University of New South Wales v Labit
[2021] NSWPICPD 32
•7 October 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | University of New South Wales v Labit [2021] NSWPICPD 32 |
| APPELLANT: | University of New South Wales |
| RESPONDENT: | Heloise Labit |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-5423/20 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 7 October 2021 |
| ORDERS MADE ON APPEAL: | 1. The identity of the employer is amended wherever appearing to be “University of New South Wales”. 2. The Certificate of Determination dated 4 January 2021 is revoked. 3. The matter is remitted to another Member for re-determination, consistent with these reasons. 4. The respondent, no later than 7 days prior to the telephone conference which precedes the re-hearing, is to furnish the appellant, and to lodge with the Commission, written notice of the specific claims for compensation by way of weekly payments and medical expenses which she brings in these proceedings. |
| CATCHWORDS: | WORKERS COMPENSATION – Monetary threshold – s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; pleadings on ‘injury’ – s 42(3) of the Personal Injury Commission Act 2020; dealing with disputed expert evidence – Hume v Walton [2005] NSWCA 148, [69]; duty to give reasons |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Mr J Kambas, solicitor | |
| JFK Legal | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr P Young |
| DATE OF MEMBER’S DECISION: | 4 January 2021 |
INTRODUCTION AND BACKGROUND
Dr Heloise Labit (the respondent) worked with the University of New South Wales (the appellant) from September 2016 as a research fellow within the Business School. She became a lecturer in the Business School from May 2020. She stated that each of these roles involved “working primarily at the computer with a significant workload”. She stated that she developed occasional right wrist soreness from March 2019, and “constant symptoms in the hands and arms” by December 2019.[1] The appellant declined her claim for workers compensation, initially in a notice dated 10 February 2020 on the basis that she had failed to give notice and make the claim within the time limits in the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2] After having the respondent examined by Dr Reiter, a rheumatologist, the appellant declined liability in a further notice dated 23 March 2020.[3] On this occasion the appellant denied ‘injury’, ‘substantial contributing factor’ and whether the relevant condition resulted from injury. The respondent underwent conservative treatment and lost some time from work.
[1] Respondent’s statement 19/6/20, Application to Resolve a Dispute (ARD), p 1.
[2] ARD, p 4.
[3] ARD, p 6.
The current proceedings describe the claims brought as “Weekly benefits where liability in dispute” and “Medical expenses (where the amount is more than $9,468.10)”. The weekly claim pleaded in the Application to Resolve a Dispute (ARD) is for $317.74 per week from 17 August 2020 on a continuing basis. The pleaded claim in respect of medical and related expenses is for past costs of $2,521.24, together with a “carpal tunnel release operation and ongoing physiotherapy treatment”, estimated at “approximately $10,000”. The matter was listed for arbitration hearing on 14 December 2020. Mr Carney appeared for the respondent and Mr Macken for the appellant. Both legal representatives made submissions and the Arbitrator reserved his decision. A Certificate of Determination was issued on 4 January 2021, accompanied by 4 pages of reasons.[4] It provided:
“The findings of the Commission are as follows:
1. Award in favour of the [respondent] pursuant to section 37 of the Workers Compensation Act, 1987, as amended, (1987 Act) for weekly payments from 17 August 2020 to date and continuing.
2. Award in favour of the [respondent] being a general award with respect to section 60 expenses.
3. There having been no submissions on capacity and economic loss, nor the reasonable necessity of the proposed operative procedure, liberty is granted to the parties to apply in respect of these matters in the event that they cannot be resolved by the parties directly.
A brief statement is attached setting out the Commission’s reasons for the determination.”
[4] Labit v University of New South Wales [2021] NSWWCC 1 (the reasons).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant submits that there should be an oral hearing. It gives two reasons for this. The first is that, when the appeal and accompanying submissions were put on, transcript of the arbitration hearing was not available. The second is that the Arbitrator did not make “any identifiable finding as to injury”.[5] The appellant subsequently lodged further submissions dated 4 February 2021, following provision of transcript to the parties. The appellant’s submissions (both initially and following the transcript) pursue its argument that there was not an appropriate finding of injury. It does not identify what further submissions it wishes to make orally that have not been made in its written material. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
[5] Appellant’s submissions, [3].
TRANSITIONAL MATTERS
After the Arbitrator’s decision was issued, and after the current appeal was lodged, the Workers Compensation Commission of New South Wales was abolished.[6] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[7] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, and the Arbitrator in these proceedings became a member of the Personal Injury Commission. At the time of the arbitral decision the decision maker was an arbitrator, and I will refer to him by that title.
[6] Clause 3 of Div 2 of Pt 2 of Sch 1 to the 2020 Act.
[7] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met. There is an issue regarding whether the monetary thresholds in s 352(3) of the 1998 Act are satisfied. The appellant submits that the medical expenses and proposed medical expenses claimed exceed $12,500 without any consideration of weekly compensation.[8] The respondent submits that the monetary threshold of $5,000 is not met.[9] A delegate of the President issued a Direction dated 26 July 2021 directing the appellant to lodge submissions dealing with the monetary threshold. The appellant lodged submissions on this issue dated 27 July 2021. The respondent lodged submissions in reply dated 28 July 2021.
[8] Appellant’s submissions, [2].
[9] Respondent’s submissions, [2].
Appellant’s submissions
The appellant submits the respondent sought past treatment expenses of $2,521.24, together with the cost of proposed surgical treatment estimated at $10,000. It submits the ARD claimed weekly compensation of $317.74 per week from 17 August 2020. It submits the period from 17 August 2020 to the date of the Certificate of Determination was 20 weeks, the weekly entitlement over that period at the rate claimed was $6,354.80. The appellant submits the total amount at issue substantially exceeds the monetary threshold of $5,000.[10]
[10] Appellant’s submissions on monetary threshold, [1]–[5].
Respondent’s submissions
The respondent submits that the claim for weekly benefits and future surgery was “abandoned” at the telephone conference held in the matter. The Arbitrator’s reasons at [30] noted that no submissions were made relating to “weeklies and future surgery”. The respondent submits the “only claim litigated was for s 60 expenses and those were in monetary value well below the monetary threshold”.[11]
[11] Respondent’s submissions in reply, [1]–[5].
The statutory provision
Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
Consideration
Neither party refers to authority dealing with how s 352(3) should be dealt with in the circumstances. Both parties make submissions on the basis that whether the monetary threshold is met is to be determined by reference to the amount claimed in the proceedings. That figure is not free from doubt.
