Thomas v Chandler MacLeod - [2015] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THOMAS -v- CHANDLER MACLEOD [2015] WADC 78

CORAM: O'NEAL DCJ

HEARD: 16 JANUARY & 2 FEBRUARY 2015

DELIVERED : 26 JUNE 2015

FILE NO/S: APP 95 of 2014

BETWEEN: ARTHUR ROY THOMAS
Appellant
AND
CHANDLER MACLEOD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR EVANS
File No  :A 11657 of 2014

Catchwords:

Worker's compensation - Appeal from Worker's Compensation Arbitration Service - Whether arbitrator gave adequate reasons for decision - Leave to appeal - Whether a question of law is involved - Proper construction of s 247(2) - Whether 'an amount of compensation is at issue' in appeal - Whether 'an amount awarded in the decision appealed against'

Legislation:

Worker's Compensation and Injury Management Act 1981 (WA) s 62, s 178, s 213, s 247

Result:

Leave granted with respect to ground 2
Appeal dismissed

Representation:

Counsel:

Appellant: Mr T H Offer
Respondent: Mr A Basile

Solicitors:

Appellant: Stephen Browne Lawyers
Respondent: SRB Legal

Case(s) referred to in judgment(s):

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1
Amana Living v Soliven [2013] WADC 118
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barrick Gold of Australia Pty Ltd v Tania Michelle Lucas [2009] WACC CT‑2009
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Browne v Dunn (1893) 6 R 67 UKHL
Bulstrode v Trimble [1970] VR 840
Catholic Education Office of WA v Granitto [2012] WASCA 266
Clarke v Royal Perth Hospital [2010] WACC C1‑2010
Geraldton Building Co Pty Ltd v May (1977) 13 ALR 17
Hasic v Delmere Holdings Pty Ltd T/as DTMT Construction [2008] WACC C8‑2010
Hawker Pacific Pty Ltd v Lang [2013] WADC 117
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pedley v West Coast College of TAFE [2006] WACC C21‑2006
Pollock v Wellington (1996) 15 WAR 1
Public Transport Authority v Ettie Djano [2010] C9-2010
Roney v Accommodation West Pty Ltd [2009] WACC C10‑2009
SDR Australia v Mile Nedic [2009] WACC C3-2009
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Velez Pty Ltd v Tudor [2011] WASCA 218
Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668
Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260
Wainohu v New South Wales [2011] HCA 24; (2011) 278 ALR 1

O'NEAL DCJ: This is an appeal pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (the Act) from a decision of an arbitrator of the Workers' Compensation Arbitration Service. The arbitrator allowed the respondent's application pursuant to s 62 of the Act and ordered that weekly payments of compensation to the appellant be discontinued.

Background

In 2012 the appellant, Mr Thomas, was employed by the respondent. The respondent is a labour hire company.
On 4 July 2012 Mr Thomas was performing duties as a trades assistant for Komatsu Australia, while engaged by the employer. On that day, just a month and a day after being hired by the employer, Mr Thomas suffered an injury when he struck or bumped his head on the boom of a very large piece of stationary heavy machinery. At the time, he said, he was shifting two wheelie bins. To avoid confusion I will note that most of the medical reports and some references in the reasons give the date of this incident as 5 July.
The following facts, which are not in issue, are taken for the most part from the arbitrator's reasons.
On 5 July 2012, Mr Thomas went to see his GP and was certified as unfit for work for one week. On 6 July 2012, after a CT scan of his head, he was certified fit for restricted duties for the period 6 ‑ 7 July 2012. When he was reassessed on 9 July 2012 he was certified fit for restricted duties. There were however no light duties available for him to perform at Komatsu Australia at that time.
Mr Thomas lodged a claim for workers' compensation on 17 July 2012. The form was actually completed by Mr Thomas on 6 July 2012, when he declared its contents to be true 'in substance and in fact'. According to the claim form 2B Mr Thomas said the claim was in respect to injuries 'the most serious injury' being 'bruised and strained muscles' in his 'head and neck'. On 19 July 2012 liability was accepted by the employer's insurer for these injuries. As a result Mr Thomas received weekly payments of $1,699 per week for the prescribed 13 weeks and $1,444 per week thereafter.
Mr Thomas was again certified fit for restricted duties until 21 September 2012. On 28 November 2012 he was certified totally unfit until 29 May 2013. On 27 June 2013 he was certified fit to commence a return to work programme and a work trial was arranged with Australind Mobile Mechanics as a trades assistant. The trial began on 6 July 2013 but was discontinued on 30 August 2013 by Australind Mobile Mechanics.
A second return to work trial was arranged. Mr Thomas commenced work as a store‑person at Mitre 10 in Bunbury on 11 November 2013. Mr Thomas has given evidence that with both work trials he was absent on 'many duties' due to an increase in the pain he was experiencing.
Mr Thomas was medically reviewed on 31 December 2013, and then certified as totally unfit until 31 January 2014. That was a consequence of depression he was said to be suffering. He was subsequently admitted to Bunbury Regional Hospital Mental Health Unit from 8 ‑ 13 January 2014.
In the meantime, Mitre 10 ceased trading. On 11 March 2014, Mr Thomas was certified fit to commence a work programme at Covs Parts on 26 March 2014. He was placed in a storeman or stock picking job.
In April 2014, when Mr Thomas signed his first witness statement in this matter, he was then engaged in the return to work programme at Covs Parts. In that statement he said that those duties increased his neck pain substantially. He said he avoided picking up heavy parts as this 'significantly increases both neck and left arm pain'. There were 'weight restrictions in place' he said. He was 'certainly unable to pick up many of the heavier items' and he required regular breaks because the job was aggravating his symptoms.
On 12 February 2014 an application was made on behalf of the employer pursuant to s 62 of the Act seeking a review of the weekly payments of compensation then being made to Mr Thomas. The basis of the application was that, consistently with medical opinions that had been received, Mr Thomas had sufficiently recovered from his work injuries to return to his pre‑injury duties or alternative duties on a full‑time basis. Accordingly, the application sought to have the weekly payments cease.
Among the issues that arose as a result of the employer's application was whether, in addition to the injuries for which compensation was first claimed and granted, Mr Thomas had suffered other injuries in or arising from his accident. Mr Thomas was by this time claiming that he had also injured his left arm and left foot, 'together with a secondary psychiatric depression', as he said in a witness statement.

Application under s 62 of the Act

Section 62 of the Act provides as follows:
(1)Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2)An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.
The employer's application proceeded under the Dispute Resolution Provisions contained in pt XI of the Act.
The nature of and principles applicable to a review under s 62 of the Act were described by the arbitrator at [13] – [26] of his reasons for decision. He summarises the principles to be drawn from the authorities, commencing at [22]:
22.In summary, the review must focus on the worker's past and present physical and economic condition. If the worker's situation upon review has not materially changed from the time compensation was first paid then a change in the status of compensation payments is unlikely. While the word 'change' is not used in s 62, the requirement to have regard to the past and present condition of the worker is indicative of an appreciation that the worker's circumstances may change since the time of the first payment and these changes may subsequently affect a worker's entitlement to be compensated (Weeks v Harbourworks Clough [1985] WAR 327, Burt CJ at 328‑9, Brinsden J at 334).
23.The obligation on the employer to pay compensation to the worker is dependent upon some incapacity in the worker. Incapacity is not defined in the Act but may simply be understood as a loss of ability to undertake or compete for work in the labour market in which the employee was working or might be reasonably be expected to work.
…
25.With respect to the burden of proof, where an employer alleges that the worker's circumstances have changed, such that its obligation to compensate is at an end, the employer as the Applicant carries the burden of proof of establishing its case to the requisite standard. Put simply, he who asserts must prove. (See Westralian Farmers Cooperative Ltd v Bunce (Unreported, FCt SCt of Western Australia, Library No 7691, 31 May 1981) and Mitchell v Canal Rocks Beach Resort [2002] WASCA 331).
No challenge is made to the arbitrator's description of the principles of law relevant to an application under s 62. In oral submissions it was suggested that the arbitrator misapplied these principles by reversing the onus of proof when it came to considering whether Mr Thomas was suffering from a psychiatric illness caused, or significantly contributed to, by his accident, but this did not form any ground of appeal. I am not asked to resolve that issue of law in this appeal.

The result of the arbitration

The conciliation process failed to bring about agreement between the parties. Once procedural skirmishing was complete, the application was heard before the arbitrator on 16 July 2014.
As set out in reasons delivered on 9 September 2014, the arbitrator determined that:
(a)the applicant's (employer's) evidence on the balance of probabilities established that Mr Thomas was physically and mentally capable of undertaking full‑time work as a trades assistant;
(b)the injuries to Mr Thomas' left arm, elbow, fingers and foot did not occur as a result of the 5 July 2012 incident; and
(c)the vocational rehabilitation evidence established that Mr Thomas was vocationally qualified to undertake full‑time work as a trades assistant.
In the result, the arbitrator determined that weekly payments should cease as of 4 June 2014. The three findings set out above are effectively the principal conclusions reached by the arbitrator based on the evidence before him. There were a number of other factual findings made by him. Some of these are express but others, as will be seen, were implicit in the conclusions that he reached.

