed against where the appeal is in relation to an amount awarded in the decision appealed against. Therefore, where an applicant seeks leave to appeal against a decision dismissing a compensation claim, s 247(2)(a)(i)(II) is not applicable.
56 As this is a case of an appeal in which an amount of compensation is at issue which is at least $5,000 and the appeal is against the decision dismissing Ms Slater's compensation claim, s 247(2) of the WCIM Act relevantly provides that the court is not to grant Ms Slater leave to appeal unless 'a question of law is involved'.
57 As Pullin JA (with whom Wheeler JA agreed) held in BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]:
To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred. See Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [34] and Woolworths (WA) Ltd v Liquorland (Australia) Pty Ltd (Unreported, WASCA, Library No 940553, 7 October 1994) (Anderson J).58As his Honour also held in Brady [15]:
Furthermore, 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': Australian Broadcasting Tribunal v Bond [(1990) 170 CLR 321], 353.59Where leave to appeal is granted, s 247(5) of the WCIM Act provides that '[a]n appeal under this section is to be by way of review of the decision appealed against …'. In Pacific Industrial Co v Jakovljevic [2008] WASCA 60, Wheeler JA (with whom Pullin and Buss JJA agreed) held as follows in relation to the nature of a 'review' of a decision appealed against under s 247 of the WCIM Act:
20. As to the question of what a 'review' entails, it is to be noted that the review is ordinarily conducted on the materials before the arbitrator: s 247(6). It is not a hearing de novo. So far as the content of a 'review' is concerned, there is authority, both in New South Wales and in this court, in the context of workers' compensation legislation. In Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, the Court of Appeal of New South Wales considered the nature of a 'review' by a judge of a commissioner, pursuant to the Compensation Court Act 1984 (NSW). In reasons with which Waddell and Samuels AJJA agreed, Kirby P repeated the view that he expressed in an earlier decision, which was to the effect that a review was wider than an appeal in the strict sense, and wider than the usual kind of narrow appeal from discretionary decisions which required some error of principle to be shown before the decision could be overturned (586). His Honour also noted, however, that the fact that there is a decision which is being 'reviewed' postulates that the judge (in that case) would start not with a blank page, but with a formal decision and that, unless the 'review' persuaded the judge that the order being reviewed should be varied, discharged, or otherwise disturbed, it would stand. His Honour had said in his earlier decision, and repeated:
This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.
21. The policy reasons which, in part, led Kirby P to the conclusions which he reached in Boston are considerations which are largely relevant here. His Honour pointed out that the decisions made affected substantial rights. His Honour referred also to the training, experience and office of the judge of the Compensation Court (587). Under the Act, too, substantial rights are affected, and the commissioner is a judge of the District Court (s 281).
22. In this court, in Sotico Pty Ltd v Wilson [2007] WASCA 112, Pullin JA, in considering the powers of a commissioner, made the following observation at [46]:
Once a question of law is identified, leave is granted and an error of law is held to have occurred (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]), then the Commissioner is obliged 'within the constraints marked out by the nature of the appellate process … to conduct a real review …': Fox v Percy (2003) 214 CLR 118 at [25].
23. His Honour's reasons differed from those of the majority in some respects, but his analysis of the statutory framework was not inconsistent with the majority reasons.
24. In my view, the statutory framework, and the policy considerations to which Kirby P referred, support the conclusion that a review pursuant to s 247 is not limited merely to the correction of errors of law. It is broader than an appeal in the strict sense. As Pullin JA said in Sotico, once leave is granted the commissioner is obliged to conduct a 'real review'.
60 In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 the Full Court of the Federal Court of Australia (Neaves, French and Cooper JJ) discussed the proper approach when construing the reasons for decision of the Administrative Appeals Tribunal in an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That provision enables a party to a proceeding before the tribunal to appeal to the Federal Court 'on a question of law' from any decision of the tribunal in that proceeding. The court held as follows 287:
The court will not be concerned with looseness in the language of the tribunal nor with unhappy phrasing of the tribunal's thoughts. The reasons for the decision under review are not to be construed minutely or finely with an eye keenly attuned to the perception of error.
(citations omitted)
61 Similarly, in Svedas v Council of the City of Sydney [2011] NSWLEC 215 the New South Wales Land and Environment Court (Pepper J) considered the proper approach when construing the reasons for decision of a Commissioner of that court in an appeal under s 56A of the Land and Environment Court Act 1979 (NSW). That provision enables a party to a proceeding in certain classes of the court's jurisdiction to appeal to a Judge of the court against an order or a decision made by a Commissioner 'on a question of law' in that proceeding. Her Honour held as follows [20]:
… a 'fine toothcomb' approach should be eschewed when considering the reasons of the Commissioner in any endeavour to discover error … [and] the Court is not to take an overly critical or pernickety approach in examining the Commissioner's decision …
(citations omitted)
62 The State Administrative Tribunal has adopted and applied the principles stated in Pozzolanic and Svedas when construing the reasons for decision of a non-legally qualified member of the tribunal in an application under s 244 of the Planning and Development Act 2005 (WA). That section enables a party to a proceeding under that Act to seek review by a judicial member of a direction, determination or order of the tribunal 'upon a matter involving a question of law' that was made by the tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA): Thomas and Town of Cambridge [2013] WASAT 206 [5] and [23].