The appellant calculates the sum claimed on the basis of the claim as pleaded in the ARD (see [7] above). The respondent submits that the claims for weekly benefits and future treatment costs were withdrawn at the time of the telephone conference. On that basis, the respondent submits the only remaining claim before the Arbitrator was for past s 60 expenses of $2,521.24. A document that formed part of the Commission’s file headed “Teleconference Outcomes and Appearances” recorded that the same solicitors, who prepared the submissions relating to this appeal, also appeared for the parties at the telephone conference on 20 October 2020. The document recorded “Weeklies claim discontinued”. It recorded that “Medicals” remained in dispute. It did not specifically record whether the claim relating to future treatment was still being pursued. Those appearing on both sides of the record, during the running of the arbitration hearing, referred to the fact that weekly payments were no longer in issue.[12]
[12] Transcript 14/12/20 (T), T 3.33–4.1, T 32.27–32.28.
The appellant does not actually submit that the claim for future treatment, involving carpal tunnel surgery and related costs, was maintained at the time of the arbitration hearing; it simply calculates the value of the pleaded claim on the basis that that claim remained on foot. It could be observed that the appellant similarly, in its submissions on this appeal, calculated the value of the claim to include the weekly claim, although both legal representatives acknowledged at the arbitration hearing that this was not being pursued. Both parties were represented at the arbitration hearing by legal practitioners highly experienced in the jurisdiction.
Dr Bodel, the orthopaedic surgeon on whose opinion the respondent relied, in his medicolegal report dated 11 May 2020, dealt with the respondent’s need for further treatment in the following fashion:
“This lady needs the ongoing conservative treatment at the moment. She does appear to be making some progress.
The use of the night splints is very important.
I would consider the use of some anti-inflammatory medications at the periods when she is having the swelling which may also help. In the longer term if she does not settle, she will need to consider surgery but that does not appear to be indicated just at the moment.
It would be important for her to go back to see Dr Schick for further review as to ongoing medical management.”[13]
[13] ARD, p 57.
The respondent’s counsel quoted from this passage when addressing the Arbitrator.[14] The passage was clearly inconsistent with the successful pursuit by the respondent, at the arbitration hearing, of an order for the cost of carpal tunnel surgery. Neither of the legal representatives addressed the Arbitrator on the issue of an order pursuant to s 60(5) of the 1987 Act for the cost of future treatment. The way in which the parties conducted the arbitration hearing was consistent with acceptance of the respondent’s submission on appeal, that the claim for future surgery was not pursued.[15] The above would be sufficient, on a factual basis, to dispose of an argument that the respondent pursued a claim for relief at the arbitration hearing, beyond a claim for past medical expenses. However, there is a factor that is inconsistent with this conclusion, which is the orders made by the Arbitrator.
[14] T 8.5–15.
[15] See T 34.13–14.
The Arbitrator made a finding in the following terms:
“I am comfortably satisfied on the balance of probabilities, having regard to the [respondent’s] evidence and the medical opinion generally, that the [respondent] has suffered the condition identified by Dr Bodel, that her endeavours to return to work reflect correctly her capacity for work since 17 August 2020 and that she is entitled to an award for weekly payments as well as a general award with respect to section 60 expenses.”[16] (emphasis added)
[16] Reasons, [26].
The Arbitrator’s “Orders and Awards” (see [2] above) included an award for the continuing payment of weekly benefits at a rate that was not specified but was described as “quantum to be agreed or determined”. The third of those orders noted that there had been “no submissions on capacity and economic loss, nor the reasonable necessity of the proposed operative procedure” (emphasis added) and gave the parties liberty to apply. This was notwithstanding that the finding at [26] of the reasons, quoted in the preceding paragraph, was relevant to the quantification of weekly entitlement.
In Grimson v Integral Energy Fleming DP dealt with the satisfaction of the threshold in s 352(3) of the 1998 Act. The Deputy President said:
The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award.
The ‘... amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the Applicant.”[17] (emphasis in original)
[17] [2003] NSWWCCPD 29 (Grimson), [30].
This approach has been regularly applied in Presidential appeals subsequently.[18]
[18] See, for example, Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164, [17], NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63, [22]–[24] and the decisions cited therein, D’Er v Glemby International (Aust) Pty Ltd [2016] NSWWCCPD 42, [49].
The award for medical and related expenses made in the current matter is described in the Certificate of Determination as “a general award with respect to section 60 expenses”. There is doubt regarding the extent to which a general award for s 60 expenses satisfies the threshold in s 352(3) of the 1998 Act. It depends on the circumstances of the specific case, the extent to which the expenses the subject of the award were particularised or agreed and the extent to which they were the subject of specific findings regarding whether they were properly recoverable.[19] In Inghams Enterprises Pty Ltd v Grigor, dealing with the monetary threshold in s 352(3) of the 1998 Act, I said:
“There must be at least $5,000 at issue on the appeal, before it can be brought. The only order in the respondent’s favour was a general order for payment of s 60 expenses. That did not determine the entitlement of the respondent to the recovery of specific expenses. Potentially, if there was a proper evidentiary basis to do so, the appellant could dispute issues such as causation, and whether specific treatment was ‘reasonably necessary’. There is no agreement or schedule as regards the amount of the relevant expenses. There were no specific expenses the subject of the order. The evidence does not support the conclusion that ‘compensation at issue on the appeal’, pursuant to the general order for s 60 expenses, is at least $5,000.”[20]
[19] See the discussion in NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76, [84].
[20] [2017] NSWWCCPD 23, [29] (Grigor).
It is necessary that the Arbitrator’s reasons be read as a whole.[21] It would, in my view, be inappropriate to regard the award made by the Arbitrator as restricted to the general award for s 60 expenses only. This may have been the intention of the parties in terms of the matters litigated at the arbitration hearing, but it does not reflect the orders ultimately made. The Arbitrator pronounced a continuing award pursuant to s 37 of the 1987 Act for an unspecified sum, in circumstances where he made a finding relevant to one aspect of the quantification of the weekly entitlement and otherwise gave the parties liberty to apply. It appears likely that steps were taken to withdraw the claim for weekly payments at the telephone conference. Notwithstanding this, it is not possible to meaningfully deal with quantum of the award on that basis when the Arbitrator has subsequently made an ongoing award for weekly compensation (albeit unquantified) accompanied by liberty to apply.
[21] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443–444.
Section 42(3) of the 2020 Act requires that the Commission “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. The effect of the orders made by the Arbitrator was that the continuing weekly claim, and the claim for the cost of future medical treatment was reinstated into the claimed relief by the orders giving leave to apply. The general award pursuant to s 60 of the 1987 Act was not for a specific or identifiable monetary sum. The orders relating to weekly compensation and future medical treatment were not for the payment of monetary sums. The most appropriate way to assess whether the monetary threshold is met is, consistent with the passage of Grimson quoted at [17] above, to have regard to the claim as ultimately described by the Arbitrator, on the basis that no monetary orders were made. The claim the Arbitrator identified and sought to deal with was one for ongoing weekly compensation at $317.74 from 17 August 2020, the cost of future treatment approximated at $10,000, and past medical and related treatment in the amount of $2,521.24. These figures exceed the sum of $5,000.