Grounds of appeal

Mr Thomas appeals from the arbitrator's decision on the following grounds:
1.The learned arbitrator failed to consider and/or completely ignored the appellant's evidence given by way of written statement (the appellant was not cross-examined by counsel for the appellant at the arbitration).
Alternatively to 2 [sic]:
2.The learned arbitrator failed to provide any reasons as to how he analysed the appellant's evidence and failed to provide the conclusions he reached with respect to the appellant's evidence.
3.The learned arbitrator's reasoning process for rejecting the psychiatric opinion of Dr Ng and preferring the psychiatric opinion of Dr Mander was flawed.
4.The learned arbitrator's reasoning process for rejecting the medical opinion of Mr Slinger was flawed.
5.The arbitrator's reasoning for accepting the opinion of Dr Dare and Mr Hardcastle was flawed.
The appeal notice that has been filed asserts that the appeal raises the following questions of law:
1.Failure to consider and/or completely ignoring the appellant's evidence.
2.Failure to provide any reasons as to how the appellant's evidence was analysed and failure to provide any conclusions drawn as to the appellant's evidence.
3.Flawed reasoning in reaching conclusions as to which medical evidence should be preferred.
The appeal notice under the heading of 'amount in issue' provides the figure $65,171.13.

Appeals pursuant to the Act

The appeal was brought pursuant to s 247 of the Act.
Section 247(2) of the Act provides as follows:
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations;
and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(7)On hearing an appeal made under this section, the District Court may ‑
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
On whatever basis an appeal is brought pursuant to s 247(2), a question of law must be 'involved'. An appeal 'involves a question of law where either an error of law, or an error of mixed law and fact is involved': BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15]. Ignoring for now the limiting provisions of s 247(2)(a), in order to obtain a grant of leave all that the appellant has to show is that there is a real or significant argument to be put which involves a question of law: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
Once it has been established that a ground involves a question of law, the whole decision of the arbitrator, and not merely the identified question of law is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].
If the court decides that a question of law is involved and leave to appeal has been granted, then the District Court is required to undertake a 'real review' of the matter. That review however is based on the materials that were before the arbitrator, and is not conducted by way of a hearing de novo: Pacific Industrial Co v Jakovljevic [20], [26].
Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it. The appellant may not simply invite the court to just ignore the arbitrator's decision and start again with a view to having the court substitute his or her own decision for that of the arbitrator: Pacific Industrial Co v Jakovljevic [20], [26], cited in Catholic Education Office of WA v Granitto [2012] WASCA 266.

The arbitration process and reasons for decision

It is useful to consider the nature and scope of the arbitration process created by the Act, and the nature of the jurisdiction that is exercised.
Although it might be thought fundamental to the understanding of any number of provisions within the Act, the Act does not define the term 'compensation'. Instead sch 1 and sch 2 of the Act provide respectively for a range of 'Compensation Entitlements' and a 'Table of Compensation Payable'.
The Compensation Entitlements set out in sch 1 include death benefits and allowances for dependants, as well as provision for weekly payments for total and partial incapacity for work, provisions for the calculation of those payments, and allowances for medical and other expenses. The Table of Compensation Payable provides for a variety of amounts payable depending on the nature of the specific injury or impairment suffered, measured as a ratio against a prescribed dollar amount.
In any number of circumstances where a claim for compensation is made, the amount claimed will effectively be a liquidated sum. In some cases, a worker may seek weekly compensation payments up to a prescribed amount and for a prescribed period. Weekly compensation payments may be sought after a worker has returned to work, in which circumstance again the amount of compensation will be fixed.
In other cases, where for example a claim for weekly payments is sought, there may be no certainty beyond the limits of the prescribed amount, for the prescribed period, as to what the ultimate entitlement might be. It may also be the case that, as here, once a claim for weekly payments of compensation has been accepted, an application may be brought to discontinue, reduce or increase the payments of compensation. Again, in that case, the amount in issue could not be determined without the gift of second sight. Unless it was known in advance how long any disability would endure, or endure in terms of a complete incapacity, the ultimate amount that may be received could not be known.
The objects of the Act are set out at s 3:
3. Purposes
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;
and
(b)to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and
(c)to provide for the resolution of disputes under this Act; and
(d)to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
There are a number of other provisions in pt XI of the Act that point to the intention of the legislature to create a dispute resolution process that is simpler and cheaper than ordinary civil litigation. Section 177(1) of the Act states that the object of pt XI is
… to provide a fair and cost effective system for the resolution of disputes under this Act that ‑
(a)is timely; and
(b)is accessible, approachable and professional; and
(c)minimises costs to parties to disputes; and
…
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
Consistently with those objectives, the Arbitration Rules 2011 made pursuant to the Act provide that parties may be represented by legal practitioners or lay representatives. At arbitration hearings, unless an arbitrator grants leave, any medical evidence of a medical practitioner must be given in writing. Leave must not be granted 'unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick'.

Pursuant to r 57(1): 'If a party proposes to adduce oral evidence from a witness …' then among other things a detailed statement of the witness must be provided in advance as well as a statement of the reliance that the party intends to place on the evidence.
Consistent with the procedures contemplated by these provisions, when the hearing began here, the arbitrator had bundles of documents tendered by the parties, including medical reports, witness statements of Mr Thomas, and the submissions of the parties.
An arbitrator may be required to give a decision in writing, but s 213(4) provides:
The reason for an arbitrator's decision –
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so;
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so;
(c)need not canvas all the evidence given in the case; and
(d)need not canvas all the factual and legal arguments or issues arising in the case.
The common law requires decision makers to provide adequate reasons to give effect to any right of appeal, to enable a court to determine whether or not an appealable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27].
The question as to whether the content of the reasons of the decision maker is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised: Wainohu v New South Wales [2011] HCA 24; (2011) 278 ALR 1 [55] – [56] (French CJ) and (Kiefel J).
In Velez Pty Ltd v Tudor [2011] WASCA 218 Murphy JA writing for the court reviewed the authorities with respect to the obligations of a Workers Compensation Service arbitrator to give reasons:
68.In relation to s 213(4) of the Act, in Sotico Pty Ltd v Wilson [2007] WASCA 112 Wheeler JA (Steytler P agreeing) observed [23] ‑ [24]:
It is important, in my view, to have regard to s 213 against the factual context in which it was enacted. Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. Injured workers may suffer from a number of different conditions at the same time, and different medical practitioners may assess each different condition in different percentage terms, giving rise to a very large number of potential outcomes. It is against that background that the Arbitrator is required only to identify the facts accepted and to give the reasons for doing so.
By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected.
69.More recently, this court in Manonai v Burns [2011] WASCA 165 considered s 31 Magistrates Court Act 2004 (WA) which is identical in terms to s 213(4). Hall J (with whom Pullin & Murphy JJA agreed) said [56]:
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
70.In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result (cf AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, [44]).

Question of law

It was not suggested that the arbitrator here mis-stated the relevant law, at least in so far as the issues properly before me on this appeal. The errors of law said to be involved in the appeal arise from complaints about the failure of the arbitrator to have regard to evidence, particularly the evidence of Mr Thomas, or alternatively failing to properly articulate reasons for the conclusions reached, and 'flawed reasoning' in preferring the medical opinions that the arbitrator did.
I have concluded that, while the arbitrator did have regard to the evidence of Mr Thomas, he did not accept it. Looking at his reasons as a whole, it is apparent the arbitrator rejected the evidence of Mr Thomas, either by disbelieving it or giving little if any weight, and did so despite the lack of cross‑examination. The arbitrator did not however express that conclusion with the directness that the law requires, and did not adequately set out the reasons that lead him to either disbelieve Mr Thomas' evidence or give it so little weight as to be negligible. In that respect this appeal does involve a question of law. That leaves the vexed question as to the proper construction of s 247(2).

Leave to appeal and the proper construction of s 247(2)

