Smith v Frank Oilfield Services (Aust) Pty Ltd
[2025] WADC 13
•19 MARCH 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SMITH -v- FRANK OILFIELD SERVICES (AUST) PTY LTD [2025] WADC 13
CORAM: CLEARY DCJ
HEARD: 5 SEPTEMBER 2024
DELIVERED : 19 MARCH 2025
FILE NO/S: APP 19 of 2024
BETWEEN: AARON SMITH
Appellant
AND
FRANK OILFIELD SERVICES (AUST) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR YATES
File Number : A118129
Catchwords:
Workers' compensation - Competing expert evidence - Causation - Burdens - Disentangling competing causes - Credibility - Discretion to refuse compensation
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) (repealed)
Workers Compensation and Injury Management Act 2023 (WA)
Result:
The appeal is dismissed
Representation:
Counsel:
| Appellant | : | Mr H Evans-Mete |
| Respondent | : | Mr C W Treasure & Mr J Young |
Solicitors:
| Appellant | : | Perth Compo Law |
| Respondent | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
Anderson v Mineral By‑Products Pty Ltd (1987) 8 WCR (WA) 37
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Cole v P & O Ports Ltd [2002] WASCA 157
D'Orsogna Ltd v Zhang [2019] WADC 73
Education Department of Western Australia v Morgan [2000] WASCA 291
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Lockwood‑Hall v BHP Billiton Nickel West Pty Ltd (Unreported, WACC, C5‑2012, 18 May 2012)
Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146
Minister for Education v Shire of Northam [2016] WADC 42
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243
Purkess v Crittenden (1965) 114 CLR 164
R v Hill [2012] ACTSC 121
Re Iliadis v Comcare (1996) 41 ALD 576
Re Schofield v Comcare (1995) 38 ALD 124
Smart v Power [2019] WASCA 106
Treasure v WA Country Health Service (Unreported, WACC, C17-2010, 26 November 2010)
Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120
Watts v Rake (1960) 108 CLR 158
Wilson v Bentley Health Service (Unreported, WACC, C31-2007, 6 July 2007)
CLEARY DCJ:
Mr Smith is a field technician. He worked on offshore oil rigs. In 2020 his employer Frank Oilfield Services deployed Mr Smith's labour for onshore work in one of their workshops. On 22 May 2020 Mr Smith lifted a pallet (the pallet incident) and as he did so, he injured his lower back and sustained a left‑sided inguinal hernia.
A workers' compensation claim was accepted by Frank Oilfield Services.
While on weekly payments of compensation, Mr Smith injured his right knee in a swimming pool. Mr Smith says the right knee injury occurred because of the lower back injury. Frank Oilfield says it did not.
Mr Smith's prescribed sum was exhausted in June 2022. Mr Smith claims that the injuries he sustained when lifting the pallet include the consequential right knee injury, and that those injuries have left him totally incapacitated for work, his social and financial circumstances and needs justifying an extension of the prescribed amount.
On 23 February 2024 Arbitrator Yates dismissed Mr Smith's application for that extension of the prescribed amount. In summary, the arbitrator found that Mr Smith's compensable injury has resolved.
Mr Smith says he erred in so finding.
What have I considered in these reasons?
A consideration of the merits of the appeal requires, self‑evidently, addressing the grounds themselves. Before I do that, however, I have set out in summary the arbitrator's reasons for decision, including his findings on the credibility of the appellant, and some findings he made which are common to all the grounds of appeal.
However, a practical matter arose at the hearing of the appeal which can be addressed briefly. The arbitrator's reasons are dated 23 February 2024. At that time, the Workers' Compensation and Injury Management Act 1981 (WA) (repealed) (the former Act) was in place. That Act was repealed and replaced by the Workers Compensation and Injury Management Act 2023 (WA) (the 2023 Act), coming into operation on 1 July 2024. While the arbitrator's decision came before the commencement of the 2023 Act, this appeal was heard on 5 September 2024.
Both parties agreed, rightly in my view, that the consequence of provisions in the 2023 Act is that the appeal must proceed under the 2023 Act. Further, both parties agreed, as do I, that at this stage, the questions raised as to leave, and any tests as to causation or other questions of law relevant to this appeal, are not altered by the 2023 Act.
Both parties also agreed that as the arbitrator applied the relevant sections from the former Act in determining the matter, consideration of the law as he applied it should be referenced to the sections of the former Act.
There is a more difficult question about what occurs if I uphold the appeal, particularly in relation to the application of s 79 of the former Act, which does not have a replacement in the 2023 Act. Given the outcome of this appeal, I do not have to determine that issue.
The arbitrator's decision
Construction
The arbitrator structured his decision into the resolution of issues. He identified those issues as:[1]
[1] Arbitrator's reasons for decision (ARD) [4].
(a)What injury did Mr Smith sustain in the pallet incident, the compensable occurrence of 22 May 2020?
(b)Did Mr Smith sustain a compensable condition to his right knee in a swimming pool in December 2020?
(c)Does Mr Smith have a current injury that is compensable under the Act?
(d)Has any current compensable injury resulted in the permanent total incapacity for work?
(e)Should an order as to the total liability of the respondent be made having regard to the social and financial circumstances and the reasonable financial needs of Mr Smith?
(f)If an order as to the total liability of the respondent is made, in what amount, at what rate, and commencing when?
(g)Should the respondent pay Mr Smith's outstanding medical expenses for the lower back?
(h)Should the respondent pay Mr Smith's outstanding medical expenses for the right knee?
(i)Should compensation be refused on the basis that at the time of seeking employment Mr Smith wilfully and falsely represented himself as not having previously suffered the injury?
Before he considered the issues, the arbitrator addressed the appellant's credibility.[2]
[2] ARD [5] - [33] with his conclusions at [34] - [37].
He found that the medical history given by the appellant to some of the medical professionals was inconsistent and unreliable. Accordingly, he found that the weight that could be attached to those expert medical opinions in relation to the cause of the symptoms leading to the incapacity was affected, and in the case of one professional, Dr Jenkins, leading him to reject Dr Jenkins' opinions and conclusions as to the cause of the current incapacity.
As much of the arbitrator's findings rely on his findings on the appellant's credibility, the rejection of Dr Jenkins' opinion and the acceptance of other medical opinions, I will set out his findings on credibility, his general findings of fact and the medical evidence and the arbitrator's findings.
The appellant's credibility
The arbitrator found that the appellant did not give truthful, accurate and reliable evidence at the arbitration hearing. He determined that Mr Smith's diminished credibility diminished the reliance that could be placed on his evidence, relying on it only where it was corroborated by other evidence.
However, he did find that the appellant was not a malingerer, and had current ongoing genuine symptoms affecting his capacity to work 'to some degree' requiring ongoing medical treatment.[3]
[3] ARD [135].
The arbitrator's findings on credibility and reliability were based on the manner in which the appellant gave his oral evidence, on the histories given to the medical practitioners as recorded by the medical practitioners and answers he provided on forms. I will address his findings in those respects in more detail when I set out the arbitrator's findings.
Findings of fact
In considering the appellant's credibility, the medical evidence and the issues, the arbitrator made findings of fact:
1.The appellant had previously suffered two medical conditions in connection with his previous employment, being at least an injury to his right knee on 17 July 2017 when dragging a bag of oysters, requiring surgery,[4] and an injury to the lower back on 12 January 2018 when lifting bags of oysters.[5] Thus, those injuries were caused in two separate incidents.[6]
[4] ARD [9(a)], [42], [43].
[5] ARD [9(a)].
[6] ARD [20].
2.Even if both injuries were caused in the same incident, the appellant was obtaining medical advice and treatment in New Zealand in 2018 for a lower back complaint connected with his employment.[7]
[7] ARD [9(a)].
3.The appellant received compensation in New Zealand for each of those injuries.[8]
[8] ARD [9(b)].