The monetary threshold in s 352(3) of the 1998 Act is satisfied. Neither party submits that the matter is interlocutory.
THE GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) Error of law in making an award for the payment of compensation without making any finding as to injuries. (Ground No. 1)
(b) Error of law (denial of procedural fairness) in determining the matter on a basis not put by or to the parties. (Ground No. 2)
(c) Error of law in going beyond the matters, the subject of the application in determining liability. (Ground No. 3)
(d) Error of law and fact in failing to properly consider and weigh the evidence. (Ground No. 4)
(e) Failing to give adequate reasons. (Ground No. 5)
GROUND NO. 1
Error of law in making an award for the payment of compensation without making any finding as to injuries.
GROUND NO. 2
Error of law (denial of procedural fairness) in determining the matter on a basis not put by or to the parties.
GROUND NO. 3
Error of law in going beyond the matters, the subject of the application in determining liability.
Ground No. 2 deals essentially with whether it was open to the Arbitrator to make the finding of injury which he did, having regard to how the injury allegation was made. The outcome of Grounds Nos. 1 and 3 is to a significant extent dependent on the approach taken to Ground No. 2. It is convenient to consider these grounds together.
Appellant’s submissions
The appellant submits it was necessary that the Arbitrator make a finding as to ‘injury’ before making an award for the payment of compensation. It submits the Arbitrator “in particular” failed to make a finding as to any incident or any pathology resulting from it. It submits the allegation of injury was of an injury on one day,10 January 2020, and it was not open to the Arbitrator to ignore this “in purporting to come to a determination”. It submits the Arbitrator went beyond that allegation of injury on one day, which was an error of law.[22]
[22] Appellant’s submissions, [7]–[8], [10].
The appellant refers to the transcript of the arbitration hearing. It refers to its submission at the hearing that the respondent’s allegation was of “carpal tunnel syndrome of both hands and early ulnar neuritis on a specific day”.[23] It refers to its submissions before the Arbitrator that there were “doubts regarding any diagnosis” and “difficulties with making a finding of injury” in the circumstances. The appellant (with a little assistance from the Arbitrator) referred at the arbitration hearing to the decision in Lyons v Master Builders Association of NSW[24] as authority for the proposition that proof of injury involves “both incident and pathology arising from it”.[25] The appellant there submitted there was “nothing to support either of those propositions on the date alleged”.[26] The appellant submits that despite the reference to “the specific authority” the Arbitrator “makes no such finding”.[27]
[23] T 18.14–16.
[24] (2003) 25 NSWCCR 422.
[25] T 31.25–28.
[26] T 32.19–20.
[27] Appellant’s submissions following transcript, [2]–[3].
The Arbitrator, in his reasons at [24], referred to a submission by Mr Macken that the respondent’s pleading of ‘injury’, because a box in the ARD had not been ticked, did not raise an allegation of ‘disease’ pursuant to s 4(b) of the 1987 Act (described as the “pleadings issue”). This is more fully set out below. The Arbitrator gave five specific bases, in his reasons at [25], for rejecting this submission. The appellant’s submissions following receipt of the transcript take issue with the bases on which the Arbitrator rejected its submission on the pleadings issue. The dominant matter raised is that the ‘bases’ were not appropriately raised with the appellant during the arbitration hearing.[28] These matters are more fully set out below.
[28] Appellant’s submissions following transcript, [4]–[5].
The appellant refers to its submission before the Arbitrator that “[t]here’s no allegation of disease in the Application. There’s only a frank injury on 10 January 2020.”[29] It submits there was no application to amend the pleading of ‘injury’ and “the Arbitrator was constrained to determine the matter as pleaded”.[30]
[29] T 11.17–19.
[30] Appellant’s submissions following transcript, [6].
Respondent’s submissions
The respondent submits the Arbitrator made a finding of injury that was clearly set out at [26] of the reasons. She submits the incident and pathology were set out in the reasons at [21]. Dr Bodel’s diagnosis was set out in the reasons at [23] and was accepted in the factual finding of injury in the reasons at [26]. The respondent submits that the point about the pleading of injury was dealt with by the Arbitrator in detail in the reasons at [24] to [25] and the respondent relies on that reasoning.[31] The respondent submits the appellant knew the case that was being brought and that the evidence in the appellant’s case “addressed the real issue in dispute”. The respondent submits she amended her pleading to tick the box marked “deemed date” in the ARD before the parties’ submissions commenced.[32]
[31] Respondent’s submissions, [A1]–[A3].
[32] Respondent’s submissions, [B2], [C1].
The respondent submits the appellant’s submissions in respect of Ground No. 4 are contrary to the Workers Compensation Commission Rules 2011, which had application at the relevant time. She submits the Rules required that matters be dealt with “with the least amount of informality and in the cost effective way as possible [sic]”.[33] This submission was probably directed to s 3 and the former s 354 of the 1998 Act (see [40] below). Section 354 is otherwise dealt with below.
Consideration
[33] Respondent’s submissions following transcript, [1].
The appellant’s point regarding the pleadings
The Arbitrator’s reasons at [24] referred to a submission by Mr Macken:
“During submissions Mr Macken identified that the [respondent] had pleaded only one date of injury, namely 10 January 2020. It was suggested by him that references to section 4(b) (namely disease or aggravation of disease) are irrelevant because the [respondent] did not tick the box in the Application to indicate that 10 January 2020 was a deemed date of injury. It followed in Mr Macken’s submission that:
(a) Dr Schick in his report refers to the onset of symptoms in December 2019, not on 10 January 2020;
(b) the [respondent] needs to prove that this one day of exposure on 10 January 2020 was a substantial contributing factor to the [respondent’s] condition (section 4 (a));
(c) nerve conduction studies were entirely normal, whereas Dr Bodel assumes that these studies found something of significance;
(d) the physiotherapy report identified cubital tunnel syndrome as well as carpal tunnel syndrome. The former is not alleged;
(e) the doctors identified the initial onset of symptoms as March 2019, not 10 January 2020;
(f) the MRI of the [respondent’s] cervical spine pathology occurred before the date of the alleged injury (10 January 2020) and identified right cervical radiculopathy, and
(g) Dr Bodel’s opinion is highly predicated on allegations which are not alleged. He only examined the [respondent] through video conferences without the MRI report of the neck and without nerve conduction studies. Disease has not been alleged, therefore Dr Bodel’s conclusion is of no assistance.”
