Taylor v J and D Stephens Pty Ltd - [2017] NSWWCCPD 50

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Appeal to the Court of Appeal allowed – Taylor v J & D Stephens Pty Ltd* [2018] NSWCA 267**
CITATION:	Taylor v J & D Stephens Pty Ltd [2017] NSWWCCPD 50
APPELLANT:	Matthew Taylor
RESPONDENT:	J & D Stephens Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-72/17
ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	20 June 2017
DATE OF APPEAL DECISION:	14 November 2017
SUBJECT MATTER OF DECISION:	Submission not argued at arbitration; parties bound by own conduct; Mamo v Surace [2014] NSWCA 58 applied; matters required to be established for the purpose of ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987; distinction between what is required for the purposes of s 4(b) and ss 15 and 16 of the Workers Compensation Act 1987; principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	McCabe Partners Lawyers
Respondent:	Lee Legal Group
ORDERS MADE ON APPEAL:	1. The Certificate of Determination of the Arbitrator dated 20 June 2017 is confirmed.

INTRODUCTION

Matthew Taylor, the appellant, brought proceedings in respect of alleged injuries that included a frank injury on 24 June 2015 to the right forearm and injury to the neck, left shoulder and elbow, right shoulder, lumbar spine, left knee and right knee said to have arisen as a result of the “nature and conditions” of his employment with J & D Stephens Pty Ltd (J & D Stephens), the respondent, as a shearer. In the alternative, Mr Taylor claimed a disease injury or aggravation thereof pursuant to s 4(b)(i) and/or s 4(b)(ii) of the Workers Compensation Act1987 (the 1987 Act). Mr Taylor also claimed lump sum entitlements pursuant to s 66 of the 1987 Act in respect of each of those body parts totalling 49% whole person impairment. Mr Taylor further claimed future medical expenses pursuant to s 60 of the 1987 Act.
In the proceedings before the Arbitrator, Mr Taylor discontinued the lump sum claim in respect of the frank injury on 24 June 2015 as that injury had been accepted by the insurer and the whole person impairment assessment did not reach the threshold of entitlement pursuant to s 66(1) of the 1987 Act. The claim for future medical expenses was also discontinued. The issues that remained to be determined were whether Mr Taylor suffered injury as a result of the nature and conditions of his employment or in the alternative whether he suffered a disease injury pursuant to s 4(b)(i) and/or s 4(b)(ii) of the 1987 Act.

BACKGROUND

Mr Taylor’s work history was primarily that of a wool presser, shed hand and shearer. He had previously worked for a number of shearing contractors, including J & D Stephens Pty Ltd, over the years. He recommenced with J & D Stephens as a shearer approximately 2 to 3 years prior to the accepted injury on 24 June 2015 to his right forearm. He ceased work after that injury.
Following the injury of 24 June 2015, Mr Taylor claimed and was paid weekly payments and the associated treatment expenses were met by the insurer.
On 24 August 2016, Mr Taylor, through his lawyers, claimed s 66 entitlements in respect of 49% whole person impairment as assessed by Dr Dixon, (medico-legal expert qualified by Mr Taylor’s lawyers). The assessment consisted of losses attributable to the whole person impairment of the right upper extremity, left upper extremity, cervical spine, lumbar spine and both lower extremities (knees).
On 3 January 2017, the insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) declining liability for the claim on the basis that:
(a)    the whole person impairment of the right forearm resulting from the injury on 24 June 2015 did not reach the necessary threshold as required by s 66(1);
(b)    there was no injury within the meaning of s 4 of the 1987 Act to the cervical spine, thoracic spine, left upper extremity (shoulder and elbow), right upper extremity (shoulder),or right and left lower extremities (knees), and
(c)    Mr Taylor did not suffer a disease within the meaning of s 4, or an aggravation, acceleration or exacerbation of a disease with respect to those body parts.
On 11 January 2017, Mr Taylor’s legal representatives filed the Application to Resolve a Dispute in the Commission. Mr Taylor claimed whole person impairment arising from the “nature and conditions” of his employment with J & D Stephens as a shearer, or alternatively as a disease or aggravation thereof pursuant to s 4(b)(i) and s 4(b)(ii) of the 1987 Act.
The matter proceeded to Conciliation and Arbitration on 4 April 2017. The Certificate of Determination was issued on 20 June 2017.The Arbitrator found in favour of J & D Stephens on the basis she was not satisfied that Mr Taylor had discharged the onus of proof in respect of the allegation of injury.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions No 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to s 352(3) and s 352(4) of the 1998 Act have been met.
The matter in issue was finally determined by the Arbitrator. The matter is not interlocutory in nature.

