Waite v Alcoa of Australia Ltd
[2018] WADC 147
•8 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WAITE -v- ALCOA OF AUSTRALIA LTD [2018] WADC 147
CORAM: TROY DCJ
HEARD: 12 SEPTEMBER 2018
DELIVERED : 8 NOVEMBER 2018
FILE NO/S: APP 102 of 2017
BETWEEN: TIMOTHY JOHN WAITE
Appellant
AND
ALCOA OF AUSTRALIA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR NUNN
File Number : A 33756 of 2017
Catchwords:
Workers' compensation - Appeal - Error of law - Personal injury by accident - Adequate reasons - 'Wednesbury' unreasonableness - Assessment of medical evidence - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 5, s 188, s 247
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr W G Spyker |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Spyker Legal |
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Browne v Dunn (1893) 6 R 67 (HL)
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Department of Education v Azmitia [2015] WASCA 246
DeVries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Heatley v Jovista Pty Ltd [2006] WACC C12-2006
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 61
Pollock v Wellington (1996) 15 WAR 1
Promnitz v Byblos Pty Ltd CM-59/97, 29 October 1997
Sotico Pty Ltd v Wilson [2007] WASCA 112
Summit Homes v Lucev (1996) 16 WAR 566
Velez Pty Ltd v Tudor [2011] WASCA 218
Warley Pty Ltd v Adco Constructions Pty Ltd, (1988) 8 BCL 300
TROY DCJ:
Introduction
The collision and immediate medical treatment
On 7 February 2016 the appellant, Mr Timothy Waite, was driving a truck in the course of his employment with Alcoa. Another employee, Mr Steve Findlay, was driving an excavator, the bucket of which made contact with the tray of Mr Waite's truck. The fact of that collision was not in issue, but the extent of it was.
The only witnesses to the collision were Mr Waite and Mr Findlay. Mr Waite was the only witness as to the effect of the collision on him.
Having reported the collision, Mr Waite attended a security office along with his group leader, Mr Terry White, and Mr Findlay. Mr Waite received medical attention from a Mr Murray Tompsett, who applied an ice pack to Mr Waite's back. Mr Waite then resumed his duties, having indicated to Mr Tompsett that he had a sore shoulder.
The central issue
The central issue before the arbitrator, against whose decision Mr Waite appeals, was whether, as a result of this collision, Mr Waite suffered a personal injury by accident to his left shoulder. Mr Waite asserts that he did, and that it led to his shoulder freezing up with the condition adhesive capsulitis, more colloquially known as frozen shoulder. It also led to subacromial impingement.
Alcoa disputed Mr Waite's claim contending that he did not suffer a personal injury by accident on 7 February 2016 as alleged. Alternatively, if he did, he was not incapacitated by any such injury.
The hearing before the arbitrator – 9 and 10 August 2017
The following material was placed before the arbitrator:
•The evidence of Mr Waite and of Mr Findlay as to the collision;
•The evidence of Mr Waite as to the immediate impact upon him of that collision;
•The evidence of Mr Waite, Mr Findlay, Mr White and Mr Tompsett together with a back assessment form as to the nature of Mr Waite's initial complaint;
•Such evidence as there was of any damage caused to the tray of Mr Waite's truck;
•A number of medical reports concerning Mr Waite's injury and its likely cause.
A hearing before an arbitrator is governed by s 188 of the Workers' Compensation and Injury Management Act 1981 Act (WA) (the Act) which reads:
188.Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(c)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(3)An arbitrator may —
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(4)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
Mr Waite's appeal
The arbitrator concluded that on the evidence Mr Waite had not established that he had suffered personal injury by accident on 7 February 2016. Mr Waite is profoundly unsatisfied with that decision and has appealed.
It is, of course, important to note that a right of appeal from an arbitrator is dependent upon Mr Waite establishing to my satisfaction that there has been an error of law: s 247(2) of the Act.
If Mr Waite does establish an error of law, my powers are governed by s 247(7) of the Act.
The arbitrator correctly identified the issues at [10] of his reasons and summarised his conclusions at [11] ‑ [16]. The arbitrator identified the applicable legal principles at [19] ‑ [24] in a manner that I find to be uncontroversial.
Error of law
I turn then to what is meant by an error of law.
In BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Pullin JA (with whom Wheeler & Buss JJA agreed) held [3]: To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred.
His Honour also held at [15] that a decision does not 'involve' an error of law, unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
In an earlier judgment of Pullin JA in Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [37] his Honour observed that:
Although the distinction between errors of fact and errors of law are critical to the existence of the right of appeal, no satisfactory test of universal application has yet been formulated to make the distinction between errors of fact or law clear beyond question in every case. … However, in relation to errors of law made in the course of fact finding, it is uncontroversial and settled that an error of law will occur if there is no evidence to support a finding of fact or the drawing of an inference. … If there is some evidence to support a finding of fact, then the reasoning process leading to the finding of fact will not be open to review as a question of law if the complaint is about mere illogicality in reasoning; … although if the reasoning is unreasonable in the sense of 'Wednesbury' unreasonableness, an error of law will occur'. …
His Honour also noted at [40] that it is an error of law for a decision maker to fail to address a central issue raised in the case. His Honour cautioned against attempts to isolate one part of the impugned reasons and to ignore the overall effect of the reasons: [43].
