Uprety v Serco Australia Pty Ltd
[2020] WADC 53
•5 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: UPRETY -v- SERCO AUSTRALIA PTY LTD [2020] WADC 53
CORAM: WALLACE DCJ
HEARD: 15 JANUARY 2020
DELIVERED : 5 MAY 2020
FILE NO/S: APP 68 of 2019
BETWEEN: DEEPAK UPRETY
Appellant
AND
SERCO AUSTRALIA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR MOSS
File Number : A58172
Catchwords:
Worker's compensation - Appeal - Whether appellant entitled to raise new argument on appeal - Whether arbitrator invoked burden of proof - Rule 30(2) of the Workers' Compensation and Injury Management Rules 2011 - Whether arbitrator's preference of medical evidence manifestly unreasonable - Whether arbitrator erred by relying on medical reports in absence of oral evidence - Whether arbitrator erred by failing to take into account appellant's evidence of symptoms
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal refused and appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr E J Myers & Mr P J Griffin |
| Respondent | : | Mr J J Sheldrick & Ms E M McGrory |
Solicitors:
| Appellant | : | Peter J Griffin & Co |
| Respondent | : | Hall & Wilcox (Perth) |
Case(s) referred to in decision(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Coulton v Holcombe (1986) 162 CLR 1
Davison v Vickery's Motors Limited (In Liq) (1925) 37 CLR 1
Dunsmuir v New Brunswick [2008] 1 SCR 190
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Holcombe v Coulton (Unreported, NSWCA, 25 June 1985)
House v The King (1936) 55 CLR 499
Lesley McMahen v Alcoa World Alumina (Unreported, C26-2009, 23 December 2009)
Metwally v University of Wollongong (1985) 60 ALR 68
Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
O'Brien v Komesaroff (1982) 150 CLR 310
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
RFD Ltd v Harris [2008] WASCA 87
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Saffron v Societe Miniere Cafrika (1958) 100 CLR 231
Saldanha v City of Belmont [2018] WASCA 7
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491
WALLACE DCJ:
On 6 February 2017, whilst the appellant, Mr Deepak Uprety, was employed as a domestic assistant/cleaner with the respondent, Serco Australia Pty Ltd, he suffered an injury to his neck. He made a claim under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act). The respondent accepted liability and commenced weekly compensation payments to the appellant.
In November 2018, the respondent sought to discontinue the weekly compensation payments pursuant to s 61(1) of the WCIM Act by serving on the appellant a Form 5 notice based on two medical reports prepared by Dr Low dated 14 January 2018 and 10 May 2018.[1]
[1] Respondent's book of documents dated 15 May 2019, pages 1 ‑ 9 and pages 14 ‑ 16.
On 1 February 2019, the appellant filed an application for arbitration (Arbitration) pursuant to s 61(3) of the WCIM Act seeking an order that weekly payments not be discontinued. By decision dated 15 August 2019, a WorkCover WA arbitrator (Arbitrator) dismissed the application and pursuant to s 61(4) of the WCIM Act ordered that weekly payments of compensation be discontinued with immediate effect (Decision).
The appellant appealed the Decision with this court by filing an appeal notice on 3 September 2019. The appellant raised three questions of law:
1.Does the appellant or the respondent bear the burden of proof in an application under s 61(3) of the WCIM Act?
2.Did the Arbitrator err in law by denying the appellant a fair hearing pursuant to s 188 of the WCIM Act by refusing leave to admit the reports of Dr Cooke dated 31 January 2019 and 27 March 2019?
3.Was the Arbitrator's decision to prefer the evidence of Dr Low to the evidence of Dr Hussain, Dr Ozanne and Dr Bala, as the basis for dismissing the application, not reasonably open?
For the reasons which follow, I would refuse leave to appeal in respect of each ground of appeal and dismiss the appeal.
Background facts
On 5 January 2015 the appellant began working with the respondent at Fiona Stanley Hospital as a domestic assistant/cleaner.
On the afternoon of 6 February 2017, whilst mopping the floor, the appellant was walking backwards and struck the back of the right side of his head against an overhead monitor. He felt pain at the back of the right side of his head and neck and stopped work for several minutes but then continued working until the conclusion of his shift. The monitor glass was not broken and the appellant did not suffer nausea or vomiting, visual changes or loss of consciousness.[2]
[2] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 3.
However, the following day the appellant woke up with severe pain in the head, neck and right shoulder and he attended work and reported the incident to his supervisor.[3]
[3] Arbitrator's Decision [81] and [96].
On 7 February 2017 the appellant was examined by Dr Townsend who diagnosed minor whiplash/right cervical muscle strain from combination flexion and left lateral flexion movement to the neck from the head impact. In respect of management of the injury Dr Townsend noted:[4]
Reassured low-level injury. Should resolve in several days of relative rest, simple analgesia, heat packs and self‑stretches. Gentle movement encouraged as static positions will likely aggravate. No indications for physio referral at present given low impact mechanism of injury.
[4] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 4.
The appellant returned to work but was certified for light duties. The appellant gave evidence before the Arbitrator that during this time he had to take pain relief tablets and use heat packs and patches to ease his neck pain.[5]
[5] Arbitrator's Decision [81(p)].
The appellant was referred for physiotherapy following the injury and also for exercise rehabilitation.[6]
[6] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 118.
The appellant had an MRI of his cervical spine and right shoulder on 20 April 2017 which showed no significant abnormality in the appellant's right shoulder although it did identify evidence of a previous injury.[7]
[7] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 77.
On 21 April 2017 the respondent's insurer issued a notice pursuant to s 57A(1) of the WCIM Act identifying the appellant's injury as 'neck strain' and which accepted liability at the rate of $1,201.07 gross per week for the first 13 weeks of incapacity and thereafter at the rate of $1,082.99 per week (to be paid by the respondent).[8] The rate of pay increased to $1,188.89 around 14 September 2018 pursuant to the relevant Enterprise Bargaining Agreement.[9]
[8] Respondent's book of documents for Arbitration dated 15 May 2019, page 114.