4.The appellant had had significant or recurrent problems with right knee pain arising from a rugby injury in 1999[9] and right knee pain reported to doctors in 2017 and 2018 from the July 2017 injury.[10]
[9] ARD [41].
[10] ARD [9(c)(i)].
5.The appellant had had significant or recurrent problems, and investigation, with lower back pain.[11] This pain was reported to doctors in 2018 and 2019, including the reporting of long‑standing low back pain to his general practitioner Dr Selvendra (Park Medical Group) on 24 April 2019 and 13 May 2019,[12] and from at least 21 February 2018 (Dr Sanderson) and as late as 3 December 2019 (Dr Yong) (Park Medical Group).[13]
[11] ARD [45] - [52], [55].
[12] ARD [9(c)(i)], [54].
[13] ARD [15], [60] - [62], [70].
6.The appellant was referred to a neurosurgeon by Dr Selvendra for his ongoing lower back condition in May 2019,[14] and by Dr Yong for his lower back condition in December 2019.[15]
[14] ARD [27], [57].
[15] ARD [64(d)].
7.The appellant completed a pre-employment medical form on 19 June 2019,[16] and at that time:
[16] ARD [8].
(a)the appellant had a current illness being a back injury when he applied for employment with the respondent, as consistently reported to doctors;[17]
[17] ARD [9(c)(iv)], [15].
(b)that history involved more than 'little niggles';[18] and
[18] ARD [30].
(c)the appellant's lower back was not healthy before the compensable injury.[19]
[19] ARD [14], [15].
8.Post the compensable pallet incident, the appellant either did not tell of, or downplayed to, medical practitioners, his pre‑dating lower back medical history:
(a)he did not tell occupational physician Dr Tan, who provided certificates as to incapacity from 2 July 2020 to 11 January 2021;[20]
(b)he did not tell reporting occupational physician Dr Dayoub when reviewed in February and October 2021;[21]
(c)he told Dr Dayoub that he had had 'little niggles' in his back in the past in December 2022;[22] and
(d)he did not tell approved medical specialist Dr Jenkins[23] nor orthopaedic surgeon Dr Phillips[24] when reviewed.
The medical evidence and witnesses
Dr Dayoub
[20] ARD [29].
[21] ARD [30].
[22] ARD [30].
[23] ARD [31].
[24] ARD [32].
Dr Dayoub is an occupational physician who provided reports to the respondent. He provided four reports and was not required for cross‑examination at the arbitration hearing.
The appellant underwent an MRI lumbosacral spine in February 2021, the report of the results of which became Exhibit 14 at the arbitration hearing. On 4 March 2021 Dr Dayoub reported on those results and provided a general report of the appellant's medical conditions, that report becoming Exhibit 15 at the arbitration hearing.
The report included a history as reported to him by the appellant, however Dr Dayoub said that history in relation to the injury was 'vague and sketchy'. Despite being vague and sketchy, Dr Dayoub appears to have believed that he had sufficient information to summarise the mechanism of the appellant's lifting of the pallet, the weight of the pallet and the immediate onset of symptoms in particular areas. Dr Dayoub noted that the appellant used a below elbow crutch on his right side for a right knee injury when he saw him and noted a mild antalgic gait, and other consequences of the knee injury. He reported his findings in relation to the physical nature of the appellant's presentation and summarised the findings of an ultrasound performed on 3 July 2020 and the MRI lumbosacral spine.
He considered that the present lower back symptoms were contributed to by a symptomatic degenerative disease of the lumbosacral spine.
Dr Dayoub said he had insufficient information to accurately relate the then symptoms and condition to the workplace injury. General practitioner records were called for.
Dr Dayoub furnished a second report on 25 October 2021, which became Exhibit 17 at the arbitration hearing. The called for records had not been received. Again, however, an antalgic gait was noted and Dr Dayoub outlined his clinical findings on examination. He maintained his inability to accurately determine the liability for the lower back pain based on insufficient information.
A third report issued on 14 December 2022 became Exhibit 20 at the arbitration hearing. By this time, reports had been received and considered by Dr Dayoub, according to the schedule of documents at pages 11 and 12 of his report. Specifically, Dr Dayoub had considered:
•Radiology reports regarding the left groin and the MRI of the lumbosacral spine
•Pain medicine specialist reports
•General surgeon report in relation to the hernia
•GPs: Dr Kumar '25 May 2020, Clinical Notes, 4 Sep 2020', Sonic Health Plus 2021
•Physiotherapy reports from August 2020 to September 2021
•Rehabilitation reports from July 2021 and April 2022
•Work certificates from 2020 to October 2022.
While not specifically mentioned in that list, but referenced in the body of his report, Dr Dayoub considered a 'health summary from Park Medical Group. This was printed on 20 October 2022'. In his report, he has specifically referred to:
1.A surgery consultation recorded by Dr Selvendra, general practitioner dated 4 April 2019, saying '[i]t was suggested that he had lower back pain for one year. He was diagnosed with pinched nerve in New Zealand. He was taking sleeping tablets and non‑steroidal anti‑inflammatory medications. Dr Selvendra discussed scans and ongoing medications'.
2.A surgery consultation completed by Dr Selvendra dated 16 April 2019, saying 'It appears that he had a CT scan of the lumbosacral spine' and noting the outcome as he had previously reported.
3.A surgical consultation dated 13 May 2019, saying 'It was suggested that he has lower back pain. He has had facet joint injections and he was advised to have surgery, lumbar spine fusion, in New Zealand; however, he moved to Perth to be with his daughter. He was recommended to see a neurosurgeon'.
4.A surgical consultation recorded by Dr Yong, general practitioner dated 3 December 2019, saying 'It was recommended that he had long‑standing back pain and awaiting neurosurgeon public review. It was suggested that he was using tramadol and codeine which did not help'.
Having referred to those consultations, Dr Dayoub's findings were:
Mr Smith has a pre-existing history of chronic lower back pain. I find the history that was provided by Mr Smith to be inconsistent with the clinical records that was provided to me.
Mr Smith said that he had little niggles of his lower back in the past, but he never required medical or allied health treatment; however, the clinical records suggest that he had chronic lower back pain for many years prior to the workplace incident of 2[2] May 2020, for which he required cortisone injections, and he was recommended to see a neurosurgeon.
The workplace incident that occurred on 2[2] May 2020 may have caused a temporary aggravation of the pre‑existing lower back pain; however, I consider such aggravation to have ceased by now. I believe that his ongoing back symptoms are secondary to the non‑work-related injury of his right knee which occurred on 12 December 2020. I believe that his altered gait as a result of the right knee injury has caused an aggravation of his chronic lower back pain.
The arbitrator replicated these findings at [95] and [96].
In relation to Dr Dayoub's reports, the arbitrator also found, in summary:
(a)as of 4 March 2021 Dr Dayoub had not been provided with any medical records that pre‑dated the pallet incident;[25]
(b)given the history revealed by the medical records pre-dating the pallet incident, the history given by the appellant to Dr Dayoub prior to the 4 March 2021 report, being a denial of 'any past history of similar symptoms in the past', was not true;[26]
(c)in that first report Dr Dayoub acknowledged the lack of information and therefore inability to accurately determine whether the degenerative disease had been rendered symptomatic as a result of the workplace incident of May 2020 and recommended gaining access to clinical general practitioner records to accurately do so;[27]
(d)by the time of the third review appointment on 7 December 2022 Dr Dayoub received at least some of the past medical records that were in evidence before the arbitrator, and as a result made the findings I have set out above; and
(e)a fourth report dated 21 December 2022 which became Exhibit 22 at the arbitration hearing commissioned to comment on a labour market research report contains Dr Dayoub's opinion that the ongoing incapacity for work is not related to the compensable injury occurring on 22 May 2020, but rather non‑work related long‑standing history of lower back pain and osteoarthritis of the right knee.[28]
[25] ARD [91].
[26] ARD [91].
[27] ARD [93].
[28] ARD [98].