63 In my view, the principles stated in Pozzolanic and Svedas are also apposite when the District Court construes the reasons for decision of an arbitrator in an application for leave to appeal and, where leave is granted, in a review of the decision appealed against, under s 247 of the WCIM Act. Under s 182ZQ(3) of the WCIM Act, an arbitrator in the Workers' Compensation Arbitration Service must be a legal practitioner. However, it is clear from the stated purpose of the WCIM Act in s 3(d) and from various provisions in pt XI div 4 of the WCIM Act in relation to practice and procedure and decisions of arbitrators that workers' compensation disputes are to be heard and determined in a manner which is not only fair and just, but is also economical, informal, flexible and quick.
64 Under s 188(1) of the WCIM Act, an arbitrator is bound by the rules of natural justice, except to the extent that the Act authorises a departure from these rules. Under s 188(2) of the WCIM Act, the Evidence Act 1906 (WA) does not apply to proceedings before an arbitrator and an arbitrator:
(a) is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
65 Under s 188(3) of the WCIM Act, an arbitrator 'may inform himself on any matter as the arbitrator thinks fit'. Under s 188(5) of the WCIM Act, to the extent that the practice and procedure of an arbitrator are not prescribed under the Act, 'they are to be as the arbitrator determines'. Under s 190(1) of the WCIM Act, an arbitrator may 'give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding'.
66 Specifically, in relation to an arbitrator's reasons for decision, s 213(4) of the WCIM Act states as follows:
The reasons for an arbitrator's decision -
(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
67 In my view, in light of the stated purpose of the WCIM Act in s 3(d) and the foregoing provisions in relation to how workers' compensation disputes are to be heard and determined, in an application for leave to appeal and, where leave is granted, in a review of the decision appealed against under s 247 of the WCIM Act, the reasons for decision of the arbitrator must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or unhappy phrasing.
Grounds of appeal
68 Ms Slater contends that the arbitrator erred in law in relation to each of the following five grounds:
1. Having found the appellant 'did suffer some form of injury to her left ankle at the worksite on 3 December 2011' (para. 36, p 13), failing to properly determine whether:
1.1 The 2 December 2011 injury was an 'injury' as defined: (s 5) for the Act's purposes, in particular, whether the appellant had suffered 'a personal injury by accident arising out of or in the course of her employment; and
1.2 the appellant's incapacity for the period 14 April to 18 August 2014 (which incapacity was not in dispute between the parties) resulted from injury as defined:
Particulars
- (a) at para. 37 (p 13), the learned Arbitrator posed for himself the question whether the appellant had suffered injury for the purposes of paragraph [(a)] of the relevant definition, or for the purposes of paragraph (d);
(b) the learned Arbitrator held the appellant had not on the balance of probabilities proved the existence of injury whether for the purposes of paragraph (a) or (d) of the s 5 definition within the Act; but
(c) at no point within his reasons did the learned Arbitrator apply or (if he did, which is not conceded) properly apply the principles enunciated by His Honour Toohey J in Srdic'smatter, as held relevant in this jurisdiction by His Honour Mr Heath CM, in Promnitz v Byblos Pty Ltd (an unreported decision of the Compensation Magistrate delivered on 29 October 1997; CM-59/97, at pp 5 – 7);
3. In deciding the question of causation, confusing relevant operational causes with issues of the appellant's predisposition to injury, and constitution, as contributing causes to 'injury' as defined for the Act's purposes:
Particulars
- (a) para. 58 on p 21, the learned Arbitrator considered Dr Leek's [sic] opinion that the 'major factor with the (appellant's) ongoing ankle issues related directly to the fracture of the fibular sustained in 2009 out of the workplace, and as a consequence of a failure to adequately treat the injury at that time' compounded by morbid obesity and 'bilateral pes piano valgus feet and resulting mechanical overload', which he considered 'unconnected with any incapacity arising out of the workplace injury';
4. Failing to take into consideration that, subsequent to recovery from the June 2010 injury and passing a pre-employment medical check-up with the respondent, the applicant experienced no difficulties with her ankle or in carrying out her duties for the respondent prior to the worksite injury of 2 December 2011;
5. Alternatively, and in any event, whether the appellant on [10, 11 or] 14 April 2014 suffered an injury for the purposes of paragraph (a) of the relevant definition in the course of carrying out the work duties she was allocated by the respondent's managers on that day:
Particulars
- (a) the appellant suffered a sharp pain to her ankle (which pain indicates the occurrence of further injury) in the course of her duties at work that day when walking up and down windrows, to replace delineators.
