Smith v WA Plantation Resources Pty Ltd
[2017] WADC 8
•27 JANUARY 2017
SMITH -v- WA PLANTATION RESOURCES PTY LTD [2017] WADC 8
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 8 | |
| Case No: | APP:64/2016 | 19 DECEMBER 2016 | |
| Coram: | TROY DCJ | 27/01/17 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| PDF Version |
| Parties: | STEPHEN JAMES SMITH WA PLANTATION RESOURCES PTY LTD |
Catchwords: | Workers' compensation Appeal Error of law Causal connection between injury and incapacity Reasonable expenses for surgical treatment |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 3(a), s 5(1), s 21, s 58(1)(b)(i), s 247 sch 1 cl 9, cl 17, cl 19 |
Case References: | Barrick Gold of Australia Pty Ltd v Aaron Charles Green (Unreported, CM 98/03 (Hogan PM) 18 December 2003) BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 Catholic Education Office of WA v Granitto [2012] WASCA 266 Cole v P & O Ports Ltd [2002] WASCA 157 Comcare Australia v Rope (2004) 135 FCR 443 Commonwealth v Butler (1958) 102 CLR 465 Department of Education v Azmitia [2015] WASCA 246 Graham v Comcare [2007] AATA 1715 Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 Hetherington v Amalgamated Collieries Ltd (1939) 62 CLR 317 Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 Jacqueline Pedley v West Coast College of TAFE [2006] WACC C21-2006 Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Massih v Electricity Networks Corporation t/a Western Power [2016] WADC 146 Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375 Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212 Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 Stuart Wilson v Bentley Health Service [2007] WACC C31-2007 Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WA PLANTATION RESOURCES PTY LTD
Defendant
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR FLETCHER
File No : A 20341 of 2016
Catchwords:
Workers' compensation - Appeal - Error of law - Causal connection between injury and incapacity - Reasonable expenses for surgical treatment
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 3(a), s 5(1), s 21, s 58(1)(b)(i), s 247 sch 1 cl 9, cl 17, cl 19
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff : Mr M Lourey
Defendant : Mr D Williams
Solicitors:
Plaintiff : Chapmans Barristers & Solicitors
Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Barrick Gold of Australia Pty Ltd v Aaron Charles Green (Unreported, CM 98/03 (Hogan PM) 18 December 2003)
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Catholic Education Office of WA v Granitto [2012] WASCA 266
Cole v P & O Ports Ltd [2002] WASCA 157
Comcare Australia v Rope (2004) 135 FCR 443
Commonwealth v Butler (1958) 102 CLR 465
Department of Education v Azmitia [2015] WASCA 246
Graham v Comcare [2007] AATA 1715
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Hetherington v Amalgamated Collieries Ltd (1939) 62 CLR 317
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
Jacqueline Pedley v West Coast College of TAFE [2006] WACC C21-2006
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146
Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375
Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Stuart Wilson v Bentley Health Service [2007] WACC C31-2007
Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120
- TROY DCJ:
Introduction
1 On 13 May 2013 the worker, Stephen James Smith, sustained a torn labrum in the left shoulder joint during the course of his employment with the employer, WA Plantation Resources Proprietary Limited, at their South Bunbury Port premises.
2 The employer accepted liability by a notice dated 17 May 2013. Mr Smith thereafter began to receive weekly payments under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) until May 2015.
3 On 6 October 2014 Mr Smith sustained a further injury, this time to his right shoulder joint, described as a labral tear, again during the course of his employment with the employer.
4 At the time Mr Smith was engaged in vocational rehabilitation in the form of a return to work program under cl 17(1a) of sch 1 of the Act.
5 By s 58(1)(b)(i) of the Act Mr Smith sought determination of the employer's liability for the right shoulder injury, namely sch 1 entitlements from 6 October 2014 including:
• weekly payments of compensation
• payment of medical expenses including reasonable expenses likely to be incurred with respect to prospective surgery recommended by an orthopaedic surgeon, a Mr Kimberly.
6 Mr Smith submitted that the right shoulder injury was a compensable 'injury' within the definition in s 5(a) of the Act, namely,
a personal injury by accident arising out of or in the course of the employment.