[9] Respondent's book of documents for Arbitration dated 15 May 2018, page 115.
On 15 March 2018 the appellant was given a cortisone injection in his right shoulder.[10]
[10] Appellant's amended book of documents for Arbitration dated 15 May 2019, page 78.
Then on 25 May 2018 the appellant attended for an MRI on his right shoulder and trapezius which again showed the previous shoulder injury but no significant abnormality.[11]
[11] Appellant's amended book of documents for Arbitration dated 15 May 2019, page 78.
On 10 August 2018 the appellant had an MRI of his cervical spine which showed:[12]
Mild changes of cervical spondylosis, most prominent at C5/6 where there is mild disc degeneration with a shallow 2.5 mm central posterior disc-osteophyte complex with associated annulus fissuring. This indents the ventral theca and abuts the ventral cord surface. There is no evidence of a significant soft tissue protrusion or nerve root compression.
[12] Appellant's amended book of documents for Arbitration dated 15 May 2019, page 56.
In respect of the MRI, the referring doctor, Dr Paul Khoo, noted 'I have reassured him that his MRI scan does not show a significant disc prolapse. I have asked for another opinion from a neurosurgeon, Dr Arul Bala'.[13]
[13] Respondent's book of documents for Arbitration dated 15 May 2019, page 20.
On referral, Dr Bala noted:[14]
An MRI scan looks quite pristine. There is no significant neural compression.
[14] Respondent's book of documents for Arbitration dated 15 May 2019, page 21.
On 24 August 2018, the appellant's general practitioner, Dr Hussain, referred him for counselling as the appellant had been 'suffering with anxiety, which is related to work related stress and chronic pain'.[15]
[15] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 62.
On 22 November 2018 the respondent issued its notice pursuant to s 61(1) of the WCIM Act notifying the appellant that the respondent intended, after 21 days from date of service of the notice, to discontinue the appellant's weekly payments. The notice was based on the reports of Dr Low which evidenced that the appellant had recovered from his compensable injury.
The appellant lodged his application to commence proceedings at WorkCover WA on 3 December 2018.
On 24 December 2018 the appellant was reviewed by Dr Hussain who commenced the appellant on Celebrex, an analgesia. The appellant was also continuing to use Panadol and Panadeine. Dr Hussain in his progress report noted 'ongoing neck and right trapezius pains' and reported that the appellant would benefit from physiotherapy and that he was awaiting a pain management specialist assessment.[16]
[16] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 103.
On 26 December 2018 the appellant attended the emergency department at Fiona Stanley Hospital due to pain being experienced in his neck, head and right shoulder. The appellant was prescribed Tapentadol. He was also advised to consider referral to a pain service and to a physiotherapist/chiropractor and otherwise was discharged.[17]
[17] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 105.
The appellant attended the Painless Clinic for review by Dr Nicholas Cooke on 31 January and 27 March 2019. The appellant was prescribed medication for pain relief.[18]
[18] Annexures DU1 and DU2 to the affidavit of the appellant sworn 17 December 2019.
Decision of the Arbitrator
The hearing took place before the Arbitrator on 29 May 2019. The appellant gave oral evidence. In addition the Arbitrator had the benefit of a variety of medical reports as follows:
(a)the reports of Dr Low dated 14 January 2018 and 10 May 2018 and 7 May 2019;[19]
(b)the reports of Dr Hussain dated 24 August 2018, 11 September 2018, 20 November 2018, 25 January 2019 and 20 February 2019;[20]
(c)the reports of Dr Khoo dated 7 March 2018, 7 May 2018, 12 June 2018 and 27 August 2018;[21]
(d)the report of Dr Bala dated 11 September 2018;[22] and
(e)the report of Dr Ozanne dated 18 October 2018.[23]
[19] Respondent's book of documents for Arbitration dated 15 May 2019, pages 1 ‑ 9, pages 14 ‑ 16 and pages 23 ‑ 35.
[20] Appellant's amended book of documents for Arbitration dated 27 May 2019, pages 62, 67, 97, 108 and 109.
[21] Respondent's book of documents for Arbitration dated 15 May 2019, pages 10 ‑ 11, pages 12 ‑ 13, pages 17 ‑ 18 and pages 19 ‑ 20.
[22] Respondent's book of documents for Arbitration dated 15 May 2019, pages 21 ‑ 22.
[23] Appellant's amended book of documents for Arbitration dated 27 May 2019, pages 74 ‑ 88.
The Arbitrator also had the benefit of the following:
(a)a number of progress certificates issued in respect of the appellant dated from 7 February 2017 ‑ 23 May 2019;[24] and
(b)the report of Ms Ainsley Hewett, psychologist, dated 17 December 2018.[25]
[24] Appellant's amended book of documents for Arbitration dated 27 May 2019, pages 3 ‑ 115.
[25] Appellant's amended book of documents for Arbitration dated 27 May 2019, page 102.
This documentary evidence is summarised at [21] ‑ [80] of the Arbitrator's Decision and the appellant's evidence at [81] ‑ [83].
As to the nature of the injury suffered by the appellant on 6 February 2017, the Arbitrator found:[26]
[26] Arbitrator's Decision [95] ‑ [105].
I find that whilst Mr Uprety was walking backwards and mopping the floor he struck the back of the right side of his head against an overhead glass monitor. I find that on being struck he felt pain the back of the right side of his head and neck. I find that he stopped work for several minutes but then continued working until the end of his shift. I find that the next day he awoke with severe pain in the head, neck and right shoulder and he reported the incident at work.
I accept Dr Low's opinion that the injury sustained by Mr Uprety on 6 February 2017 was a minor strain/minor soft tissue injury to the cervical spine.
This is supported by the contemporaneous medical evidence, being the first certificate of capacity issued by Dr Townsend the day after the injury, diagnosing Mr Uprety with minor whiplash/right cervical muscle strain.
Further it is supported by the MRI scan of the cervical spine and right shoulder conducted on 20 April 2017 which showed no specific abnormality although it identified evidence of a previous right shoulder injury.