In conclusion, the arbitrator found that Dr Dayoub's opinions as to diagnosis of the 'lower back' and causation were compelling. This was because, he said, the reports all set out clearly what information he was relying on to form his opinions, whether that be the appellant's history provided to the doctor or other documentation. He concurred with Dr Dayoub that in the case where the appellant's account of his medical history conflicted with the contemporaneous medical records, the contemporaneous medical records were to be preferred.[29]
Dr Phillips
[29] ARD [99].
Dr Phillips is a consultant orthopaedic surgeon who provided a report to the respondent. His report dated 30 June 2023 became Exhibit 31 at the arbitration hearing. He was not required for cross‑examination.
He was also provided with medical records which pre-dated and post‑dated the pallet incident, specifically as noted by the arbitrator, being the Park Medical Group medical records,[30] 'which is the clinic Dr Selvendra and Dr [Yong practice] from'.
[30] ARD [100].
As the arbitrator noted,[31] Dr Phillips reported to the respondent that he specifically asked the appellant about any prior low back complaint and that the appellant stated that there was 'nil of significance and that he had not ha[d] his lower back investigated prior to this injury'. Dr Phillips continued, 'I note a very comprehensive and complex history which you have documented of complaints in New Zealand in relation to his low back. … This is inconsistent with his statement which I asked him to confirm that there was no significant prior low‑back problem and it had never been investigated'.
[31] ARD [100].
While not referred to by the arbitrator, it is also notable that Dr Phillips, at pages 5 - 6 of his report, listed: a diagnosis in January 2018 of low back injury and recognised degenerative disc disease; further imaging on 21 February 2019 confirming osteoarthritic changes in the lumbar spine and reports in 2018 of ongoing low back pain; an MRI scan on 13 April 2018 of the lumbar spine identifying an L5 spondylitis but no spondylolisthesis; and also in May 2018 an X‑ray of the cervical spine. These led to his conclusion that there was an inconsistency with the appellant's confirmation that there was no significant prior low back problem and that it had never been investigated.
The arbitrator found Dr Phillips' report comprehensively detailed the history of the appellant's presentation to doctors after the pallet incident and the investigations undertaken in that period.[32] He accepted Dr Phillips' diagnosis of pre‑existing degenerative change in the lower back as Dr Phillips had adequately explained the reasons for his opinion and, given that he found that the appellant's subjective complaint to Dr Phillips of current low back pain was genuine, he accepted Dr Phillips' explanation that the pre‑existing (that is, the pre‑pallet incident) pathology objectively explained the current subjective complaints.[33]
[32] ARD [101].
[33] ARD [103].
In making that finding, the arbitrator had access to Dr Phillips' report. It can be inferred that the arbitrator's reference to the comprehensive detail of the history and investigations undertaken and adequate explanation of the reasons for his opinion come in part from the answers Dr Phillips gave to the set of questions provided to him by the respondent.
In those responses, Dr Phillips, in summary, found:
1.From the MRI lumbosacral spine his view was that there were long‑standing degenerative changes to the spine with no evidence of an acute injury or injury pathology.
2.The imaging would be consistent with prior reports of imaging undertaken for what appears to have been a significant complaint in 2018/2019.
3.Consequently, his total agreement with Dr Dayoub's opinion that the pre‑existing pathology would explain complaints of pain although he suspected a degree of exaggeration.
4.There was therefore no ongoing injury, and therefore there could only be current symptoms which relate to multilevel degenerative change.
At question 2.10(c) Dr Phillips is asked whether the current lower back symptoms or injuries are caused by a work incident in May 2020. While not specifically directed to the possibility of an ongoing exacerbation of the pre‑existing symptoms or condition, or a hastening of the disease, by the pallet incident, in my view the question is broad enough that Dr Phillips, with the background he had been given, would have identified if, while it was not the cause of the current condition, an exacerbation of the current condition was. He has not done so.
Dr Jenkins
Dr Jenkins is a medicolegal consultant. He provided one report to the appellant which became Exhibit 1 at the arbitration hearing. He was not required to attend the arbitration hearing to speak to his report or for cross‑examination.
The oral background provided to Dr Jenkins, as reported by him, was, relevantly:
Mr Smith was reportedly entirely fit and well before an injury at work on 22/05/2022.
Mr Smith denied any lower back or abdominal symptoms immediately prior to 22/05/2020.
Approximately 2018‑Low back pain with cortisone injection, recovered.
The arbitrator found this to be 'wrong', the appellant having failed to disclose to Dr Jenkins the 'significant history of lower back pain', and that the reference to the 2018 '[l]ow back pain with cortisone injection, recovered' did not represent the true picture, considering all the scans and treatment and reporting of lower back pain to doctors in New Zealand and Australia'.[34] He found that Dr Jenkins proceeded on the wrong basis that Mr Smith was entirely fit and well before 22 May 2020.[35]
[34] ARD [88].
[35] ARD [88].
In relation to the mechanism of the right knee injury, Dr Jenkins reported:[36]
In the week before Christmas 2020 Mr Smith injured his right knee in a swimming pool. He was reclining on the pool steps with his left fist balled up under his lower back pressing into it for comfort. He recalled shuffling down on the steps to get comfortable. He was unsure what happened to his right knee, however based on the history he may have loaded and/or twisted it somewhat as he did this. He experienced sudden severe pain in the right knee, saying it 'just went'.
And further:[37]
Given that this injury occurred because of his lower back condition, I consider that it is related to the lower back condition, i.e., it would not have occurred were it not for his chronic lower back condition which arose directly as a result of the incident at work offshore [sic] on 22/05/2020.
[36] Exhibit 1, page 12.
[37] Exhibit 1, page 5.
Dr Jenkins reported the documents provided to him, in summary, as:
•Investigations and reports regarding the left groin dated July and August and December 2020 and January 2022
•Investigations and reports regarding the right knee dated December 2020 and May 2021
•MRI lumbosacral spine dated 22 February 2021
•Ultrasound right hip dated 30 April 2021
•Reports from Professor Krishna Boddu, pain specialist, dated September and October 2020
•Report of Dr Dayoub dated 4 March 2021 and October 2021
•Report from Peter Gangemi, physiotherapist, dated August, September, October, November and December 2020
•Report from Mark Maddison, exercise physiologist, September 2021 and June 2022
•Report from Rosa McCartney, rehabilitation provider, April 2022
•WorkCover WA first and progress certificates from various authors and on 'various dates'.
It is immediately obvious that none of the reports pre‑date the pallet incident, as the arbitrator identified.[38] In his conclusions, Dr Jenkins linked the need for the appellant to relieve his back pain leading to the injury to the knee directly to the pallet incident. It may be understandable that he has made that link given his lack of appreciation of any significant prior low back pain, investigations or its underlying cause.
[38] ARD [87].
Accordingly, the arbitrator found two foundational failures in relation to Dr Jenkins' report:
(a)no real reference by the appellant to prior existing conditions such that Dr Jenkins would be notified that further medical information or previous history needed to be considered, and
(b)consequently the lack of relevant medical evidence from which Dr Jenkins could make an assessment as to the likelihood of any pre-existing condition affecting the current incapacity, either from that condition itself or any sequelae such as its connection with the incident involving the appellant's right knee.
The arbitrator found that the failure to disclose the chronic pre‑existing long‑standing lower back pain meant that he could not accept Dr Jenkins' resulting opinion regarding the nature, extent and consequences of the lower back injury sustained in the occurrence of 22 May 2020.[39]
WorkCover WA certificates
[39] ARD [89].
The arbitrator also summarised the contents of the workers' compensation medical certificates issued by occupational therapist Dr Tan[40] and Dr Wilson and Dr Spurge from February 2021.[41]
[40] ARD [108] ‑ [117].
[41] ARD [119].