7 The employer submitted that Mr Smith's right shoulder injury was a 'temporary aggravation' following on from an earlier compensable left shoulder injury. Accordingly its liability to pay compensation was limited to the 'prescribed amount' with respect to the left shoulder injury. By the time of the arbitration these payments had been exhausted. As the learned arbitrator correctly noted at [13] of his decision, that was not relevant to the determination of the dispute before him.
8 The dispute proceeded to arbitration on 9 May 2016.
9 In essence the issues for consideration by the arbitrator were:
• Whether the right shoulder injury was an 'injury' within the definition of s 5(d) of the Act;
• The extent, if any, of Mr Smith's incapacity for work resulting from that injury;
• Whether the right shoulder surgery, together with incidental expenses, proposed by Mr Kimberly was 'reasonable' as defined by cl 17 of Schedule 1 of the Act.
10 On 19 July 2016 the arbitrator, Mr M Fletcher, published written reasons for decision.
Summary of the reasons of the arbitrator
11 The arbitrator was satisfied that Mr Smith had established on the balance of probabilities that prior to 6 October 2014, he was suffering from a pre-existing 'disease' in the form of a labral tear in his right shoulder, within the broad definition of 'disease' in s 5 of the Act. The arbitrator thus found at [149] that the right shoulder injury was a compensable 'injury' within the definition of 'injury' in s 5(d) of the Act.
12 The arbitrator noted that Mr Smith carried the burden of proof on the balance of probabilities of establishing that, insofar as entitlement to weekly payments was concerned, that injury resulted in incapacity for work: [42].
13 The arbitrator set out a detailed chronological account of the relevant facts at [79] - [132] before determining whether the right shoulder injury was a material contributing cause of incapacity.
14 In particular, the arbitrator considered the question of whether Mr Smith's incapacity was attributable to the right shoulder injury and its associated consequences, as opposed to the original left shoulder injury. In that regard the arbitrator referred at [51] to the decision of Wallwork J in Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 [64] and, the gathering of authorities by McCann AC (as he then was) in Stuart Wilson v Bentley Health Service [2007] WACC C31-2007, 6 July 2007.
15 The arbitrator found that Mr Smith suffered an aggravation of the earlier injury on 6 October 2014 in the course of what was described as 'the air lance incident'. The aggravation took the form of an ongoing increase in right shoulder pain and reduction in the utility of his right arm. The air lance incident was a contributing factor to a significant degree: [147].
16 As set out at [150] however, the arbitrator was not satisfied that the right shoulder injury was a material contributing cause of Mr Smith's present total incapacity for work.
17 The arbitrator applied the broad common sense approach to the facts as described, for example, in Jacqueline Pedley v West Coast College of TAFE [2006] WACC C21-2006: [152]. The arbitrator concluded at [152] that on the basis of Mr Smith's evidence and the medical evidence from Dr Ashraf and Mr Kimberly set out at [151], the consistent cause of Mr Smith's total incapacity for work, since he last worked on 12 June 2015, was the left shoulder injury.
18 Although the arbitrator found that the right shoulder injury has been a contributing factor from time to time, that was only against a consistent background of total incapacity resulting from the earlier left shoulder injury.
19 The arbitrator could not be satisfied that the right shoulder injury was a material contributing cause of Mr Smith's present incapacity for work. The arbitrator found that at all material times the left shoulder injury was the cause of Mr Smith's total incapacity for work, and the right shoulder injury was of no material significance to that outcome: [17] and [152].
20 Accordingly Mr Smith's application for weekly payments of compensation with respect to the injury to his right shoulder sustained on 6 October 2014 was dismissed.
21 Finally, the arbitrator noted that Mr Smith carried the burden of proof of establishing that insofar as entitlement to expenses for future surgical treatment was concerned:
• there was a causal connection between the compensable injury and the proposed surgical treatment, citing the lead authority of Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243, and
• the expenses were 'reasonable', within the meaning of that word as it is used in cl 17 of Schedule 1 of the Act: [42].