THE EVIDENCE

Mr Taylor relied upon the evidence annexed to the Application to Resolve a Dispute together with the documents attached to an Application to Admit Late Documents dated 13 March 2017.
Mr Taylor made two statements dated 12 October 2015 and 23 June 2016. The first statement contained evidence of the nature of the work performed as a shearer, that it placed stress on the shoulders, neck, elbow, knees, ankles and back. Mr Taylor annexed what is described as a “shearing pattern” that consisted of drawings of body positions required to perform various aspect of work as a shearer and also included a picture by picture commentary of the physical requirements. He gave details of how many sheep he sheared per day and what hours he worked.
Mr Taylor referred in some detail to the frank injury of 24 June 2015 and its consequences but although he made brief references to symptoms in the disputed body parts, he gave no evidence as to when those symptoms manifested or what duties he was performing at the time of onset. His evidence as to symptoms in respect of the nature and conditions/disease claim is limited to one paragraph at the beginning of the first statement and one paragraph at the end of that statement. In the first paragraph he indicated that he is claiming “pursuant to the disease provisions, i.e S15 and S16” of the 1987 Act in respect of “back pain more radiating down the left leg and a little bit down the right, neck pain, knees are stiff right wrist”[1]. In the last paragraph, Mr Taylor stated that, as a result of the frank injury and the nature and conditions of his employment as a shearer for many years, he suffers pain and discomfort in all of the body parts claimed.[2]
[1] Application to Resolve a Dispute (ARD) dated 11 January 2017, p 97-98.
[2] ARD, p 112.
In the second statement, Mr Taylor recorded the treatment he had received in respect of his right forearm injury. He described being required by the insurer to attend a functional assessment on 6 May 2016 and was given a number of activities to perform. Mr Taylor reported that at the time of the functional assessment he was experiencing continual discomfort in his right arm and pain in his neck.[3] He alleges that all the exercises required of him to perform at that assessment caused an increase in his symptoms in the right arm and neck and that following the assessment he was in severe pain in the right arm, neck and also his back, legs, knees and right wrist.[4] The alleged consequences of the functional assessment were not relied upon in these proceedings as causing or contributing to injury.
[3] ARD, p 118.
[4] ARD, p 119.
The medical evidence relied on by Mr Taylor at arbitration and considered by the Arbitrator included four forensic medical reports from Dr Dixon.[5] In his first report dated 25 May 2016, based on the history provided to him by Mr Taylor, Dr Dixon opined that Mr Taylor suffered injury to his right forearm and neck in the frank injury of 24 June 2015. He added that in the course of his duties as a shearer, Mr Taylor experienced symptoms in the lumbar spine with sciatica as well as bilateral knee pain and pain in the right wrist. Dr Dixon diagnosed neck strain with post traumatic stiffness and C8 radicular complaint, post traumatic stiffness of both shoulders, low back strain injury with post traumatic stiffness and sciatica, repetitive contusion of both knees with crepitis and clinical signs of chondromalacia.
[5] ARD, pp 13-22.
As to causation, Dr Dixon attributed the symptoms in the right forearm, both shoulders and neck to the frank incident of 24 June 2015 and the back and knee pain to the “nature and conditions of his employment”. His opinion that the onset of neck and shoulder pain resulted from the frank injury was not consistent with the pleadings and not consistent with Mr Taylor’s statement evidence.
The only treating medical evidence provided to Dr Dixon was referred to as a letter from Dr Tsai, orthopaedic surgeon. That letter was not identified by date or referred to by Dr Dixon in his report. It may well be the letter from Dr Tsai to Dr Sai Win, the general practitioner, dated 19 August 2015, reporting on the right forearm injury. Dr Dixon had no benefit from any radiological investigations.
Dr Dixon’s second report, dated 14 June 2016, provided the assessments upon which the claim was based.
In his third report dated 7 November 2016 (wrongly dated 7 November 2015), Dr Dixon confirmed the findings on the subsequent CT scan of the cervical spine dated 14 June 2016 were consistent with Mr Taylor’s clinical condition. The CT scan concluded the presence of spondylotic changes prominently at C5/6 level, moderate left sided foraminal stenosis and minor right sided foraminal narrowing at C7/T1 which would appear to be insufficient to account for C8 nerve root compression.[6]
[6] ARD, p 23.
In his final report, Dr Dixon attributed all of the body parts claimed to “a disease condition being an underlying pre-morbid pathological condition which results from his work as a shearer…which can cause aggravation of the disease condition from which the claimant suffers”. In the third paragraph, Dr Dixon confirmed that all of the injuries resulted from the nature and conditions of Mr Taylor’s employment.[7]
[7] ARD, p 21.
Mr Taylor further relied upon a bundle of WorkCover medical certificates referring only to the right forearm injury, reports of Dr Win, General Practitioner dated 23 July 2015 and Dr Tsai dated 19 August 2015. These certificates were silent on any complaint other than the right forearm. Mr Taylor also relied upon CT scan reports of the thoracic spine and cervical spine confirming the cervical pathology.
Of relevance, the pleadings included a referral on 20 June 2016 by Dr Win to Dr Mews, Neurosurgeon, for opinion on “left sided lower limb weakness on rotation of head/neck to the left side resulting in falls” as well as the pathology evident on the CT scan. At or near that time, Dr Win also provided a Centrelink certificate referring to the date of onset of the lower limb weakness as 26 May 2016.
J & D Stephens relied upon its Reply (filed under cover of an application to Admit Late Documents dated 7 February 2017) and a further Application to Admit Late Documents dated 24 March 2017.
Dr Powell, Orthopaedic Surgeon, qualified by J & D Stephens provided three reports dated 2 and 5 December 2015 and 26 July 2016 respectively. The first report dealt only with the frank injury to the right forearm. However, relevantly, the latter two reports recorded that Mr Taylor had made no complaint at examination of any other symptoms and that Mr Taylor reported to Dr Powell that the falls were not work related. The doctor did concede however that work as a shearer was physically demanding.
Annexed to the Reply was a surveillance report and a factual investigation report. The factual investigation report included a statement from the principal of J & D Stephens as to Mr Taylor’s duties and recorded that Mr Taylor had made no complaint in respect of any injury other than the frank right forearm injury.
J & D Stephens further relied on late documents filed on 24 March 2017 which included two Workcover certificates dated 1 February and 17 February 2017 respectively. These certificates referred to low back, neck and knee symptoms with onset at work in May 2016 one week prior to fall on 27 May 2016.
The treating doctors’ notes (Drs Win, Tsai and Pik) were also annexed to J & D Stephens’ late documents. Mr Taylor made no contemporaneous complaints to the treating doctors of the symptoms in those body parts in dispute. The notes recorded a fall on 27 May 2016, which is not relied upon in these proceedings.