Of note:
1.Dr Tan indicated on 12 November 2020 that the appellant should be able to return to his pre‑injury duties by January 2021.[42]
2.Dr Tan's medical certificates indicated that the appellant's lower back pain was improving prior to him injuring his right knee in the swimming pool.[43]
3.Dr Tan's certificates on 15 December 2020 and 11 January 2021 certified the appellant fit for pre‑injury hours performing seated office‑based duties, noting that the right knee injury occurred in the swimming pool on 13 December 2020, and that the appellant should not drive, lift, bend, squat, do prolonged walking or standing 'due to his right knee condition' (arbitrator's emphasis).[44]
4.The certificates of Dr Wilson and Dr Spurge certify a total incapacity for work, however this includes the right knee condition.[45]
5.Dr Spurge is of the opinion that the lower back pain was and is being exacerbated by the right knee condition which is itself getting worse.[46]
[42] ARD [114].
[43] ARD [115].
[44] ARD [116].
[45] ARD [119].
[46] ARD [119].
I will now summarise the arbitrator's findings in relation to the Issues relevant to this appeal.
Issue A: what was the injury the appellant sustained in the compensable occurrence on 22 May 2020?
It was not in issue that on 22 May 2020 the appellant sustained a lower back injury and hernia.[47] It was also not in issue that Mr Smith continues to have low back pain.[48] However, the real issue, the arbitrator identified, was the nature and extent of the compensable lower back injury.[49]
[47] ARD [38].
[48] ARD [120].
[49] ARD [38].
The arbitrator identified that the appellant's claim was that his chronic lower back pain that came from the pallet incident has endured and he has a total incapacity for work and a need for medical treatment as a consequence.[50] In contrast, the respondent's position was that the pallet incident caused a now resolved temporary aggravation of pre‑existing chronic lower back pain.[51]
[50] ARD [38], [82].
[51] ARD [38].
The arbitrator then considered, in the context of Issue A, the nature and extent of the compensable lower back injury, being relevant to whether that injury, including any sequelae conditions, had resulted in a permanent total incapacity for work. He set out:
(a)Mr Smith's relevant medical history;[52]
(b)the circumstances of the pallet incident on 22 May 2020 and the original claim and acceptance by the insurer GIO;[53] and
(c)after reminding himself of the proper consideration of expert evidence,[54] the reports of:
(i)Dr Jenkins;[55]
(ii) Dr Dayoub;[56] and
(iii)Dr Phillips.[57]
[52] ARD [40] ‑ [76].
[53] ARD [77] ‑ [79].
[54] ARD [83] ‑ [85].
[55] ARD [86] ‑ [89].
[56] ARD [90] ‑ [99].
[57] ARD [100] ‑ [103].
The arbitrator set out his findings in relation to Issue A, including:
1.The appellant has pre‑existing chronic low back pain from which he has never recovered.[58]
2.Mr Smith sustained an aggravation of the chronic low back pain on 22 May 2020, the aggravation causing at least a partial incapacity for work and a need for treatment for some time.[59]
3.That the workers' compensation medical certificate issued by Dr Tan on 15 December 2020 certified Mr Smith fit for pre‑injury hours however noted the consequences of the right knee injury.
4.Medical certificates since February 2021 certified a total incapacity for work however this included the right knee condition.
5.However, finding under Issue B that the right knee injury is not compensable, the arbitrator did not accept the certificates were an accurate reflection of the appellant's incapacity for work resulting from the compensable injuries sustained in the pallet incident on 22 May 2020.[60]
[58] ARD [105].
[59] ARD [107].
[60] ARD [119].
The medical evidence led the arbitrator to conclude that the current low back pain was caused by the non‑compensable pre‑existing chronic low back condition which had been aggravated by the right knee condition.[61]
[61] ARD [120].
Specifically, the arbitrator:[62]
[62] ARD [119], [120].
(a)acknowledged that there was current 'total incapacity';
(b)found that the medical certificates indicate that the total incapacity is partially, at least, due to the right knee condition;
(c)therefore, it was not correct to say that the incapacity results from a compensable injury;
(d)the current and continuing lower back pain is being exacerbated by the knee injury, which is getting worse;
(e)however, because:
(i)the compensable lower back pain has resolved, and therefore
(ii)any current back pain is as a result of a pre‑existing condition causing mechanical lower back pain,
the incapacity is entirely from the knee injury exacerbating the pre-existing lower back pain.
Accordingly, in answer to Issue A, the arbitrator found that in the pallet incident Mr Smith sustained a left inguinal hernia requiring surgical repair and an aggravation of chronic lower back pain which has since ceased. He could not find exactly when the aggravation had ceased but found that it was at the latest, 14 December 2022. Therefore, after that time the appellant had returned to pre-existing non‑compensable chronic mechanical lower back pain, being aggravated by his non‑compensable right knee condition.[63]
[63] ARD [122].
He considered whether the injury to the right knee was compensable next.
Issue B: did the appellant sustain a compensable condition to his right knee in a swimming pool in December 2020?
The arbitrator acknowledged that it was not in issue that:[64]
1.The appellant injured his right knee in his friend's swimming pool in December 2020.
2.The right knee condition caused an incapacity for work.
3.The appellant was in receipt of weekly payments of compensation for the accepted lower back injury throughout the time he was also incapacitated by the right knee condition.
4.The right knee condition resulted in a need for medical treatment, being some of the expenses sought in the application.
[64] ARD [129].
The arbitrator set out the relevant question in this issue as whether the right knee injury was 'a consequence of [the compensable] back injury'.[65] That is, if the evidence established that the condition the appellant sustained to his right knee in December 2020 resulted from the accepted lower back injury occurring on 22 May 2020, then the December 2020 right knee condition is compensable,[66] as would then be any consequence of the right knee condition or injury.
[65] ARD [123].
[66] ARD [128].
He set out the law on causation,[67] saying that an incapacity and/or need for medical treatment is compensable if it results from an injury as defined by the Act, citing Leggett v Argyle Diamond Mines Pty Ltd[68] and Napier v BHP Billiton (Worsley Alumina) Pty Ltd.[69] He identified that what is required for compensability is 'a rational relationship between the compensable injury and the claimed incapacity/need for treatment, applying a commonsense evaluation of the causal chain: Kooragang Cement v Bates'.[70]
[67] ARD [126].
[68] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182.
[69] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 (Napier).
[70] ARD [127].
The arbitrator then summarised and analysed the evidence of the incident in the swimming pool. He summarised the appellant's contention as that on the day in question the appellant's back was sore, he made a fist with one of his hands and put it behind his back to apply pressure to his back, sat on a pool step, leaned back, and as he did so his right knee condition suddenly occurred. He could not make a more precise summary of the appellant's contention because of the inconsistencies in the appellant's evidence about the event.[71]
[71] ARD [131].
However, the arbitrator was not satisfied that the appellant's right knee condition was caused by something he did to alleviate pain in his lower back. This was due to his concerns about the appellant's credibility as a witness generally and the inconsistent accounts he gave to medical professionals about how the incident occurred in the pool; he therefore did not accept the appellant's version of what occurred.
It was more likely, he decided, from the description of the pool incident given to the medical practitioners by the appellant, that the appellant was either treading water or standing in the pool and the right knee suddenly became painful. This did not occur, then, from the accepted lower back injury.[72]
[72] ARD [132].
While not specifically saying so, the arbitrator's findings infer that the arbitrator was not satisfied that the appellant was alleviating pain to his lower back when he was in the swimming pool. This inference can be drawn from his concession in his next paragraphs[73] and his finding that it may have been as late as December 2022 (two years after the swimming pool incident) that the lower back aggravation effect of the pallet incident had ceased, that is, while he accepts that there may still have been lower back pain when the appellant was in the swimming pool, his finding infers that he was not satisfied that the appellant was alleviating that pain, however it came about, on that day.
[73] ARD [133] ‑ [134].
Even had he accepted that the appellant was alleviating back pain, either compensable or otherwise, in the pool, the arbitrator was of the view that the right knee condition was non‑compensable in any event, there being no evidence that any pressure was being put on the right leg such that any injury could have occurred; that is, even if the appellant was alleviating his compensable back pain in the pool, there was no connection between the back pain, the measures being taken to alleviate it and the occurrence to the knee, other than 'a tenuous temporal connection'.[74]
Issue C: does Mr Smith have a current injury that is compensable under the Act?