22 The arbitrator had before him medical reports from Mr Kimberly dated 9 and 30 November 2015, 15 December 2015, 12 January 2016 and finally 2 March 2016 when Mr Kimberly recommended further surgery to the left and right shoulders. The reports included itemised estimations of the respective cost.
23 The arbitrator dismissed Mr Smith's application for payment of the expenses likely to be incurred in receiving the right shoulder surgery recommended by Mr Kimberly because the likely expense of the proposed surgery was not reasonable: [17] and [162].
24 The detailed chronological account of the relevant facts at [79] - [132] forms the backdrop to the consideration of whether the expense of the proposed surgery was reasonable.
25 The arbitrator noted at [68] that in Barrick Gold of Australia Pty Ltd v Aaron Charles Green (Unreported, CM 98/03 (Hogan PM) 18 December 2003) the court approved a list of 12 considerations relevant to determining whether medical expenses are reasonable.
26 In considering, at [65] what constitutes 'reasonable' future surgical expenses under cl 17(1) of sch 1 of the Act, the arbitrator also had regard to Graham v Comcare [2007] AATA 1715 [17].
27 Having expressly referred to Graham v Comcare, Comcare Australia v Rope (2004) 135 FCR 443, Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243, Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 and Barrick Gold of Australia Pty Ltd, the arbitrator concluded at [155] that the expenses likely to be incurred for the surgical treatment of Mr Smith's right shoulder injury proposed by Mr Kimberly are not reasonable at this stage.
28 The arbitrator set out the basis for his findings at [156] - [160] and concluded at [161] that in all the circumstances it was doubtful whether the proposed right shoulder surgery would achieve the statutory purpose of returning Mr Smith to his fullest capacity for work.
Nature of appeal
29 By notice of appeal dated 16 August 2016, Mr Smith seeks leave to appeal from the decision of arbitrator. The employer opposes the appeal.
30 Section 247 of the Act relevantly provides that where written reasons for an arbitrator's decision under pt XI in respect of a dispute are given to a party to the dispute, the party may, with the leave of the District Court, appeal to the District Court against the decision. The District Court is not to grant leave to appeal unless a question of law is involved. It is common ground that the amount in issue is not less than $135,000 as of 16 August 2016.
31 By the appeal notice it was contended that there are two questions of law:
(1) whether incapacity results from injury;
(2) whether proposed medical expense related to injury is reasonable.
32 The appeal notice contains three proposed grounds of appeal with particulars. Ground 1 asserts errors in law by (a) failing to pose the correct question, namely whether Mr Smith's incapacity resulted from the 6 October 2014 injury, and (b) posing an incorrect question, namely whether the earlier left shoulder injury was the main cause of the incapacity.
33 Ground 2 asserts an error in law by the failure to order the employer to pay Mr Smith's cl 17 and cl 19 expenses related to that injury.
34 Ground 3 asserts an error in law in holding that the costs of the right shoulder surgery, as recommended by Mr Kimberly did not constitute a reasonable expense at this stage for the purposes of cl 17 of sch 1 of the Act.
35 The particulars to ground 3 refer to:
• an irrelevant reference to the outcome of previous surgeries to Mr Smith's left shoulder;
• a predominant, if not exclusive, focus on the estimated cost of such surgery to the detriment of other relevant factors;
• the findings that the proposed surgery would not constitute a reasonable expense unless it was likely to return the appellant to his fullest capacity for work or put an end to the incapacity, such that there was a failure to have regard to whether the surgery might materially improve Mr Smith's capacity for work and/or his general prognosis.
36 Ultimately Mr Smith contended that there are five errors of law, one relating to the extent of Mr Smith's incapacity for work resulting from the right shoulder injury and four in respect of whether the right shoulder surgery proposed by Mr Kimberly was reasonable.
Error of law
37 In BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Pullin JA (with whom Wheeler JA agreed) held [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.