…
I note that in addition, Dr Ozanne considered that Mr Uprety had sustained secondary symptomatic spondylosis/osteoarthritis and secondary adjustment reaction with symptoms of depression, anxiety and stress.
In respect of Dr Ozanne's opinion Mr Uprety had suffered secondary symptomatic spondylosis/osteoarthritis he attributes this to the change in the MRI scans of the cervical spine. That is the 20 April 2017 scan there was no signs of degeneration whereas in the 10 August 2018 there were. As a matter of logic I am not persuaded that this change must therefore have been caused by the accident on 7 February 2017.
I prefer Dr Low's opinion as to the secondary injuries, which are to be found in his third report. Namely that the mild cervical spondylosis seen on the MRI (that being the MRI of 10 August 2018) was within normal limits, and he notes that is supported by the report of the treating neurosurgeon (ie Dr Bala). Further Dr Low comments that the mechanism of injury described and the forces likely to be involved did not load the spine to a material extent.
In respect of Dr Ozanne's opinion that Mr Uprety suffered secondary adjustment reaction with symptoms of depression, anxiety and stress this seems contrary to his observations that Mr Uprety 'did not appear depressed'. Further given that Dr Ozanne did not administer mental health questionnaires due to language barriers, it is not clear to me how he concluded that Mr Uprety suffered secondary adjustment reaction. There is an absence of any evidence to support Mr Uprety's self‑reported symptoms.
I prefer Dr Low's opinion that the physical injury was minor in extent and not significant enough to cause Mr Uprety's self‑reported psychological symptoms and dysfunction. I accept the logic of Dr Low's conclusion here.
In relation to the appellant's ongoing pain the Arbitrator noted:
Whilst I conclude that Dr Ozanne was of the opinion that these 'abnormal pain and behaviours' and 'pain focus/pain hypersensitivity' were caused by the injury on 6 February 2017, he does not set out his reasoning as to why this is the case.
I conclude that whilst Mr Uprety has reported pain, there is insufficient evidence before me to establish that his pain, whether it is described as 'abnormal pain behaviour' or 'pain focus/hypersensitivity', is as a consequence of the compensable injury.
In this regard I prefer Dr Low's opinion as to Mr Uprety's 'very bad pain' which is that there is no significant or specific pathology identified on history, examination or numerous investigations that would account for the level of pain reported by Mr Uprety more than two years after the injury and I so find.[27]
[27] Arbitrator's Decision [113] ‑ [115].
In relation to the central issue as to whether the appellant had ongoing incapacity as a result of the injury he sustained on 6 February 2017 the Arbitrator found:[28]
[28] Arbitrator's Decision [120] ‑ 132].
Dr Ozanne and Dr Low are the only doctors to express views in respect of causation, and they have opposing views in this regard.
Both doctors' reports are based on an examination of Mr Uprety and a very comprehensive consideration of various medical documentation including the radiological evidence and the reports of other doctors, including Dr Khoo, Dr Bala, Dr Hussain and each other's reports.
Both doctors were cognisant of Mr Uprety's earlier shoulder surgery and further they both took into account that Mr Uprety reported being asymptomatic leading up to 6 February 2017.
It really comes down to which one I prefer.
On the one hand Dr Ozanne is of the opinion that Mr Uprety's current symptoms are caused by the work injury. Whereas in Dr Low's view his work injuries have resolved and no longer result in any loss of capacity for his pre‑injury role.
…
As a matter of logic, given that the physical injury was minor in extent and the fact that there is no significant or specific pathology identified on history, examination or numerous investigations, I am persuaded by Dr Low's opinion that the work injuries are resolved. On the other hand Dr Ozanne fails to explain why Mr Uprety has ongoing symptoms some years after a minor accident. This is the weakness in Dr Ozanne's opinion and the reason why I am not persuaded by it.
Dr Low expresses a clear opinion in his reports that Mr Uprety's injuries resulting from the accident on 6 February 2017 have fully resolved and I so find.
…
As a matter of logic I am persuaded by Dr Low's opinion that the findings on clinical examination along with the symptoms and complaints were widespread and non‑specific, and that they were not compatible with a mechanism of injury described, the forces likely to be involved (minor) and the expected natural progress of a possible minor soft tissue injury sustained in the manner described by Mr Uprety.
Dr Low opines, and I accept that there was no significant or specific pathology identified on history, examination or numerous investigations undertaken to account for the level and extent of his pain and disability more than two years post-minor precipitating event.
He opines, and I accept, that Mr Uprety's complaints and symptoms are inconsistent with the nature and extent of the work injury described by Mr Uprety. I accept that Dr Low is unable to provide a diagnosis, based on specific and objective pathophysiology, to account for Mr Uprety's symptoms.
After considering the merits of the medical evidence, I am satisfied that the evidence establishes that Mr Uprety's incapacity is no longer a result of the compensable injury.
The Arbitrator dismissed the application and discontinued the weekly payments of compensation to the appellant.
The District Court appeal
By appeal notice filed 3 September 2019, the appellant appealed from the Decision. The appeal notice was filed within 28 days after the day on which the written reasons for the Decision were given to the appellant, as required by s 249(4) of the WCIM Act.
The appellant requires leave to be granted to appeal and pursuant to s 247(2)(b) of the WCIM Act, leave is not to be granted unless a question of law is involved.
The grounds of the appeal are as follows:
1.The Arbitrator erred in law in finding that the appellant bore the onus of proof in the application under s 61(3) of the WCIM Act.
2.The Arbitrator denied the appellant a fair hearing:
2.1by refusing to admit medical reports dated 31 January and 27 March 2019 by Dr Cooke, which reports the appellant had applied to tender, and then referred at [109] of the Decision to the lack of evidence produced from a pain specialist in giving her reasons; and
2.2when consideration of the medical reports and Progress Medical Certificates had a material bearing on whether the respondent employer had discharged its onus of proof.
3.The decision of the Arbitrator to prefer the opinion of Dr Low that the appellant had recovered from his work injury to the opinions of Dr Hussain, Dr Ozanne and Dr Bala was unreasonable because in the absence of oral examination and cross‑examination based on the contents of all the medical reports that decision was not open on the balance of probabilities.