69 As noted earlier, the arbitrator said the following [36] – [37]:
In view of the uncontested details in the Applicant's Witness Statement and oral testimony and together with the details provided in the medical examination reports referred to above, the applicant did suffer some form of injury to her left ankle at the worksite on 2 December 2011.
However the central issue of this dispute relates to the significance of the injury. That is does the evidence support a finding that any of the symptoms reported by the Applicant are related to her employment with the Respondent by way of her having suffered a personal injury by accident for the purposes of s 5(a) of the Act; or the recurrence, aggravation or acceleration of a pre-existing disease to which her employment contributed and contributed to a significant degree for the purposes of s 5 (d) of the Act?
70 Ms Slater submits that the arbitrator's finding [36] that she 'did suffer some form of injury to her left ankle at the worksite on 2 December 2011' 'was properly the end point of the determination she sought'. As Mr M J Lourey, counsel for Ms Slater, put the point in oral submissions:
Having made that finding, the learned arbitrator then fell into error by failing to … proceed, as he was bound to do, we would say, to label that a personal injury by accident for the Act's purposes. (ts 4.4 – 4.6)
71 In my view, the arbitrator did not err in law or in mixed law and fact in terms of ground 1.
72 The arbitrator used loose and unfortunate language in the portions of his reasons for decision ([36] and [37]) which are relied on by Ms Slater in the expression of ground 1 and in 'particular' (a) to that ground. The word 'injury' is a core, defined term in the WCIM Act and should not be used loosely in the way the arbitrator did [36]. Apart from again using the word 'injury' not in its defined sense, the expression of the observation [37] that the central issue of the dispute relates to 'the significance of the injury' is also loose and unfortunate, because, without obtaining guidance from elsewhere in the arbitrator's reasons for decision, the meaning of 'the significance of the injury' is unclear. As noted earlier, the arbitrator's use of the word 'injury' in [36] and the first sentence in [37] has given rise to this ground of appeal.
73 However, as stated earlier, the arbitrator's reasons for decision must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or unhappy phrasing. Read in this way, and in the context, in particular, of the second sentence of [37] and [83] – [84], it is clear that the arbitrator did not make a finding [36] that Ms Slater suffered an 'injury' within the meaning of the WCIM Act and correctly understood that the key question for determination in the arbitration was whether Ms Slater had discharged the persuasive burden of proving that it is more probable than not that she did in fact suffer an 'injury' within the meaning of par (a) and/or par (d) of the definition of that term in s 5(1) of the WCIM Act. When read fairly in this way, it is apparent that the arbitrator found [36] that on 2 December 2011 there was an incident (a word that the arbitrator used [2], [42], [50], [61], [78(a)], [78(d)] and [83(a)] when describing what occurred on that day) at the work site concerning Ms Slater's left ankle, not that she sustained an 'injury' for the purposes of the WCIM Act on that date.
74 Ms Slater's submissions that the arbitrator's finding [36] that she 'did suffer some form of injury to her left ankle at the worksite on 2 December 2011' 'was properly the end point in the determination she sought' and meant that the arbitrator was 'bound' to proceed to 'label that a personal injury by accident for the Act's purposes' (ts 4.6) involves reading the finding [36] in an overly critical or pernickety manner and not in context.
75 As Mr J R Ludlow, counsel for BHP, submitted, on the evidence before the arbitrator:
You've got a situation where there's a real issue here as to whether all that happened in December 2011 was that [Ms Slater] was injured in some way because of instability and degeneration resulting from a pre-existing condition. (ts 45.2)
76 Although, as the arbitrator observed [47] on the basis of Dr Leeks' report dated 27 November 2013, 'I accept that Dr Leeks is unequivocal that the injury (fracture) was "work related" on the basis of her opinion of the x-rays taken at the time of the 2 December 2011 injury', as the arbitrator noted by stating '(fracture)' when referring to Dr Leeks' opinion, her opinion that the injury was 'work related' was premised on her erroneous opinion that Ms Slater 'fractured her distal fibula in December 2011'. As noted earlier, that opinion is not only inconsistent with Dr Leeks' subsequent report of 15 January 2015 (apparently viewing the same x-rays), but is also against what the arbitrator found [83(a)], correctly, to be 'the weight of medical opinion [which] was that [Ms Slater] suffered "bruising" and "swelling" of the ankle and that it was a "sprain injury"'.