38 His Honour also held at [15] that 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.
39 In an earlier judgment of Pullin JA in Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [37] his Honour observed (citations omitted) that:
Although the distinction between errors of fact and errors of law are critical to the existence of the right of appeal, no satisfactory test of universal application has yet been formulated to make the distinction between errors of fact or law clear beyond question in every case. However, in relation to errors of law made in the course of fact finding, it is uncontroversial and settled that an error of law will occur if there is no evidence to support a finding of fact or the drawing of an inference. If there is some evidence to support a finding of fact, then the reasoning process leading to the finding of fact will not be open to review as a question of law if the complaint is about mere illogicality in reasoning; although if the reasoning is unreasonable in the sense of 'Wednesbury' unreasonableness, an error of law will occur.
40 His Honour also noted at [40] that it is an error of law for a decision maker to fail to address a central issue raised in the case. His Honour cautioned against attempts to isolate one part of the impugned reasons and to ignore the overall effect of the reasons: [43].
41 As Mazza JA noted in Department of Education v Azmitia [2015] WASCA 246 [120]:
The term 'a question of law is involved' is broader in its scope than provisions which stipulate that an appeal may be brought 'on a question of law'. The authorities to which I have referred do not seek to define the scope of the matters that may be decided where 'a question of law is involved', although they stand for the proposition that an appeal 'involves' a question of law where either an error of law or an error mixed fact and law is involved. An error of fact alone is insufficient.
42 Mr Smith relies upon the test set out by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 [13], namely the identification of a question of law which bears directly upon the relief sought on the appeal with sufficient doubt attending that question to justify the grant of leave to appeal.
43 Counsel for Mr. Smith notes that in Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 [28] Schoombee DCJ referred to this test.
44 In Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 [31] Pritchard J observed that the distinction between errors of law, errors of fact, and mixed errors of law and fact, can be elusive. Her Honour noted that many learned judges and academics have attempted to explain the distinction, but 'no satisfactory test of universal application has yet been formulated'.
45 Her Honour further noted at [36] that considerations which may be relevant to that question include the importance of the question of law, whether there is sufficient doubt about the question of law to justify the grant of leave and whether substantial injustice would result if the error of law were not corrected. If the order below is final, that injustice will often be more readily discernible.
46 Once a question of law is involved, the whole decision appealed from is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18]. This court must undertake a 'real review' of the application before the arbitrator, but is limited to the materials before the arbitrator. It is not a hearing de novo. Before this court may disturb the arbitrator's decision the appellant must establish a proper basis for doing so, in other words that the arbitrator made some error, either of fact, law or logic: Pacific Industrial Co v Jakovljevic [20], [26].
The error of law contended for on the issue of whether incapacity results from injury
47 Section 21 of the Act is in the following terms:
Compensation payable from date of incapacity
An employer is liable to pay compensation under this Act from the date of incapacity resulting from the injury but clause 9 applies in any case.
48 Clause 9 to sch 1 provides:
Where a total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental, physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A, and 19 apply in so far as they may be made applicable.
49 Mr Smith submits that when in the first sentence of [150] and the last sentence of [152] the arbitrator stated that he was not satisfied, looking at the facts on broad, common sense lines, that the right shoulder injury was a material contributing cause of Mr Smith's present total incapacity for work, he failed to follow the correct approach as set out by Wallwork J in Leggett. This, it is said, amounts to the error of law enlivening this court's jurisdiction.
50 In approaching matters 'on broad, commonsense lines' the arbitrator applied the judgment of Bray CJ in Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212 [25] drawing from the observations of Windeyer J in Commonwealth v Butler (1958) 102 CLR 465.
51 Similarly in referring at [49] to 'common sense evaluation of the causal chain' the arbitrator applied the judgment of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. There is no suggestion that his approach, in these respects, was erroneous.
52 As Judd J noted in Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375 the legislative history of workers' compensation in Australia, while sometimes employing different formulations to describe the necessary causal link between injury and incapacity, seems to have been uniformly applied by reference to a common sense notion of causation that looks for a sufficiently proximate relationship between injury and work capacity: [27].
53 The arbitrator cited the judgment of Bray CJ at Rosmini [61] in support of the proposition that it is not necessary that the injury be the sole cause of incapacity, but it must be a material contributing cause.
54 There was no express suggestion on behalf of Mr Smith that the arbitrator erred in following the test laid down in Rosmini and I am satisfied that the arbitrator was correct to do so. Wallwork J referred to this holding in Leggett [24] with apparent approval.