THE ARBITRATOR’S REASONS

At the arbitration, the date of injury in respect of the “nature and conditions” claim and the “disease injury” was amended by consent to 24 August 2016, being the date the claim for s 66 lump sums (the only compensation claimed) was made.
Counsel for Mr Taylor agreed the relevant injuries upon which he sought to rely and were required to be determined by the Arbitrator fell within the definition of “injury“ as set out in s 4(b)(i) and s 4(b)(ii) of the 1987 Act.
The Arbitrator expressed her view that:
“I do not doubt that work as a shearer is heavy work and physically demanding, and is the type of work that could cause injury to the body parts claimed and aggravation of a disease.”[8]
[8] Taylor v J & D Stephens Pty Ltd [2017] NSWWCC 148 (Reasons), at [61].
The Arbitrator examined all of the lay evidence, including the statements from Mr Taylor and the principal of J & D Stephens, and the medical evidence from the treating doctors as well as from Drs Dixon and Powell. Following which, the Arbitrator determined that she was not persuaded of the existence of the facts sought to establish a causal connection between Mr Taylor’s condition and his employment as a shearer. She found that Mr Taylor failed to discharge the burden of proof on the balance of probabilities that he sustained injury to the body parts claimed.
The Arbitrator rejected the conclusions reached by Dr Dixon, whose evidence was critical to Mr Taylor’s case. The opinion was rejected because it was based on a factual history that had not been made out.
In making such a determination, the Arbitrator took into account:
(a)the conflicting histories and scant information provided by Mr Taylor in respect of the cause and onset of his conditions;
(b)the lack of contemporaneous complaint to any treating general practitioner, or in consultation with his treating orthopaedic surgeon as well as his treating neurosurgeon;
(c)the inconsistencies in the opinion of Dr Dixon as to causation of the neck and shoulder pain, and
(d)the failure by Dr Dixon to identify any disease process in Mr Taylor’s shoulders or knees.
The Certificate of Determination issued on 20 June 2017 records:
“An award for the Respondent.”

GROUNDS OF APPEAL

The issues in dispute on appeal are:
(a)“The Arbitrator misdirected herself as to whether there needed to be a complaint of symptoms for the Appellant to establish he has suffered injury” (Ground 1);
(b)“Having found the Appellant suffers from a disease contracted in the course of his employment as a shearer which is the type of work that could cause injury to the body parts claimed and aggravation of a disease, the Arbitrator should have found in favour of the Appellant” (Ground 2), and
(c)“Misapplication of Authorities such as Department of Education & Training v Ireland [2008] NSWWCCPD134 [Ireland]” (Ground 3).

LEGISLATION

Section 4 of the 1987 defines injury as follows:
“4 Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Relevant to Mr Taylor’s submissions, ss 15(1), 16(1) and 17 of the 1987 Act provides:
“15 Diseases of gradual process—employer liable, date of injury etc …
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
“16 Aggravation etc of diseases—employer liable, date of injury etc…

(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:

(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”

“17 Loss of hearing-special provisions

(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a) for the purposes of this Act, the injury shall be deemed to have happened:

(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due--at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury--on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(b) …..
(c) compensation is payable by:

(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury--that employer, or

(ii)where the worker was not so employed--the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period.”