[74] ARD [134].
Given the arbitrator's finding in relation to Issue B, he concluded that while there is existing chronic mechanical lower back pain and right knee osteoarthritis, with incapacity for work 'to some degree'[75] neither condition is compensable given:
(a)the compensable temporary aggravation occurring on 22 May 2020 of the pre‑existing chronic mechanical lower back pain ceased at some point on or before 14 December 2022; and
(b)the right knee condition occurring in December 2020 did not result from a compensable injury,[76] either because the right knee injury did not occur because he was alleviating his back pain, or, even if he was, the mechanism of the knee injury was not connected to the mechanism of alleviating the pain of the back injury.
Issue D: has any current compensable injury resulted in the permanent total incapacity for work of the appellant?
[75] ARD [135].
[76] ARD [136].
Given the arbitrator's findings in relation to the first three issues, the only compensable injury left at the time of writing his decision was the inguinal hernia that was surgically repaired and did not at that point incapacitate the appellant. Accordingly, the appellant was found not to have a permanent total incapacity for work resulting from any current compensable injuries.[77]
Issue E: should an order as to the total liability of the respondent be made having regard to the social and financial circumstances and the reasonable financial needs of the appellant?
and
Issue F: if an order as to the total liability should be made, in what amount, at what rate and commencing when?
[77] ARD [138], [139].
Given the arbitrator's findings, he did not need to resolve these issues, however, having considered the appellant's financial need, the arbitrator found that had there been a compensable injury that had resulted in the appellant's permanent total incapacity for work, he would have had no hesitation in finding that an order should be made.[78] Given, however, his finding, he did not need to proceed to determine any amount.[79]
Issue G: should the respondent pay the appellant's outstanding medical expenses for the lower back?
[78] ARD [141].
[79] ARD [142].
Some receipts shown to the arbitrator as part of the appellant's claim were declined for reasons not relevant to these reasons and the arbitrator declined others because they appeared to be in relation to the right knee, which, as he found, was not compensable. Because, as from 14 December 2022 the appellant's compensable lower back injury had ceased, and the arbitrator had found that the respondent was not liable to pay for the medical expenses in relation to the non‑compensable condition of chronic low back pain, claims for medical expenses for the lower back pain after 14 December 2022 were dismissed.
Issue I: should any award of compensation be refused on the basis that at the time of seeking employment, the appellant wilfully and falsely represented himself as not having previously suffered the injury?
While the arbitrator recognised that given the appellant had not succeeded in any of the claims, it was not strictly necessary to decide this issue, he determined that had it been necessary to so determine, he would have found that the discretion in s 79 of the former Act was enlivened and refused to award compensation which would otherwise have been payable.[80]
[80] ARD [149], [150].
On 19 June 2019 the appellant completed a pre‑employment medical form as part of his recruitment to the respondent. It involved completing the form himself and then consulting with a doctor to finalise the form.
At the hearing the respondent tendered the pre‑employment medical form, which became Exhibit 2 at the arbitration hearing. The appellant had ticked 'no' to questions about previous compensation or pending industrial claims, as to ever having had any significant or recurrent problems with backache/joint or muscle pain, surgical operations, hospitalisation or having any current illnesses. The arbitrator found that the negative responses to each of those questions was wrong or arguably wrong. Other handwritten answers on the form were wrong or incomplete.[81]
[81] ARD [8] ‑ [11].
The arbitrator was unimpressed by the explanations given in evidence by the appellant about those discrepancies and found that his lower back pain should have been declared, and that that requirement would have been clear to the appellant at the time. The arbitrator was satisfied that, on that form, when the appellant had sought or entered employment with the respondent he wilfully and falsely represented himself as not having previously suffered the lower back injury for which he claimed compensation.[82]
[82] ARD [156].
The arbitrator found that Mr Smith deliberately concealed this condition from the respondent in the pre‑employment medical assessment.[83]
[83] ARD [157].
The discretion under s 79 being enlivened, he would have determined not to allow the claim in any event.
The grounds of appeal
I have set out the grounds of appeal in full. I will summarise them when I come to individually address them.
Ground 1
1.The learned Arbitrator failed to apply the correct legal test in Wilson v Bentley Health Service (WACCC31-2007, McCann P, 6 July 2007, unreported) in determining whether the appellants incapacity resulted from his compensable injury.
1.1The appellant referred to the above test in his submissions, but the learned Arbitrator did not refer to or apply that test in his decision.
1.2The learned arbitrator erred at paragraph [120] of his decision where he found, the current low back pain is caused by the non‑compensable pre‑existing chronic low back condition which has been aggravated by the right knee condition.
1.3The correct issue for determination was whether the applicants incapacity resulted from his compensable injuries, not the cause of his current low back pain. The correct comparison was between pre-injury and post-injury capacity, not between pre‑injury and post‑injury symptoms.
Ground 2
2.The learned Arbitrator failed to apply the correct legal test in Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 (employer to disentangle competing causes of incapacity with reasonable precision).
2.1The applicant referred to the test in Massih in his submissions, but the learned Arbitrator did not refer to or apply that test in his decision.
2.2The learned Arbitrator erred at paragraph [122] of his decision where he found, An aggravation of chronic lower back pain. This aggravation has since ceased. I do not make a finding when that exactly occurred although I accept Dr Dayoubs opinion expressed in his report dated 14 December 2022 that the aggravation had ceased by then.
2.3Dr Dayoubs opinion is not satisfactory evidence to discharge the respondents burden of disentangling competing causes of incapacity with reasonable precision because Dr Dayoub did not explain with reasonable precision how the appellants incapacity no longer resulted from his compensable injuries.
Ground 3
3.The learned Arbitrator failed to apply the correct legal tests in Ward v Corrimal-Balgownie Colleries Ltd (1938) 61 CLR 120), Wilson v Bentley Health Service (WACC C31-2007, McCann P, 6 July 2007, unreported), Treasure v WA Country Health Service (WACC C17-2010, McCann P, 26 November 2010, unreported) and Lockwood-Hall v BHP Billiton Nickel West Pty Ltd (WACC C5-2012, McCann P, 18 May 2012, unreported) when considering pre‑existing conditions under section 217.
3.1The appellant referred to the above tests in his submissions, but the learned Arbitrator did not refer to or apply those tests in his decision.
3.2The learned arbitrator erred at paragraph [120] of his decision where he found, the current low back pain is caused by the non‑compensable pre‑existing chronic low back condition which has been aggravated by the right knee condition.
3.3The respondent was required to take the appellant as it found him with his pre-existing back condition and pre‑existing right knee condition and be liable for compensation if the appellants compensable injuries aggravated or accelerated those conditions or if those conditions aggravated or accelerated the compensable injuries. The learned arbitrator failed to apply that legal test and so erred at paragraph [132] of his decision in finding that the appellants right knee condition was not aggravated by a compensable injury.
3.4The learned Arbitrator erred by requiring a quality of evidence unreasonably precise (contrary to the correct legal test in Massih) from the appellant of how exactly he injured his right knee in a swimming pool, when the only conclusion open on the evidence was that the appellants right knee was injured by some kind of mechanism while he was alleviating back pain in a swimming pool.
3.5The learned Arbitrator erred by requiring a quality of evidence unreasonably precise when he considered Dr Jenkins evidence at paragraphs [86] to [89] of his decision.
3.6A compensable injury need not be the actual physiological cause of the current incapacity for the incapacity to be compensable ‑ the current incapacity can be caused by a pre‑existing disease that was aggravated or accelerated by a compensable injury. The learned Arbitrator erred at paragraph [120] of his decision because he failed to apply that legal test.