4.The Arbitrator failed to accept the medical evidence of Dr Hussain, Dr Ozanne and Dr Bala of ongoing incapacity of the appellant as a result of the work injury.
5.The Arbitrator failed to take account of the appellant's evidence of symptoms having started from the moment he received the blow and was awake at night with severe neck pain and right suboccipital headaches. The appellant described persistent neck pain and radiation of pain with restriction of movement.
On 24 September 2019 the respondent filed a Notice of Respondent's Intention in which it advised that it intended to take part in the appeal and would submit that the Decision ought to be upheld on the grounds relied upon by the Arbitrator.
On 17 December 2019 the appellant filed his sworn affidavit annexing copies of the reports of Dr Cooke dated 31 January 2019 and 27 March 2019. In addition the parties filed written submissions dated 2 January 2020.
The appeal was listed for hearing on 15 January 2020 at which time the parties made oral submissions. I granted leave to the appellant during the hearing pursuant to s 147(6) of the WCIM Act to rely on the two reports of Dr Cooke.
General legal principles
As I have already noted, leave to appeal will only be granted if there is a question of law involved: s 247(2)(b) of the WCIM Act.
An appeal will involve a question of law if the Arbitrator has made an error of law or an error of mixed law and fact.[29] An error of fact alone is insufficient.[30]
[29] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
[30] Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31]; BHP Billiton Iron Ore Pty Ltd v Brady [5].
A decision will not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error having been made, the decision would have been, or might have been, different.[31]
[31] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15].
A finding of fact by an arbitrator in the absence of any supporting evidence is a question of law, and whether there is evidence of a fact is a question of law.[32]
[32] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19]; Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744 [34].
However, an arbitrator does not make an error of law merely because they find a fact wrongly or on a doubtful basis.[33] Nor does an arbitrator make an error of law simply because they prefer one version of the evidence or one set of inferences over another version of the evidence or set of inferences.[34] There will be no error of law as long as the inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning.[35]
[33] Atanasoska v Inghams Enterprises Pty Ltd [21].
[34] BHP Billiton Iron Ore Pty Ltd v Brady [5].
[35] Australian Broadcasting Tribunal v Bond (356).
Merely asserting that there is a question of law does not naturally follow that there is one.[36] If a ground of appeal when properly analysed does not appear to involve a question of law, no amount of clever linguistic crafting in the formulation of the ground can alter its true nature.[37]
[36] BHP Billiton Iron Ore Pty Ltd v Brady [1], [15] and [19].
[37] Atanasoska v Inghams Enterprises Pty Ltd [21].
If a question of law is involved, leave is not automatically granted and the court nevertheless has a discretion whether to grant leave.[38]
[38] BHP Billiton Iron Ore Pty Ltd v Brady [20].
If leave to appeal is granted, then the appeal is to be by way of review of the decision: s 247(5) of the WCIM Act. The review is to be a real review and is not limited to pure questions of law.[39] The appellant must show a 'proper basis' for disturbing the decision at first instance such as an error of 'fact, law or logic'.[40] Unless the review persuades the court that the Arbitrator's Decision should be varied, discharged or otherwise disturbed it should remain unaltered.[41]
[39] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43]; Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
[40] Ercegv Galati Nominees Pty Ltd [33]; Pacific Industrial Co v Jakovljevic [26].
[41] Pacific Industrial Co v Jakovljevic [20] ‑ [26].
The appeal hearing proceeded in the usual manner, that is, the issue as to whether I should grant leave to appeal was simultaneously addressed with the substantive issue as to whether the appeal ought to be allowed. Where this occurs, the appropriate position is to address the question of leave after proper consideration of the merits of the appellant's proposed grounds of appeal. The court is then in a position to either grant leave and uphold or dismiss the appeal, or alternatively, to refuse leave and to dismiss the appeal.[42]
[42] Brady [14].
Determination
Ground 1 of the appeal
Whether the appellant is entitled to raise a new argument on appeal which, whether deliberately or by inadvertence, he failed to put during the arbitration hearing when he had the opportunity to do so?
It is not in contention between the parties that the appellant did not raise the question of the onus of proof before the Arbitrator. It is also not in contention between the parties that the respondent submitted in its written Outline of Submissions before the Arbitrator that the appellant bore the onus of proof to establish, on the balance of probabilities, that he was incapacitated and that his incapacity was as a result of the compensable injury.[43]
[43] Respondent's Outline of Submissions for arbitration dated 16 May 2019 [11].
An explanation as to why the issue was not ventilated by the appellant before the Arbitrator was not able to be proffered during the appeal hearing.
The respondent contends that it is only in the most exceptional circumstances that a party is entitled, after a case has been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing at first instance when they had an opportunity to do so.[44]
[44] Metwally v University of Wollongong (1985) 60 ALR 68, 71; Coulton v Holcombe (1986) 162 CLR 1, 8; Saldanha v City of Belmont [2018] WASCA 7 [123].
The respondent submitted that no exceptional circumstances exist and thus the appellant ought not to be given the opportunity of raising the issue for the first time on appeal.
The reasons why courts should be slow to allow parties to raise issues for the first time on appeal are well established:
1.It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial at first instance.[45]
2.If an issue had been raised in the forum below, evidence could have been given which may have prevented the point from succeeding.[46]
3.The importance of finality of litigation and the undesirability of encouraging tactical decisions not to present an issue at first instance and rather keeping it in reserve for appeal.[47]
4.The need to avoid injustice to a party expected to meet new facts and new issues of law for the first time on appeal.[48]
[45] Coulton v Holcombe (7).
[46] Coulton v Holcombe (7).
[47] Davison v Vickery's Motors Limited (In Liq) (1925) 37 CLR 1, 35; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Saffron v Societe Miniere Cafrika (1958) 100 CLR 231, 240; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Holcombe v Coulton (Unreported, NSWCA, 25 June 1985), 6; Coulton v Holcombe (8).