Of the above submissions, those at (c) and (d) go to the medical evidence, the balance are dependent for their significance on the appellant’s argument that the injury pleading was confined to injury pursuant to s 4(a) of the 1987 Act (injury simpliciter) occurring on 10 January 2020. The appellant submits that no other ‘injury’ finding was properly available.
The Arbitrator rejected the appellant’s submissions in this regard, giving the following reasons:
“I do not accept Mr Macken’s submissions concerning the pleadings for the following reasons. First, the Commission is not a court of strict pleading and the task of the Commission is to determine proceedings ‘with as little formality and technicality as the proper consideration of the matter permits’. Second, the [appellant] has always been aware that the disease allegation was a real prospect. Dr Reiter was actually asked by the [appellant] about disease and aggravation (etc) of disease so the [appellant] can hardly suggest that it was caught by surprise when faced with the [respondent’s] medical evidence. Third, there was absolutely no suggestion of any deficiency in the pleadings raised by the [appellant] at the teleconference on 20 October 2020. Four, as a matter of general principle the function of pleadings is to enable the parties to understand the nature of the allegations against them and I have little doubt that the [appellant] was fully aware of the potential breadth of the case pleaded by the [respondent]. Five, the [appellant] had ample opportunity to clarify the [respondent’s] failure to tick a box in the Application by requesting particulars in circumstances where the supportive evidence raised the suggestion of a disease allegation.”[34]
[34] Reasons, [25].
Did the respondent amend her pleadings to plead ‘disease’?
The respondent submits that at the arbitration hearing, before the submissions commenced, she amended the ARD to tick a box indicating she relied on a deemed date of injury, consistent with reliance on the ‘disease’ provisions (see [29] above). The transcript of the arbitration hearing does not record any such amendment being made orally. The Arbitrator, at the commencement of the transcript, recorded agreements between the parties regarding the tender of various late documents during the conciliation phase,[35] there is no recorded reference to amendment of the ARD.
[35] T 1.38–2.2.
Mr Carney, the respondent’s counsel, addressed first. He quoted at some length from the reports of Dr Bodel, including references to the “aggravation, acceleration, exacerbation and deterioration of the disease process [which] is caused by the nature and conditions of work, therefore, employment is a substantial contributing factor in the circumstance”.[36] Mr Carney relied on the ‘disease’ provisions. He submitted, referring to Dr Bodel’s reports:
“So clearly that was the correct test to apply, main contributing factor under section 4(b)(i) of the [1998] Act given that his assessment is in fact a disease condition.”[37]
[36] T 7.22–26.
[37] T 8.1–3.
Mr Macken, who addressed after Mr Carney, near the commencement of his submissions said:
“… at the telephone conference in this matter there was quite a degree of deliberation about whether the matter was ready to proceed. We obviously had a view about that but on the basis that there was to be no amendment to the Application to Resolve a Dispute I said that the [appellant] would be ready to proceed in that circumstance. Having indicated that the injury details are quite clear in the Application there is one date of injury and one date only. It is the 10th of January 2020. There is provision in the injury details in the form to indicate that that’s a deemed date of injury and it does not indicate that it’s a deemed date of injury so there is one day of injury relied on. That is the 10th of January 2020 and that is the case the [appellant] has come to meet … There has been no amendment to the Application. Now were it suggested that there was [an] attempt to amend the Application and I know that’s not happening, the medical reports would be but one consideration in that and far more importantly the [appellant] is entitled to respond to factual allegations as to what is alleged to have contributed to this work. At the moment there is a place of injury at work on the 10th of January 2020. That’s the allegation and we can meet that, not anything else so the references to 4(b)(i) and 4(b)(ii) are all, with respect, irrelevant.”[38]
[38] T 17.3–18.5.
Mr Carney, in reply, at one point said:
“It’s quite clear from all the evidence that this arose out of her use of [the] keyboard. It did not arise on one day. Clearly, my solicitor, for whatever reason forgot to tick the deemed box but to, to mount a submission like that in a case like this is, in my submission, against all the evidence from both sides.”[39]
[39] T 33.23–28.
The way in which the case was conducted was inconsistent with the submission that there was an amendment made, before submissions commenced, to tick a box in the ARD indicating that the date of injury was one deemed pursuant to the disease provisions. I reject that submission.
How the Arbitrator dealt with the ‘pleadings issue’
The effect of the Arbitrator’s reasons, quoted at [33] above, was that the Arbitrator considered the matter by reference to the ‘disease’ provisions of the 1987 Act, and made an injury finding accordingly, notwithstanding the appellant’s ‘pleadings issue’. The appellant submits the Arbitrator erred in this regard. Each of the reasons given by the Arbitrator in support of his approach is stated separately in his reasons at [25] and challenged separately by the appellant in its submissions. I will deal with the points in the same order.
First reason
The Arbitrator said that “the Commission is not a court of strict pleading and the task of the Commission is to determine proceedings ‘with as little formality and technicality as the proper consideration of the matter permits’” (referring to s 354 of the 1998 Act in its then form). The appellant submits no submission was made regarding s 354 and the respondent did not submit as to the requirement for strict pleading. This submission is made in the context of a ground that asserts there was error of law in determining the matter on a basis not put. The appellant refers to no authority on the issue. In Seltsam Pty Limited v Ghaleb Ipp JA (Mason P agreeing) after considering a number of authorities dealing with procedural fairness where a judge goes outside the submissions or agreement of the parties, said:
“These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.”[40]
[40] [2005] NSWCA 208; 3 DDCR 1, [78].
In Workers Compensation Nominal Insurer v Al Othmani Bathurst CJ (McColl JA agreeing) said:
“A decision or award based on a point not raised by the parties or by the Commission would constitute a denial of procedural fairness and be susceptible to challenge under s 353: Seltsam v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at [159]; Escobar v Spindaleri (1986) 7 NSWLR 51 at 60-61; Amaca Pty Limited v Doughan [2011] NSWCA 169 at [33].”[41]
[41] [2012] NSWCA 45; 10 DDCR 290, [75].
In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam Gleeson CJ said:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”[42]
[42] [2003] HCA 6; 214 CLR 1; 195 ALR 502; 77 ALJR 699, [37].
The appellant submitted at length to the Arbitrator that the consequence of the respondent failing to identify the alleged date of injury as a deemed date was that the respondent could not rely on the ‘disease’ provisions of the legislation.
The provision of the 1998 Act to which the Arbitrator referred in his first reason was s 354, subsections (1) to (3) of which provided:
“Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
Section 354 was repealed from 1 March 2021 on the commencement of the 2020 Act. Subsections (1) to (3) of the former s 354 are now found in the same form in s 43 of the 2020 Act, which deals with “Procedure before Commission generally”. Mr Carney described the appellant’s submissions on the “pleadings issue” as “against all the evidence from both sides”.[43] He submitted:
“… when one takes into account the fact that this is not a court of strict pleading, that all the evidence deals with this issue and only this issue. There is no evidence from either side that deals with what happened on a day and to suggest that is just incredible, in my submission.”[44]
[43] T 33.25–28.