3.7Even if the compensable injuries did not aggravate or accelerate those conditions, those conditions in and of themselves do not prevent an extension to the prescribed amount under the test in Lockwood-Hall. The learned Arbitrator failed to consider that test.
Ground 4
4.The learned Arbitrator failed to consider the appellants evidence to find suitable employment.
4.1The learned Arbitrator erred at paragraph [122] of his decision where he found, An aggravation of chronic lower back pain. This aggravation has since ceased. I do not make a finding when that exactly occurred although I accept Dr Dayoubs opinion expressed in his report dated 14 December 2022 that the aggravation had ceased by then.
4.2The learned Arbitrator erred at paragraph [143] of his decision where he found, The compensable injury to the lower back was in the nature of an aggravation of chronic lower back pain that had ceased on or before 14 December 2022.
4.3As the result of the above errors, the learned Arbitrator failed to consider the appellants evidence to find suitable employment, especially from around 26 July 2022 when the prescribed amount was exhausted to 14 December 2022, and that the appellant failed to obtain suitable employment either because of his compensable injuries or he was not qualified.
4.4Despite those errors, the learned Arbitrator failed to apply the correct legal test in R v Hill [2012] ACTSC 121 (presumption of continuity), from 26 July 2022 to 14 December 2022. This test was referred to in the appellants submissions, but was not referred to or applied in the learned Arbitrators decision.
4.5As the result of the above errors, the learned arbitrator erred again at paragraph [147] of his decision where he found, From 14 December 2022, Mr Smiths compensable lower back injury had ceased. From that date, FOS are not liable to pay for the medical expenses in relation to the non-compensable condition of chronic low back pain. Mr Smiths claims for medical expenses for the lower back pain after 14 December 2022 is dismissed.
Ground 5
5.The learned Arbitrator incorrectly applied section 79 in refusing to award compensation for an extension to the prescribed amount.
5.1The appellant proved that he sustained compensable injuries at paragraphs [28], [77] and [122] of the arbitrators decision that were the result of lifting heavy pallets that were outside the scope of his duties.
5.2The learned Arbitrator found at paragraph [136] of his decision that the compensable temporary aggravation occurring on 22 May 2020 of the pre-existing chronic mechanical lower back pain ceased at some point on or before 14 December 2022.
5.3The learned Arbitrator made no finding that the award of compensation would be refused under section 79 from the date of the compensable injuries on 22 May 2020 until the prescribed amount was exhausted around 26 July 2022.
5.4It follows that if compensation was properly paid from 22 May 2020 until the prescribed amount was exhausted around 26 July 2022, section 79 could not then be applied to refuse the award of compensation for an extension to the prescribed amount after 26 July 2022.
5.5The learned Arbitrator erred at paragraphs [150] and [157] of his decision by finding that section 79 was enlivened.
5.6If section 79 was enlivened, the learned Arbitrator failed to apply the correct legal tests in Re Iliadis v Comcare (1996) 41 ALD 576, Re Schofield v Comcare (1995) 38 ALD 124, Anderson v Mineral By-Products Pty Ltd (1987) 8 WCR(WA) 37 when exercising his discretion under section 79.
5.7The appellant referred to the above tests in his submissions, but the learned Arbitrator did not refer to or apply those tests in his decision.
5.8There was no evidence that had the respondent known about the appellants previous back and right knee history that it would not have employed the appellant.
5.9The learned Arbitrator failed to consider that the appellant was certified by a medical practitioner of the respondents choice to be fit for work as an offshore field technician based on a thorough physical medical examination.
5.10The learned Arbitrator failed to consider that the respondent failed to put the appellants past medical records to the above medical practitioner to see if he still would have certified the appellant fit for work as an offshore field technician, and so failed to draw a Jones v Dunkel inference against the respondent.
5.11The learned Arbitrator failed to consider that the appellant had full capacity to work as an offshore field technician until the respondent instructed him to lift heavy pallets outside of his usual duties because the respondent was moving premises and did not want to hire professional movers.
5.12The learned Arbitrator failed to consider that other co‑workers refused to lift the heavy pallets because that was well outside the scope of their usual duties.
5.13The learned arbitrator failed to consider Dr Selvendras report of 20 October 2022 (which was not mentioned in his decision) which provided that the appellants back injury of 22 May 2020 was to the left side of his lower back (which he had not had pain before), not to the right side of his lower back (which she had previously treated the appellant for) In other words, the appellant had a different back injury.
Orders sought
The appellant sought orders that:
1.The respondent pay the appellant weekly payments fixed at $182,993.25.
2.The respondent pay the appellant's expenses related to his right knee surgery.
3.The respondent pay medication expenses.
4.In the alternative, the application be remitted to another arbitration for determination according to the correct legal tests.
5.The respondent pay the costs of the appellant's arbitration application and appeal.
The requirement for the appeal to involve a question of law
Mr Smith requires leave to appeal against the arbitrator's decision. In order to justify a grant of leave, the appeal must concern an issue of law. An appeal involves a question of law when either an error of law, or error of mixed law and fact, is involved.
In each of the Grounds 1 ‑ 4 the appellant has alleged an error in applying a legal test. However, underlying those alleged errors are alleged errors of fact.
A decision of a tribunal will be infected with jurisdictional error when it is irritational, illogical and not based on findings or inferences of fact supported by logical grounds.[84] It is intended that a statutory power will be exercised reasonably and that an abuse of power, or an unreasonable exercise of that power, will be an error of law.[85]
[84] BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [34] citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [123] ‑ [127], [130].
[85] BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [36] ‑ [40] citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [22] ‑ [30].
While many of the particulars of the appellant's grounds contain complaints which are alleged errors of fact, I have taken it that the appellant says that the findings of fact are so illogical that they have led the arbitrator into making errors of law, or into jurisdictional error. The appellant appears to be arguing that the decisions of fact were made because the arbitrator misconstrued the relevant tests, or did not apply them, to the issue to which the facts were relevant, or, as a result of the errors of fact, the arbitrator applied the incorrect tests, or the correct tests incorrectly. While the respondent in oral submissions argued that some of the submissions made by the appellant at the hearing of the appeal were against factual findings of the arbitrator, its submissions did not go so far as to say that leave could not be granted.
Does the appeal succeed?
None of the grounds of appeal succeed, for the following reasons.
Ground 1
The appellant agreed at the hearing of the appeal that there is no separate test of causation in Wilson v Bentley Health Service[86] as it relates to current incapacity. Therefore, the appellant's primary contention in this ground[87] is that:
1.While the arbitrator stated the correct test, in applying that test he asked himself the wrong question.[88]
2.The arbitrator relied on the opinion of a medical expert when he should have formed his own view.[89]
3.The arbitrator in Wilson made the same error.[90]
4.Had the arbitrator in the present case had regard to Wilson, the arbitrator would have appreciated that the question for determination, that is, the correct application of the test, is a more precise test,[91] which is whether the incapacity results from his compensable injury, not whether the cause of the lower back pain was a non‑compensable, pre‑existing chronic lower back injury as aggravated by a right knee condition.[92]
[86] Wilson v Bentley Health Service (Unreported, WACC, C31-2007, 6 July 2007) (McCann P).
[87] As clarified at the Appeal hearing ts 7.
[88] Appeal hearing ts 7.
[89] Appeal hearing ts 6.
[90] Appeal hearing ts 6.
[91] Appeal hearing ts 6.
[92] Appeal hearing ts 7.
That is, it is a question of capacity, not symptoms.
The failure to apply the test properly, said the appellant, is illustrated by the fact that the arbitrator, despite being referred to it, did not mention Wilson in his reasons for decision, in the question the arbitrator posed for the resolution of Issue C, or in the arbitrator's determination set out at [120] of his reasons.
To determine this ground I have considered whether Wilson provides a more 'precise' test, or at least guidance as to how the relevant question on causation should be asked and whether the arbitrator did not ask the correct question.
Wilson and the test of causation
Under s 21 of the former Act, an employer is liable to pay compensation from the date of incapacity resulting from the injury. There is a clear requirement for a link between the relevant injury and the incapacity.