[48] Davison v Vickery's Motors Ltd (In Liq) 36; Saffron v Societe Miniere Cafrika (240); State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Holcombe v Coulton (6); Coulton v Holcombe (8).
The appellant submitted that the usual principles in this regard are not applicable given:
(a)the ground of appeal raises a question of law in respect of which no further facts need to be adduced and therefore the respondent has not been denied the opportunity of leading evidence during the Arbitration which could have prevented the point from succeeding;
(b)the question of law is significant and one in relation to which there has been no previous ruling; and
(c)given that a narrow question of law is raised, it is more expedient and in the interests of justice that a court on appeal determines the issue.
The relevant case authorities support the appellant's position, that when a question of law arises for the first time on appeal, it is often more expedient in the interests of justice for the court sitting in the appeal to determine the question, particularly when the underlying facts are not in dispute.[49]
[49] O'Brien v Komesaroff (1982) 150 CLR 310, 319; Water Board v Moustakas (1988) 180 CLR 491, 497.
Given that this ground of appeal raises a question of law that is significant to the particular jurisdiction, having not previously been determined, and given that there is no need to adduce new evidence or for findings of fact to be made by me, I am of the view that it is in the interests of justice for the question to be argued and decided. It is therefore unnecessary for the appellant to establish that exceptional circumstances exist.
Did the question of who bore the burden of proof have a role to play in the decision making process?
As noted by the respondent, the onus of proof only becomes relevant if the Arbitrator was unable to make a finding on a particular issue. That is, it becomes relevant if the Arbitrator was of the view that both the appellant's and respondent's positions were equally probable. However, if the Arbitrator, having heard all of the evidence, came to a definite conclusion in favour of one party over the other, there was no need to invoke a burden of persuasion.[50]
[50] J D Heydon, Cross on Evidence (12th Australian ed, 2020, [7010]).
The appellant submitted that the reversal of the burden of proof effected the outcome of the proceeding and the Arbitrator's reasons for Decision at [110] - [115] evidence that the Arbitrator considered that the appellant had failed to discharge an onus of proof:
Dr Ozanne also comments on Mr Uprety's display of 'abnormal pain behaviours' namely his 'left hand holding his right trapezius muscle, and grunting upon neck, back and right shoulder movements'. He does not explicitly state that these 'abnormal pain behaviours' may be caused by the injury.
However, when asked whether it was more likely than not that Mr Uprety's present symptoms had been caused by the accident, Dr Ozanne responded in the affirmative in respect of the 'pain focus/hypersensitivity', and referred back to his comments in the Assessment and Diagnosis.
I consider that it is likely that 'abnormal pain behaviours' and 'pain focus/hypersensitivity' may simply be different ways of describing the same pain phenomena.
Whilst I conclude that Dr Ozanne was of the opinion that these 'abnormal pain behaviours' and 'pain focus/hypersensitivities' were caused by the injury on 6 February 2017, he does not set out his reasoning as to why this is the case.
I conclude that whilst Mr Uprety has reported pain, there is insufficient evidence before me to establish that his pain, whether it is described as 'abnormal pain behaviour' or 'pain focus/hypersensitivities', is as a consequence of the compensable injury.
In this regard I prefer Dr Low's opinion as to Mr Uprety's 'very bad pain' which is that there is no significant or specific pathology identified on history, examination or numerous investigations that would account for the level of pain reported by Mr Uprety more than two years after the injury and I so find.
The respondent submitted that the Arbitrator did not rely on the onus of proof in deciding whether the appellant's incapacity was no longer as a result of his compensable injury. The respondent noted that the Arbitrator determined the merits of the appellant's entitlement to compensation by 'examining the merits of the medical opinion that the work injury is no longer the cause of his incapacity for work'.[51]
[51] Arbitrator's Decision [11].
The respondent submitted that the Arbitrator, having properly reviewed and considered the competing medical evidence, simply preferred Dr Low's opinion. The question of the onus of proof therefore did not influence the Arbitrator's determination as to which medical evidence she preferred.
In my view the Arbitrator did not rely on the burden of proof in order to decide whether the appellant's incapacity was no longer caused by the work injury. The Arbitrator made findings on the available medical evidence which were open to her and her opinion as to which party carried the burden of proof had no role to play in that decision making process.
It could not be said, from a review of the Arbitrator's reasons for Decision that she was of the view that the appellant's and respondent's positions were equally probable. Rather, the Arbitrator came to a definite conclusion that she was more persuaded by the medical evidence relied upon by the respondent than that relied upon by the appellant. The Arbitrator was, in particular, more persuaded by the evidence of Dr Low than that of Dr Ozanne, in circumstances where those practitioners were the only medical practitioners to express views on causation.
The Arbitrator found that the appellant was no longer incapacitated by the compensable injury because:[52]
(1)the physical injury sustained by the appellant was a minor soft tissue injury which was expected to resolve quickly;
(2)no significant or specific pathology was identified on the medical evidence which could account for the injury/disability currently complained of by the appellant;
(3)Dr Ozanne, the only medical practitioner to give evidence of causation on behalf of the appellant, was unable to give a reasoned explanation, given the radiological and other medical reports, as to why the appellant's symptoms were persisting;
(4)Dr Low, in contrast, provided a logical and persuasive opinion, that was consistent with the underlying radiological and other medical reports, that the minor workplace injury had resolved; and
(5)the symptoms complained of by the appellant were, as a matter of logic, not compatible with the minor injury sustained.
[52] Arbitrator's Decision [123] - [132].
I therefore do not accept the appellant's contention that the onus of proof was relevant to the Arbitrator's Decision. The Arbitrator properly took into account all of the evidence before her and ultimately found the evidence relied upon by the respondent to be more persuasive for the reasons she articulated. Preferring one medical practitioner's expert opinion over another does not raise an error of law.[53]
[53] BHP Billiton Iron Ore Pty Ltd v Brady [5].
The mere fact that the Arbitrator referred to the onus of proof does not mean that she applied that burden in reaching her Decision. The Arbitrator was able to make a finding on the balance of probabilities and thus the onus did not arise.