As Mazza JA noted in Department of Education v Azmitia [2015] WASCA 246 [120]:
… The term 'a question of law is involved' is broader in its scope than provisions which stipulate that an appeal may be brought 'on a question of law'. The authorities to which I have referred do not seek to define the scope of the matters that may be decided where 'a question of law is involved', although they stand for the proposition that an appeal 'involves' a question of law where either an error of law or an error mixed fact and law is involved. An error of fact alone is insufficient.
In Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 [31] Pritchard J observed that the distinction between errors of law, errors of fact, and mixed errors of law and fact, can be elusive.
Her Honour further noted at [36] that considerations which may be relevant to that question include the importance of the question of law, whether there is sufficient doubt about the question of law to justify the grant of leave and whether substantial injustice would result if the error of law were not corrected. If the order below is final, that injustice will often be more readily discernible.
The purposes of the Act include the resolution of disputes between parties involved in workers' compensation matters in a way which is fair and which is also expeditious, informal and inexpensive (s 3(d) of the Act). The primary fact-finder in the event of a dispute is, clearly, the arbitrator: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17] (Wheeler JA).
Once a question of law is involved, the whole decision appealed from is open to review: Pacific Industrial Co v Jakovljevic [18]. This court must undertake a 'real review' of the application before the arbitrator, but is limited to the materials before the arbitrator. It is not a hearing de novo: Pacific Industrial Co v Jakovljevic [20].
If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 61 [53] (Buss JA with whom Wheeler & Pullin JJA agreed). A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law: [54]. A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis: [55].
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other: Paradis [57].
Mr Waite represents himself on the appeal. The notice of appeal ultimately relied upon consists of 17 grounds with one ground, ground 7, containing 10 particulars. The grounds of appeal are repetitive and prolix.
The arbitrator's findings as to the extent the cab shook
An important factual issue for the arbitrator was whether, following the collision, the cab shook as much as Mr Waite contends. The arbitrator noted at [6] that the only evidence (I infer that the arbitrator meant direct evidence) of the way the cab shook, or the degree to which Mr Waite was thrown around the cab was from Mr Waite himself. For reasons that he stated, the arbitrator did not find Mr Waite to be a reliable witness. He was unable to prefer Mr Waite's evidence to the evidence of Messrs Findlay, White or Tompsett: [26].
The only contemporaneous record was what is described as an ERO back assessment form which Mr Tompsett filled out. In his witness statement, unchallenged on this point, Mr Tompsett recorded Mr Waite reporting, 'the bucket of the digger struck the tray of the truck causing the cab to shudder': [30].
There was no other reference in the form of the extent of the collision or the extent to which Mr Waite was shaken in his cab: [31].
The arbitrator also referred at [31] to the medical certificate issued by Mr Waite's general practitioner, Dr Bailey on 26 March 2016 which recorded, 'truck hit by digger', but made no other reference to the extent of the collision or any shaking.
On the evidence before him the arbitrator was satisfied that Mr Waite's cab did shake slightly when Mr Findlay unloaded the contents of the bucket into the tray of Mr Waite's truck: [47].
The arbitrator clearly formed the view however, that this was unremarkable and was an ordinary feature of this process. The issue for the arbitrator, bearing on the ultimate issue of whether there was personal injury caused by accident, was whether, as a consequence of a collision, the cab shook significantly more than that.
Findings as to the extent of the collision
In grounds of appeal 1(a) and (c) Mr Waite notes that the arbitrator found that there was a collision between the truck and the excavator, causing the cab of Mr Waite's truck to shake slightly and causing at least some damage to the truck. Mr Waite asserts that the arbitrator should, as a consequence, have concluded that the truck cab did indeed shake violently as Mr Waite described in his evidence.
Credibility findings
By grounds 12, 13, 14, 16(a) and (c) Mr Waite contends that the arbitrator erred in reaching adverse conclusions as to Mr Waite's credibility as a witness and in finding Mr Tompsett to be a reliable witness, bearing particularly on the issue of the extent of the collision.
Complaints of this nature do not constitute errors of law: DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron & McHugh JJ):
More than once in recent years, this Court has pointed out that a finding of face by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his [or her] advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.
In Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300, 310 ‑ 311 McHugh JA (Hope JA agreeing) observed:
If the only question in the case is whether evidence ought to be accepted … no question of law is involved. It is not a rule of law that a tribunal of fact must accept the evidence of one side because it is uncontradicted or superior in cogency to the evidence of the other side … If no more appeared in a case than that the tribunal of fact preferred the evidence of a witness of unsavoury reputation to the evidence of six bishops, no question of law would arise.
It is trite to state, but in seeking to resolve different accounts of the same incident the finder of fact will assess whether the account of one particular witness is consistent with an account(s) that they have given on an earlier occasion. If there are inconsistencies, that bears upon the witness' credibility and reliability. The extent and nature of any such inconsistencies will dictate the degree to which an adverse view might be taken of credibility and reliability.
At [69] the arbitrator set out a number of reasons for his adverse view of Mr Waite's reliability and credibility, repeating at [69(d)] his observations at [33]. All were based on the evidence and all were open to him.
The arbitrator found Mr Waite's evidence of Mr Findlay causing a commotion at the security office about having to be drug tested inconsistent with the unchallenged evidence of Messrs White, Tompsett and Findlay: [48] - [49].
No allegation of collusion between any of Messrs White, Findlay or Tompsett was put to them. The arbitrator referred to the seminal case of Browne v Dunn (1893) 6 R 67 (HL) and two of the countless cases that have considered that decision: [59].