The argument made on behalf of the respondent is that, while an amount of compensation is at issue here, because no amount was awarded in the decision appealed against, the application for leave is governed by s 247(2)(a)(ii). That is, not only is it necessary for there to be a question of law involved but that in the opinion of this court the matter is of such importance that in the public interest an appeal should lie.
Initially, the argument on behalf of the appellant was that the amount of compensation in issue is the balance of the prescribed amount that remained as at 4 June 2004, being the sum of $65,171.13. That assumed of course that the appellant's incapacity would continue for the duration of the prescribed period. The amount of compensation at issue was said to 'exceed $5,000 and is more than 20% of the amount awarded in the decision appealed against'.
Both parties then initially accepted that this was an appeal 'in which an amount of compensation is at issue': s 247(2)(a). At least that was so until I raised the issue of conflicting authorities and what appeared to me to be some problems with the construction of s 247(2)(a). As a result of those discussions the appellant reconsidered its first position, and in supplementary submissions asserted that
•no amount of compensation was in issue; or that alternatively
•an amount was 'awarded' that did exceed the statutory minimum; or alternatively
•the subject matter of the appeal was such that 'the implications of the decision reach far beyond and are not restricted to the interests of the parties to the appeal'; alternatively
•that an arbitrator's decision made pursuant to s 62 was merely an interlocutory decision so that all that was required for leave was that the appeal 'involved an issue of law'.
The respondent also sought to characterise the decision here as an interlocutory decision, based on the proposition that pursuant to s 62, if a worker's condition alters, a further application for compensation can be made. The respondent in making this argument sought to advance the proposition that the application of principles with respect to appeals from interlocutory decisions, such as the need to show that the arbitrator's decision was wrong or attended by sufficient doubt to warrant the grant of leave to appeal, justified leave being refused.
At the same time that the respondent was advancing this argument it was also submitting that 'an amount of compensation was at issue', and that pursuant to s 247(2)(a)(ii) the appellant needed to show that the matter was of such public importance that an appeal should lie.
For reasons best known to the drafters, the terms used in s 247 'an amount of compensation is at issue' and 'the amount awarded in the decision' are not defined; nor are those terms used elsewhere in the Act. Section 176(1) contains an extended definition of 'dispute' but, for some unknown reason, the drafters have ignored that categorisation in differentiating between different kinds of appeals. I say 'unknown reason' here advisedly because nothing in Explanatory Notes or second reading speeches casts any light on this.
The proper construction of s 247 is not yet the subject of any appellate authority. There are a number of decisions of judges of the District Court and of the commissioner that have been brought to my attention. It is sufficient to say that there is a degree of inconsistency in these cases and, with respect, the constructions put forward are sometimes at odds with the plain words of the section. That, I suspect, is the result of the scar tissue that the Act has continued to accumulate over the decades: cf the comments of Stephen J in Geraldton Building Co Pty Ltd v May (1977) 13 ALR 17, 35.
A review of decisions made by the former commissioner of the Dispute Resolution Directorate of WorkCover WA reveals a number of cases where it was accepted that appeals from s 62 applications to cease weekly payments fell within the provisions of s 247(2)(a) as being appeals where 'an amount of compensation is at issue': Barrick Gold of Australia Pty Ltd v Tania Michelle Lucas [2009] WACC CT‑2009; SDR Australia v Mile Nedic [2009] WACC C3-2009; Roney v Accommodation West Pty Ltd [2009] WACC C10‑2009; Hasic v Delmere Holdings Pty Ltd T/as DTMT Construction [2008] WACC C8‑2010; Public Transport Authority v Ettie Djano [2010] C9-2010.
In each of these cases the commissioner found that the leave requirements under s 247(2)(a)(i) were satisfied. This included a case where an appeal was brought by the employer from an arbitrator's dismissal of its application to cease weekly payments: Barrick Gold of Australia v Lucas, an arbitrator's decision to discontinue weekly payments pursuant to s 62: Roney v Accommodation West Pty Ltd and a case pursuant to s 62 and s 71 where an arbitrator held that a worker was fit for full‑time work and, as in this case, made a repayment order pursuant to s 71: Hasic v Delmere Holdings Pty Ltd.
The former commissioner's views with respect to the construction of s 247(2)(a) are set out in the decision of Pedley v West Coast College of TAFE [2006] WACC C21‑2006. Pedley involved an application for leave to appeal from a decision of an arbitrator whereby the applicant's claim for payment of weekly payments, statutory allowances and rehabilitation expenses was dismissed. In that case the appellant had received weekly payments and statutory allowances for an initial period of incapacity of just over two months, said to arise from some psychological problems that arose from her employment. The appellant also claimed payments for a total incapacity for a second period, from 8 August 2004 until at least the date of the hearing of the appeal, allegedly as a result of the same condition. That was the claim that was denied by the respondent and dismissed by the arbitrator. The appellant argued that the arbitrator made errors that caused him to fail to apply relevant legal principles of causation.
In Pedley it would have been a reasonably straightforward matter to determine that the appellant had lost more than $5,000 in compensation by way of weekly payments among other things. That was because the arbitrator had declined to make any award and it was a simple matter of arithmetic, to the date of the hearing at least.
The commissioner's reasons make it plain that he dealt with the question of leave pursuant to s 247 2)(a) on the basis that it was an appeal in which an amount of compensation was at issue. He found that the first monetary threshold ('at least $5,000' had been met). He was confronted with the language of s 247(2)(a)(i) and the apparent difficulty that it could not be said that 'at least 20% of the amount awarded in the decision appealed against' was at issue because no amount had been awarded in the decision appealed against.
The commissioner dealt with that issue in this way, at [35] – [36]:
As to the monetary requirements of subsection 2(a)(i), in my view the requirement that the amount of issue in the appeal be at least 20% of the amount awarded in the decision appealed against only applies in a case where an amount is in fact awarded in that decision. If the position was otherwise an unsuccessful worker could never obtain leave to appeal where a claim for compensation was dismissed unless in the opinion of the Commissioner the matter was of such importance that an appeal should lie in the public interest. I do not feel that Parliament intended such to be the position, which would have harsh and unfair consequences which were not in keeping with the beneficial purposes of the appeal provisions.
There is no doubt that the amount at issue in the proposed appeal is at least $5,000 and, accordingly, in my view all of the relevant conditions for the granting of leave have been satisfied. It is appropriate that leave be granted in respect of all of the proposed grounds of appeal.
From my reading of that decision it is not apparent that the learned commissioner had the assistance of any reasoned argument with respect to the construction of s 247(2)(a).
In the matter of Clarke v Royal Perth Hospital [2010] WACC C1‑2010 the construction and application of s 247(2) was very much in issue on the appeal. The decision of Clarke is relied on by the appellant here as authority for the proposition that where no amount of compensation is awarded, then no amount of compensation is at issue for the purposes of s 247(2)(a).
The issue in Clarke was whether a nurse in receipt of payments of weekly compensation was entitled to compensation calculated pursuant to the rates in the relevant industrial award at the time of her injury, or at the higher rate in a subsequent award during her period of incapacity. The arbitrator in Clarke held that it was the former. The commissioner allowed the appeal, finding an error of law. On the question of leave the parties disagreed as to whether the issue was to be determined by s 247(2)(a) or s 247(2)(b).
On behalf of the worker it was argued that 'an amount of compensation' was not directly at issue in the arbitration, nor in the appeal, and that therefore the question of leave fell to be considered under s 247(2)(b). The employer on the other hand argued that an amount of compensation was at issue, that s 247(2)(a) was applicable, and asserted that the amount at issue was less than the stipulated $5,000 and 20% of the amount awarded. From the commissioner's reasons it appears that he was not in fact provided with any substantial information about the financial implications of the decision appealed from. Nor, as the commissioner observed, did the employer address the 'public interest' criterion of s 247(2)(a)(ii).
Faced with this unsatisfactory state of affairs the commissioner said as follows:
16.In my view, the 'amount of compensation which is at issue' in an appeal, and the 'amount awarded in the decision appealed against' entail an amount which is quantified or quantifiable from the issues or the decision (respectively). I am not satisfied that the amount in issue is quantifiable in this case. I assume that it is a significant sum of money. However, the worker's submissions imply that the parties have yet to resolve the number of hours which should attract the night shift penalty rate and the arbitrator made no finding about it. Under those circumstances it is not possible to determine the amount in issue and, obviously, whether the criteria in sub‑paragraph (a)(i)(I) and (II) have been satisfied. (Having said that, I should say for completeness that in my view the 'amount awarded in the decision appealed against' is quantifiable in this case. It represents $2.31 for every hour of compensation paid since 26 October 2007).
17.On the other hand, I might be wrong about the facts because as far as I can discern the employer has in substance, if not form, been paying the night shift penalty rate on all hours, but at 2004 rates. If that is the case, then the amount in issue is quantifiable ($3.45 for every hour of compensation paid since 7 April 2008) and represents more than $5000 and more than 20% of the amount awarded. Accordingly, both criteria in sub‑paragraph (a)(i) would be fulfilled.
18.I should point out, for completeness, that the phrase 'the amount awarded in the decision appealed against' in sub‑paragraph (a)(i)(II) has been held to mean 'the amount awarded (if any)' so as to enliven sub‑paragraph (a)(i) in a case in which a worker's claim for an amount of compensation of more that [sic] $5000 is wholly dismissed. (See Pedley v West Coast College of TAFE [2006] WACC C21-2006 [35).
19.In conclusion, based upon the way in which the arbitration has been contested thus far, I am not satisfied that the amount in issue in the appeal is quantifiable. Therefore, my discretion falls to be exercised under sub‑paragraph (b), that is to say, this is a true interlocutory appeal. In my view leave to appeal should be granted because the amount in issue is substantial and the worker will suffer a serious injustice if the arbitrator's decision is not corrected. Also, the question of law which is involved in this matter, namely the principles applicable to the application of cl11 of Schedule 1 to industrial awards with staged, retrospective effect, is of such importance that an appeal should lie in the public interest. For the same reasons leave to appeal should be granted if sub‑paragraphs (a)(i) or (ii) are applicable.
Given the fact that the resolution of the appeal had implications not simply for the worker involved but for any nurse covered by the relevant industrial award, and indeed broader implications for workers covered by industrial awards, the employer's failure to address the second criterion in s 247(2)(a)(ii) is telling. In my view, if it was an appeal 'in which an amount of compensation' was at issue, the grant of leave in Clarke could have been justified by the importance of the issue raised and the public interest in that issue.
The identification of an appeal as involving an amount that is quantified or quantifiable is, with respect, at the centre of a proper construction of s247(2)(a). And while like the learned commissioner I do not believe that s247(2)(a) requires a positive amount to be awarded to a worker before leave may be granted under s247(2)(a), in my view that is not to be achieved by implying the words 'if any'.
The commissioner also sought to support his conclusion for the grant of leave by citing his earlier decision in Pedley. In that case the commissioner pointed to an outcome that the commissioner characterised as 'harsh' and contrary to the perceived beneficial purpose of the Act if the worker's right to appeal was to be determined by a construction of the section that required a positive award of compensation. The commissioner's instinctive reaction to that outcome is readily understandable. Looked at more broadly, that kind of outcome might be reasonably described as absurd and not required by the language of the section, as I hope to show.