77 Furthermore, Dr Flahive expressed a clear and consistent opinion in his reports that the incident of Ms Slater's left ankle 'giving way' and rolling at the work site on 2 December 2011 (as well as the incident on 10 April 2014) occurred because of instability and degeneration in her ankle resulting from the June 2010 fracture, lack of active rehabilitation after that trauma, and biomechanical dysfunction (pes planovalgus deformity and obesity leading to overloading of the ankle joint). As noted earlier in these reasons (and in the arbitrator's reasons), Dr Flahive said in his report dated 16 February 2015, following his assessment of Ms Slater on that day and the review of medical notes concerning the June 2010 fracture and x-rays taken on 1 June 2010, 2 December 2011 and 23 April 2014:
• 'It is very probable that [degenerative] changes are post-traumatic, although are related to her June 2010 injury, rather than the December 2011 injury as suggested by Dr Leeks'.
• Ms Slater's 'June 2010 fracture and ligamentous disruption … would seem … [to have] led to a degree of instability within her ankle joint and this is leading to recurrent ankle pain'.
• 'The 2 December 2011 incident led to a sprain injury to the ankle following an episode of instability'.
• Subsequent to sustaining 'a significant ankle injury as a result of her June 2010 trauma', Ms Slater 'has developed degenerative changes within the ankle joint and it would seem is suffering from recurrent episodes of instability and ankle pain' and she 'did suffer a recurrence of this when walking over flat ground on 2 December 2011'.
• '… given no significant aggravating factor or trauma that led to the onset of pain and her ankle "giving" [on 2 December 2011] … Ms Slater suffered a recurrence of her left ankle pain and instability in the course of her work on 2 December 2011'.
78 As the arbitrator found [83(b)], there was in fact 'consensus' between Dr Flahive and Dr Leeks that Ms Slater 'was suffering from degenerative changes in her left ankle as a result of her June 2010 fracture which did lead to instability from time to time'. As the arbitrator noted [83(b)], there was 'also agreement between the medical experts that there was biomedical dysfunction with the pes planus deformity and other constitutional factors such as the obesity of [Ms Slater] which was overloading the ankle joint', which symptoms and issues were referred to in the reports of both Dr Leeks and Dr Flahive.
79 Furthermore, as Dr Flahive said in his report dated 16 February 2015, Ms Slater reported that she developed ankle pain on 2 December 2011 'when walking across a flat surface to fill up her drink bottle when her ankle went out on her and she developed bruising and swelling' and there was 'no specific report of her twisting or stepping on uneven ground'. This was not questioned or contradicted by or on behalf of Ms Slater at the arbitration and, indeed, is consistent with her evidence and Dr Leeks' reports. On the basis of Ms Slater's report to Dr Flahive as to how she developed ankle pain on 2 December 2011, Dr Flahive expressed the opinion that 'it would seem this was more likely to be an episode of instability that she was predisposed to as a result of her previous injury and ligamentous disruption'.
80 In light of the evidence, it was plainly open to the arbitrator to determine that he was not satisfied that Ms Slater had discharged her persuasive burden to prove that she had suffered an 'injury' for the purposes of either par (a) or par (d) of the definition of that term in s 5(1) of the WCIM Act.
81 It was reasonably open to the arbitrator to determine (and, in my view, the determination was correct) that the evidence presented at the arbitration does not establish that it is more probable than not that Ms Slater sustained 'a personal injury by accident arising out of or in the course of the employment' for the purposes of the par (a) of the definition of 'injury' in s 5(1) of the WCIM Act. Ms Slater did not establish that it is more probable than not that she sustained 'a personal injury by accident' on 2 December 2011, given the strong evidence suggesting that the incident concerning Ms Slater's left ankle which occurred at the work site on 2 December 2011 was the product or manifestation of instability and degenerative changes in her left ankle resulting from the June 2010 fracture, lack of active post-trauma rehabilitation, and biomechanical dysfunction.
82 Mr Lourey submits that by going on to consider what the arbitrator referred to in the first sentence of [37] as 'the central issue of this dispute [that] relates to the significance of the injury', the arbitrator erred in law by failing to apply the so-called 'Srdic principles' or by failing to apply these principles properly.
83 The Srdic principles derive their name from the decision of the Full Court of the Federal Court in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41 in which Toohey J set out nine principles which his Honour derived from authorities in relation to workers' compensation claims. The Srdic principles have been referred to and applied in Western Australia: Promnitz v Byblos Pty Ltd (Unreported, CM 59/97 (Heath SA) 29 October 1997).
84 The principles stated by Toohey J in Srdic are as follows 43 - 44:
1. The question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose in the course of the relevant employment. The questions have not always been kept distinct.