SUBMISSIONS

Mr Taylor’s submissions

Mr Taylor’s submissions deal predominantly with what is described as “Ground 1” of the appeal. Mr Taylor confirms that the question of injury is to be determined in accordance with s 4(b)(i) and s 4(b)(ii) of the 1987 Act and for the purposes of a “disease“ injury, it is required to have been contracted in the course of employment. Mr Taylor submits that the concept of arising out of employment does not appear in the wording of s 4(b), although nothing turns on that observation in respect of this appeal.
Mr Taylor refers to ss 15 and 16 and submits that:
“in the case of a disease contracted by a gradual process, it is only necessary to identify the last ‘relevant’ employer… that had the real risk of contributing to the disease process. In cases of aggravations (etc) of diseases, it is the employer who last employed the worker in employment that was a substantial contributing factor to the disease.”
Mr Taylor relies on the Court of Appeal decision in Crisp v Chapman[9], and the three factors that must be determined in order to establish a work-caused disease. Those factors are:
(a)the worker has received a disease;
(b)it was contracted in the course of employment, and
(c)employment was a contributing factor.[10]
[9] [1994] NSWCA 73; 10 NSWCCR 492 (Crisp).
[10] Citing Crisp, at 494G.
The submissions include a quotation from the judgment of Powell AJ in Crisp with respect to s 15 of the 1987 Act (as it was at the time), that it is not necessary to establish that the disease was actually brought about or contributed to by the employer who within the preceding twelve months last employed the worker. It is sufficient to show that type of employment was “incidental to the class of employment” which is of such a nature as to cause the injury.
Mr Taylor further relies upon the Court of Appeal decision in Kelly v Glenroc Pastoral Co Pty Ltd[11] and recites the passage by Meagher JA as to what is required to establish liability for the purposes of s 15, and quotes “none of these three ingredients requires a finding of any causal nexus between the … employment and the applicant’s disease”[12].
[11] [1994] 10 NSWCCR 178 (Kelly).
[12] Kelly, at 182C-D.
Reference is also made to the decisions in Blayney Shire Councilv Lobley[13], Tame v Commonwealth Collieries Pty Ltd[14] and Ambulance Service of NSW v Daniel[15], authorities dealing with s 17 of the 1987 Act. For the reasons set out in my decision below, I will not recite the submissions and extracts relied upon by Mr Taylor with respect to these authorities.
[13] [1995] 12 NSWCCR 52 (Lobley).
[14] [1947] 47 SR (NSW) 269 (Tame).
[15] [2000] NSWCA 116; 19 NSWCCR 697 (Daniel).
With respect to the requirement that employment must be “the main contributing factor” to the contraction or aggravation of the disease, Mr Taylor submits that “a cursory appreciation might consider that these provisions are what reflects ‘arising out of employment’ in s 4(a)”, but does not extrapolate that argument further.
Mr Taylor asserts that for the purpose of s 4(b), the term “employment” is employment generally that contributes to the disease, rather than employment specifically with J & D Stephens, following which ss 15, 16 and 17 “play their role”. He reiterates that s 15 does not require the employment with J & D Stephens to be causative of his condition only that it could as a matter of real risk lead to injury.
Mr Taylor relies on the Arbitrator’s determination at [13] of her reasons wherein she accepted that work of a shearer was heavy and physically demanding and was the type of work that could cause injury to the body parts claimed. The heavy nature of the work was acknowledged by both medico-legal experts, Drs Dixon and Powell.
Mr Taylor asserts that there is no doubt he suffers from a disease process in the knees and cervical and lumbar spines and relies on the opinion of Dr Dixon that the disease condition resulted from his employment as a shearer.
The crux of the first ground of appeal asserts the Arbitrator fell into error in seeking corroborative complaints of symptoms in order to be satisfied that Mr Taylor suffered a disease injury and consideration of whether employment with J & D Stephens could have been employment to the nature of which the disease was due “as a matter of real risk”.
Expressed as in the alternative, it is submitted that in looking for corroboration of complaints, the Arbitrator was looking for evidence of aggravation for the purpose of identifying the appropriate employer pursuant to s 16 when a “disease injury” had already been made out.
Mr Taylor referred to [61] of the Arbitrator’s reasons, submitting that in that paragraph, the Arbitrator had determined that the question of “injury” (being a disease injury) had been satisfied in favour of Mr Taylor.
Ground 2 of the grounds of appeal does not raise a further ground but simply states the relief sought on the assumption that Mr Taylor’s construction of [61] of the reasons is accepted. The complaint is predicated by an assertion that the Arbitrator found Mr Taylor suffered from a disease and that it was contracted in employment.
With respect to this “ground”, Mr Taylor relies on submissions made that were relevant to the first ground, that is, that the Arbitrator fell into error when evaluating the presence or absence of contemporaneous complaints and should have found in favour of Mr Taylor because the work as a shearer was employment “to the nature of which the injury was due”.
Under this ground, Mr Taylor also submits that there was a further question, that is, whether J & D Stephens was the last employer, which clearly on the evidence it was.
With respect to Ground 3 of the appeal, Mr Taylor submits that the Arbitrator misapplied the decisions cited in Ireland on the basis those decisions were not relevant in determining a disease case and that the Arbitrator “should not have been hunting for trails of symptoms in a disease case”.