[44] T 34.18–23.
The tenor of Mr Carney’s submissions in reply, on the “pleadings issue”, was to the effect that the case should be dealt with on the evidence overall, rather than by reference to the unticked box.[45] Contrary to the appellant’s submissions, the respondent’s counsel did submit that the Commission was not a court of strict pleading. The above principles of procedural fairness exist to prevent practical injustice. I do not accept the proposition that, in the circumstances of the case, procedural fairness required that the Arbitrator specifically raise with the appellant a procedural provision that had general application to “[p]roceedings in any matter before the Commission” (emphasis added). Section 354(1) of the 1998 Act (as it was at the time) was part of the legislative framework within which the Commission functioned on a day-to-day basis. This challenge relating to the first reason is without merit. The more general issue, regarding how the Arbitrator dealt with the injury argument in the face of the appellant’s ‘pleadings issue’, is dealt with in the discussion below dealing with the second reason.
Second reason
[45] T 33.13–34.23.
The Arbitrator said:
“Second, the [appellant] has always been aware that the disease allegation was a real prospect. Dr Reiter was actually asked by the [appellant] about disease and aggravation (etc) of disease so the [appellant] can hardly suggest that it was caught by surprise when faced with the [respondent’s] medical evidence.”
The appellant submits its awareness as to a disease allegation was not the issue; the respondent did not seek to amend the ARD. The disease allegation was inconsistent “with the pleading so far as it related to factual matters as well as the medical evidence”.[46]
[46] Appellant’s submissions following transcript, [4(b)].
The respondent submits the appellant knew the case that was being brought and all of the appellant’s evidence “addressed the real issue in dispute”.[47] The respondent’s counsel submitted that the appellant had an assessment and analysis of the respondent’s workstation. He put that the appellant had evidence from two medicolegal experts, Dr Reiter and Dr Edwards. He submitted that “all the evidence deals with this issue and only this issue”, referring to an injury over time rather than on a single day.[48] The respondent’s submissions also went to prejudice and whether the appellant could meet a ‘disease’ allegation.
[47] Respondent’s submissions, [B2].
[48] T 33.31–34.22.
The point the appellant seeks to make could be more clearly expressed. It appears to be that, whilst the absence of prejudice may have been relevant to an application by the respondent to amend the injury pleading, there was no such application. Rather, the appellant submits the Arbitrator dealt with the matter on the basis of the ‘disease’ allegation but on existing pleadings that raised only a frank incident. The appellant does not, in arguing this ground, rely on prejudice.
The appellant’s submission on this point is made in support of a ground alleging that these matters were not put by or to the parties, that it was denied procedural fairness. The Arbitrator, in the running of the arbitration, referred to the need to afford procedural fairness and also to the fact that “the Commission is not a court of strict pleadings”.[49] The appellant’s argument, relating to this second reason given by the Arbitrator, raises the issue of whether the Arbitrator erred in dealing as he did with the ‘disease’ allegation on the existing pleadings.
[49] T 11.26–30.
In Far West Area Health Service v Radford Fleming DP, dealing with the role of pleadings in the former Workers Compensation Commission of New South Wales, said that “[i]n the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties”. The Deputy President went on to say:
“There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties …”.[50]
[50] [2003] NSWWCCPD 10 (Radford), [24]–[25].
In South Western Sydney Area Health Service v Edmonds it was stated to be necessary that a party be afforded procedural fairness and notice of the case against it.[51]
[51] [2007] NSWCA 16; 4 DDCR 421, [90].
Tray Fit Pty Ltd v Cairney[52] was a claim for the cost of future surgery pursuant to s 60(5) of the 1987 Act, claimed in the Application as a spinal fusion at three levels. The employer argued that, as the Application pleaded a claim in respect of a three-level spinal fusion, the Arbitrator erred in ordering the cost of such a procedure at two levels (which the worker ultimately sought) which was inconsistent with the pleadings. Deputy President Roche referred to Radford, Fletcher International Exports Pty Limited v Barrow[53] and Aluminium Louvres & Ceilings Pty Ltd v Zheng,[54] saying that the Commission was “not bound by strict pleadings” and was “not expected to function as a court”. He referred to the Commission’s obligation pursuant to the former s 354 of the 1998 Act to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. The Deputy President described the employer’s argument as “unrealistic and artificial” and said that it “takes a technical and unreasonable approach to the matter that is inconsistent with binding authority and the clear objectives of the legislation”.[55]
[52] [2015] NSWWCCPD 2 (Cairney).
[53] [2007] NSWCA 244; 5 DDCR 247, [91].
[54] [2006] NSWCA 34; 4 DDCR 358, [25].
[55] Cairney, [41], [48].
The ARD in the current matter could be criticised for its failure to tick the box indicating that the alleged date of injury was a deemed date (consistent with ss 15 and 16 of the 1987 Act). The documents framing the dispute did not consist solely of that omission. They included the respondent’s claim form dated 7 February 2020, which described “What happened and how were you injured?” as “Progressive development with use of computer at work”. The claim form described the “date and time the injury/condition occurred?” as “progressive since March 2019”. The reason for a delay in reporting the injury was given as “Progressive development, symptoms worsened since December 2019”.[56] The respondent’s statement dated 19 June 2020, which was attached to the ARD, also described the onset of symptoms:
“I have symptoms of carpal tunnel and ulnar nerve entrapment on both sides, worse on the right side, since December 2019, which are affecting how many hours I can use the keyboard and mouse. I started feeling some soreness in my right wrist occasionally from March 2019 but it never affected my ability to work nor did it last more than a few hours at a time. In December 2019 I started to have constant symptoms in the hands and arms (e.g. numbness, pins and needles, constant pain, swelling) which affected my ability to work.”[57]
[56] Reply, pp 3–4.
[57] ARD, p 1.
The ARD included the report of Dr Brittain, the treating general practitioner, dated 12 February 2020. That report included:
“She has had right greater than left wrist and forearm pain and sensory changes which has [sic, have] developed with her computer work for UNSW. Onset was March last year [documented], first visit to me 31/12/2020 [sic, 2019].”[58]
[58] ARD, p 11.
The ARD included a “Workstation Assessment” report on the appellant’s letterhead dated 20 January 2020.[59] It recorded:
“… a 10-month history of pain in the right hand extending up to the forearm. Symptoms improved slowly over time and intermittent alternation of mouse use of the L hand assisted – although over time, similar symptoms developed in the left arm. Ms Labit Hardy has recently consulted with her treating doctor in December 2019 due to symptoms worsening in both limbs inclusive of pins and needles and numbness.”