With respect however I do not agree that the plain words of s 247(2)(a)(i) may be ignored by invoking 'the beneficial purposes of the appeal provisions' as against the perceived 'harsh and unfair consequences' suggested to arise if leave were not granted. An argument of that kind was addressed by Spigelman in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668.
With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally …
In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation … In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] – [10].
This reasoning of Spigelman CJ has been indorsed by the High Court in Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260.
In Hawker Pacific Pty Ltd v Lang [2013] WADC 117 Keen DCJ took a different approach to that of the commissioner. In that decision his Honour dealt with an appeal from an arbitrator's decision dismissing an employer's application pursuant to s 61 of the Act. The employer there had sent a notice to a worker receiving weekly payments advising of the employer's intention to discontinue the weekly payments on the basis that the worker was then fit to return to full‑time work. The worker disputed that she was in fact fit. An issue arose however as to whether the worker had provided the notice required by s 61(3) of the Act within the 21 day period provided. When the insurer ceased making weekly payments the worker applied for arbitration and sought an order that weekly payments should recommence. The employer applied to dismiss the worker's application on the basis that the worker's application was out of time. The arbitrator dismissed the employer's application.
In dealing with the issue of leave Keen DCJ initially applied s 247(2)(a)(i). As his Honour observed, there was a controversy with respect to the amount in issue. Keen DCJ found that the result of the arbitrator's decision was effectively to dismiss the worker's application to have payments reinstituted for the relevant period. He found therefore that there was no amount of compensation in issue either for the purposes of s 247(2)(a)(i) or s 247(2)(a)(ii) and that leave could not be granted pursuant to either sub section. Reading his Honour's reasons, it appears that he may have been led to believe that it was open to grant leave if a matter answered the criteria of any category of 247(2)(a) or (b), without distinction.
I drew the parties' attention to the conflicting decisions in single judge appeals and asked for their further submissions as to the proper construction of s247(2). The submissions that I received did not advance things beyond a convenient summary of those decisions. I have not found any decision that has in my view provided a satisfactory construction of s 247(2) consistent with its plain words and the purpose of s 247(2) within the broader context of the Act. It does not appear from the decisions that I have seen that counsel were advocating such a position. Having now grappled with this myself, I have some sympathy with that choice.
As French CJ and Hayne J observed in Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 with respect to matters of statutory construction:
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky:
'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.'
Looking at s 247(2) as a whole, the first thing to note is that no grant of leave is available, in any case, unless a question of law is involved. Second, the legislature has sought to impose a financial threshold to restrict appeals in some cases, by both absolute and relative criteria. Finally, even with respect to cases that are subject to and fall below the financial threshold, an exception is provided in s 247(2)(a)(ii), when the matters in issue are of a degree of importance such that it can be said the public interest justifies the grant of leave to appeal. The question which, with respect, has not yet been satisfactorily answered is exactly how that financial threshold is to be construed and what kinds of cases it applies to.
There are two aspects of s 247(2) that are central to this. The first is the answer to the question, in what kind of an appeal can it be said that, 'an amount of compensation is at issue'. The second relates to how the phrase 'at least 20% of the amount awarded in the decision appealed against' to be understood in the context of a decision where nothing is awarded.
The introductory words of s 247(2)(a) show that the subsection is concerned, not with appeals where 'payment of compensation is at issue', or 'in which compensation is at issue', but rather cases of appeals 'in which an amount of compensation is at issue'. Had it been intended that s 247(2)(a)(i) and (ii) were to apply in every case of an appeal where the right to receive or to continue to receive compensation was at issue, the italicised words would have been unnecessary. They must be given meaning.
Earlier in these reasons I described the various kinds of claims for compensation that are potentially available, all of which potentially may be the subject of disputes. Many of the possible claims and potential disputes involve amounts of compensation that are either fixed or readily ascertainable. Claims for lump sum payments and expenses fall in that category, as do claims for payments of weekly compensation that are historic, where for example the worker has since returned to their employment. In the kinds of cases where problems have arisen in construing s 247(2)(a), cases like the present, it is common that the value of the compensation that a worker might or might not ultimately receive is not readily quantifiable because it cannot be finally ascertained. Even in this case, where the appellant at least initially estimated the amount in issue as being in excess of $65,000, based on the value of the remainder of the prescribed period, there remained contingencies that would determine whether or not that amount was in fact received.
To put it another way many claims for compensation involve what might be described in civil litigation as liquidated claims. Some, like the present case, do not.
Further assistance is provided by considering the second question; the meaning of 'at least 20% of the amount awarded …' . If an appeal is one 'in which an amount of compensation is at issue' then, pursuant to s 247(2)(a)(i) both criteria in (I) and (II) have to be applied and met. If the present case is the kind of matter where 'an amount of compensation is at issue' then, on the respondent's argument, the grant of leave to appeal for either party would turn on whether the worker was successful. In any event it would also seem odd to regard a case where a worker's entitlement to weekly compensation payments was simply maintained, where the employer's application had been dismissed, as one in which there had been an 'amount awarded'. The language of s 247(2)(a) does not sit comfortably within the context of the kinds of issues likely to arise in the context of s62 and similar provisions of the Act.
In my view the proper construction of s 247(2)(a) requires that the phrase 'an amount of compensation' be taken to mean literally that. That is, it applies to cases of appeals where there is what might be described as a liquidated claim that is readily ascertainable. Disputes of the kind encompassed by s 62 applications do not involve 'an amount of compensation'. They involve broader claims of entitlement but not 'an amount' that is determinable.
It follows that appeals with respect to this kind of dispute fall into category 247(2)(b), '… any other case …' . All that need be shown is that the appeal involves a question of law.
For the sake of completeness I will also say that in the case of claims for liquidated amounts which do fall into s 247(2)(a), satisfaction of the second criterion (II) does not require that there be a positive dollar amount awarded in the decision appealed against before a grant of leave may be obtained. The function of s247(2)(a) is in my view to provide a procedural hurdle to appeals that involve disputes over what can be readily identified as modest amounts of money; 'modest' either in absolute terms or relative to a sum awarded. It is not intended to create some inconsistent and seemingly arbitrary division between appeals brought by workers as opposed to employers, or appeals where even trivial amounts of compensation are awarded as opposed to appeals where nothing at all is awarded.
What s 247(2)(a) requires is that ' … the amount at issue in the appeal is both' at least $5,000 and at least 20% of the amount awarded in the decision appealed against. In my view the dominant criterion is (I), 'at least $5,000 or such other amount as may be prescribed by the regulations'. By that I mean that the purpose of this subsection is to ensure that if an appeal of this kind is to proceed, that the dispute involves at least $5,000, whether the appeal is brought by the worker or the employer. Thus, in a case where a worker's claim for, say $6,000, has been dismissed and the appeal is in respect of that claim then the amount at issue in the appeal is both 'at least $5,000' and 'at least 20% of the amount awarded in the decision appealed against'. The reason for that is that if nothing was awarded then the value of the claim - the amount at issue in the appeal, $6,000 ‑ is 'at least 20%' of nothing. In my view, that construction is open on the plain words of the subsection, in the context of s 247(2) and the Act.
Any other construction would produce inconsistency, absurdity and conflict with what appear to me the general purpose and policy of the section. I will explain that by two examples, both of which assume that an issue of law is involved. The first is a case where a worker brings a claim for $6,000 and is awarded just $500. $5,500 is 1100% of $500. The second is a case where a worker brings a claim for $20,000 and is awarded nothing. If (II) is taken to require some positive dollar amount to have been awarded to enliven s 247(2)(a), then the worker in the second example where $20,000 is the amount at issue would have no entitlement to a grant of leave, whereas the worker fighting about $5,500 would.
To further demonstrate the inconsistency and absurdity of a different construction, it is useful to consider the relative positions of worker and employer. In the case of the worker claiming $20,000, if (II) was taken to require some positive award of compensation as a base line for the 20% then, while the worker whose claim was totally dismissed would have no appeal, if the claim was allowed the employer would have an appeal. In my view that result is so absurd that it could not have been intended. No purpose of the Act would be served by such a construction.

Interlocutory or Final?