Therefore, even if the Arbitrator erred in respect of the burden of proof, no error of law arises in circumstances where the Arbitrator did not place a legal burden of proof on the appellant.
It is therefore unnecessary for this court to consider the legal issue raised in the appeal in respect of which party bears the onus of proof.
Leave to appeal in respect of ground 1 is therefore refused and this appeal ground will be dismissed.
Ground 2
Did the Arbitrator err in the exercise of her discretion pursuant to r 30(2) of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)?
Although the appellant formulated this ground as a consideration of whether there was a denial of natural justice by the Arbitrator, in my view it is more properly approached as a consideration as to whether the Arbitrator properly exercised her discretion in excluding the reports of Dr Cooke. The submissions of both parties broadly addressed this issue more narrowly defined.
At the commencement of the Arbitration, the appellant sought leave to adduce two reports of Dr Cooke dated 31 January 2019 and 27 March 2019, being a pain specialist.
The Arbitrator considered the application and adjourned for approximately 15 minutes and then delivered the following ex tempore reasons:[54]
[54] ts 13 - ts 14; Arbitration Hearing 29 May 2019.
In relation to the oral application to have two medical reports of Dr Cooke, dated 31 January 2019 and 27 March 2019, adduced into evidence, I provide my decision now. Rule 30 of the Arbitration Rules provides that:
Late evidence may not be adduced into evidence by any party without first obtaining the leave or the permission of the arbitrator.
Rule 30 provides that:
An arbitrator must not give leave, unless in the opinion of the arbitrator it is required to be admitted into evidence in the interests of justice and neither party is prejudiced by the documentation being adduced.
This is a jurisdiction of no surprises. I note that these two documents are dated as far back as 31 January and 27 March this year. It was noted at the directions hearing on 30 April that there had been no conferral regarding these two documents, and it remains the case now that there has been no conferral regarding the admission into evidence of these two documents. I note that the worker last week made an application to have them admitted as late evidence, but that application was refused by the registry because there had been no conferral.
There ought to have been an early application to have both of these documents adduced into evidence. There has not been, and we are here this morning with a late application on the morning of the arbitration to have them adduced into evidence. In my view, it is unfair for these two documents to be adduced into evidence at this very late stage, and, in my view, it is not in the interests of justice for them to be admitted into evidence. In my view, in considering whether it is in the interests of justice to admit them into evidence, I need to consider the overarching purposes of the Workers' Compensation Act, and that is that matters be dealt with in a speedy, fair and economical basis. Further, in my view, there is prejudice to the respondent in these documents being admitted at this late stage.
The respondent or the employer is prejudiced in being admitted into evidence at this late stage. And that prejudice is that the employer has not had an opportunity to consider these two documents. It has prepared its case on the basis of the documents contained within the book of documents, and the further prejudice is that the worker is on payments. So for these reasons, I refuse the application to have those documents adduced into evidence.
Rule 30(2) of the WCIM Rules provides:
An arbitrator must not give leave unless –
(a)no other party is prejudiced by the relevant document, material or information being adduced in evidence; or
(b)in any event, the other parties consent to it being adduced; or
(c)in the opinion of the arbitrator it is required to be admitted in evidence in the proceeding in the interests of justice.
The matters required to be considered by an arbitrator when a party seeks to adduce evidence late has been previously considered by Commissioner McCann, as his Honour then was, in Lesley McMahen v Alcoa World Alumina:[55]
I have considered the requirements of sub-rule (2) in a number of decisions including Aziz v Tempo Services Ltd [2009] WACC C6-2009 and Total Marine Services Pty Ltd v Hutchinson [2009] C7-2009 [30]. In Hutchinson I said that an arbitrator is primarily required to consider three criteria when dealing with a contested application:
(i)any material prejudice to the other party caused by the late filing of the evidence, including the possibility for delay, and the means (if any) of mitigating the same;
(ii)the relevance and potential probative force of the disputed evidence;
(iiii)the applicant's reason for giving late notice of its reliance on the evidence.
This must now be read in the light of what was said by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 and by myself in All Saints College v Bendotti [2009] C18-2009 [17] regarding the high onus which lies on an applicant who brings a late application under rule 64, particularly if the issues are substantially altered.
[55] Lesley McMahen v Alcoa World Alumina (Unreported, C26-2009, 23 December 2009) (McCann PP).
In essence the appellant submits that the Arbitrator did not properly exercise her discretion by:
1.finding that prejudice would be suffered by the respondent in circumstances where the respondent had been provided with copies of both reports for some time and any prejudice could have been mitigated by adjourning the hearing to allow the respondent to obtain its own expert report and by suspending weekly payments for the period of any adjournment pursuant to s 61(4) of the WCMI Act; and
2.by failing to consider the interests of the appellant when deciding whether the reports should be admitted into evidence, which necessarily required the Arbitrator to have read and considered the probative value of the reports.
The respondent submitted that the Arbitrator acted within her discretion in determining the appellant's oral application and therefore no question of law arises.
It is established law that the failure of a decision-maker to take into account a relevant mandatory consideration in the exercise of their discretion may amount to an error of law.[56]
[56] House v The King (1936) 55 CLR 499, 504 - 505; RFD Ltd v Harris [2008] WASCA 87 [38].
In respect of the submission made by the appellant that the Arbitrator wrongly found that prejudice would be suffered by the respondent if leave to adduce the evidence late was granted, I find that no error of law arises. This is because the Arbitrator properly considered the issue of prejudice to the respondent, as she was required to do, and it was open to her to find that prejudice would be suffered. The respondent had prepared to meet a particular case and had not considered the reports of Dr Cooke. Any adjournment could have resulted in costs thrown away and the continuation of weekly payments to the appellant, in circumstances where those payments may not have been recoverable. Taking a relevant consideration into account in the exercise of discretion does not result in an error of law.
However, in my view, the learned Arbitrator did fall into error in the exercise of her discretion by failing to take into account a relevant consideration, being the potential probative value of the two reports of Dr Cooke.