55 The arbitrator was plainly aware of the case of Leggett and indeed referred to the principles emerging from that case at [51] and at [62]. The arbitrator also applied the analysis of the relevant principles recited in Pedley v West Coast College of TAFE [62].
56 The arbitrator made a finding of fact at [150] that the progress medical certificates, referred to at [92] and [95], since the right shoulder injury, indicated that Mr Smith's total incapacity for work since the third surgical treatment of his left shoulder on 12 June 2015 resulted mainly from his left shoulder injury.
57 The arbitrator made a further finding of fact at [151] that the right shoulder injury has been a contributing factor from time to time, but only against a consistent background of total incapacity resulting from the left shoulder injury.
58 In Leggett Wallwork J held that the review officer should have approached his task by asking himself the question identified by Bray CJ in Rosmini namely, where there is an injury at work and a subsequent incapacity, did the latter result from the former? Wallwork J concluded that this did not occur: [25] - [26].
59 Consistent with the observations of Pullin JA in Highmoon as I have noted at [40], and as is trite, it is an error to isolate one part of the impugned reasons and to ignore the overall effect of the reasons.
60 In my view, when one considers the decision as a whole, the arbitrator did ask himself the correct question. His factual conclusion, having posed to himself the correct legal question, was that the undoubted incapacity, did not result from the right shoulder injury. Rather, it resulted from the earlier left shoulder injury.
61 I am not persuaded that the arbitrator saw the determination of the relevant question as being a contest between competing causes, in particular a contest between the injuries to the left shoulder and the right shoulder, to be 'disentangled' so as to pick one or the other as being, for statutory purposes, the sole operative cause to justify the weekly payments sought.
62 Counsel for Mr Smith submitted that whilst the arbitrator accepted that both injuries were operative causes of incapacity, he focused on what he saw as the chief or the main cause, which was not the task to be undertaken.
63 I do not accept that argument. The arbitrator did not accept that the right shoulder injury was an operative cause of incapacity. Rather he determined that it had been a contributing factor from time to time, but only against a consistent background of total incapacity resulting from the left shoulder injury: [152].
64 Plainly, where there is a condition of total incapacity, that incapacity cannot be increased. It is already at the maximum. It is total incapacity. To so conclude does not violate the long standing principle that the employer must take the worker as he finds him: Hetherington v Amalgamated Collieries Ltd (1939) 62 CLR 317.
65 Further as Murphy JA noted in Catholic Education Office of WA v Granitto [2012] WASCA 266 [21], in Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120, 129, Latham CJ observed (relevantly) that compensation is not payable in respect of an injury itself, but rather in respect of total or partial incapacity resulting from an injury.
66 The arbitrator, in my view, did not erroneously focus on the chief or the main cause of the incapacity. I readily accept that an injury can be a material contributing cause of the incapacity without being the chief cause. The arbitrator made a factual finding that the left shoulder injury was the sole cause of the total incapacity. The arbitrator was entitled to make that finding. Once he had done so, as a matter of logic, the right shoulder injury could not be a material contributing cause of that incapacity.
67 In oral submissions counsel for Mr Smith submitted that on the authorities, particularly Leggett, the true question the arbitrator should have posed to himself was simply, 'does the incapacity result from the injury'? I note that the arbitrator recited the very passages in Rosmini and Leggett relied upon by Mr Smith at [50] and [51].
68 The test applied by the arbitrator in assessing whether the work related injury, as he found it to be, was a material contributing cause to the incapacity, far from being erroneous, is consistent with authority, as can be seen from the holding of Murray and Wheeler JJ in Cole v P & O Ports Ltd [2002] WASCA 157 [23] referred to by the arbitrator at [63].
69 Their Honours noted at [22] that to return causation in workers' compensation law to the state articulated by Kirby P in Kooragang Cement Pty Ltd v Bates, which they cited with approval, is to place it on all fours with the general law of causation stated in relation to negligence cases by the High Court in the leading authority of March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
70 As explained by Buss JA in Napier at [93]:
It is well established that the expression 'results from', and cognate expressions, in the Act describe a causal connection. It is a question of fact whether, in a particular case, incapacity 'results from' an injury under the Act. The factual inquiry involves the application of common sense in evaluating the causal chain bearing in mind that the object of the inquiry 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.