The employer’s submissions

J & D Stephens confirms that the claim as presented at first instance required a determination of injury for the purposes of s 4(b)(i) and 4(b)(ii). It submits that there was no case put to the Arbitrator by Mr Taylor that an examination of the clinical history was not relevant to the determination she was required to make. The transcript reveals the crux of the argument presented at first instance was that the absence of complaints was not synonymous with the absence of symptoms. On that basis, it is submitted, the position taken on appeal is inconsistent with that adopted by Mr Taylor at first instance.
J & D Stephens deduces that the relief sought by Mr Taylor in this appeal is for the Arbitrator’s decision to be set aside and a finding made in its place that Mr Taylor did suffer injury within the meaning of s 4(b)(ii).
J & D Stephens maintains that the appeal misconceives the legal test to be applied in this case and that the assumption of a finding in favour of Mr Taylor with respect to injury is an incorrect assumption and such a finding was not made.
As J & D Stephens reads the appeal, it is said the appeal is suggestive of a misapplication of a legal test, but is not articulated in that way. In any event, the ground of appeal can be dismissed because on one description of injury in the pleadings, Mr Taylor relied on a “nature and conditions” claim, and a determination of that claim would require an assessment of all the evidence including the evidence of contemporaneous complaints. J & D Stephens submits that, in any event, on the basis of the whole of the pleadings the presence or absence of contemporaneous complaints was a proper matter for consideration.
It is further submitted by J & D Stephens that Mr Taylor’s contention that the Arbitrator found a disease injury is wrong and that the finding made by the Arbitrator in [61] of her decision was a finding of fact adverse to Mr Taylor and not challenged on appeal.
With respect to Ground 3 of the appeal, J & D Stephens submits that argument is misconceived. On a proper reading of the authorities of Crisp and Kelly, it is necessary to establish a causal ingredient of work being a contributing factor and in accordance with the legislation as amended in 2012, that employment be the main contributing factor to the disease or aggravation thereof.
J & D Stephens reiterates the analysis of the evidence made by the Arbitrator as to the scant evidence available in respect of Mr Taylor’s statement evidence and submits that of itself justifies the investigation of the medical evidence to attempt to identify the factual matrix upon which Mr Taylor’s case relied and to test the forensic value of the opinion of Dr Dixon.
Finally, J & D Stephens submits that it was appropriate for the Arbitrator to consider all of the medical evidence in considering the opinion of Dr Dixon. The rejection by the Arbitrator of the conclusions reached by Dr Dixon has not been challenged and on that basis Mr Taylor’s disease argument fails.