The arbitrator was correct to approach matters on the basis that it was not open to him to conclude that the witnesses Messrs White, Findlay or Tompsett had colluded in their testimony vis a vis Mr Waite. Whilst the relevance of Mr Findlay's conduct in the security office seems marginal, the arbitrator was entitled to have regard to his assessment of the respective witnesses on this topic when determining Mr Waite's credibility.
The arbitrator accepted that very soon after the incident Mr Waite told Mr Tompsett that his shoulder was sore. Mr Tompsett stated that he did not treat the shoulder because there was there was no apparent injury and as a result did not record Mr Waite's complaints about his shoulder on the written document: [53]. Mr Tompsett holds first aid qualifications but not medical qualifications and so the extent of any treatment that he could offer would necessarily be limited.
In explaining his approach to assessing the credibility of witnesses giving different accounts ([61] - [62]) the arbitrator referred to Fox v Percy (2003) 214 CLR 118 where at [31] - [32] Gleeson CJ, Gummow & Kirby JJ encouraged trial judges to limit reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. Their Honours noted that this does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
The arbitrator regarded Mr Tompsett and Mr White as reliable and credible witnesses. Whilst, for the reasons he explained, he regarded Mr Findlay as an unimpressive witness he nonetheless concluded that Mr Findlay was reliable: [64] and [66]. The arbitrator allowed for the fact that Mr Findlay had a tendency to play down the severity of the collision and his obligation to report it. Further, that he understated the damage caused in the collision: [74].
When he was examined on 24 August 2016, Mr Waite told Dr Fairhurst that he was 'thrown around the cab unexpectedly' and felt like he had been 'punched in the kidneys' and felt 'winded': [32]. In cross‑examination Mr Waite maintained that he was shaken about very fast and very violently in the manner that he had described in the later medical reports: [33].
Although according to Dr Fairhurst's report, Mr Waite had said he was thrown about the cab or thrown from his seat, in cross‑examination Mr Waite denied that he was. He accepted that that the cab was too small for that to occur and that in any event he was wearing his seat belt: [34].
Mr Waite was asked in cross-examination (ts 37): 'you weren't thrown off your seat, were you?' Mr Waite responded:
Well, you can't. There's no room, like you can't go anywhere, you can get up all over the gears and maybe land on the floor over here but no, I didn't get up – I didn't land on the floor over there, no.
In re‑examination (ts 54) Mr Waite accepted that he was wearing a seatbelt.
In my view it was open to the arbitrator to find that there was a distinction between the intensity of the collision as related in Mr Waite's evidence compared to the account that he gave to Dr Fairhurst.
On the evidence the arbitrator was not able to exclude the possibility that Mr Waite was violently shaken about as he alleged: [73]. Properly applying the burden and standard of proof, however, the arbitrator was not satisfied that it was more likely than not that Mr Waite was shaken to this extent.
I am satisfied that such a finding was open to the arbitrator on the evidence. Reaching that finding does not constitute an error, still less an error of law.
Findings as to the extent of the damage
The arbitrator had regard to the evidence before him concerning the extent of damage to Mr Waite's truck. Mr Waite did not check the damage to the truck at that time, although his unchallenged evidence was that when he saw this same truck a week later the damage was 'severe' and 'significant', being 'about a foot long with slight indentation': [36] and [38]. Mr Waite gave evidence that the truck tray is made from material that is very difficult to dent: [41].
Although Mr White looked for damage (for a couple of minutes according to his evidence – ts 69) he did not see any damage: [36]. Mr Findlay described the damage as confined to a scratch on the surface rust on the top of the tray a few inches wide: [37]. Such a scratch could of course have occurred at any time.
The arbitrator's observation at [44] that there was no dispute that the tray of the truck was damaged (at the time) in some way was, if anything, unduly favourable to Mr Waite.
The arbitrator found that the cab did indeed shake slightly when Mr Findlay unloaded the bucket of his excavator, but went on to observe it is not certain what damage in fact occurred.
The arbitrator stated [74]:
I am unable to make a finding as to the extent of the damage done to the truck. I consider that Mr Findlay has understated the damage and in my view Mr Waite is prone to exaggeration and is not a reliable witness such that I can accept his evidence of the collision over the evidence of Mr Findlay.
The arbitrator's findings in this regard are not, perhaps, expressed as precisely as they could be. I infer from them as a whole that his conclusion was he could not be satisfied that the damage caused on 7 February 2016 was the same damage observed by Mr Waite a week later. That was either because that damage could have occurred in a different way over the next week or that the evidence of Mr White that there was no damage at the time was to be preferred.
It was reasonably open to the arbitrator to find that he could not be satisfied that the damage was as extensive as described by Mr Waite. If the arbitrator was not satisfied that the damage caused on 7 February 2016 was as described by Mr Waite then, obviously, he could not draw any inferences from the condition of the tray as to the force of the collision.
Mr Waite urged the arbitrator to conclude that the truck cab did indeed shake as violently as he described in his evidence. The arbitrator declined to conclude that the fact of the collision, coupled with the fact of some damage, necessarily led to a finding that the cab shook as violently as Mr Waite contended. That finding was open on the evidence and is not an error of law.
By ground 12, Mr Waite contends that the arbitrator erred in law in finding Mr Waite unreliable for using the word 'shudder.' The arbitrator's reasons for finding Mr Waite unreliable are documented in his reasons and are considerably more extensive than merely the use of that word.
In my view, the arbitrator was entitled to attempt to identify what it was that Mr Waite was conveying as of 7 February 2016 in terms of the extent of the collision and then compare or contrast with any later descriptions by Mr Waite. Plainly that is what the arbitrator did.