71 The test to be applied where, as is the case here, there is more than one possible cause of an incapacity remains, as Buss JA notes in Napier at [95], the test articulated by Parker J (Murray & Wheeler JJ agreeing) in Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 [13]:
Where there is more than one possible cause of an incapacity it is sufficient for the purposes of the Act that the disability resulting from the work injury be a material contributing cause. That issue is to be determined as a matter of fact in light of the circumstances of the particular case when those circumstances are assessed by a process of common sense evaluation of the causal chain. It follows, of course, that there may be more than one cause contributing to an incapacity.
72 In my view that is precisely the approach adopted by the arbitrator here. The finding of fact that the right shoulder injury is not a material contributing cause of Mr Smith's incapacity for work stands unless an error of law is identified enlivening this court's jurisdiction.
73 It is of course correct that the fact that the pool of entitlements for weekly payments from the initial left shoulder injury had exhausted in about May 2015 could not, in itself, disentitle Mr Smith from receipt of statutory entitlements that relate to the later right shoulder injury. As I have noted the arbitrator was well aware that this state of affairs was not relevant to the determination of this dispute: [13].
74 I accept the employer's argument that it is contrary to authority to suggest that as long as the second injury in itself created a total incapacity for work, a direct entitlement would arise and the earlier left shoulder injury should be ignored in considering the question of whether the incapacity results from the injury.
75 In Ward v Corrimal-Balgownie Collieries Latham CJ held at (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.
76 In the present case, given the finding of fact that Mr Smith was already incapacitated as a result of the left shoulder injury, this is not a situation as described in Ward where the addition of the new injury to another concurrently existing injury in fact brings about the incapacity.
77 The arbitrator found that the addition of the 6 October 2014 injury made no contribution to the total incapacity resulting from the earlier left shoulder injury. If there was already such incapacity from the earlier left shoulder injury, as the arbitrator found there was, the addition of the 6 October 2014 right shoulder injury did not, and could not, bring about the incapacity.
78 I am satisfied that the arbitrator adopted the correct approach to the question of causation, treating it as a factual inquiry, applying rules of common sense and recalling that the purpose of the inquiry was to determine whether compensation was payable by the employer because incapacity was causally related to a work-related injury. The arbitrator's approach was orthodox and no error of law has been demonstrated.
79 Accordingly I refuse leave to appeal on ground 1.
The errors of law contended for on the issue of reasonable expenses
80 It is convenient to commence with ground 3.
81 Mr Kimberley observed at page 4 of his 2 March 2016 report that,
there is certainly evidence that arthroscopic surgery to the right shoulder with labral repair and possible acromioplasty would offer him some improvement.
82 The estimated quote for surgery involving Mr Kimberley's services, the cost of an assistant, two nights at the Mount Private Hospital and the cost of an anaesthetist was estimated as being between $19,723 and $20,371.
83 The original application, received by WorkCover on 5 March 2016, refers to incidental expenses which were not specified. I will treat the reference to incidental expenses as encompassing the costs of aftercare for physiotherapy referred to by Mr Kimberley as being approximately $1000 - $2000 plus an exercise program being another $1000.
84 In determining what constitutes 'reasonable' future surgical expenses under cl 17(1) of sch 1 of the Act, the arbitrator had regard to Graham v Comcare [17], Barrick Gold of Australia Pty Ltd v Green [53] but most significantly Napier v BHP Billiton (Worsley Alumina) Pty Ltd (McLure P) [12] - [13] and Buss JA [93] - [114], Newnes JA substantially agreeing.
85 The arbitrator referred, at [68] to the proposition in Barrick Gold of Australia Pty Ltd v Green [26] - [27] that in determining whether a claim for treatment falls within 'reasonable expenses incurred or likely to be incurred', the nature of the treatment is the primary focus in the context of whether it serves the statutory purpose of restoring the worker to his or her fullest capacity for work. To focus purely on the cost of the treatment militates against the said statutory purpose. The question is whether the treatment is apt to restore the worker's fullest capacity for work.