[59] ARD, pp 33–42.
Dr Schick, the treating orthopaedic surgeon, first reported on 20 February 2020.[60] His report was attached to the ARD. He recorded:
“… bilateral hand and wrist pain currently worse on the right since last [D]ecember. Before this she just had some wrist intermittent wrist pain [sic].
She feels like it gets worse when she works more particularly with typing and she tells me it gets better when she is on holidays. The pain can bother her more at night and although the symptoms still come and go, the right side now always feels abnormal.”
[60] ARD, p 7.
The report of Dr Bodel, the orthopaedic surgeon qualified in the respondent’s case, dated 11 May 2020, was also attached to the ARD.[61] It recorded a history relating to injury:
“Dr Labit began to notice pain in the front of the right wrist in about March or April 2019. The pain initially was intermittent. It would go away and her hands would be okay.
With increasing workload throughout the calendar year of 2019 she had multiple flare ups of her pain, particularly in August and again in October. In mid-December 2019 the pain became unbearable.”
[61] ARD, pp 52–58.
The appellant relied on two doctors who it qualified for medico-legal purposes. Dr Reiter, a rheumatologist, reported on 15 March 2020[62] and her report is attached to the ARD. Dr Reiter’s history was of right wrist pain commencing on 1 March 2019 which was manageable and would settle with rest. The history recorded there was an increase in workload in December 2019 which the respondent associated with increased pain in the right wrist, together with pain affecting both elbows and radiating to the hands. Her symptoms became constant. Dr Edwards, a general surgeon, was also qualified by the appellant. His report dated 18 November 2020[63] was lodged under cover of an Application to Admit Late Documents dated 9 December 2020. He recorded a history of the onset of symptoms:
“Perhaps in March or April 2019 she noted occasional soreness in her right wrist. With increased work the discomfort worsened in December 2019. She said she noticed pin[s] and needles affecting the ulnar two fingers of her right hand. At the end of December 2019 she noticed diminished sensation affecting the thumb, index and middle finger of her right hand.
On ?31/12/19 she consulted her general practitioner Dr Brittain. She said that at the end of December she noted discomfort in both elbows at the medial and lateral aspects.” (emphasis in original)
[62] Reply, pp 7–13.
[63] AALD 9/12/20, pp 1–6.
Dr Reiter and Dr Edwards each considered the condition found to be unrelated to employment. Be that as it may, the histories they recorded were, like all of the others, patently not consistent with an allegation of injury occurring in a frank incident in January 2020.
When the ARD, including the material attached to it, is read as a whole, it is quite clear that the case brought by the respondent was not one involving an injury simpliciter pursuant to s 4(a) of the 1987 Act on 10 January 2020. The contrary view would involve a wilful misreading of the material. The respondent’s counsel’s common-sense submission was that his “solicitor, for whatever reason forgot to tick the deemed box”.[64] The stance adopted by the appellant was to announce that its readiness to proceed was dependent on there being no amendment to the ARD. It intimated that otherwise it would “be entitled to respond to factual allegations as to what is alleged to have contributed to this work”.[65] The appellant was on notice of the true nature of the respondent’s ‘injury’ allegation during the whole currency of the claim.
[64] T 33.25–26.
[65] T 17.2–18.1.
The approach taken by the Arbitrator in his reasons at [25], dealing with the ‘pleadings issue’, was economical but by and large correct. It was consistent with the approach taken in Cairney, and the authorities referred to in Cairney. It was consistent with the appropriate application of s 354 of the 1998 Act as it was at the time. This is subject to two matters that are referred to below.
Third reason
The Arbitrator said:
“Third, there was absolutely no suggestion of any deficiency in the pleadings raised by the [appellant] at the teleconference on 20 October 2020.”
The appellant refers to the transcript at p 17 (see [36] above). It submits that this matter was not put by or to it, and that it disagrees with it. The appellant submits that neither the respondent nor the Arbitrator disagreed with what it put on this topic, recorded at p 17 of the transcript. The appellant’s description at the arbitration, of what happened at the telephone conference, was brief and of a general nature. It submitted there was “quite a degree of deliberation about readiness”, and that it was ready to proceed providing there was no amendment.[66] It did not identify what perceived difficulty there was, if any, regarding the pleadings. Beyond that it is speculation.
[66] T 17.3–9.
The solicitors who appeared at the telephone conference are the authors of the submissions on this appeal. They and the Arbitrator participated in the telephone conference. The Arbitrator’s reasons state that the appellant did not raise a deficiency in the pleadings at the telephone conference. Mr Macken’s submissions at p 17 of the transcript do not specifically assert that such a deficiency was raised, although imply it.[67] The “Teleconference Outcomes and Appearances” document (see [11] above) contains no reference to deliberations regarding readiness or any reference to amendment of the ARD. This evidentiary conflict cannot be satisfactorily resolved on the material before me. It could probably have been avoided if the Arbitrator’s recollection of what occurred at the telephone conference was put to the legal representatives at the arbitration hearing.
Fourth reason
[67] T 17.4–9.
The Arbitrator said:
“Four, as a matter of general principle the function of pleadings is to enable the parties to understand the nature of the allegations against them and I have little doubt that the [appellant] was fully aware of the potential breadth of the case pleaded by the [respondent].”
The appellant submits that the function of pleadings was not the subject of specific submissions, nor raised with it, by the Arbitrator.[68]
[68] Appellant’s submissions following transcript, [4(d)].
In Banque Commerciale SA v Akhil Holdings Ltd Mason CJ and Gaudron J said:
“The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.”[69] (excluding references)
[69] [1990] HCA 11; 169 CLR 279 (Banque Commerciale SA), [18].
The Arbitrator’s observation about the general function of pleadings was simple, unobjectionable and generally consistent with the “basic requirement” described in Banque Commerciale SA. The appellant does not submit that it was erroneous. I do not accept that the Arbitrator was obliged, by principles of procedural fairness, to specifically raise a basic observation about practice and procedure which would surprise no one with any familiarity with litigation. The appellant’s submission on this point is unrealistic. The point of procedural fairness is to avoid “practical injustice”. The second part of the Arbitrator’s observation, that there was little doubt the appellant was fully aware of the potential breadth of the respondent’s case, is not a matter with which the appellant takes issue in its submissions on the point. The correctness of that observation is clear in any event, having regard to the material briefly summarised at [54] to [60] above.
The appellant is not assisted by its submissions dealing with the fourth reason.
Fifth reason
The Arbitrator said:
“Five, the [appellant] had ample opportunity to clarify the [respondent’s] failure to tick a box in the Application by requesting particulars in circumstances where the supportive evidence raised the suggestion of a disease allegation.”