2. The expression personal injury by accident is a compound one. It is not necessary to show, first, that something to be described as an accident happened and secondly, that something else, namely an injury, was brought about or caused by that accident. The use of the term 'accident' points out that the unexpected nature of the event constituting the injury.
3. It is no longer necessary to prove that some external event or some action of the worker caused a sudden physiological change to happen when it did. That necessity arose from the requirement to establish that injury by accident had arisen out of and in the course of the employment.
4. Personal injury by accident may exist where there is no more than an actual internal physical injury such as the rupture of an aneurism or of an oesophagus, not attributable to any external injury but resulting from some force or pressure exerted within the body.
5. Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre-disposing physical condition. The employer must take the worker as he finds him.
6. A worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
7. Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident.
8. Personal injury by accident arises in the course of employment so long as it occurs while the worker is performing his duties or doing something incidental to the actual performance of those duties, or, put another way, where he is engaged in his employment. There need be no causal connexion between the injury and the employment.
9. The traditional view that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment cannot be pressed beyond the case of physiological change which is produced by the development of a progressive disease. (citations omitted)
85 In my view, the arbitrator's decision in this case is consistent with those principles stated by Toohey J in Srdic which are material to the issues, facts and circumstances of the case. It should be noted, however, that the so-called Srdic principles are neither a statutory nor an exhaustive statement of principles that apply in relation to workers' compensation claims. Rather, they are a convenient and helpful collection of principles derived by Toohey J from earlier authorities at a particular point in time.
86 Furthermore, the arbitrator did not err in law because he did not cite or discuss in terms the Srdic principles as a whole or any particular one of those principles. What the arbitrator was required to do – and what he did – was to identify and resolve the particular issues that the compensation claim before him gave rise to in the context of the evidence, facts and circumstances of the case, applying the law and having regard to applicable principles.
87 The arbitrator's decision is consistent with the first Srdic principle. As Toohey J noted in the first principle, the question of whether there has been a personal injury by accident 'is a question distinct from, and logically anterior to, the question whether what has happened arose in the course the relevant employment'. In this case, Ms Slater has not proved that it is more probable than not that she suffered 'a personal injury by accident' on 2 December 2011. This was fatal to the success of her claim.
88 The arbitrator's decision is also consistent with the sixth Srdic principle. Toohey J said in Srdic:
A worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment. 89 Toohey J stated this principle on the basis of the decision of the High Court of Australia (Dixon CJ, Fullagar and Taylor JJ) in The Commonwealth v Ockenden (1958) 99 CLR 215, 224. The High Court held in Ockenden as follows 223 – 224:
[A] physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
90 As noted earlier, Dr Flahive expressed the clear and consistent opinion that the incident on 2 December 2011 occurred because of pre-existing instability and degeneration. There was also 'consensus' in the medical evidence that Ms Slater was suffering from degenerative changes in her left ankle as a result of the June 2010 fracture which led to instability from time to time. As also noted earlier, there was no dispute that the incident occurred when Ms Slater was walking across a flat surface (concrete ground, as reported by Dr Leeks) and there was no report of her twisting or stepping on uneven ground. By his finding and determination [83(b)] that '[t]he injury of 2 December 2011 is not "work related" for the purposes of the Act', the arbitrator in effect determined that he was not satisfied on the evidence that the incident on 2 December 2011 was in some way attributable to or associated with some incident of Ms Slater's employment. This determination by the arbitrator was reasonably open on the evidence.
91 The arbitrator's decision is also consistent with the seventh Srdic principle. As Toohey J said:
Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident.
92 Toohey J derived this principle from the decision of the High Court in The Commonwealth v Hornsby (1960) 103 CLR 588 in which Dixon CJ, Fullagar, Taylor and Windeyer JJ (Menzies J dissenting) held that a stroke suffered by a worker on a Melbourne tram while on his way to work at the Commonwealth Bank was a result solely of the natural progression of a pre-existing morbid condition and did not constitute 'injury by accident'. This decision was made in the context of s 9A(1) of the Commonwealth Employees' Compensation Act 1930 (Cth) which provided that the Commonwealth was liable to pay compensation where 'personal injury by accident is caused to an employee while he is travelling to or from … his place of employment by the Commonwealth'. Dixon CJ held as follows 593 - 594:
But the relation of external causes to physiological change as ground for characterising it as accidental injury is the point of much that was said by this Court in The Commonwealth v Ockenden. The physiological disaster, however, which Hornsby encountered, so suddenly from his point of view, as he journeyed to his work was not in any degree attributable to his journey. Its causation, as its occurrence, was entirely an internal matter. Yet its nature and physiological changes that took place must be considered. There was the sudden operation of the processes upon the man himself and the immediate internal 'injury'. The processes meant an internal occurrence that can be clearly distinguished from the pathological conditions leading up to it, one consisting in a definite impairment of a centre of control of bodily movement. My opinion has fluctuated upon the question whether these factors are enough to make it right to characterize the event as injury by accident within the meaning that has been attached to that expression. But after full consideration I have reached the conclusion that the processes leading to Hornsby's 'injury' cannot be regarded otherwise than as a gradual development of a disease terminating in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus. It too closely resembles physiologically and pathologically the course and incidents of this occlusion of an atheromatous sclerotic coronary artery and its consequences. Upon that we have passed judgment in The Commonwealth v Mackey [unreported, 19 October 1959], following or rather applying, Ockenden's Case.