86 The arbitrator set out four reasons for finding that the proposed surgery was not a reasonable expense at [156] - [160]. Those reasons must be examined in the context that the arbitrator also had regard to the authorities he set out at [65] - [69] above, and in particular the 12 considerations set out in Barrick Gold of Australia Pty Ltd v Green as referred to [69].
87 Firstly, the costs of the proposed surgery are significant: [156].
88 Secondly, the risk that the surgery would not be successful: [158].
89 Thirdly concerns that the proposed right shoulder surgery would not be apt to return Mr Smith to his fullest capacity for work: [159] and [160]. In my view the arbitrator's fourth reason is an elaboration of the third reason, rather than a further discrete reason for his finding.
First contended error of law
90 The first suggested error of law is said to be an irrelevant consideration taken into account at [158]. The arbitrator referred to, 'the unfortunate lack of success thus far in the treatment of the left shoulder injury'. Mr Smith submits that this reveals a similarly gloomy prognosis, implicitly at least, expressed by the arbitrator in respect of the right shoulder, notwithstanding Mr Kimberly's view that it may well be much simpler to fix the right shoulder than the left side. Accordingly it is submitted that the arbitrator erred in taking an irrelevant matter into account.
91 In Napier McLure P observed [13] that,
The reasonableness of the medical or surgical attendance and treatment with respect to the injury will embrace (without being exhaustive) matters going to the appropriateness, effectiveness and cost thereof. For example, a large outlay for a marginal outcome is unlikely to be reasonable.
92 The arbitrator was accordingly not confined to set criteria in determining the reasonableness of the medical treatment. There is no exhaustive list of matters to which he was required to pay regard. The arbitrator was entitled to consider the effectiveness of the proposed surgery, as he assessed it to be, provided that he did not err by adopting a flawed reasoning process that because there had been difficulties in the left shoulder surgery it inevitably followed that the same or similar difficulties were present with surgery to the right shoulder. There is no indication that the arbitrator followed such a process of thinking.
93 I am not satisfied that the arbitrator erred in law by taking into account an irrelevant consideration in this regard.
Second and third contended errors of law
94 The second suggested error of law with respect to the reasonableness of expenses arises from the arbitrator's observation at [159]:
if the fourth round of left shoulder surgery is unsuccessful, or only partially successful, then it may be that the proposed right shoulder surgery would not materially improve the worker’s capacity for work due to residual disability in his left. Until the outcome of the fourth round of left shoulder surgery, scheduled for 10 May 2016 is known, I consider that there are grounds for concern as to whether the proposed right shoulder surgery would be apt to return the worker to his fullest capacity for work, or put an end to the incapacity.
95 Having referred at [160] to a section of Mr Kimberly's report of 2 March 2016 the arbitrator concluded at [161] that in all the circumstances (a reference I find to the material giving rise to the conclusions expressed at [159] - [160]) it is doubtful whether the proposed right shoulder surgery will achieve the statutory purpose of returning the worker to his fullest capacity for work.
96 The reference to statutory purpose is a reference to s 3(a)(ii) of the Act and the holding, set out by the arbitrator at [66] in Barrick Gold of Australia Pty Ltd v Green [53] that, 'it is important to bear in mind that one of the primary purposes of the Act is rehabilitation of workers with a view to restoring them to the fullest capacity for employment'.
97 Section 3(a) of the Act provides as follows:
The purposes of this Act are -
(a) to establish a workers' compensation scheme for Western Australia dealing with -
(i) compensation payable to or in respect of workers who suffer an injury; and
(ii) the management of workers' injuries in a manner directed at enabling injured workers to return to work; and
(iii) specialised retraining programs for injured workers; and
(iv) ancillary and related matters.
99 In Napier, Buss JA observed [103] that the terms 'medical treatment' and 'surgical treatment', in cl 17 of sch 1, have a wide connotation consistent with the beneficial object of the Act.