DISCUSSION AND REASONS

An Appeal from a decision of the Commission is limited to the matters referred to in s 352(5) of the 1998 Act, that is, whether the decision is affected by error of fact, law or discretion.
The Appeal is founded on a complaint that the Arbitrator misdirected herself with respect to the proper test to determine “disease injury” and makes no challenge to the factual findings with respect to the evidence before the Commission or the Arbitrator’s rejection of Dr Dixon’s opinion. It follows it is not necessary for me to evaluate the Arbitrator’s acceptance or rejection of the factual assertions made by Mr Taylor or her decision as to the probative value of Dr Dixon’s report.
Mr Taylor challenges the Arbitrator’s decision that she was not satisfied on the balance of probabilities that Mr Taylor had suffered injury to neck back, knees and shoulders pursuant to s 4(b)(i) or s 4(b)(ii). The challenge is confined to the test the Arbitrator applied in determining injury. Mr Taylor asserts that all that is required in a disease case is to establish that there is a disease condition and that employment with the respondent was employment “to the nature of which” the disease is due. Mr Taylor maintains that if those two factors are satisfied then “injury” is established.
The decision of the Arbitrator was a factual decision made on the basis of the evidence admitted in the proceedings and taking into account the submissions made at arbitration.
Mr Taylor seeks to assert that in making such a determination the Arbitrator has fallen into legal error by adopting a fact finding exercise in order to determine causation when such an approach was contrary to the legislation and authorities.
The challenge to the Arbitrator’s decision raised in this appeal was not raised or argued before the Arbitrator at first instance. No submissions were made that the proper test for the Arbitrator to apply in this case was that referred to in [66] above, that is, in a disease case, all that is required is to establish that the employment was employment “to the nature of which the disease is due”. The Arbitrator was not directed to the authorities now relied on in this appeal or any other authorities relevant to burden of proof in a disease case.
While the transcript records submissions made by counsel for Mr Taylor that the nature of the work was heavy[16], that he suffered a degenerative condition[17] and that the disease can be described as “occupational”[18], Counsel made no submission to the Arbitrator that she was to determine the question of injury on the basis now advanced by Mr Taylor. This was so, even in the context of J & D Stephens submitting on the onus of proof[19] and the facts that mitigated against Mr Taylor succeeding[20]. Counsel for Mr Taylor made no submission on point in Reply.
[16] Transcript of Proceedings, Taylor v J & D Stephens Pty Ltd (WCC, [2017] NSWWCC 148 Arbitrator Bamber 4 April 2017), T 11.20-35.
[17] T 12.
[18] T 14.30-34.
[19] T 31.20.
[20] T 31.32.
The law with respect to raising an argument on appeal in circumstances where that argument was not raised below was summarised by McColl JA (Ward JA and Tobias AJA agreeing) in Mamo v Surace[21]:
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.”[22]
[21] [2014] NSWCA 58 (Mamo).
[22] Mamo, at [75].
Deputy President Roche referred to the above authority in Super Retail Group Pty Ltd v Uelese[23] and also in Scott v JR Corney and SM Morrisey t/as Digquip[24]. In Scott, DP Roche said:
“104 The Commission has consistently applied these principles in s 352 appeals which are restricted to the identification and correction of error and are not rehearings. Mr Hickey submitted that he should be permitted to rely on the new argument because the test he now seeks to rely on, and which he says the Arbitrator erred in failing to apply, is a legal test. It does not require, so Mr Hickey submitted, a factual consideration. Mr Tanner opposed Mr Scott being allowed to raise the new issues for the first time on appeal. Mr Baker submitted that the Arbitrator dealt with the issue, but if he did not, it makes no difference because applying the On Call approach leads to the same result.
105 As Emmett JA (Bergin CJ in Eq and Sackville AJA agreeing, though not in the result) explained in Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [61],‘[a] party does not have a right to insist that a new point be decided on appeal simply because all the facts have been established beyond controversy or the point is one of construction or of law’. His Honour added that it ‘remains a question of whether the appellate court considers that it is expedient, and in the interests of justice, to entertain the new point’. (I note that leave to argue a new issue on appeal was refused in Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24, even though it was only a legal argument.)