93 Similarly, Fullagar J said the following 597 – 598:
If, as in Kellaway v Broken Hill South Ltd[(1944) 44 SR(NSW) 210; 61 WN 83] the arterial disease and the thrombosis or other occlusion in which it culminated were 'autogenous', and no particular incident or activity of the worker accelerated or contributed to the occlusion, it cannot be said that there was any personal injury by accident. If, on the other hand, as in Hetherington's Case [(1939) 62 CLR 317] (where the worker had just walked up a steep slope) it can be found, and is found, that some particular incident or activity of the worker did contribute to or accelerate the occlusion, then the worker must be held to have suffered personal injury by accident. When this position is reached, a further question may or may not arise as to whether the particular incident or activity was in the course of the worker's employment.
94 Taylor J said 601:
Indeed when the relevant provisions of the Commonwealth Act are closely examined it becomes clear, in my view, that disablement as a result solely of the natural progression of disease is not personal injury by accident within the meaning of that Act.
95 Windeyer J expressed the same point as follows 608 - 609:
What for present purposes the authorities establish is that if some external event or some act done by the man himself causes a sudden, harmful and unexpected physiological change to occur, that may amount to an injury by accident – and this may be so although the event or act would not have had the same consequences if the man had not been suffering from some predisposing disease. In such cases it is because the injury was not the result of the mere progress of an autogenous disease but on the contrary was unexpectedly precipitated by some external event or definite act that it can be attributed to an accident. But here the respondent would, for all that appears, have had a stroke when he did wherever he was. He happened to be in a tram on his way to work at the time. That does not bring the case within the Act.
96 In Ms Slater's case, there was strong evidence before the arbitrator suggesting that the incident in relation to her left ankle on 2 December 2011 at the work site was the product or manifestation of the instability and degenerative changes in her left ankle resulting from the June 2010 fracture, lack of active post-trauma rehabilitation, and biomechanical dysfunction. Although the incident happened to have occurred at the work site, there was strong evidence suggesting that it would have happened wherever she was and that no particular incident or activity of Ms Slater accelerated or contributed to that incident at that time. Furthermore, the arbitrator found that the 'sprain injury' on 2 December 2011 [83(e)] 'resolved by [3] December 2011 when [Ms Slater] returned to her normal pre injury duties'.
97 As Mr Ludlow submits, the arbitrator did not have to – and did not – go so far as to find that the incident in relation to Ms Slater's left ankle on 2 December 2011 was in fact the incident or consequence of the degeneration and instability from the June 2010 fracture. Rather, the arbitrator determined, in my view correctly, that, on the evidence, Ms Slater had not discharged her persuasive burden of proving that it is more probable than not that she sustained an 'injury' as defined in the WCIM Act on 2 December 2011.
98 Mr Lourey sought to rely on the fifth principle stated by Toohey J in Srdic that 'the employer must take the worker as he finds him'. As Latham CJ classically expressed this principle in Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120, 129 – 130:
In determining whether incapacity results from an injury the law necessarily adopts an idea of causation which, in a sense, isolates the injury as a causative element from other elements which are taken for granted or ignored. If the addition of the injury to other concurrently existing facts brings about the incapacity, then the incapacity is regarded as resulting from the injury, although in fact it results from the injury taken together with the other circumstances.
99 Mr Lourey submits that the arbitrator did not properly apply the fifth Srdic principle, because the 2010 fracture and its consequences and Ms Slater's conditions of flat feet and obesity should properly be 'taken for granted or ignored' as the employer must take the worker as the employer finds the worker. However, in this case, as the arbitrator found (and I agree) Ms Slater has not proved, on a balance of probabilities, that she sustained an 'injury' within the meaning of that defined term in s 5(1) of the WCIM Act. The fifth Srdic principle did not require the arbitrator to ignore or put aside the 2010 fracture, the lack of active rehabilitation and the biomechanical dysfunction when determining whether Ms Slater had proved that she sustained an 'injury' on 2 December 2011.