The object of the enquiry is to determine whether compensation is payable by the employer because the worker's incapacity was causally related to an injury suffered in the course of employment.[93] As the appellant has identified, it is the incapacity that is the focus of the enquiry, not the injury itself.[94]
[93] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243.
[94] See also Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120, 129.
In Wilson, McCann P referred to Leggett and Kooragang Cement Pty Ltd[95] as having been referred to by the arbitrator in that matter and as containing the relevant principles and test. He noted that from those authorities, and others which confirm them:
1.The question of whether incapacity results from the impugned work injury is a question of fact, however a point will be reached in the facts where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. When determining whether this has occurred, the decision maker must return to the question: does the disputed incapacity result from the work injury which is impugned.[96]
2.If an incapacity exists, it is not necessary that the injury should be the sole cause of it. It is sufficient if it is a material contributing cause, which is a question of fact in each case to be decided on broad commonsense lines.[97]
[95] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
[96] Wilson v Bentley Health Service (Unreported, WACC, C31-2007, 6 July 2007) [9(iii)], [17] (McCann P), citing Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 464.
[97] Wilson v Bentley Health Service (Unreported, WACC, C31-2007, 6 July 2007) [9(iv)], [17] (McCann P), citing Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 [24].
Accordingly, for the appellant to have succeeded at first instance, in the present case he would need to have demonstrated that at the relevant time, being the time of the claim for ongoing compensation, he had sustained a compensable injury and an ongoing incapacity that results from that injury. Therefore, while the original injury may have resolved, there may still be injury caused by the original injury which in turn causes an ongoing incapacity.
Relying on these authorities, McCann P in Wilson has not created a new or refined or more precise test, but rather an explanation of the application of the test in the context of the facts of that case.
Irrespective of whether the arbitrator specifically referred to Wilson, has the arbitrator applied the test of causation in a manner consistent with Wilson?
In Wilson the compensable injury was trauma to the right knee, inflicted after the worker had had medical advice that he required knee replacements. He remained incapacitated post trauma, even though, the arbitrator found, the damage to the knee from the trauma had resolved. The arbitrator found that there was no evidence that the compensable injury had caused ongoing injury or disease.
I have set out at [19], [74] ‑ [75] of these reasons the arbitrator's findings on the pre‑employment form. I have also set out at [238] of these reasons the circumstances on which findings of credibility may be set aside. For the reasons I have expressed in [245] and [247] in relation to Ground 4 I am satisfied that there is no reason to set aside the findings of the arbitrator in relation to the filling in of the pre‑employment form, that is, there was, on the face of the answer, a wilful and false representation about previous back injury.
The arbitrator did not err in his application of the facts, as he found them to be, in determining whether the prior injury was the injury claimed for in determining whether the discretion in s 79 was enlivened.
If enlivened, did the arbitrator apply the correct tests?
The appellant's second complaint is that the representation was a representation in the context of the words 'seeking or entering employment in respect of which he claims compensation'. The appellant says that he was not seeking or entering employment as a person who lifts pallets, and the arbitrator could and should have found that the representation that there was no previous back condition was not a wilful and false representation in the context of the employment he was seeking, and therefore the representation should have been given no weight in the exercise of the discretion.
In particular:
(a)there was no evidence that had the respondent known of the appellant's previous back and right knee injury that it would not have employed the appellant;
(b)the arbitrator failed to consider medical certification, by Dr Monk, a practitioner chosen by the respondent, that the appellant was fit for work as an offshore field technician, where the respondent failed to put to that practitioner past medical records, drawing an available 'Jones v Dunkel' inference;
(c)the arbitrator failed to consider the appellant's full capacity to work as an offshore field technician until he was instructed to lift the pallets, an operation other workers had refused to undertake, being outside their usual duties;
(d)Dr Selvendra found in August 2019 that there were no symptoms to affect full time work; and
(e)the arbitrator overlooked the applicant's evidence that moving pallets was not in his usual duties and that he had been instructed to do so as the respondent was moving premises and did not want to hire professional movers, in other words, moving heavy pallets was neither an inherent requirement for what the respondent employed the appellant for and nor did Dr Monks certify the appellant for moving pallets after the pre‑employment medical examination.
That the arbitrator so erred is illustrated by his neither referring to the relevant cases, despite the appellant referring to them in submissions, nor the report of Dr Selvendra. The appellant names three cases, and suggests there is a test to be discerned from each in the application of the discretion, without describing in submissions what the test is.
If s 79 of the former Act was enlivened, then it involves a discretion. Before the arbitrator's decision in relation to the application of his discretion can be reviewed in relation to the application of s 79 of the former Act, it must appear that some error has been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect him, mistaking the facts or failing to take into account some material consideration. Alternatively, if it appears upon the facts that it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion even though the error may not be discoverable.[180]
[180] D'Orsogna Ltd v Zhang [2019] WADC 73 [68].
I am unable to find such error.
The cases cited by the appellant
Schofield and Iliadis relate to Commonwealth legislation ‑ s 7(7) of the Safety,Rehabilitation and Compensation Act 1988 (Cth). It is drafted differently to s 79, in that it does not appear to provide a discretion - once a representation about a prior disease or injury is found to be wilful and false, that disease 'shall not' be taken to be a disease or injury for the purposes of the Act. Any review of those cases must be done in that context.
In Schofield, the worker had been exposed to chemicals in his first employment, causing headaches, skin rashes and change in mood and behaviour, among other effects, requiring ongoing medical intervention, with days absent from work, resulting in workers' compensation payments. He issued a writ against the first employer outlining significant and ongoing injuries. He then took on, briefly, further employment where he later reported sunstroke.
However, in applying for a subsequent position similar to the first, he answered no to questions in relation to sunstroke, dermatitis or skin eruption, recent medical treatment and the only 'accident or surgical treatment' received as being tonsils and appendix removal. He later answered 'no' to a further questionnaire regarding headaches, anxiety, fatigue, dermatitis, eczema 'or any other skin rash', that he was not aware of any health issues that would interfere with his work, and that he was not and had never received workers' or employees' compensation.
The Administrative Appeals Tribunal member found that the answers were deliberately false to avoid giving any information which might have prejudiced the worker's chances of obtaining the subsequent employment. Section 7(7) of the Act applied and compensation was denied.
The member found that 'the applicant deliberately avoided giving any information which might have prejudiced his chances of obtaining employment'[181] in my view to set out the motive with which the Member has been able to make a finding as the wilfulness of the representations.
[181] Re Schofield v Comcare (1995) 38 ALD 124 [30].
In Iliades the worker had had back pain prior to her employment, however had no idea that she was suffering a degenerative condition. She maintained her work, and her evidence, which the tribunal member accepted as being credible, was that while her back had been sore from time to time it was nothing a person who worked hard as a cleaner would not experience.
In determining whether the worker's representation in pre‑employment forms that she did not suffer from any back ailment or disease was wilful and false, the member reviewed some Commonwealth cases and determined that 'wilful' was considered as incorporating a degree of blameworthiness, 'particularly in the light of any motivation for the making of a false statement'.[182] Accordingly, the member found the symptoms the worker failed to disclose cannot be regarded as a false representation under s 7(7) unless 'the false representation related to a disease or an ailment, which if the word "wilful" is to have any meaning, she knew she had, and as to which she intentionally failed to disclose'.[183]
[182] Re Iliadis v Comcare (1996) 41 ALD 576 [31].
[183] Re Iliadis v Comcare (1996) 41 ALD 576 [32].
In contrast, in Anderson the worker twice hurt the same elbow, at different employment. When being assessed for the second employment, the worker:
(a)did not mention in any pre‑employment intake that he was still employed by the first employer, albeit on leave for the injury;
(b)did not mention being in receipt at that time of compensation payments;
(c)said 'no' to questions on forms about ever having had trouble with elbows or wrists, or having ever been in an industrial accident, and
(d)despite telling the pre‑employment medical check doctor that he did have a sore arm, he said it was alright at that time, due to a recent cortisone injection.