The appellant submits this was not raised by the Arbitrator nor addressed by the appellant. The appellant submits that it requested particulars from the respondent’s solicitors by letter dated 7 October 2020 (including as to specific allegations of injury) and these were not provided.[70] There is no submission made to the contrary.
[70] Appellant’s submissions following transcript, [4(e)].
This was a factual matter on which it does not appear there were submissions or evidence. It would have been appropriate to raise the matter with the parties before making the comment.
Conclusion
A central issue in the appeal relates to the Arbitrator dealing with the ‘injury’ issue on its merits, on the basis of the ‘disease’ provisions, notwithstanding the difficulty in the pleadings identified by the appellant. The Arbitrator’s approach was consistent with the former s 354 of the 1998 Act which applied at the time. It was consistent with relevant authority. The Arbitrator’s approach to this issue was, in my view, clearly correct.
The two reasons, in respect of which I concluded above that the Arbitrator should have raised certain matters with the parties, went to what in the circumstances were minor, ancillary matters. These were whether particulars were requested and whether procedural difficulties were referred to at the telephone conference. The Arbitrator referred to these things, which may have reinforced his reasoning. The correctness of the view expressed at [25] of the reasons was not dependent on these two aspects of the procedural background. These two factual points could not, on a proper analysis, affect the result. It follows that the errors I have identified in respect of the third and fifth reasons could not affect the outcome and do not constitute appealable error.[71] It follows that Ground No. 2 does not succeed.
[71] Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, [10], Boral Besser Masonry Ltd v Jabarkhill, [1999] NSWCA 476; 19 NSWCCR 227, [10].
Ground No. 1 is based on the premise that the Arbitrator did not make a valid finding of injury, because his finding did not relate to “any incident or any pathology resulting from it”, referring to “injury on one day only being the 10 January 2020”.[72] This submission is deprived of force by the conclusion that the Arbitrator’s approach to the proof of injury and the ‘pleadings issue’ was a correct one. The respondent correctly submits that an injury finding was made at [23] and [26] of the reasons.[73] Ground No. 3 similarly is based on the proposition that the Arbitrator erred in law in going beyond the allegation that injury was suffered on a single day, 10 January 2020.[74] The discussion above is sufficient to dispose of Grounds Nos, 1, 2 and 3, which do not succeed. Although the appellant’s attack on the ‘injury’ finding, argued in Grounds Nos. 1, 2 and 3, is unsuccessful, the above should be read subject to the discussion below dealing with Grounds Nos. 4 and 5.
GROUND NO. 4
Error of law and fact in failing to properly consider and weigh the evidence.
GROUND NO. 5
[72] Appellant’s submissions, [7]–[8].
[73] Respondent’s submissions, [A2].
[74] Appellant’s submissions, [10].
Failing to give adequate reasons.
These grounds go to the adequacy of the Arbitrator’s consideration of the competing medical views and his associated reasons. It is convenient to deal with them together.
Appellant’s submissions
The appellant submits the Arbitrator failed to disclose the basis on which he preferred the views of Dr Bodel to those of Dr Reiter and Dr Edwards. It submits the Arbitrator has not given adequate reasons for coming to his determination. It submits there are no reasons given by way of analysis of the report of Dr Edwards. It refers to the reasons at [26] to [27].[75] It submits that lengthy submissions were made dealing with the medical evidence (referring to the transcript at pages 18 to 27 and 30 to 32). It submits the Arbitrator failed to engage with the case presented by the appellant and the evidence on which it relied. It submits the Arbitrator failed “to exercise his statutory duty to fairly and lawfully determine the dispute”.[76] It refers to the decision of Keating P in NSW Police Force v Newby.[77]
[75] Appellant’s submissions, [11]–[12].
[76] Appellant’s submissions following transcript, [7]–[8].
[77] [2009] NSWWCCPD 75 (Newby).
Respondent’s submissions
The respondent submits the medical evidence, including that of Dr Edwards, was considered in the reasons at [11] to [23]. She submits the reasons weighed up the medical evidence adequately, referring to Mifsud v Campbell.[78] She submits the Commission is an expert tribunal and the reasons were “adequate for the parties to know what decision was reached and why”. It is submitted the reasoning process regarding what medical evidence was accepted was “fully set out”.[79]
[78] (1991) 21 NSWLR 725 (Mifsud).
[79] Respondent’s submissions, [D1], [E1].
Consideration
The appellant refers to the summary of principle in the decision of Keating P in Newby. His Honour there said:
“149. To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).
150. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
151. When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443-444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
‘If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.’”[80]
[80] Newby, [149]–[151].
The Arbitrator summarised the respondent’s history and associated medical treatment in the reasons at [11] to [17]. This included reference to the workplace assessment arranged by the appellant in January 2020 and to the associated recommendations, for matters such as work breaks, exercises, correct workstation set up and an adjustable keyboard.[81]
[81] Reasons, [17].
The Arbitrator dealt with Dr Reiter’s report in his reasons at [18] to [22]. This included reference to the history taken and the reduction in the respondent’s working hours by the time she saw Dr Reiter. The Arbitrator noted Dr Reiter agreed with Dr Schick’s diagnosis that the respondent suffered from “bilateral elbow medial epicondylitis and bilateral ulnar impingement at the elbow and right carpal tunnel syndrome”. The Arbitrator referred to the doctor’s report in which she referred to a number of scientific studies and her conclusion that the respondent’s keyboard work was “not associated with any increased risk” of the diagnosed conditions.[82] The Arbitrator then spelled out reasons for why he did not accept Dr Reiter’s opinion. These were:
(a) The studies on which the doctor relied were based upon scientific research studies and the scientific standard of proof is higher than the civil standard;[83]
(b) Dr Reiter’s opinion did not take proper account of the respondent’s account of “suffering pain whilst keying”, and
(c) the studies did not deal with the question of whether the work duties aggravated any underlying disease.[84]
[82] Reasons, [21].
[83] Reference was made to an article by Eggleston J, ‘Probabilities and Proof’, Melbourne University Law Review (1963). (It is also consistent with EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 and many associated authorities.)
[84] Reasons, [22].
The Arbitrator dealt with Dr Bodel’s report dated 11 May 2020 in his reasons at [23]. He referred to the doctor’s opinion that the respondent suffered from “an underlying constitutional condition which was aggravated, accelerated, exacerbated and deteriorated by her work”. Dr Bodel said the respondent’s “keyboard and mouse work was the main contributing factor” in this regard.[85]
[85] Reasons, [23].
The Arbitrator made factual finding in the reasons at [26] to [27]:
“26. I am comfortably satisfied on the balance of probabilities, having regard to the [respondent’s] evidence and the medical opinion generally, that the [respondent] has suffered the condition identified by Dr Bodel, that her endeavours to return to work reflect correctly her capacity for work since 17 August 2020 and that she is entitled to an award for weekly payments as well as a general award with respect to section 60 expenses.