Both parties, for their respective purposes, have submitted that the arbitrator's decision here was interlocutory and not final. I will deal then with the submission that something useful or necessary is to be derived from the categorisation of the decision here as 'interlocutory'. It is the case that there are a number of single judge appeals that do classify decisions of this kind as 'interlocutory'. In other cases the procedural nature of the decision appealed from is obvious: cf Amana Living v Soliven[2013] WADC 118 (Stavrianou DCJ). In others, such as Clarke, it is not so readily apparent.
The classification of decisions as 'interlocutory' as opposed to 'final' is notoriously problematic. A rich vein of authority has developed in civil litigation in trying to come to grips with the distinction between decisions and orders that are 'interlocutory' as opposed to 'final'. In that context the distinction is important because s 60(1)(f) of the Supreme Court Act 1935, like analogous legislation in other Australian and common law jurisdictions, provides that no appeal lies to the Court of Appeal from any interlocutory order or interlocutory judgment without leave. Some well‑established principles have developed to explain the kinds of considerations relevant to the exercise of the discretion to grant leave from decisions of that kind.
It is questionable whether a decision to cease weekly payments pursuant to a s 62 application can properly be described as 'interlocutory' within the context of the Act. It was urged upon me that the arbitrator's decision should be regarded as interlocutory and not final because, pursuant to s 62 of the Act, the appellant can seek a review of weekly payments if his condition alters. It might also be said that, if new information becomes available after an arbitrator makes a decision, the arbitrator can then be asked to reconsider his or her prior decision: s 217A. Despite that, while it may be open to either party to bring a further application if circumstances change, the arbitrator's decision brings to a conclusion that particular dispute. It is the kind of dispute which is central to the function of the Act. In the context of the Act this kind of decision involves a substantive right and not a mere procedural issue.
Unlike s 60(1)(f) of the Supreme Court Act, s 247(2) does not draw any distinction between orders and judgments that are interlocutory and those that are not. Unlike the Supreme Court Act, every appeal from a decision of an arbitrator pursuant to s 247(2) requires leave. There are express statutory criteria limiting the grant of leave. Some appeals from arbitrators may plainly be seen to relate matters that are only procedural. Whether it is in fact necessary or appropriate to import principles developed for provisions like s 60(1)(f) as guide to the exercise of a discretion in respect to those cases should be left to another day. I will say however that if those principals applied to the question of the grant of leave here, I would not grant leave. The reason for that, as will be seen, is that in my view, whatever might be said about the adequacy of the arbitrator's reasons, the decision that he reached is not attended with doubt. In my view he was correct to allow the application.
I have however already set out my conclusion that the failure of the arbitrator to properly explain his rejection of the appellant's evidence means that a question of law is involved in this appeal. For these reasons, and given the conclusion that I have reached about the construction of s 247(2), I would grant leave to appeal. It is necessary then to review the whole decision of the arbitrator based on the material that was before him.

The evidence at the hearing

The evidence before the arbitrator included a number of medical reports, progress reports and certificates, and a witness statement and supplementary witness statement from Mr Thomas. The only oral evidence at the hearing was given by Mr Thomas. He was not cross‑examined.
In describing both the manner in which he was required to conduct the arbitration pursuant to s188 of the Act and some of the difficulties that he faced the arbitrator said, at [29]:
I am mindful that under the Act, in accordance with s 188, I am not bound by the rules of evidence and I am required to act according to equity, a good conscience and the substantial merits of the case without regard to technicalities and legal forms and to determine this dispute in a manner that is fair, just, economical, informal and quick. Nevertheless as with most arbitrations of this type I have been presented with numerous medical and other reports, which together with the legal submissions constitute some 250 pages. Some of the reports are referred to in the parties' submissions and many not. Again there is significant conflict in the medical evidence. I am aware that medical reports are not always written for a legal audience and from time to time assessment of imprecise language is necessary to try and discern the meaning and merit of medical evidence. I note in Pacific Industrial Company v Ratko Jakovljevic, C19‑2007 that the Act expects an arbitrator to determine the conflict in medical evidence 'whenever and wherever possible' however those words do not render much assistance. This has been a difficult arbitration. Arbitration is not an inquisitorial process and the obligation is on the parties to provide sufficient evidence and advance the relevant arguments (see Mayne Nickless Ltd t/as Wards Express v Mayne (Unreported, WASCA, Library No 960736, 19 December 1996)).
Given the volume of medical and other evidence tendered and never referred to again, the illegibility of some documents, the difficulties of assessing medical evidence without any assistance from any medical expert, and limited argument addressing the evidence in real detail, the arbitrator's description of the arbitration as 'difficult' might be described as stoical.