In my view, the Arbitrator was required to consider that matter in a contested application seeking leave to adduce evidence late. Given its significance, if the learned Arbitrator had considered the probative value of Dr Cooke's reports, I believe that the Arbitrator would have referred to that criteria in her oral reasons and did not do so. In my view, this constitutes an error of law.
Two interrelated issues then arise. Firstly, if the Arbitrator had properly exercised her discretion and had considered the relevance and probative value of the reports of Dr Cooke, whether leave would have been granted to the appellant to adduce that evidence late? Secondly, if leave ought to have been granted, was the refusal of leave material to the Decision such that it would have been or might have been different?
Whether the reports of Dr Cooke ought to have been admitted into evidence and whether the Decision of the Arbitrator would have been or might have been different?
In order to consider whether leave ought to have been granted for the reports of Dr Cooke to be adduced into evidence, I am required to consider their probative value and relevance to the issue being determined by the Arbitrator.
The appellant submitted that the issue of pain was highly relevant to the Arbitration which explains why the Arbitrator noted the absence of evidence of that nature.[57] The appellant submitted that by making such a reference, the Arbitrator was indicating that the lack of evidence from a pain specialist was significant. The appellant thus concluded that the evidence of the pain specialist was material to the outcome of the Decision.
[57] Arbitrator's Decision [109].
The respondent submitted that the admission of the reports would have had no material effect on the outcome of the Arbitrator's Decision given that the Arbitrator simply preferred and accepted Dr Low's opinion.[58]
[58] Arbitrator's Decision [105].
There was much evidence before the Arbitrator in relation to the ongoing pain which was being experienced by the appellant, in particular at [62], [64], [68], [69], [71], [74] and [81] of the Arbitrator's Decision.
In relation to the competing medical evidence in relation to causation[59] the Arbitrator, in relation to the issue of pain, stated:
Whilst I conclude that Dr Ozanne was of the opinion that these 'abnormal pain behaviours' and 'pain focus/pain hypersensitivity' were caused by the injury on 6 February 2017, he does not set out his reasoning as to why this is the case.
I conclude that whilst Mr Uprety has reported pain, there is insufficient evidence before me to establish that his pain, whether it is described as 'abnormal pain behaviour' or 'pain focus/hypersensitivities', is as a consequence of the compensable injury.
In this regard I prefer Dr Low's opinion as to Mr Uprety's 'very bad pain' which is that there is no significant or specific pathology identified on history, examination or numerous investigations that would account for the level of pain reported by Mr Uprety more than two years after the injury and I so find.
[59] Arbitrator's Decision [113] - [115].
In my view, had the Arbitrator considered the relevance and potential probative value of the reports of Dr Cooke, she nevertheless would have refused leave to adduce the evidence late. It therefore follows, that in my view, those reports would have made no material difference to the Decision reached by the Arbitrator.
In particular, the reports of Dr Cooke do nothing to take the issue of causation any further. Even taking the reports of Dr Cooke at their highest, and interpreting them as adding weight or lending further support for Dr Ozanne's opinion that the continued pain suffered by the appellant was caused by the compensable injury, the reports disclose no path of reasoning which would explain why that is the case.
In my view, the reports of Dr Cooke take the factual evidence of the existence, and nature and extent of pain being experienced by the appellant, which was already before the Arbitrator, no further. In particular, the Arbitrator already had before her the evidence of the appellant as to when the pain started, its nature and extent, that it was ongoing and what medication the appellant was taking in order to alleviate it.
Whilst in Dr Cooke's March 2019 report he states as the 'assessment': 'whiplash type of neck injury due to blunt trauma on the right occiput' it is unclear whether Dr Cooke states this as his own independent assessment as to the cause of the appellant's ongoing pain or whether that assessment is otherwise informed by the appellant or other medical reports to which Dr Cooke had access.
In any event, even if the March 2019 'assessment' reflects an independent conclusion reached by Dr Cooke in respect of causation, he does not seek to explain the underlying reasoning on which such a conclusion is drawn. So in this regard, Dr Cooke's reports are deficient in the same material respect as the report of Dr Ozanne was found to be deficient. There is simply no underlying rationale offered which underpins the conclusion reached.
Therefore it would have remained open for the Arbitrator to prefer Dr Low's opinion in relation to the presence of the appellant's pain, that is, that despite numerous examinations and investigations there was no significant or specific pathology identified which could explain why the appellant was still experiencing significant pain years after the compensable injury was suffered.
In conclusion, if the Arbitrator had considered the probative value of the reports of Dr Cooke in the exercise of her discretion, in my view, the Arbitrator would have reached the same conclusion and refused to grant leave to adduce that evidence late. If I am incorrect in that view, in any event, it is my opinion that the admission into evidence of those reports would have made no material difference to the Decision for the reasons articulated above.
Therefore I refuse leave to appeal on this ground and this ground of appeal will be dismissed.
Grounds 3 – 5
Was the Arbitrator's decision to prefer the opinion of Dr Low to that of Dr Hussain, Dr Ozanne and Dr Bala manifestly unreasonable such as to lack an evident and intelligible justification?
The appellant contends that the Arbitrator's Decision to prefer the opinion of Dr Low over the opinions of Dr Hussain, Dr Ozanne and Dr Bala, was not reasonably open when based only on the documentary medical reports in circumstances where none of the medical practitioners attended the Arbitration to be examined or cross‑examined.
As I have previously noted at [42] it is not an error of law merely because an arbitrator finds facts wrongly or upon a doubtful basis or simply because they prefer one version of the evidence over another.
What needs to be established in order for an error of law to arise is that it was manifestly unreasonable, illogical or irrational for the Arbitrator to prefer the opinion of Dr Low.[60]
[60] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [63].
A decision may be unreasonable if it lacks an evident and intelligible justification.[61]
[61] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76].
A consideration of the reasonableness of a decision is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also a consideration as to whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[62]
[62] Dunsmuir v New Brunswick [2008] 1 SCR 190, 220 - 221; Minister for Immigration and Citizenship v Li [105].