27. I have recorded the [appellant’s] submission in relation to the opinion of Dr K Edwards[86] as being that Dr Edwards did not have a history from the respondent consistent with what was alleged in the Application. Be that as it may, I have outlined in the prior section the matters which this Commission regards as important in terms of any focus on strict pleadings in this particular matter.”
[86] Report Dr K Edwards 18 November 2020 attached to AALD dated 9 December 2020.
The reliance on the “medical opinion generally” is unhelpful. Dr Brittain, the respondent’s general practitioner, was apparently supportive of her situation but did not express a clear opinion on causation, other than referring to “the progressive nature of the ailment”.[87] Dr Bodel referred to causation:
“This lady’s clinical condition is the carpal tunnel syndrome which is primarily a constitutional ailment. The ‘injury’ here is the aggravation, acceleration, exacerbation and deterioration of that constitutional ailment caused by her work, particularly the repetitive typing and the use of the mouse.”[88]
And:
“I am satisfied that her particular position as a research fellow with the extensive keyboard work and the use of the mouse is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to this condition.”[89]
[87] ARD, pp 11–12.
[88] ARD, p 56.
[89] ARD, p 57.
How the Arbitrator dealt with Dr Reiter’s opinion is discussed above. The Arbitrator made the point that the studies on which the doctor relied did not deal specifically with the issue of aggravation. Dr Reiter herself did proffer an opinion on that issue in response to a specific question:
“Her employment is not a contributing factor to the cause or aggravation of any such disease or condition.”[90]
[90] ARD, pp 50–51.
The reasons did not give any reason for the rejection of Dr Reiter’s opinion on the issue of aggravation, nor for why Dr Bodel’s opinion on the issue was apparently preferred.
Dr Edwards reported on 18 November 2020 at the request of the appellant. The doctor said he could not “find any convincing evidence to support a diagnosis of carpal tunnel syndrome at today’s examination”. He said the respondent did “not appear to have any medial or lateral epicondylitis”. He said that “[a]part from some slight tenderness over the right carpal tunnel, there is nothing to find on examination. She may have a left ulnar nerve irritation at the elbow”.[91] The doctor concluded:
“I note Ms Labit’s job includes the use of a computer. I am unable to attribute her current symptoms to the use of a computer. I do not consider she has suffered any injury in the course of her employment.”
And:
“In my opinion her employment is not a substantial contributing factor to any injury, nor is a factor in the aggravation or acceleration of any underlying injury.”[92]
[91] AALD 9/12/20, p 5.
[92] AALD 9/12/20, pp 5–6.
There was a clear conflict of medical opinion. Dr Bodel regarded the respondent’s condition as constitutional but considered it had been aggravated by the respondent’s work with the appellant. Dr Reiter and Dr Edwards also considered the respondent’s condition was not caused by her work, but additionally rejected the proposition that work had relevantly aggravated it. If Dr Bodel’s opinion was accepted on causation, the respondent was entitled to succeed on the issue of ‘injury’ on the basis of s 4(b)(ii) of the 1998 Act. If the opinions of Dr Reiter and Dr Edwards were accepted, she was not. In Hume v Walton McColl JA said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”[93]
[93] [2005] NSWCA 148, [69].
The reasons did not comply with this duty. The Arbitrator gave reasons for why he did not accept that part of Dr Reiter’s opinion which relied on scientific studies, in part because the studies did not concern themselves with the issue of aggravation (see [83] above). Dr Reiter additionally opined that employment was not a contributing factor to any aggravation (see [87] above). The Arbitrator referred to the fact that Dr Reiter was asked about “disease and aggravation (etc) of disease”,[94] but did not refer to her opinion on the issue nor to why he did not accept it. The Arbitrator’s preference for the opinion of Dr Bodel over that of Dr Reiter on the aggravation issue was essentially unexplained.
[94] Reasons, [25].
The only reference to the report of Dr Edwards in the reasons is that at [27], where the Arbitrator refers to recording a submission from the appellant that Dr Edwards’ history was not “consistent with what was alleged in the Application”. This appears to be a reference to the following submission by Mr Macken:
“And the last thing of significance obviously, Arbitrator, is the report of Dr Edwards. Dr Edwards, again, is given the history that is not consistent with what is .. (not transcribable 0.51.37).. in the Application. That is problems going back to March and particularly in December.”[95]
[95] T 30.11–16.
The Arbitrator dealt with the above submission in the reasons at [27] on the basis that it was a reference to the ‘pleadings issue’. The reasons do not otherwise refer to Dr Edwards’ report. The appellant’s submissions on Dr Edwards relied on other matters. There was reference to Dr Edwards’ discussion of the MRI of the cervical spine that was carried out and to the doctors’ view that he could not find evidence of carpal tunnel syndrome on examination. The appellant addressed on Dr Edwards’ opinion that the respondent’s condition “has nothing to do with the work activities at university”.[96] The reasons did not deal in any meaningful way with the evidence of Dr Edwards. They did not “enter into the issues canvassed” and explain why the Arbitrator preferred the respondent’s medical case over that relied on in the appellant’s case.
[96] T 30.17–24.
Grounds Nos. 4 and 5 succeed.
CONCLUSION
It is appropriate that the matter be remitted for re-determination by another Member. This is regrettable given the sums at issue. The situation is complicated by the confusion regarding what relief was ultimately claimed. To the extent to which the claims in respect of future medical treatment and weekly compensation were pursued, those issues were not the subject of quantified awards and were the subject of liberty to apply. They have not been the subject of submissions on the appeal. The purported award for weekly compensation was not in a form which could be satisfied by an employer, no figure having been awarded.
The approach taken by the Arbitrator to the ‘pleadings issue’ which the appellant raised was a correct one, and that issue should not be agitated again.
ANOTHER MATTER
Telephone conferences are not ordinarily recorded. It has been said repeatedly, in Presidential decisions, that where there are amendments made or foreshadowed, issues narrowed, concessions made or other procedural developments of significance, these should be recorded. It will generally be sufficient if such matters are simply read onto the transcript, with the consent of the parties, so that there is a record of what transpired. The task of dealing with this appeal, particularly on the contested issue of the monetary threshold, was frustrated by the absence of any reliable record of such matters and by differing versions of what happened.
DECISION
The Certificate of Determination dated 4 January 2021 is revoked.
The matter is remitted to another Member for re-determination, consistent with these reasons.
The respondent, no later than 7 days prior to the telephone conference which precedes the re-hearing, is to furnish the appellant, and to lodge with the Commission, written notice of the specific claims for compensation by way of weekly payments and medical expenses which she brings in these proceedings.
Michael Snell
DEPUTY PRESIDENT
7 October 2021
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