When Mr Waite used the word 'shudder' he was referring to the cab, as opposed to himself. As is clear from the second edition of the Oxford English dictionary 'shudder' is usually applied to a movement of the body - to have a convulsive tremor of the body caused by fear, to move tremulously, vibrate, quiver. Mr Waite is not to be criticised for the manner in which he expressed himself as he attempted to capture the sense of what had occurred. But it was open to the arbitrator to find that his description, very shortly after the event, was of a less intense experience than he subsequently described. That finding would bear upon Mr Waite's credibility.
Conclusion on these grounds
No error of law has been established by grounds 1(a), 1(c), 12, 13, 14, 16(a) or (c).
Consequence of findings on credibility, extent of collision and damage
Accordingly, at this point of his assessment of the evidence, the arbitrator was at a point where he was satisfied that there had been some collision between two large vehicles but he was unable to conclude that Mr Waite, seated in the cab of one of those vehicles, was violently shaken as he alleged.
Nor could he infer from proven damage that, by inferential reasoning, it was more likely than not that Mr Waite was violently shaken as he alleged. There was no objective, entirely independent evidence, such as 'before and after' photographs, before the arbitrator of the damage to the truck as a consequence of the collision. The closest there was to independent evidence was Mr White.
The fact that the arbitrator did not find himself able to regard Mr Waite as a witness upon whom he could place reliance was not, in and of itself, fatal to Mr Waite's claim. It did mean, however, that the medical evidence assumed pivotal importance. Further, the arbitrator was entitled to give less weight to any medical opinion, if it was based upon the acceptance of a particular assertion of fact by Mr Waite, which the arbitrator did not considered to have been established.
The arbitrator properly applied the principle noted by Anderson J in Pollock v Wellington (1996) 15 WAR 1, citing High Court authority, that before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence. Further, the opinion must actually be founded upon those facts.
The arbitrator then went on to consider whether he could be satisfied, on the medical evidence, that Mr Waite suffered a personal injury by accident as a consequence of being merely (as opposed to violently) shaken: [78]. Such an approach was entirely logical, given the findings of fact and well open to the arbitrator.
Mr Waite's primary complaint
I have already dealt with grounds 1(a), 1(c), 12, 13, 14, 16(a) or (c). I move onto consider the remaining grounds. Beneath the plethora of appeal grounds is a fundamental complaint that on the evidence, particularly the medical evidence, the arbitrator should have found that there was a personal injury by accident. Mr Waite asserts that the arbitrator ignored or failed to apply the medical evidence that was before him. The complaint is most unambiguously advanced by grounds 2, 3 and 5(a).
This complaint is essentially repeated by a number of other grounds and in ground 7, a number of particulars. In essence, Mr Waite contends that if the arbitrator had acted upon the medical evidence he would inevitably have concluded that Mr Waite suffered a personal injury by accident.
Ground 2
Ground 2 essentially asserts that because the factual evidence so overwhelmingly established that there was a personal injury by accident, the arbitrator necessarily erred in law when he did not so conclude.
The arbitrator made no error in law in finding that the fact that there had been a collision of some sort, coupled with a contemporaneous complaint by Mr Waite of a shoulder injury, did not automatically prove personal injury by accident.
The arbitrator was required to evaluate Mr Waite's assertion of a shoulder injury in the context of his findings of fact as to the nature of the collision. The arbitrator was also required to assess the medical evidence and apply the holding of the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (considered below) as to the meaning of personal injury by accident. The arbitrator did so.
Mr Waite has not demonstrated any error of law by ground 2.
Ground 3
Like ground 2, Ground 3 is an assertive proposition that the medical evidence so overwhelmingly established that there was a personal injury by accident, the arbitrator must necessarily erred in law in not so concluding. Mr Waite claims that the medical evidence all overwhelmingly admitted that there was a personal injury by accident. That mis‑characterises the medical evidence before the arbitrator. It is necessary to summarise that evidence in some detail.
Medical evidence suggesting there was a personal injury by accident
Mr Lawson-Smith - orthopaedic specialist
Mr Lawson‑Smith saw Mr Waite on 21 April 2016 and reported his findings to Mr Waite's general practitioner, Dr Bailey that day.
On clinical examination Mr Waite had a painful arc although he could passively abduct to 120 degrees. There was mild pain also on internal rotation of the shoulder.
Mr Waite provided a history that he was sitting in the truck when it was hit by the digger. He stated that he had gone from having a normal functioning and pain free shoulder to suffering pain that had only developed since the incident. Seemingly based on that history, Mr Lawson‑Smith thought that whilst the symptoms may not be a direct result of the accident they had certainly caused his shoulder to become symptomatic. Mr Lawson‑Smith accordingly arranged for an MRI scan.
Dr Fairhurst - a medico‑legal consultant
Mr Waite's then lawyers referred him to a Dr Fairhurst who examined Mr Waite on 24 August 2016. Dr Fairhurst had the report of Dr Meyerkort (see below) before him, together with all the material that was before Dr Meyerkort. He reached different conclusions to Dr Meyerkort.
Dr Fairhurst concluded that Mr Waite had sustained a left shoulder injury and developed impingement. He may have suffered a frozen shoulder. It is not uncommon for a frozen shoulder to arise as a result of trauma. Dr Fairhurst was in no doubt that the impingement or frozen shoulder had arisen as a consequence of the work incident of 7 February 2016 that Mr Waite had described to him.