100 His Honour relevantly held at [108], (Newnes JA agreeing at [127]) that the relevant medical or surgical treatment must be by a medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of the 'injury' (as defined in s 5(1) of the Act) of the worker which is compensable under the Act or any symptoms or effects wholly or partly caused by or attributable to the compensable 'injury'.
101 His Honour concluded at [113] that expenses incurred or likely to be incurred in respect of medical or surgical attendance or treatment will be 'reasonable' expenses, within cl 17(1) of sch 1, if it was or is reasonable, in all the circumstances, for the relevant medical or surgical attendance or treatment to be given, provided or undertaken.
102 I regard Napier as the definitive authority on the interpretation of sch 1 cl 17 of the Act. I note that their Honours did not find it necessary to refer to the Barrick Gold case at all. I also note that the test articulated at [108] was cited in the joint judgment of the Court of Appeal in Hawker Pacific Pty Ltd v Lang [33].
103 Applying the observations of Buss JA at [108], it seems to me that if the proposed surgical treatment was for the purpose of alleviating, remedying, curing or preventing the deterioration of the injury or the resultant symptoms, and there is no material that suggests to the contrary, in assessing the reasonableness of the proposed expenses, the fact that restoration to pre-injury capacity will not be achieved is not determinative.
104 The arbitrator referred, as I have noted, to Napier. Apart from citing at [42] and again at [67] the part of the judgment of Buss JA at [93] - [114] with respect to the need for a causal connection between the compensable injury and the proposed surgical treatment the arbitrator did not, however, apply the observations of Buss JA at [108] in construing sch 1 cl 17.
105 I agree with the observations of Schoombee DCJ in Massih [135] that there is no provision in cl 17 of sch 1 that the expenses to be incurred are only reasonable if they allow the worker to return to his pre-accident employment.
106 In my view on this issue the arbitrator placed greater emphasis on the older, less authoritative case of Barrick Gold than Napier and, I find, made the same error as the arbitrator in Massih in that he erred when he took into account at [159] and [160] his evident lack of confidence that the proposed right shoulder surgery would be apt to return Mr Smith to his fullest capacity for work, or put an end to the incapacity.
107 Linked to that complaint is a third suggested error of law, namely failure to have regard to the fact that there is a prospect that the proposed surgery would improve Mr Smith's quality of life. By way of example because he might be able to sleep better at night, as opposed to waking because he had rolled over onto his injured shoulder. The extent to which the surgery might improve Mr Smith's quality of life is, applying the holding of Buss JA in Napier [108], a relevant consideration. It was not a matter taken into account by the arbitrator. The arbitrator accordingly erred in law in that regard.
Fourth contended error of law
108 The fourth suggested error of law relied upon by Mr Smith is that by the use of the phrase, 'at this stage' at [155] the arbitrator failed to have regard to the final nature of his decision given s 217B. It suffices to say that it is important not to place undue emphasis on three words in a 63 page ruling.
109 I am not persuaded by those words that that the arbitrator was approaching matters on a provisional basis at the time that he provided the written reasons. Whilst the use of that phrase might be regarded as moderately loose language, it does not reveal a fundamental misunderstanding of the finality, with certain very limited exceptions, of the arbitration process. I find that no error of law is demonstrated by the use of those three words.
110 Ground 3, but only as particularised at 3.3, is accordingly made out.
Findings on appeal
111 The reasonableness of expenses incurred or likely to be incurred will in each case involve a question or questions of fact: Buss JA in Napier [114].
112 Apart from not seeing Mr Smith being cross-examined, the evidence before me is the same as was before the arbitrator. The arbitrator came to the conclusion at [144] that Mr Smith was an honest witness. Accordingly, there is no reason why I should not make the necessary findings of fact.
113 I am satisfied on a balance of probabilities that the proposed right shoulder surgery will remedy or at least alleviate the symptoms and complaints referred to by Mr Kimberley, namely mild impingement and ongoing soreness, weakness and pain. Accordingly, the costs of the proposed surgery to Mr Smith's right shoulder, limited to $20,000 together with incidental expenses limited to $2,000 are reasonable expenses under cl 17 of sch 1.
114 In those circumstances it is not necessary to consider ground 2.
115 The appeal is upheld to the extent that I have described.
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