100 Mr Lourey also referred to the second, third and eighth principles stated by Toohey J in Srdic. However, in my view, these principles are not material in the context of the issues, facts and circumstances of this case.
101 Furthermore, it was reasonably open to the arbitrator to determine (and, in my view, the determination was correct) that the evidence at the arbitration was insufficient to establish that Ms Slater sustained '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' for the purposes of par (d) of the definition of 'injury' in s 5(1) of the WCIM Act. The arbitrator found [83(c)] as follows:
… I do not consider that the nature of the employment activity (walking on a flat surface) was a contributing factor to a recurrence, aggravation, or acceleration and contributed to a significant degree for the purposes of the Act. That is, the employment on 2 December 2011 was not a significant factor to any recurrence or aggravation.
102 In my view, this finding was clearly open on the evidence and was correct. As noted earlier, there was no dispute that the incident occurred when Ms Slater was walking across a flat surface (concrete ground, as reported by Dr Leeks) and there was no report of her twisting or stepping on uneven ground. As also noted earlier, Dr Flahive's opinion is that 'the nature of employment did not contribute to a significant degree to this, (that is she was simply walking over a flat area when her ankle failed)'.
103 It was therefore reasonably open (and correct) to determine that the evidence does not establish that it is more probable than not that Ms Slater's employment 'was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree'.
104 It follows that, contrary to par 1.1 of ground 1, the arbitrator did not fail properly to determine whether the incident on 2 December 2011 was an 'injury' as defined for the purposes of the WCIM Act.
105 In relation to par 1.2 of ground 1, as the arbitrator was not satisfied that Ms Slater had discharged her persuasive onus to prove that she sustained an 'injury' for the purposes of the WCIM Act on 2 December 2011, the arbitrator was not required to determine whether Ms Slater's alleged incapacity during the period 14 April 2014 to 18 August 2014 resulted from injury as defined. However, I note that, contrary to the assumption in par 1.2 of ground 1, Ms Slater's alleged incapacity during that period was in fact disputed by BHP. Furthermore, as noted earlier, Dr Flahive gave clear evidence that 'Ms Slater has not been incapacitated in terms of work for alternative duties' during the period from 10 April 2014 to August 2014.
106 Finally, in relation to ground 1, although not strictly raised in that or any of the other grounds of appeal, Mr Lourey submits that the arbitrator 'has failed to explain his reasoning in a way that [Ms Slater] can understand how, despite the evidence and despite the findings made, she can be left with an outcome that she has not sustained an injury as defined by the Act' (ts 4.7). In effect, Mr Lourey submits that the arbitrator's reasons are legally inadequate.
107 This argument is also premised on the arbitrator's finding [36] that Ms Slater 'did suffer some form of injury to her left ankle at the worksite on 2 December 2011'. As explained earlier, this paragraph cannot fairly and properly be read in isolation and must be viewed in the context of the arbitrator's reasons as a whole. When the arbitrator's reasons are read as a whole, and not in an overly critical or pernickety manner, they satisfy the requirements of legally adequate reasons.
108 In Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 the Court of Appeal (Steytler, Templeman and Simmonds JJ) held as follows [26] - [27]:
[T]he giving of reasons is a normal (albeit not universal) incident of the judicial process. That is because 'the duty is a function of due process, and therefore of justice'. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment. The requirement also furthers judicial accountability.
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
(citations omitted)
109 In considering the legal adequacy of an arbitrator's reasons, the court should also bear in mind the terms of s 213(4) of the WCIM Act which, as noted earlier, states as follows:
The reasons for an arbitrator's decision -
(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
110 In my view, the arbitrator's reasons are legally adequate. The reasons enable the parties to understand why they were or were not successful and are sufficient to give effect to the right, with leave, to appeal, as they enable the court to determine whether any error was made.
111 I refuse leave to appeal in relation to ground 1, because I am not satisfied that the arbitrator erred in law or erred in mixed fact and law in terms of this ground.
Grounds 2 and 4 – Failing to take matters into account
112 Grounds 2 and 4 can be addressed shortly together, because they clearly do not involve any question of law. As Mason J held in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39:
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. ...
What factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion. …
(citations omitted)
113 Ms Slater does not contend that the arbitrator was bound to consider the matters referred to in grounds 2 and 4 and there is no basis on which to do so. These grounds, in effect, seek a merits review of the arbitrator's decision, which is not available under s 247 of the WCIM Act. I therefore refuse leave to appeal in relations to grounds 2 and 4.
Ground 3 – Confusing relevant operational causes with issues of Ms Slater's predisposition to injury
114 Ground 3 concerns essentially the same point as Mr Lourey's argument based on the fifth principle stated by Toohey J in Srdic where his Honour said that 'The employer must take the worker as he finds him'.