The Workers' Compensation Board found it 'irresistible', despite the admission to the doctor, that the worker had wilfully and falsely represented himself as not having previously suffered from the disability. Despite that finding, the Board also concluded that the worker had not intended to prejudice the second employer by the misrepresentation; that is, in making the misrepresentation, the Board were able to make a finding that the worker believed that he would be able to undertake his employment. Given the finding of wilfulness and falsity, the Board considered the discretion in s 79 enlivened.
The Board then assessed whether the worker should be barred from compensation it had found was otherwise due. Finding that the worker had not intended to prejudice the subsequent employer, evinced a desire to remain in the workforce and was hopeful he would be able to discharge his duties, which he might have realised had the second incident not occurred, the Board declined to exercise its discretion to refuse to award the compensation otherwise due.
From those three cases, it is accepted that the motive of the worker, and any intended potential prejudice to the employer are relevant factors in the exercise of the discretion. However, these cases could not be said to evince a 'test'. That is because:
(a)the Commonwealth cases can only give guidance, as I have explained, given their different regime and the West Australian case is but one case at the level of the Board; and
(b)there are many factors relevant to the exercise of a discretion, and therefore the finality of a 'test' is not applicable in such a determination.
At best, therefore, these cases may be of assistance in a determination of the weight to be given to this factor. The appellant argues that in this case, because the pallet incident did not involve the work for which the appellant was employed, it was not open to find that there was no deliberate concealment of the injury such that it would, or was intended to, prejudice the employer.
However, given it is only one relevant factor, and the weight to be given that factor is at the discretion of the tribunal, even a genuine belief by the worker that they may still have capacity to complete the new employment, with no prejudice to the employer, may not necessarily lead the tribunal to a finding that compensation should nevertheless be awarded.
The arbitrator's consideration of his discretion
While relevant to the question of whether the discretion is enlivened, in my view s 79 does not preclude an assessment of the method and frequency of the representations, and the reasons given by the worker for them in determining whether the discretion should be exercised, once enlivened.
The arbitrator considered the questions on the pre‑employment form, and the appellant's answers.[184] The questions were not limited to backache, they involved hospitalisation, surgery, other injuries and work‑related injuries, to all of which the arbitrator found the answers given by the appellant were wrong or arguably wrong. Neither did he tell the truth, he found, in evidence when the appellant said he did not have help in completing the form.
[184] ARD [9(a)] ‑ [9(c)], [10].
The arbitrator:
(a)determined that the incorrect answers were deliberate;[185] and
(b)rejected the appellant's evidence that while not on the form, he did tell Dr Monks of the previous surgeries to his knees.[186]
[185] ARD [11(a)], [11(c)].
[186] ARD [11(b)].
The arbitrator also considered the appellant's answers in relation to other aspects of his claim:
(a)in relation to the claim form for the current compensation, he found that his answer 'yes' to the question about whether the area injured was previously healthy was incorrect,[187] even if the appellant thought that it simply meant 'was it pain free?';[188]
(b)in relation to his answers in cross‑examination regarding the previous claims for his lower back, finding that his denials of the claim were wrong, eroding his reliability (and therefore credibility) as a witness;[189] and
(c)the varying and limited information he gave to the doctors in relation to the hearing, as I have set out in relation to the other grounds.
[187] ARD [14].
[188] ARD [15].
[189] ARD [21].
The arbitrator found that the falsification on the pre‑employment form weighed against the appellant as it was a condition suffered at the very time of his pre‑employment check, and for which he was continuing to receive treatment. He said, 'In other words, this was not some ancient recovered condition that was not disclosed'[190] and that was a deliberate concealment in the pre‑employment medical assessment.
[190] ARD [157].
While the arbitrator did not report that he had weighed that factor with the fact that the lifting of pallets was not what would be encompassed in the employment as a field technician, it can be inferred that he was cognisant of the purpose of the medical form and the answers the appellant gave.
The arbitrator was entitled to give significant weight to the deliberate falsity, given not only was it on the pre‑employment form, but encompassed what the arbitrator found he did not tell Dr Monks, and his continued minimisation of his pre‑existing and ongoing condition in his compensation claim form, to the medical experts engaged to report for the purposes of his claim and at the hearing.
His conclusion was that the appellant 'deliberately concealed this condition from [the respondent] in the pre‑employment medical assessment'.[191] Given that deliberate concealment, this was not, he must have found, a misunderstanding of the significance of the prior condition, or a misunderstanding of its impact on his employment, as it was to be, or made in the genuine belief that he could maintain his employment without incident, even though medical assessment at that time suggested that he may be able to.
[191] ARD [157].
An inference may have been drawn from the evidence that the appellant was hopeful, given the opinions of Dr Selvendra and Dr Monks, and the different employment to lifting pallets, that he would be able to discharge his duties with the respondent, and that might have occurred but for the pallet incident. There also was no evidence that the respondent would not have employed the appellant had they known of the condition.
However, in relation to Dr Monks, as with Dr Jenkins, the arbitrator found that the underlying information given to Dr Monks was incorrect[192] and therefore his opinion was unreliable.[193]
[192] ARD [27], [33].
[193] ARD [37].
Dr Selvendra's opinion did not suffer from the same underlying inadequacies. However, despite that, and even without any evidence from the respondent about whether they would have nevertheless employed the appellant, given his findings about the continuing deliberate nature of the appellant's minimisation of his pre‑existing condition and claims, the arbitrator was entitled to give Dr Selvendra's opinion, and any question of whether he still would have been employed, less weight.
The arbitrator has made a finding that the falsity was deliberately targeted at concealing his condition from his employer in general. That is, it appears from the arbitrator's reasoning that the wilfulness and falsity was so wide ranging and prejudicial that it reflected on any task the appellant was asked to perform. On an overall reading of the arbitrator's reasons it was at all times accepted by him that the lifting of the pallets was part of the appellant's employment, it having occurred in the course of his employment.
In assessing the breadth and detail of the appellant's wilfulness and falsity, and continued minimisation, the arbitrator was entitled to have come to the view that the intention of the appellant was to hide the current condition from his employer for all and any purposes.
I am therefore satisfied that it was open to the arbitrator to attribute weight to the breadth of the appellant's wilful and false representations on the pre‑employment form, and his continuing minimisation and incorrect answers in other forum in determining whether he should refuse to award compensation, had it have been found payable, irrespective of whether the lifting of the pallets may have been outside the expected duties of the appellant.
There was therefore no error in the application of s 79.
Was the arbitrator precluded from making a finding under s 79, given the payments already made?
The appellant has set out 13 particulars of this ground. The first set of particulars[194] relates to the apparent complaint that the arbitrator was effectively precluded from determining that compensation cannot be payable because compensation had already been paid until the prescribed amount was exhausted in July 2022, the arbitrator making no specific finding that compensation was not payable during that time.
[194] ARD [5.1] - [5.5].
I am not satisfied that in the context of the arbitrator having found there were no compensation or expenses payable for the knee injury or any caused incapacity from the back condition, his determination under s 79 was required to consider, effectively, whether he was precluded from determining that those expenses and compensation, and the total liability claimed, were otherwise not payable.
The arbitrator addressed s 79 unnecessarily, other than to address the issue because it had been raised in argument. It appears his primary consideration was the affect of the appellant's declarations in the pre‑employment form being wilful and false, and their consequences. Were the discretion under s 79 a live issue, a determination of the consideration of the issue of payments having already being made may be important, however, as I have found that the arbitrator did not err in finding that there was no compensation payable, whether the previous payments made preclude a decision under s 79 of the former Act is not a necessary finding I must make for the success or otherwise of this appeal.
The appellant has not shown error, and Ground 5 fails.
Conclusion
For all these reasons the appeal should be dismissed. I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CR
Associate to the Judge
17 MARCH 2025
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