Mr Waite told Dr Fairhurst that the excavator hit the top of the truck with sufficient force to 'abrade the reinforced stainless steel'. He was thrown around the cab unexpectedly claiming it felt like he had been punched in the kidneys. He reported continuing pain in the torso and claimed he felt winded. He drove himself to the medical department and recalled the onset of a sharp shooting pain in the left shoulder. The left shoulder remained 'niggly'.
Mr Waite continued to work for five weeks. According to his account to Dr Fairhurst he continued to complain of shoulder pain, aggravated by loading activities, until his shoulder froze up and he was unable to move it properly. According to the history given to Dr Fairhurst he contacted the site supervisor who advised that he seek medical attention.
Dr Fairhurst considered that in returning to his usual duties after the incident of 7 February 2016, Mr Waite had probably aggravated any impingement that had arisen.
Dr Fairhurst thought that Mr Waite appeared anxious whilst relating his history, which he did without embellishment or exaggeration. Dr Fairhurst noted muscle atrophy in the shoulder joint. Mr Waite reported tenderness on palpitation of the acromioclavicular. There was restricted movement. There was evidence of impingement on provocative testing.
Dr Overmeire - consultant occupational physician
Mr Waite saw Dr Overmeire on 8 February 2017. Mr Waite told Dr Overmeire that the bucket hit the tray with a really big jolt and that he was 'violently thrown around' resulting in him being 'winded and shaken up': [32].
According to the history he gave to Dr Overmeire, Mr Waite reported a gradual deterioration in pain and difficulty reaching above shoulder height. Mr Waite then attended his general practitioner.
On examination Mr Waite reported no palpation tenderness around the left shoulder joint. There was moderate palpable tightness of the left upper trapezius. Active and passive left shoulder flexion and abduction were to 90 degrees, limited by reported shoulder pain. Impingement signs were positive.
Dr Overmeire diagnosed left subacromial impingement and a degree of persistent adhesive capsulitis (frozen shoulder) based on his restricted range of external rotation. Dr Overmeire considered that the reported mechanism of injury was consistent with a soft tissue injury to the left shoulder that triggered an episode of subacromial impingement and adhesive capsulitis.
Dr Overmeire considered that Mr Waite sustained an acute soft tissue injury to the left shoulder.
Dr Overmeire did not definitively state the basis of this diagnosis. It does appear, however, that Dr Overmeire based that conclusion upon the history given by Mr Waite, as in answer to question six he stated the reported mechanism of injury is consistent with a soft tissue injury to the left shoulder. Dr Overmeire also expressed an opinion, in answer seven, that Mr Waite suffered a new injury to the left shoulder in the reported jolting incident.
It seems to me that the medical reports of Dr Fairhurst and Dr Overmeire treated Mr Waite's contention that he was shaken as violently as he described as established fact. Hence they did not engage on the issue of whether any discernible injuries could have occurred on 7 February 2016 if Mr Waite was shaken less violently than Mr Waite asserted he was.
In respect of both Dr Fairhurst and Dr Overmeire it was open to the arbitrator to determine that their respective diagnosis could not be afforded significant weight, because such diagnosis were based on an unproven history of events: [123].
Inconclusive or neutral medical evidence
Dr Bailey – GP
Dr Bailey saw Mr Waite on 26 March 2016 and signed a certificate of capacity that date signifying that Mr Waite was unable to work until 31 March 2016. Dr Bailey also requested an ultrasound of the shoulder.
The arbitrator noted at [31] that in his report of 21 April 2016, Dr Bailey made no reference to the extent of the collision or the extent to which Mr Waite was shaken in his cab. I assume that the arbitrator was referring to a letter of that date to Dr Bailey from Mr Lawson‑Smith relating the history given to him that day by Mr Waite. The arbitrator made the same comment in respect of the Envision MRI report of 28 April 2016: [31]. I have commented on what I regard as the arbitrator's orthodox approach to assessing Mr Waite's credibility a little earlier.
Dr Raman – ultrasound
Dr Raman reviewed the ultrasound, collected on 1 April 2016, in a report of the same day. Dr Raman referred to surgery to the left shoulder, 10 years earlier, for possible rotator cuff tendon tear. Having reviewed the ultrasound, Dr Raman thought that the supraspinatus tendon appeared irregular and fragmented which was suggestive of intrasubstance tear with alteration of the echogenic pattern.
MRI of 28 April 2016
Dr Koh of Envision Medical Imaging reported:
•Mild supraspinatus and anterior infraspinatus tendinosis without evidence of supraspinatus tendon tear. Mild subacromial subdeltoid bursitis.
•No evidence of frozen shoulder.
•Low-grade AC joint sprain injury may be present.
Medical evidence suggesting there was not a personal injury by accident
Dr Rostin - medical officer at the Wagerup refinery
Mr Waite first consulted with Dr Rostin on 9 February 2016 complaining of lower back pain following an incident two days previously. The lower back pain had largely resolved but subsequently he had developed a burning sensation at the tip of his left shoulder.
Mr Waite next consulted with Dr Rostin on 1 April 2016 and reported a significant deterioration in his shoulder. Clinical examination indicated a global reduction in his range of movement with significant exacerbation of his reported pain on passive mobilisation of the shoulder. Dr Rostin's clinical impression was that Mr Waite had developed an adhesive capsulitis (frozen shoulder).