In my view, there is nothing manifestly unreasonable, illogical or irrational in the Arbitrator preferring the opinion of Dr Low. The Arbitrator gave detailed reasons as to why she preferred the evidence of Dr Low over that of Dr Ozanne, being the only two medical practitioners who gave an opinion on causation. It cannot be said that it was manifestly unreasonable, illogical or irrational for the Arbitrator to prefer Dr Low's evidence in circumstances where:
(a) Dr Ozanne was unable to explain why the appellant's symptoms, if caused by the compensable injury, were continuing to be experienced some years after a minor injury;
(b)the conclusion reached by Dr Ozanne was at odds with the other medical and radiological reports which showed that there was no significant or specific pathology identified; and
(c) Dr Ozanne's opinion on causation was, as a matter of common sense and logic, inconsistent with the nature and extent of the compensable injury.
In my view no error of law arises simply because the Arbitrator preferred one version of the medical evidence on causation to another version. The Arbitrator's Decision was justified, transparent and intelligible.
Further, the Arbitrator's Decision in respect of causation falls within a range of possible, acceptable outcomes which are defensible in respect of the facts found by her and on the application of the relevant law.
I am also of the view that no error of law arises in the Arbitrator preferring Dr Low's evidence over that of Dr Hussain and Dr Bala, neither of whom gave an opinion on causation.
Did the Arbitrator make an error of law by relying on Dr Low's opinion over the opinion of Dr Hussain, Dr Ozanne and Dr Bala based solely on written reports and in the absence of oral evidence?
The appellant also raises issue with the fact that none of the medical practitioners were required to attend the Arbitration to be examined or cross-examined.
Rule 58 of the WCIM Rules addresses the issue in respect to medical evidence and provides:
(1)Except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing and a medical practitioner may not be called to give oral medical evidence at a hearing before an arbitrator.
(2)An application for leave to call oral evidence from a medical practitioner must -
(a)be made not less than 14 days prior to the date set for the hearing; and
(b)state the grounds on which the leave is sought.
(3)An arbitrator must not give leave to call oral medical evidence 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.
It is therefore clear that it is a matter for the parties as to whether they wish to make an application for leave to call oral evidence from a medical practitioner. It is also clear that to do so is exceptional given that there is no automatic right to call oral evidence from medical practitioners. Leave is required.
There was no application made prior to the Arbitration seeking leave to require the medical practitioners to attend to give oral evidence. Any such application was required to be made at least 14 days before the Arbitration.
Given that neither party made any such application, it cannot now be an error of law that the Arbitrator decided the matter in the absence of oral evidence from the medical practitioners. The Arbitrator had no independent power to compel oral evidence from medical practitioners and she therefore conducted the Arbitration in an entirely appropriate manner. In my view no error of law therefore arises.
Further, I note that this issue was never raised before the Arbitrator at first instance and in my view, it is not proper for the appellant to raise it for the first time on appeal without establishing that exceptional circumstances exist.[63] The appellant's failure to make an application pursuant to r 58 of the WCIMA Rules sways against a finding that exceptional circumstances exist.
[63] Metwally v University of Wollongong (71); Coulton v Holcombe (8).
In conclusion leave to appeal is refused in respect of ground 3 and it will also be dismissed.
Did the Arbitrator make an error of law by failing to accept the opinions of Dr Hussain, Dr Ozanne and Dr Bala of ongoing incapacity of the appellant due to the work injury?
In relation to ground 4, the appellant submitted that the Arbitrator failed to accept the opinions of Dr Hussain, Dr Ozanne and Dr Bala of ongoing incapacity of the appellant as a result of the work injury.
The appellant submitted that the reasons the Arbitrator gave for preferring Dr Low's opinion over that of Dr Hussain, Dr Ozanne and Dr Bala were not reasonable given that the appellant had suffered neck pain from the date of the work injury.[64]
[64] Appellant's written submissions dated 2 January 2020, par 37.
The respondent submitted that this ground does not raise a question of law; the Arbitrator simply preferred one body of evidence over another.
In my view this ground of appeal overlaps and repeats to a certain extent ground 3 of the appeal. I addressed this ground of appeal at [93] ‑ [100].
In summary, there is no error of law in the Arbitrator not being persuaded by the opinions of Dr Hussain, Dr Ozanne and Dr Bala for the reasons that she articulated in her Decision.
It therefore follows that leave to appeal is not granted in respect of ground 4 and that ground of appeal will also be dismissed.
Did the Arbitrator make an error of law in failing to take account of the appellant's evidence of symptoms having started from the moment he received the blow and was awake at night with severe neck pain and right suboccipital headaches?
Lastly, in relation to ground 5 the appellant submitted that the Arbitrator failed to take account of the appellant's oral evidence of symptoms having started from the moment he received the blow, and been persistent and continual from that time.
The appellant submitted that the appellant's unchallenged evidence that he consistently suffered neck pain, when taken together with opinions of his medical practitioners, supported a finding that the appellant developed pain sensitisation as a result of the workplace injury and that this provided a reasonable explanation of his continued incapacity.[65]
[65] Appellant's written submissions dated 2 January 2020, par 38.
In my view this ground of appeal does not disclose a question of law. The findings of fact made by the Arbitrator and the weight afforded to those facts was a matter entirely for the Arbitrator. A ground of appeal that merely asserts that a decision is against the evidence or against the weight of the evidence does not raise an issue involving a question of law.[66]
[66] Atanasoska v Inghams Enterprises Pty Ltd [21].
In any event, it is clear that the Arbitrator took into account the appellant's evidence that he suffered pain following suffering the injury and accepted that evidence.[67] However, the Arbitrator found that the ongoing symptoms experienced by the appellant were not caused by the work injury.[68]
[67] Arbitrator's Decision [95] and [96].
[68] Arbitrator's Decision [114].
Leave to appeal is therefore refused in respect of ground 5 of the appeal and it will also be dismissed.
Conclusion
For these reasons I would refuse leave to appeal and dismiss the appeal.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KR
Associate to Judge Wallace4 MAY 2020
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