The evidence of injuries and symptoms

Mr Thomas was born in 1958. He was 54 years old in June 2012.
There are various reports of Mr Thomas' description of his accident contained in some of the medical reports. They are not entirely consistent. That, the arbitrator said, went to the relative weight that he might attribute to those accounts.
The documents tendered by the appellant include the respondent's 'Incident Report' form which incorporates a Workers Compensation claim form, the latter completed by Mr Thomas on 5 July 2012. The day of the 'occurrence' is said to be 'Wednesday', that is, July 4. The form asks, 'Describe the occurrence. Include: What action was involved (ie, fall, struck by object). Here Mr Thomas has written - 'walk into PC 2000 boom'. In answer to the request 'What object was involved?' he writes 'steel boom'. In response to the inquiry 'The most serious injury or disease caused (ie, fracture, burn, abrasion)' he writes 'bruised and strained muscles'. As to the 'Bodily location of the injury' he says 'Head & Neck'. Later in the form Mr Thomas is asked to describe 'What you were doing at the time of the occurrence?'. To this he answers, 'pushing 2 bins - turned into boom'.
Based on the Workers' Compensation Claim Form, there were no witnesses to the 'occurrence'. That is despite histories that record Mr Thomas reporting being distracted by hearing a call, or being the victim of a practical joke.
In his first witness statement, signed on 9 April 2014, Mr Thomas describes the accident in these terms:
6.On the day in question, I was pushing/pulling two wheelie bins, one in front of me and one behind me. I thought someone had called out to me and, as such, whilst continuing to walk along, I turned my head to the left. I did not see anyone present so I looked forward and saw that immediately in front of me was the boom of a PC 2000. I immediately took evasive action to avoid hitting the boom.
7.Unfortunately, the top of my head did hit the boom. As this occurred, my left foot slipped on a greasy patch on the ground and I basically did the splits whilst initially holding onto both bins.
8.As I went down onto my knees, falling forward, I released the wheelie bin that I was pulling behind me. As I did this there was a wrenching of the left arm. To the best of my knowledge I retained holding the wheelie bin in front of me with my right hand and to the best of my recollection I believe that I have fallen on top of the bin.
9.Whilst I do not believe that I lost consciousness I was certainly disorientated and dizzy, together with blurred vision. I got myself back up and walked back to the smoko room taking the bins with me. I sat down behind the smoko room as I was quite shaken, disorientated and dizzy.
10.I eventually settled myself and found Carlos, who is a fitter employed at Komatsu. I asked him to check my head. Whilst I could feel a lump on my head, I was unsure as to whether or not I sustained any laceration. Carlos advised me that there was a lump present and some grazing but no laceration.
According to Mr Thomas, he was told to, and did report the accident to the leading hand. While he remained at work the rest of that day he did very little as he was not feeling well. The next day he said his head was sore and he still had a headache and blurred vision. Later that day he went to see the doctor.
Mr Thomas went to see his GP. A medical certificate and report provided by his GP on 5 July 2012 refers only to a 'head injury' that occurred when Mr Thomas is said to have 'hit head into boom'. Nothing by way of clinical finding describes any apparent trauma such as a lump or a scrape or a bruise. Mr Thomas was complaining of dizziness and nausea and was sent for a brain CT scan that same day. The doctor duly recorded that on a medical certificate, certifying Mr Thomas 'fit for restricted return to work from 5 July 2012 to 1 week'. That is, the doctor who examined him thought that he was fit for at least a restricted return to work that same day.
The results of the CT brain scan were entirely normal.
The next report on 6 July 2012 records Mr Thomas as complaining of 'headache, and blurred vision, concussion'. On 9 July 2012 he complains of 'neck pain'. The doctor's handwriting is somewhat difficult to decipher, but neck pain and later stiffness are the complaints until perhaps 26 July 2012, when there may be a mention of a left hand complaint in the GP reports.
A report from Envision Medical Imaging on 27 July 2012 records as clinical details, 'Hit neck on boom. Neck pain with left hand symptoms'.
The Progress Medical Certificates completed by Mr Thomas' GPs were tendered by the respondent and the appellant, and both sets formed part of the documents before the arbitrator. All were handwritten on printed forms. Some were illegible.
Mr Thomas has seen several GPs since his accident. From 5 July 2012 until late July 2012 he saw Dr Azzam (according to the respondent's list) or Aziam (according to the appellant's list). On 6 July he saw a Dr Lee. He saw a Dr Beresford in August 2012. The certificate signed by Dr Beresford (and wrongly attributed in the appellant's list to Dr Aziam) says that Mr Thomas was fit for a restricted return to work on light duties, from 21 August 2012 to 21 September 2012. The next certificate is signed by a Dr Megan Downing (wrongly described as 'Dr Megan' in the appellant's list), at a practice in Huntingdale, certifying Mr Thomas as totally unfit to 4 December 2012.
In the meantime, there appears in the tendered documents an expression of puzzlement and perhaps frustration from Dr Beresford in an undated referral letter to Mr Paul Bannan, a well-known local neurosurgeon. I was only able to fully decipher Mr Bannan's name with the assistance of a reference in a later report filed by a Dr Ng. The appellant's list of documents gives this letter a date of 10 December 2012. I doubt the correctness of this date. I infer that for some reason Mr Bannan was not able to assist and the referral went to the neurologist Peter Silbert instead.
In this letter, tendered by the appellant, Dr Beresford describes the puzzling intermittent symptoms in Mr Thomas' left arm and foot, puzzling in light of the MRI and CT scan results, which were unremarkable. Dr Beresford asks, 'I cannot reconcile history with his CT findings and I wonder if I am missing anything'.
On 7 August 2012, after recording the fact of a referral for 'further evaluation of his left arm symptoms' Peter Silbert, a neurologist records this:
On 4 July 2012 [sic] he was moving two wheelie bins, pushing one and pulling the other. He turned to his left when someone called, and as he did so he walked into the boom of a large piece of equipment. He had a compressive type injury to the head, but he was wearing a brimmed hat, which gave him some protection. He did however stun himself, and was initially dazed with neck discomfort. His vision was blurred. He sat down for about 20 minutes, and then there was some dispute for the next 24 hours about his workplace response.
In retrospect when he fell to the ground he did twist his left arm. He has continued to experience a tingle sensation involving down the left fifth digit, and has noticed that when he flexes his elbow he gets a warm tingling feeling down the ulnar aspect of the left forearm. He also has occasional low back discomfort, a feeling of deadness in the left calf, and ongoing headaches.
I note that his cranial and cervical CT scans were normal.
Dr Silbert's 'in retrospect' covers quite a lot. This is the first mention of Mr Thomas falling to the ground, as well as the first mention of twisting his arm. The initial report of 'pushing 2 bins' has now become 'pushing one and pulling the other'. The original 'turned into boom' has expanded to the story of distraction and looking away and back immediately before the collision.
Dr Silbert suggests in his report that examination showed 'a mild weakness of ulnar nerve innervated muscles in the left …'. Otherwise, 'the remainder of the neurological examination was normal'. While the clinical examination suggested an ulnar nerve weakness, an electromyogram test (a test used to record the electrical activity of muscles) was normal. Dr Silbert referred Mr Thomas for an ultrasound test. The result of that was also normal. Dr Silbert's expectation in August 2012 was that any problem with the left arm would resolve over the next six weeks.
That estimate of six weeks for recovery is consistent with an estimate contained in a document tendered by the appellant. In the Initial Assessment Report of WorkFocus Australia dated 8 March 2013, under the heading 'Current Evidence Based Practice', an estimate of six to eight weeks, 'sourced from MD Guidelines' is given as a recovery period from a cervical strain or sprain, with an expected return to work and full functioning. With respect to ulnar neuropathy, the period is eight weeks. As the Initial Assessment Report says in respect of both kinds of injuries, 'this is not in line with Mr Thomas' current progress'.
Mr Thomas was referred by the insurer to Dr Brian Dare, a consultant occupational physician. Dr Dare first examined Mr Thomas on 21 September 2012.
Dr Dare's first report is dated 24 September 2012. This is the first report to contain a detailed personal history of Mr Thomas.
It notes that he migrated from South Africa to New Zealand in approximately 2004 and lived there for seven and a half years before coming to Perth in December 2011. After working there for less than a year, he suffered a work related injury to his right elbow described as 'extensor tendonopathy', for which he had surgery. According to the history provided, Mr Thomas then got 'nerve damage' in the right elbow and further surgery was required. He was then off work for almost seven years, having worked for less than a year there. He had not returned to any paid work, according to this report anyway, before coming to Perth in December 2011. After arriving in Australia and prior to being hired by the employer 'he did some commercial cleaning work and then worked on a farm in the wheatbelt for a short period of time'.
Dr Dare sets out a description of the 5 July 2012 accident provided by Mr Thomas,
Mr Thomas describes hitting the top of his head against a steel boom of a machine which he was walking under while he was pushing two wheelie bins, one in front and one behind on 5 July 2012. He stated he thought someone had called out and he looked to the left and this is when he hit his head on the boom of the large machine.
However, he stated there were no witnesses to the incident and he stated he did not get any help, saying he fell to the ground following the incident but describes no loss of consciousness. He stated he went and sat down for 20 minutes afterwards. He stated he was wearing a wool beanie at the time. He did not suffer any laceration despite saying he hit the edge of the boom. On asking where he hit his head, he described hitting on the front area of his scalp and not on the forehead … since the incidence [sic] on the 5 July 2012 he has been describing numbness in his left ring and little finger and also numbness on the outside of his left foot … he stated he suffered a fall last week when he fell on some wet stairs at the local library stating he injured his right elbow again but he has not seen a doctor regarding this. He denies any injury to his neck with this fall.
A physical examination of Mr Thomas revealed the following:
Mr Thomas presented in a cooperative manner and was in no obvious distress.
…
Examination of his neck demonstrated flexion to 40 degrees extension to 30 degrees. Lateral rotation left and right was 50 degrees. Lateral flexion was 20 degrees.
Examination of his upper limbs demonstrated normal power, sensation and reflexes. There were no signs of radiculopathy.
…
Examination of his lower limbs demonstrated normal straight leg raising with normal power, sensation and reflexes on both lower limbs. Specifically there were no signs of radiculopathy.
Radiculopathy is a disease of the nerve roots occurring where there is compression of the nerve root: Dorland's Medical Dictionary.
The fact that there were no lacerations or loss of consciousness, and the absence of any bony injury to the skull, or any brain injury as demonstrated by the various investigations confirmed, Dr Dare said, that 'the forces involved in the incident were low'.
Dr Dare refers to the CT scan that Mr Thomas underwent subsequent to the accident, which revealed no brain abnormalities, and the MRI scan of his neck. The MRI revealed significant pre‑existing degenerative changes with an advanced facet joint degeneration and disc degeneration, as well as 'a mildly displaced fracture of the superior articular process of the left C5/C6 facet joint. This fracture Dr Dare concluded, related to the pre-existing degenerative disease, and not the workplace accident. Mr Thomas' current status was said to be, 'constant ongoing neck pain, restricted range of movement in his neck, left outer foot numbness and numbness to his left ring and little fingers'. Mr Thomas also reported '… ongoing right elbow pain, related to a fall the prior week on some stairs at the local library'.
Dr Dare said that Mr Thomas was, '… describing ongoing neck discomfort, however I do believe he has a work capacity and I consider he could work full‑time as a trades assistant. I consider any soft tissue injury he would have suffered at that time has now resolved as it is now coming up to three months since the incident'.
Dr Dare's conclusions were that Mr Thomas suffered a minor soft tissue injury to his scalp and neck as a result of the July 2012 workplace incident. He considered that any ongoing symptoms would be related to pre‑existing degenerative disease in Mr Thomas' neck. With respect to the complaints about the left hand and left foot Dr Dare said that he could not 'correlate his symptoms … to his injury'. Dr Dare concluded that Mr Thomas was fit to work full time without restriction as a trade assistant although he was likely to continue to experience variable neck pain relating to his pre‑existing degenerative disease.
Mr Thomas was reviewed again by Dr Silbert on 25 September 2012. Dr Silbert reported:
There hasn't been much progress over the last six weeks.
He has had some social difficulties having to move out of his Maddington residence and now lives in Bunbury.
On examination there still seemed to be some ulnar nerve innervated muscle weakness, although I am not sure regarding that and an EMG will be helpful to see if that is confirmed objectively.
In early October 2012 Dr Silbert arranged for a further EMG and an MRI scan of Mr Thomas' left arm. Dr Silbert reported on 2 October 2012 that the repeat EMG of the left ulnar nerve was normal but the MRI scan showed evidence of medial epicondylitis, 'and probably also some ulnar neuritis which explains some of his ulnar nerve symptoms'. Epicondylitis is an inflammation of an eminence on a bone or the surrounding tissue. 'Neuritis' is 'an inflammation of a nerve, with pain and tenderness, anaesthesia, paraesthesia, paralysis, wasting and disappearance of the reflexes': Dorland's Medical Dictionary (28^th ed, 1994).
The radiology report also refers to evidence of osteoarthritis in part of the structure of the elbow.
Consistent with a recommendation contained in the radiology report Dr Silbert arranged for a steroid injection in the medial epicondyle area. He anticipated that Mr Thomas would then see his GP in 'a couple of weeks following that regarding his progress and return to work issues'. While Dr Silbert offered a further review, if required, it does not appear that Mr Thomas ever returned to see him.
On 18 December 2012 Mr Thomas was examined by Mr Barrie Slinger, an orthopaedic surgeon, at the request of Mr Thomas' solicitors. To avoid misunderstanding I will note here that in the arbitrator's reasons he wrongly refers to Mr Slinger as 'Dr Springer'.
The background provided by Mr Slinger, in particular with respect to Mr Thomas' history in New Zealand, is not entirely consistent with other reported versions. In any event Mr Slinger describes how, on his arrival in Perth, Mr Thomas worked for a short period of time as a commercial cleaner and then for two weeks on a farm in the wheat belt before being made redundant. He is said to have worked for two months as a trade assistant with the employer prior to his injury.
The history of the injury that is recorded by Mr Slinger is also somewhat at odds with what is contained in other reports. In Mr Slinger's report Mr Thomas seemingly describes himself as the victim of a practical joke.
Mr Slinger sets out the history of investigations and treatment to that stage:
Medication included Panadol Osteo and Tramadol, he was referred for a programme of physiotherapy, but he found that aggravated symptoms and was, therefore, ceased. More recently he has returned for further treatment with a separate therapist, but has had further aggravation of symptoms, and recently, because of traction to the neck, he is now experiencing pain in the low back.
In addition, he has had cortisone injections to the left elbow, but these have not been associated with any significant change in his symptomatology.
At present he is not taking any medication and he described that he is averse to tablets on principle.
As will be seen, this last assertion appears to be at odds with what Mr Thomas reported to another orthopaedic surgeon with respect to Mr Thomas' pre-accident use of codeine to treat headaches at work.
Mr Slinger reports Mr Thomas' complaints as at December 2012:
Pain and stiffness persist in the neck, and when looking behind, as when driving reversing a vehicle, he has to turn his whole body. Pain is aggravated when driving over a speed bump, coughing is a further aggravation and maintaining his head in one position for any length of time, as with using a computer, is a further aggravation.
Movement at the left shoulder into elevation is an aggravation, with pain in the shoulder and the neck, he experiences pain along the ulnar border of the left forearm, from the elbow distally, with numbness of the ulnar two digits, and he also experiences pain about the lateral aspect of the forearm and elbow, as when driving, holding a steering wheel.
In addition, since the accident, he has had numbness about the left foot, both the dorsum and the plantar aspect, at times when walking he has to stamp the foot to ease that pain and discomfort and at time experiences pin [sic] and needles.
In addition he states that he has had some dizziness since the accident, finds that if he stands up quickly in the early morning, he experiences dizziness and has to obtain support.
…
In addition he states that he has had difficulty with memory of recent events, instancing placing the car keys in the fridge, and cannot recall having cleaned his teeth, although his wife reminded him that was the case.
On examination,
…in the cervical spine there was a tilt to the right, with slight diffuse tenderness throughout the posterior mid‑line, extending to the area of the trapezius, bilateral. Movements in the cervical spine, extension to 0°, anteroposterior flexion to within three fingers' breadth of the sternum, the remainder of movements were limited to a quarter of the expected range.
At the right shoulder movements were full and painless. At the left shoulder movements were restricted because of pain about the shoulder and scapula, and numbness about the ulnar two digits, with flexion 90°, extension 50°, abduction 90°, adduction 10°, external rotation 70° and internal rotation 30°.
In the left upper limb there was sensory impairment over the ulnar border of the left forearm and ulnar two digits, there was no intrinsic weakness of the muscles of the hand, specifically no weakness of the hypothenar muscle, grip strength was diminished on the left, whilst deep tendon reflexes were present and symmetrical. Movement at the left elbow was full and painless and provocation for extensor tendonopathy was negative.
In the lumbar spine there was no tenderness, with movements, forward bending fingers reaching to the knees, the remainder of movements to less than a quarter of the expected range … .
Straight leg raising was limited to 60°, because of pain in the low back, deep tendon reflexes were present and symmetrical, there was sensory impairment throughout the left lower limb, of stocking distribution, and global weakness of the left foot. Standing on heels and toes was accomplished without a problem and gait was normal.