106 …
107 Whether Mr Hickey should be permitted to rely on matters not previously argued raises a difficult issue. The Commission has a statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (s 354(3) of the 1998 Act). However, the authorities are clear that parties are bound by their conduct at the arbitration and that it is contrary to all principle to allow a party to run a new case on appeal.”[25]
[23] [2016] NSWWCCPD 4 (Uelese), at [91].
[24] [2016] NSWWCCPD 11 (Scott).
[25] Scott, at [104]-[107] (Roche DP).

The above authorities make it clear that the general principle is that a party may not raise a new argument on appeal unless there are exceptional circumstances, it is expedient, or it is in the interests of justice to do so. It is critical in this case that the appeal raises a complaint of error on the part of the Arbitrator in determining the matter when the argument was not before her.
In the present case, Mr Taylor makes no submission as to why leave should be granted to raise an argument which was not argued before the Arbitrator. On the other hand, J & D Stephens, while submitting that it is a new argument, does not raise an objection to the matter proceeding and made no submissions on the point raised by it.
In the circumstances of this case, I cannot identify any exceptional circumstances as to why leave should be granted and I cannot see any basis for determining that it would be expedient or in the interests of justice to allow the point to be raised on appeal. For the reasons set out below, I am also of the view that the argument raised by Mr Taylor lacks merit.
The Arbitrator cannot be seen to have fallen into error in circumstances where the argument now put forward by Mr Taylor was not the subject of submissions at arbitration.[26]
[26] Brambles Industries Limited v Bell [2010] NSWCA 162, at [22].
Taking into account the above authorities and in the context of s 352(5) of the 1998 Act that provides an appeal is limited to an error of fact law or discretion and is not a review or re-hearing, as well as my view that the argument lacks merit, I decline to allow the issue to be raised on appeal.
If I am wrong on that point, then it remains for the issue raised on appeal to be determined in the alternative. I make the following findings.
At arbitration and on appeal, Mr Taylor conceded the Arbitrator’s task was to determine the question of injury pursuant to s 4(b)(i) and/or s 4(b)(ii) of the 1987 Act. That is, that the worker suffered from a disease, the disease was contracted or aggravated, accelerated or exacerbated by his employment and that his employment was the main contributing factor to the contraction of the disease or the aggravation, acceleration or exacerbation of the disease.
Mr Taylor argues that it is not necessary to establish “actual” injury when considering the provisions of s 4(b) but that it is sufficient to show that the employment was the type of employment that could cause the contraction or aggravation etc of the disease.
Mr Taylor seeks to draw support for that notion from the authorities of Crisp and Kelly referred to above, as well as Lobley and Daniel.
None of those cases support Mr Taylor’s argument. Both Lobely and Daniel were claims made pursuant to s 17 of the 1987 Act, commonly known as “industrial” or “boilermakers” deafness claims. Section 17 is described as a “special” provision that is limited in application to onset of hearing loss, that is, “a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process”.[27] Lobley is authority for the principle that what is required in s 17 cases is a satisfaction that the employment is employment that has the “tendencies, incidences and characteristics” of employment to the nature of which the injury is due.
[27] The 1987 Act, s 17(1).
Even in cases of boilermakers’ deafness, the concept of determining whether employment is employment “to the nature of which the injury is due” still requires an analysis of the factual basis upon which the claim relies. The Arbitrator must arrive at an “actual persuasion” that the worker has established his case on the balance of probabilities in accordance with the principle set out in Nguyen v Cosmopolitan Homes[28].
[28] [2008] NSWCA 246 (Nguyen); see also Crisp, at 494G-495F.
The standard of proof required to establish entitlement to compensation is higher with respect to a s 4(b) disease injury, in particular where the legislation requires the element of employment be the “main contributing factor” to the disease (or aggravation thereof) for it to be compensable. That of itself requires an examination of the facts relied upon by the worker. Mr Taylor has not made any submission as to how the question of causation can be obviated in circumstances where the definition of a disease injury in s 4(b) requires such a contribution by employment.