Mr Waite consulted with Dr Rostin on a third occasion on 8 April 2016. Mr Waite reported persistent left shoulder pain and restricted range of movement. He indicated localised tenderness to the anterior aspect of that shoulder. Clinically Mr Waite had a guarded range of spontaneous movement, improved active range of movement compared to 1 April, with provocation testing suggestive of supraspinatus tendon pathology.
On 26 April 2016, Dr Rostin responded to a series of questions asked of him by an Alcoa HR consultant.
Dr Rostin felt that Mr Waite's symptoms as of 8 April 2016 were not consistent with a left shoulder injury occurring on 7 February 2016, when the truck 'thrashed violently sideways' following contact with the digger. Dr Rostin's rationale was that Mr Waite's symptoms appear to have developed and deteriorated sometime later, which is inconsistent with acute trauma or a sudden aggravation of underlying pathology.
Dr Rostin did not consider that the symptoms as of April 2016 were related to the injury reported on 7 February. He was of the opinion that Mr Waite had a capacity for work, albeit considerably restricted, and thought the prognosis for his current injury to his left shoulder was generally excellent.
Dr Meyerkort - consultant occupational physician
Dr Meyerkort, assessed Mr Waite on 8 June 2016 and provided a report to the respondent's solicitors on 21 June 2016.
Dr Meyerkort had the X‑ray and ultrasound from SKG radiology of 1 April 2016 and the results of the MRI before him when he prepared his report.
Mr Waite told Dr Meyerkort that his truck was struck by the digger bucket resulting in his truck being rattled violently. He felt discomfort in his lower back and felt winded. He reported pain affecting his back and left shoulder. His back condition improved but he continued to have difficulty with his left shoulder.
I interpose that the arbitrator noted that this was the first history by Mr Waite where he indicated a more violent movement than a mere shudder or shock as originally described: [32].
In Mr Waite's witness statement, also of 8 June 2016 (pars 29 - 30 and 36) he described how Mr Findlay:
tracked back and slewed the digger at the same time, causing it to collide heavily with my truck. Following the impact, I felt a shock go through my body and then pain in my back and shoulder.
He reported the collision because it was so severe: [28].
Returning to the history provided to Dr Meyerkort, Mr Waite continued to experience difficulty with his left shoulder. After five to six weeks he attended his own general practitioner for review. As of 8 June 2016 he continued to experience pain in his left shoulder described as a sharp pain and a pulling sensation. He was unable to sleep on his left side and had difficulty performing activities above shoulder height. He did not report difficulties with activities performed below shoulder height nor did he describe any areas of altered sensation or pins and needles.
Mr Waite underwent left shoulder rotator cuff repair in 2006 and made a full recovery. Mr Waite maintained a full range of movement in both shoulders. His grip strength on the right was greater than on the left. He was negative for impingement and supraspinatus pathology bilaterally.
Dr Meyerkort concluded that Mr Waite had clinical features of capsulitis affecting his left shoulder. Dr Meyerkort concluded that any soft tissue injury that may have been sustained to Mr Waite's left shoulder on 7 February 2016 would have resolved over a six-week period. Mr Waite's attendance for medical treatment after that period, namely 26 March 2016, suggested that he had developed a new condition.
Dr Meyerkort stated that capsulitis is characterised by a significant restriction of both active and passive shoulder motion that occurs in the absence of known intrinsic shoulder disorder. Such a condition can occur when an individual has sustained a significant traumatic event directly to the shoulder.
Dr Meyerkort noted that Mr Waite did not describe any specific trauma directly to his left shoulder. He could not be considered to have sustained any direct injury to his shoulder so as to have caused capsulitis.
In Dr Meyerkort's opinion, the capsulitis was of uncertain origin and could not be directly linked to the 7 February 2016 incident. Mr Waite's continuing report of left shoulder symptoms did not directly relate to the work-related incident and should be considered to be a new and distinct condition. Nor did the symptoms relate to his previous condition in 2006.
Dr Meyerkort concluded that Mr Waite made a complete recovery from any injury he may have sustained from 7 February 2016. If Mr Waite had continuing symptoms following the incident of that date, Dr Meyerkort would have anticipated he would have attended for continuing review during the ensuing six-week period.
Mr Frederick Phillips - consultant orthopaedic surgeon
Mr Phillips saw Mr Waite on 6 February 2017. Mr Waite reported that the digger struck his truck and he was violently shaken. He was wearing a seatbelt. There was pain everywhere especially in his kidneys. He was winded and sore. He stated that he described a sharp shoulder pain to a doctor (who must be Dr Rostin) but asserted that the company had hidden that document.
Mr Waite described a constant pulling sensation which could be aggravated to a 9/10 pain score if he attempted elevation above shoulder height. Mr Phillips noted upper limb wasting on the left of 2 cm diminution, maximum circumference above the elbow.
Active range of movement was quite restricted on the left but full on the right. When the left shoulder was palpated there appeared to be a block to abduction at about 70 degrees although this was in part voluntary. With a little force Mr Phillips was able to demonstrate almost full internal and external rotation.
Mr Phillips considered that Mr Waite clearly did not have a frozen shoulder now. Reflexes on the left were somewhat diminished compared to (I assume) the right but Mr Phillips was not confident that Mr Waite was fully relaxed. Grip strength on the left was weak compared to the right.
Mr Phillips noted that Mr Waite described being bounced around his cab. The natural history of adhesive capsulitis/frozen shoulder is a relatively sudden onset of severe pain, loss of range of movement followed by loss of pain and regaining of range of movement. Sometimes full range of movement occurs quite suddenly. The history provided by Mr Waite was not typical of a classical frozen shoulder.