It is the case that in dealing with these particular issues the arbitrator did not explain how he reconciles Mr Thomas' evidence of continuing and increasing symptoms. That is, he did not expressly say whether he accepts what Mr Thomas' said about the existence of his ongoing symptoms, or whether he accepts that Mr Thomas is experiencing neck pain related symptoms, but exaggerating them, or whether he accepts the description of Mr Thomas' symptoms but concludes they existed before the work incident. The arbitrator does not expressly say whether he rejects Mr Thomas' claim that his work capacity is limited by his symptomology, whether caused by the pre-existing degenerative problem or the workplace incident. It is to be observed however that in summarising his reasons at [100] the arbitrator gave no more credit to what Mr Thomas has said than to describe his 'alleged injuries' and his 'alleged ongoing symptoms'. Even at that late stage in his reasons, his did not accept that these injuries and symptoms existed.
With respect to the claimed psychiatric injury the arbitrator rejected Dr Ng's opinion and accepted that of Dr Mander.
In rejecting Dr Ng's opinion the arbitrator said:
122.Dr Ng assessed Mr Thomas shortly following the recent hospitalisation of Mr Thomas due to a situational crisis. (Dr Mander also notes the 8-13 January 2014 hospitalisation of Mr Thomas due to a diagnosis of a situational crisis which resulted in sleep disturbance, tiredness, erratic libido and lacked motivation). However I am unable to find any evidence of the specific events which led to the crisis and certainly no connections with the original workplace incident.
123.Dr Ng has stated: 'From the history provided by the client the most significant contributing factors…' to Mr Thomas' adjustment disorder was the 5 July 2012 incident. An opinion based on a history provided by Mr Thomas is of low weight. Dr Ng does not refer to any other facts which would found an opinion that the most significant contributing factor was the 5 July 2012 incident. Secondly the fact that Dr Ng was unable to identify any other non‑work related factors which could have accounted for or contributed to the onset of Mr Thomas' onset of his adjustment disorder does not establish a causal relationship between his condition and the workplace incident. At the same time Dr Ng does refer to issues at a previous workplace and looking for a home which would have caused Mr Thomas some degree of stress.
The arbitrator's plainest statement as to the conclusions he had reached about Mr Thomas' evidence is contained in [123]. He does not expressly say that he rejects Mr Thomas' evidence but sets out his conclusion that information provided by him '… is of low weight'.
I infer from his evident refusal to accept the appellant's evidence, the references to 'alleged ongoing symptoms' and 'low weight', that the arbitrator rejected the evidence of Mr Thomas as to his symptoms and their cause as exaggerated and unreliable. It would have been preferable had he said so expressly, and by reference to the reasons for that conclusion. As impolite as it might seem to the well-mannered, it is a necessary part of the duty of every trier of fact to plainly state such conclusions. It does no one a favour not to, and leads inevitably to appeals of this kind.
For these reasons in my view it cannot be said that the arbitrator failed to provide any reason as to how he analysed the appellant's evidence or the conclusions that he reached about it. As I have said already, the arbitrator's reasons did not adequately explain his treatment of the appellant's evidence and his reasons for that. To that extent ground 2 is made out.
Ground 3 raises the arbitrator's treatment of the psychiatric evidence and in particular the rejection of Dr Ng's opinion. The issue raised by the ground is that the arbitrator's reasoning, in accepting the evidence of Dr Mander and rejecting that of Dr Ng, was 'flawed'.
The submissions in respect of this ground seem to me to confuse the issue of the existence of a disabling psychiatric condition at the time of the hearing of the s62 application and the question of causation. It is apparent that the arbitrator was satisfied, consistent with the observations of Dr Mander, that at the time of his interview with Dr Mander, regardless as to how he may have presented during or shortly after his 'situational crisis', Mr Thomas was not suffering from a psychiatric disorder: [125] ‑ [126].
With respect to the opinion of Dr Ng, the arbitrator referred to a number of matters that went to the basis of Dr Ng's opinion as to the existence of a disabling psychiatric disorder and the cause of it. The arbitrator referred at [127] to the difficulty he had in determining how Dr Ng reached the conclusions that he did based on the facts and assumptions that were set out. He referred to the difference between the physical injuries that Dr Ng assumed could be attributed to the work incident, and the claimed injuries that the arbitrator outright rejected as being connected to the incident. The arbitrator challenged the logic of Dr Ng in asserting that the 'most significant contributing factor' to the asserted psychiatric injury could be the workplace incident. Finally, he emphasised the importance to the opinion of Dr Ng of his reliance on the history provided by Mr Thomas, a history that the arbitrator regarded as 'of low weight'.
Ultimately there were several aspects of Dr Ng's report that troubled the arbitrator and led to its rejection. First there was Dr Ng's mental status examination which as the arbitrator observed was normal with the exception of a comment that 'his affect was generally mildly depressed and was at times anxious'. Next, there was the questionable foundation for and illogic of Dr Ng's opinion that 'the most significant contributing factors to the onset of the adjustment disorder were the said incident of 5 July 2012 and its physical squealae [sic]':
I could not identify any other non‑work related factors which could have accounted for or contributed to the onset of his adjustment disorder.
Here the arbitrator noted that to the extent that Dr Ng was attributing psychological consequences to all the injuries, or 'alleged injuries' claimed to result from the July 2012 incident, it was not correct to do so. The arbitrator did not accept that any injury had been suffered to the left arm and leg. Secondly, as the arbitrator says with respect to this passage, at [117]:
The inference that I have drawn from this is since Dr Ng could not identify other factors, then in his opinion the injury must be work related. This does not seem to be a strong basis for the opinion.
In dealing with the illogic of Dr Ng's reasoning about causality, the arbitrator referred to other factors touched on by Dr Ng that in fact offer a basis for thinking that there were a number of significant stressors in Mr Thomas' life apart from any injury he may have suffered at work.
There were other matters raised by the evidence before him that supported the arbitrator's conclusions about that illogicality and the weakness of the factual basis given to Dr Ng. I have already referred to the evidence that, seemingly unknown to either psychiatrist, in November 2013 Mr Thomas had been experiencing problems with kidney stones. I have referred to the matters set out in the 'Initial Assessment Report' dated 13 March 2013, tendered in the arbitration by Mr Thomas' legal representatives, where a number of matters are recorded by the rehabilitation providers working with Mr Thomas as 'Strengths and barriers impacting on rehabilitation, including these 'psycho-social factors':
•Mr Thomas reported he had a 'falling out with his landlord in Perth and couldn't find another rental in Perth, therefore moved to Bunbury;
•Mr Thomas advised he had been married four times. He advised his wife is a school teacher but was having difficulties finding work;
•Mr Thomas advised his son and daughter lived back in Africa. He advised if it wasn't for his $20,000 debt he would want to move back to Africa;
•Mr Thomas reported receiving great support through his church community at Potters House;
•Mr Thomas advised he had a history of mental illness and had been on Prozac in the past, however he no longer takes this medication or any anti‑depressants. Mr Thomas advised he had unsuccessfully attempted suicide in the past. He reported not experiencing any suicidal ideation at present.
There are hints of some of these matters contained in Dr Ng's report, but it appears that there was much he was not told about. For example, Mr Thomas told Dr Ng that 'his wife was soon to start a job as a traffic warden and that she was currently a housewife'. Dr Ng was seemingly unaware that Mr Thomas' wife had been searching unsuccessfully for a job within her field of qualification as a teacher. Mr Thomas' problem with kidney stones was described by him in terms that implied that it was 'years ago' as opposed to just a couple of months before. The failure to tell Dr Ng about a history of mental illness and attempted suicide including the prescription of Prozac, meant these were unknown to Dr Ng.
In my view, on the evidence referred to by him, it was open to the arbitrator to reject the opinion of Dr Ng. The arbitrator's reasons for rejecting Dr Ng's conclusion are readily understandable. When regard is had to the other evidence tendered on behalf of the appellant, the foundation of Dr Ng's opinion is seen to be even less substantial. Without Dr Ng's evidence, there was no basis for concluding that the appellant was at the time of the s 62 application incapacitated by a 'secondary psychiatric depression' or that any such issue arose from the 4 July incident.
In any event, the arbitrator preferred the report of Dr Mander to the effect that, regardless of what stressors had been present in his life from time to time, Mr Thomas was not at the time of examination by Dr Mander suffering any psychiatric condition, much less any disabling one. Consistently with Dr Mander's report, it is rather difficult to see how a man who expresses enthusiasm for returning to work when physically able, who takes pleasure from things like the company of his wife and activities like fishing, can reasonably be said to be disabled from work by depression.
After Dr Mander's report was received, Mr Thomas filed a supplementary witness statement dated 9 July 2014. The purpose of that witness statement was to contradict some of the matters referred to by Dr Mander, to argue against some of the conclusions that Dr Mander expressed and to seek to undermine the accuracy of some of Dr Mander's observations and recorded history. It is reminiscent of Dr Ng's observations as to Mr Thomas' pedantic manner.
The arbitrator did not regard Mr Thomas' about some details of the history reported as of much significance. In my view he was entitled to reach that conclusion, and to conclude that they did not materially affect the validity of Dr Mander's opinion. The matters raised by Mr Thomas were either matters of minor detail or reflective of his own particular perception of those things. As the arbitrator said in his reasons at [111], there is nothing in the alleged inaccuracies identified by Mr Thomas that would materially affect Dr Mander's observations and assessment.
It might reasonably said the arbitrators reason's tend to the discursive, both with respect to the psychiatric evidence and generally, but in my view, he has adequately set out his reasons for preferring the evidence of Dr Mander, and his reasoning cannot properly be described as 'flawed'.
On the evidence the arbitrator was entitled to reject the opinion of Dr Ng and accept that of Dr Mander. Appeal ground three should be rejected.
Grounds 4 and 5 challenge the decision of the arbitrator and his reasoning as 'flawed', where he accepted the evidence of Dr Dare and Dr Hardcastle, and rejected that of Mr Slinger. The grounds can be considered together.
As the arbitrator observed, Mr Slinger and Drs Dare and Hardcastle all seemingly agreed that the July 2012 accident caused soft tissue injuries to the head and neck of Mr Thomas. Drs Dare and Hardcastle said that the nature of those injuries was such that they should have resolved within three months. That estimate is consistent with the 'evidence based MD Guidelines' referred to in the Assessment Report tendered by the appellant which give a recovery period of six to eight weeks. Any neck symptoms thereafter, including of course the headaches which Mr Thomas said were present 'all the time', arose in the opinion of Dr Dare and Dr Hardcastle from the pre‑existing degenerative problems. Dr Dare concluded that whether in fact Mr Thomas was unfit for any reason, including pain from degenerative disease, was 'difficult to determine'.
Mr Slinger, seemingly accepting Mr Thomas' assertion that prior to the incident in July 2012 he had been asymptomatic, expressed an opinion that the soft tissues injuries had caused the previously asymptomatic degenerative neck problems to become symptomatic. He does not describe how that is so, that is, what exactly the pathology or process was that gave that result and the more disabling symptoms claimed by the appellant.
In assessing Mr Slinger's reports the arbitrator said,
With due respect, the opinions above are somewhat conjectural and I am unable to determine from this report the factual assumptions and observations made by Dr Springer [sic] or how the opinion was produced from the application of expertise to the assumed or observed facts.
In contrasting the reports of Mr Slinger as against those of Dr Dare and Dr Hardcastle, the arbitrator noted the thinness of Mr Slinger's reasoning process, the lack of explanation as to what in fact was or could be generating the ongoing and expanding symptoms complained of by Mr Thomas. Dr Dare and Dr Hardcastle, in reports that are in my view far more comprehensive than those of Mr Slinger, support their conclusions by reference to the absence of any pathology arising from the 4 July incident, as revealed by the medical imaging, among other things.
The age of Mr Slinger's report was a factor that the respondent argued before the arbitrator should lead to Mr Slinger's report being given little weight. In fact the arbitrator placed less weight on the predictions made in the first report of Dr Dare and the then 20 month old report of Mr Slinger, because of their age. Given the duration of Mr Thomas' claimed problem, and given that the arbitrator's assessment was being made in 2014, it was open to him to place greater weight on more recent medical examinations and reports.
It is also apparent from his reasons that the arbitrator viewed Mr Slinger's conclusion of unfitness for any kind of employment as hyperbolic.
I have referred to the various certifications made of Mr Thomas from 21 September 2012 where his general practitioner certified Mr Thomas fit for restricted duties, at least until 28 November 2012. In June 2013 he was certified as fit to commence a return to work programme.
Mr Slinger reviewed Mr Thomas on 18 December 2012 and then provided his two reports dated 31 December 2012 some months prior to the last GP certification. In one of these reports as set out above, Mr Slinger gave the opinion that Mr Thomas:
•had been incapacitated from returning to his pre-accident occupation as a trades assistant;
•it was too early in his convalescence from injury to make any accurate assessment to his prognosis;
•however, unless there was some dramatic change in his symptomology, that restriction 'may well be a permanent one';
•'It is premature to make any accurate assessment as to prognosis other than to say that at the present time I believe that he is unfit for any form of employment';
•unless there is some dramatic improvement in the situation I believe that it is unlikely this man will return to any form of full‑time employment.
The arbitrator's reasons suggest scepticism about the dire nature of the conclusions reached by Mr Slinger, in circumstances where, notwithstanding his complaints, Mr Thomas went on to participate in work trials.
The arbitrator also placed greater weight on Dr Dare's conclusions about fitness for work. That was because of the breadth of Dr Dare's experience as an occupational physician. As the arbitrator said at [92],
Dr Dare is the only medical expert who unequivocally opined regarding Mr Thomas' fitness based on (Dr Dare's) experience and knowledge of the roles of a tradesperson in the workplace.
In my view, for the reasons he gave, the arbitrator was entitled to accept the opinions of Dr Dare and Dr Hardcastle over that of Mr Slinger. While in my view the arbitrator perhaps over‑emphasised the significance of Dr Dare's expertise as an occupational physician, it was not irrelevant. More important, in my view, is the fact that the opinions of Dr Hardcastle and Dr Dare are more comprehensive and more recent. The arbitrator's reasons, preferring their opinions, cannot be described as 'flawed'.
In addition to the express reasons given by the arbitrator, his earlier conclusions about Mr Thomas' evidence, and the claimed injuries to the left hand and arm and left foot and leg, were matters he was entitled to take into account. That assessment would weigh in the balance against any acceptance of the conclusions of Dr Slinger, which relied heavily on the acceptance of the history given by Mr Thomas.
For all of these reasons, like the arbitrator, I conclude that the respondent established on the balance of probabilities that Mr Thomas' circumstances had changed from the time of the original grant of compensation. In my view the evidence established that, on the balance of probabilities, Mr Thomas was no longer suffering from any incapacity arising from any work related injury from the 4 July 2012 incident.