115 The arbitrator dismissed Ms Slater's claim for compensation, because he was not satisfied, on the evidence before him, that Ms Slater had discharged her persuasive onus of proving that it is more probable than not that she sustained an 'injury' within the meaning of WCIM Act on 2 December 2011. Clearly, a significant factor in Ms Slater's inability to prove her case on the evidence was Dr Flahive's opinion that the incident in which Ms Slater's left ankle 'went out on her' and she developed bruising and swelling was caused by instability and degeneration resulting from the 2010 fracture, lack of active rehabilitation and biomechanical dysfunction, and, indeed, what the arbitrator referred to [83(b)] as the 'consensus' in the medical evidence that Ms Slater 'was suffering from degenerative changes in her left ankle as a result of the June 2010 fracture which did lead to instability from time to time' and 'agreement between the medical experts that there was biomedical dysfunction'.
116 However, contrary to Mr Lourey's submission, the arbitrator did not err in law 'in attaching causal significance to the issue of obesity and the predisposing condition' (ts 34.7) or by attaching 'positive causal value to obesity and flat feet as producing incapacity' (ts 35.4). The arbitrator did not find that Ms Slater sustained an 'injury' on 2 December 2011 and therefore suffered incapacity as a result of, to any extent, her conditions of flat feet or obesity. Indeed, to the contrary, the arbitrator found that Ms Slater had not proved that she sustained any 'injury' for the purposes of the WCIM Act on that day.
117 In terms of the statement of principle by Latham CJ in Ward (129 - 130), that 'If the addition of the injury to other concurrently existing facts brings about the incapacity, then the incapacity is regarded as resulting from the injury, although in fact it results from the injury taken together with the other circumstances', in this case, the arbitrator was not satisfied on the evidence that Ms Slater had proved that she sustained an 'injury' and therefore that she suffered incapacity resulting from that 'injury' (whether taken together with other circumstances or not).
118 I refuse leave to appeal in relation to ground 3, because I am not satisfied that the arbitrator erred in law or erred in mixed fact and law in terms of this ground.
Ground 5 – Whether Ms Slater suffered an injury on 10, 11 or 14 April 2014
119 Ms Slater contends that the arbitrator erred in law by failing to determine whether she suffered an 'injury' for the purposes of par (a) of the definition of that term in s 5(1) of the WCIM Act in the incident on 10 April 2014. Mr Lourey submits that the arbitrator 'just appears to have … not looked at that at all' (ts 36.7).
120 However, the arbitrator did consider and determine whether Ms Slater sustained an 'injury' as defined in the WCIM Act in the incident on 10 April 2014. The arbitrator found that Ms Slater had not proved that she had sustained an 'injury' on that day. The arbitrator said [83(d)]:
The Applicant describes no injury or injurious mechanism on the 10thApril 2014. She stated that her ankle just started hurting. It was the opinion of both Drs Leek [sic] and Flahive that the soreness of the left ankle was not work related. (See paragraphs 54, 56, 76 and 77.)
121 Shortly afterwards, the arbitrator found [84] that Ms Slater had not proved, to the requisite standard, that she had sustained '[a] personal injury by accident for the purposes of [par (a) of the definition of 'injury' in s 5(1) of the WCIM Act]'. Reading this finding in the context of the findings in the preceding paragraph, it was clearly made in relation to all relevant dates on which Ms Slater contended that she had sustained 'injury', including April 2014.
122 This finding was reasonably open on the evidence to which the arbitrator referred. Indeed, given that Ms Slater's own medical evidence by Dr Leeks records that Ms Slater 'describes no injury or injurious mechanism' on 10 April 2014 and expresses the opinion that the incident on that day 'is not work related', no other finding could have been made. The evidence showed only that Ms Slater's ankle started hurting. Contrary to the particular to this ground, the mere fact that she experienced pain does not establish that it is more probable than not that she sustained 'a personal injury by accident' on that day.
123 I refuse leave to appeal in relation to ground 5, because I am not satisfied that the arbitrator erred in law or erred in mixed fact and law in terms of this ground.
Conclusion
124 I am not satisfied that the arbitrator erred in law or in mixed fact and law in his decision to refuse Ms Slater's claim for compensation in relation to any of the five grounds of appeal.
125 Ms Slater failed in her claim for compensation before the arbitrator, because she failed to prove her case. In particular, she failed to prove that it is more probable than not that she sustained an 'injury', within the meaning of the WCIM Act, on 2 December 2011 or 10 April 2014 (or any other date). No error of law or error of mixed fact and law was involved in the arbitrator's decision. Furthermore, the decision was correct on the evidence before the arbitrator.
126 Leave to appeal against the arbitrator's decision should therefore be refused.
3
22
6