Mr Phillips thought that contemporary clinical reports suggested that the underlying condition was a capsulitis. Given that there was now significant muscle wasting, it was possible that fear avoidance was in part causing a persistence of disability. Mr Phillips felt that mental health issues complicated the whole presentation.
Mr Phillips noted that Mr Waite presently complained of severe pain associated with any elevation above about 60 degrees of the left shoulder. There was almost full passive rotation with slightly diminished reflexes on the left. He noted established upper arm muscle wasting. Mr Phillips could not clearly confirm a diagnosis of frozen shoulder and could not offer a clear diagnosis of injury. He noted that frozen shoulder when related to injury is usually the result of protection and lack of use of the joint.
Mr Phillips noted a temporal relationship between the incident as described and the development of symptoms, but felt that the development of pain six weeks after the incident would not be in keeping with a causal relationship.
Mr Phillips observed that the initial symptoms of frozen shoulder are severe pain. In Mr Waite's case, if the correct diagnosis is that of an adhesive capsulitis, then the onset of pain was six weeks following the incident. It was possible that the left shoulder was vulnerable to injury due to the previous long-standing pathology and that protection of the shoulder led to the development of a frozen shoulder.
Mr Phillips considered that there was no evidence that the ongoing condition was a continuation of the pre‑existing degenerative condition. He felt that it was not at all clear what injury was suffered on 7 February 2016 other than a soft tissue strain.
Mr Phillips stated:
The subsequent development of frozen shoulder six weeks later if the documentation is correct, one can only speculate that it was a continuation of that injury (referring to a soft tissue strain).
On 23 March 2017, as the arbitrator noted at [110] Mr Phillips provided a supplementary statement. He stated that he could only speculate as to the nature of the injury, noting Mr Waite's report of a localised burning sensation just below the left shoulder tip to Dr Rostin on 9 February 2016. He noted that there was a full range of movement at the time and no indication of any impingement or compromised function. He considered on the basis of probability that any (my emphasis) injury here, was simply a soft tissue contusion affecting the tissue just deep to the point of claimed tenderness, but not affecting the structural integrity of the shoulder joint or acromioclavicular joint.
Mr Phillips considered that any possible soft tissue strain would have resolved within two – six weeks of 7 February 2016. Further that he could not positively confirm a diagnosis of adhesive capsulitis. If that condition had developed following the injury it would have been identified at the time of the MRI scan, but it was not. Mr Phillips was not able to identify a positive impingement upon examination. He was not able to make any diagnosis of any condition other than the complaint of 7 February 2016. He could not identify any objective evidence of any injury condition at the left shoulder. Mr Phillips felt, on the balance of probabilities, that any condition subsequently identified was not caused or materially contributed to by any incident on 7 February 2016.
Conclusion on ground 3
Ground 3 is based on a misconception that all the medical evidence overwhelmingly pointed to personal injury by accident. It did not. No error of law has been established by ground 3.
Ground 5
Ground 5 simply repeats grounds 2 and 3 which, as I have found, do not establish any error of law.
Ground 6
The error contended for in ground 6 is that having found that Mr Waite may have suffered a left shoulder injury encompassed by the descriptor 'soft tissue injury,' the arbitrator then failed to find that this injury arose out of the course of employment. The fact that an injury arose in the course of Mr Waite's employment was the matter that Mr Waite was required to prove. Mr Waite's inability on the evidence to establish this contention does not amount to an error of law on the part of the arbitrator. Rather it is a simple failure by Mr Waite to discharge the burden that was on him.
Further, at par 33 of his written submissions in support of this ground, Mr Waite asserts that the arbitrator concluded that he had a soft tissue injury, further concluded that a soft tissue injury is sufficient to fall within the definition of personal injury by accident but then, illogically, failed to conclude that Mr Waite sustained a personal injury by accident.
Mr Waite mis‑states the arbitrator's findings both in this ground and by repetition in ground 7(b). The arbitrator did not conclude that Mr Waite did sustain a soft tissue injury.
I repeat the medical evidence concerning a possible soft tissue injury. Dr Meyerkort concluded that any soft tissue injury that may have been sustained to Mr Waite's left shoulder on 7 February 2016 would have resolved over a six week period. Mr Waite's attendance for medical treatment after that period, namely 26 March 2016, suggested that he had developed a new condition.
I refer, without repetition, to Mr Phillips' findings.
As the arbitrator correctly noted at [116] Mr Phillips did not provide an unequivocal definitive opinion that Mr Waite did in fact suffer any injury (although other specialists did).
Dr Overmeire considered that the reported mechanism of injury was consistent with a soft tissue injury to the left shoulder (seemingly adopting Mr Phillips' characterisation) that triggered an episode of subacromial impingement and adhesive capsulitis.
Dr Overmeire expressed the opinion that Mr Waite suffered a new injury to the left shoulder in the reported jolting incident which triggered an episode of adhesive capsulitis. He sustained an acute soft tissue injury to the left shoulder.
Having considered all the medical evidence, the arbitrator did not in fact find that there was a soft tissue injury. He found that 'soft tissue injury' is nothing more than a broad descriptor and says little more than that Mr Waite suffered from pain.
The arbitrator posed the questions for resolution as being, firstly, did Mr Waite suffer a soft tissue injury (implicitly on 7 February 2016). Secondly, is 'soft tissue injury' a sufficient description to constitute the relevant physiological change required to ground a finding that there has been a personal injury by accident?