Mr Taylor’s reliance on Crisp and Kelly on a proper reading of those cases is, in my view, misplaced. The quotations relied on in [42] and [44] above were extracts from both decisions that were an analysis of what is required for the purpose of s 15 – that is, for fixing the employer liable to pay compensation, not to establish a s 4(b) injury.
In Crisp, the worker had been a shearer for many years and suffered lumbar spinal stenosis. He brought proceedings for compensation against his last employer. Section 4(b), as it was then framed, was in similar terms to the current s 4(b) save that where the legislation now refers to employment being the “main contributing factor” it was referred to as simply “a contributing factor”.
In determining the issue before the Court, Mahoney AP made observations that in order to establish a s 4(b) injury, it is necessary to establish the worker ”received” a disease, that it was contracted in the course of employment and that employment was a contributing factor. Consideration of employment as a contributing factor does require a causal relationship. He further observed that s 15 and s 16 do not create a liability for compensation but assume an injury has occurred adding: “i[]t is, therefore, no doubt convenient to refer to injuries of those kinds as cases within section 15 and section 16 respectively. However it is necessary in doing so to recall that essentially the injuries are those provided for in section 4”.[29]
[29] Crisp, at 494G-495F.
That authority (in which the earlier decision in Kelly was discussed) establishes that it is necessary to show the disease was contracted in the course of employment and that employment was a contributing factor.[30] The matters that fall for determination are the time when the disease was contracted and whether at that time, the worker was in the course of his employment as a shearer. Under the current form of the section, it is incumbent upon the decision maker to also determine whether employment was the main contributing factor.
[30] Crisp, at 496E.
Deputy President Roche in Collingridge v IAMA Agribusiness Pty Ltd[31] considered the above authorities and the relationship between s 4(b)(i) and (ii), and s 16. The Deputy President observed:
“The Commission determines whether a worker has received ‘an injury’ by applying s 4, not s 15 or s 16. Mahoney AP explained this point in Crisp.”[32]
[31] [2011] NSWWCCPD 31 (Collingridge).
[32] Collingridge, at [66].
The submissions put forward by Mr Taylor disclose a misunderstanding of the relationship between s 4(b) and its requirements and the work that s 15 and s 16 has to do - that is, to fix a date of injury (rather than defining an injury) and for the purposes of determining which employer is liable to pay for the already established injury.
In the circumstances of this case, there was no issue as to whether the nominated employer was the “last” employer who employed Mr Taylor in employment to the nature of which the injury was due, nor was there an issue as to the fixing of a date of injury. The date of injury had been agreed between the parties as being the date the claim pursuant to s 66 was made on 24 August 2016.
In such circumstances, it was not incumbent upon the Arbitrator to consider the provisions of ss 15 or 16 of the 1987 Act.
It is also not of assistance to Mr Taylor that the phrase “in employment to the nature of which the disease is due” is used in s 15(1)(b) and s 15(2). As the above authorities establish, the purpose of s 15(1)(b) and s 15(2) is to determine by whom compensation is payable where more than one employer is alleged to be liable. While the particular employment with that “last” employer merely needs to be employment to the nature of which the injury is due, it is incumbent upon the injured worker to establish employment injury pursuant to s 4(b). In the present case, Mr Taylor was unable to satisfy the Arbitrator that there was any employment injury as she determined there was a complete lack of contemporaneous complaints, inconsistencies in the evidence and scant evidence from Mr Taylor as to the onset of symptoms and its connection with work as a shearer.
The finding of the Arbitrator that she was not satisfied on the evidence of an occurrence of injury has not been raised as an appeal point. Ground one of the appeal is limited to what legal test the Arbitrator was required to apply in determining Mr Taylor’s entitlements.
I reiterate the point made in [74] above that where an argument was not put before the Arbitrator, the Arbitrator cannot have fallen into error in not deciding the point.
With respect to “Ground 1”, after considering the submissions of the parties at arbitration and on Appeal, together with the authorities referred to above, I find I am not satisfied Mr Taylor has made out the alleged error in the Arbitrator’s decision.
With respect to “Ground 2” of the appeal, I repeat that this ground does not raise a new ground of error of fact law or discretion but simply states the relief sought on the assumption that Mr Taylor’s construction of [61] of the decision is accepted. Mr Taylor’s reliance on the same submissions made in respect of Ground 1 contradicts the assertion that the Arbitrator found a disease injury. Mr Taylor makes no submissions to support that notion.
Mr Taylor’s construction of [61] of the Arbitrator’s reasons is wrong. Mr Taylor asserts that the Arbitrator found he suffers from a disease contracted in the course of his employment as a shearer. The Arbitrator made no such finding.
It is convenient to reproduce that paragraph from the Arbitrator’s reasons:
“I do not doubt that work as a shearer is heavy work and physically demanding, and is the type of work that could cause injury to the body parts claimed and aggravation of a disease. But I find the evidence is lacking in Mr Taylor’s case that it did cause injury. He has the onus of proof. In Nguyen the Court of Appeal said a tribunal must feel an actual persuasion of the existence of facts. I am not so persuaded. In Mr Taylor’s case, not only is there a lack of contemporaneous complaints about those body parts, but there are so many inconsistencies in his histories which leave me unable to be satisfied on the balance of probabilities that he has in fact sustained injury to these body parts as claimed.”[33]
[33] Reasons, at [61].
The Arbitrator determined the matter in accordance with Nguyen and consistent with the decision in Nolan. She did not make the determination asserted by Mr Taylor recorded above.
It follows that that challenge to the Arbitrator’s decision must also fail.
The third and final ground raised by Mr Taylor is that it is said the Arbitrator misapplied authorities, such as Ireland. Mr Taylor makes a brief submission with respect to this ground, referring to Ireland as being factually different to the present case. No other authority was cited (including Nguyen, which was relied upon by the Arbitrator[34] and the relevance of which is discussed at [84] above).
[34] Reasons, at [61] and [72].
The Arbitrator’s reference to Ireland can be found at [72] of the reasons. She noted that the respondent relied upon that decision. However, the Arbitrator indicated that there was a factual difference between Mr Taylor’s case and Ireland. Nonetheless she took into account the principles enunciated in Ireland that were drawn from various well known authorities as well as those discussed in Nguyen. The Arbitrator considered that Ireland required her to take into account all of the evidence.
Mr Taylor’s submission on Ireland challenges the Arbitrator’s reliance on that decision because it is factually at odds with his claim. Further, he complains that “the Arbitrator should not have been hunting for trails of symptoms in a disease case”[35]. Mr Taylor makes no reference to any other authority or how it was misapplied.
[35] Mr Taylor’s appeal submissions, p 25.
It is relevant that in Nguyen (after consideration of the High Court decision in Malek v JC Hutton Pty Ltd[36]) McDougall J (McColl and Bell JJA agreeing) said:
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”[37]
[36] [1990] HCA 20; 169 CLR 638 (Malek).
[37] Nguyen, at [48].
It is further relevant that in Ireland, Keating J observed (after consideration of the High Court decision in Malek and the Court of Appeal in Nguyen):
“It is well-established law that an expert’s medical opinion is of limited probative value in the overall assessment of the issues if it is based upon an inaccurate history (see Makita (Aust) Pty Limited v Sprowles(2001) 52 NSWLR 705) [NSWCA 305].”[38]
[38] Ireland, at [97].
Each of the above analyses of the authorities was relevant to the task before the Arbitrator and the Arbitrator did not err in applying those principles.
In the absence of any compelling submission from Mr Taylor, I find that the third ground raised in this appeal has not been made out.
None of the grounds of appeal alleged by Mr Taylor have been made out. Mr Taylor’s appeal from the decision is unsuccessful.

Decision

The Arbitrator’s Certificate of Determination of 20 June 2017 is confirmed.

Elizabeth Wood

Deputy President

14 November 2017