Result

The submission of the appellant is that if I were to conclude that there was an error of law, including a failure to provide adequate reasons by the arbitrator, I should refer the matter back to be determined afresh by another arbitrator. That is because it is said that fact finding in this matter is best left to the arbitration service. In particular it was submitted that it was 'not appropriate' for this court to undertake a review of all the evidence. Further it was said that this court would not have 'the benefit of observing the manner and demeanour of the appellant when he gave testimony…'.
I do not accept those submissions. First, having reached the conclusion that a question of law was involved in this appeal with respect to ground 2, it has been necessary for me to conduct a review both of the arbitrator's decision and the evidence that was before him. I have done that. While I accept that the arbitrator's reasons for decision were deficient, in my view his decision was the correct one, justified by all the evidence before him.
Next, I have already referred to the express objects of the Act, which have the aim of trying to minimise expense to the parties, while providing dispute resolution that is 'fair, just, economical, informal and quick'. Section 247(7) expressly gives this court the power to '… substitute, and make in addition any decision that should have been made in the first instance'.
In my view no good purpose would be achieved by yet another hearing in front of a different tribunal. Had I reached a conclusion different from the arbitrator with respect to the credit to be given to the appellant's evidence, had I thought that the arbitrator had some particular advantage in that respect that I did not, my conclusion might be different. It is obvious however that the demeanour of the appellant when giving evidence was not sufficient to overcome the effect of a volume of contrary evidence, much of it objective or unchallenged.

While I grant leave with respect to ground 2, I will dismiss the appeal.