The arbitrator proceeded on the basis that a finding of a 'mere' shoulder injury would not suffice: [88]. The arbitrator considered that there had to be, from the medical evidence, a more specific identification of the relevant physiological change than 'soft tissue injury' before he could find that Mr Waite has suffered a personal injury by accident: [89].
The arbitrator expressed the view at [120] that he was not assisted by the broad reference to a 'soft tissue injury' in identifying what the particular physiological change might have been.
This ground requires consideration of a fundamental issue, namely the concept of personal injury in workers compensation jurisprudence.
Meaning of personal injury by accident
Under s5 (1) of the Act 'injury' relevantly means —
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions
In Military Rehabilitation and Compensation Commission v May the High Court considered the meaning of 'injury' in the context of the Safety, Rehabilitation and Compensation Act 1998 (Cth). French CJ, Kiefel, Nettle & Gordon JJ held as follows:
As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if 'something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word' (emphasis added). [45]
That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an 'injury' in the primary sense. [46]
However, as the Full Court correctly held, suddenness is not necessary for there to be an 'injury' in the primary sense. A physiological change might be 'sudden and ascertainable'. A physiological change might be 'dramatic'. The employee's condition might be a 'disturbance of the normal physiological state'. [47]
That an 'injury' in the primary sense can arise, and can be described, in a variety of ways does not mean that 'suddenness' is irrelevant. As the Full Court said, 'suddenness' is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change - the nature and incidents of that change - that remains central. [47]
That an injury in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
'[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word'. (emphasis added.) [48]
In separate reasons Gageler J agreed with the plurality and said at [75]:
More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to 'getting hurt' (an injury might be constituted by nothing more than 'something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel') but that suffering an injury involves something more than merely 'becoming sick'. An injury, it has long been repeatedly explained, is some definite or distinct 'physiological change' or 'physiological disturbance' for the worse which, if not 'sudden', is at least 'identifiable'. The universality of that explanation has been questioned, and the comment has fairly been made that 'a distinct physiological change is not itself an expression of clear and definite meaning'. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.
...
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken. [78]
The arbitrator briefly referred to Military Rehabilitation and Compensation Commission v Mayat [86] albeit not the paragraphs I have referred to. In so far as there is a distinction between the guidance provided by the reasons of Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41, as adopted in Promnitz v Byblos Pty Ltd CM-59/97 29 October 1997 (arbitrator's reasons at [82]), it is obviously necessary to follow the High Court.
A failure to apply the recent holding of the High Court to the question of whether Mr Waite had sustained a personal injury by accident would, of course, constitute an error of law.
It is clear from his reasons that the arbitrator was looking for further elucidation from the medical evidence before him so as to precisely identify the internal physiological change said to have occurred on 7 February 2016: [91].
The arbitrator noted that Mr Waite relied upon an intrasubstance supraspinatus tear identified on an ultrasound requested on 26 March 2016: [96]. He regarded those findings as preliminary: [97] and noted the absence of any finding of a tear in the MRI report: [98].
The arbitrator observed at [100]:
In my view, the MRI results are to be preferred to the ultrasound investigations. As I understand the hierarchy of radiological investigations an MRI provides more detailed results than an ultrasound. In any event, the ultrasound is only 'suggestive' of a tear.
None of the specialists who examined Mr Waite after 28 April 2016, and provided reports, confirmed the earlier provisional finding of a possible tear. Nor did any specialist disagree with the proposition that the MRI revealed no tear.
The arbitrator concluded that the highest Mr Waite's case rose to was to suggest he may have suffered an injury to his left shoulder of a kind encompassed by the broad (if uninformative) descriptor 'soft tissue injury': [122].
Accordingly, the evidence went no higher than establishing a possibility that Mr Waite suffered a left shoulder injury in this incident. That does not equate to Mr Waite establishing that it was more likely than not that he did sustain an injury by accident.
As I have observed, a consultant orthopaedic surgeon who saw Mr Waite in February 2017, felt that it was not at all clear what injury was suffered on 7 February 2016, other than a soft tissue strain. Whilst other doctors or specialists provided opinions, as noted, of a distinct injury sustained by Mr Waite, the arbitrator did not commit an error of law in finding that his evaluation of the evidence did not permit him to define the injury suffered beyond that of a soft tissue injury.
Conclusion on Ground 6
Applying Military Rehabilitation and Compensation Commission v May, as I am satisfied he did, the question for the arbitrator was whether Mr Waite had established, on the evidence, that there had been a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The arbitrator was not so satisfied. He made no error of law in that regard. Ground 6 does not amount to an error of law.
Ground 7(a)
By this ground Mr Waite asserts that he experienced and reported pain at the time and that he continues to suffer from the effects of adhesive capsulitis. Mr Waite further asserts, as an established fact, that the arbitrator found that adhesive capsulitis was a consequence of the injury on 7 February 2016 and so erred in not inevitably finding that Mr Waite therefore suffered a personal injury by accident.
This ground is another variation of the theme that the arbitrator was compelled by the evidence to conclude that Mr Waite had suffered a personal injury by accident and necessarily erred in law in not doing so.
Mr Waite refers to par 14 of the arbitrator's reasons but overlooks the qualification. The arbitrator's conclusion that if there was any injury as defined then the capsulitis results from the injury, was predicated on an assumption that Mr Waite had suffered a personal injury by accident to his shoulder. That assumption was the fundamental issue and it was not established.
Mr Waite cannot therefore rely upon any conclusion that the capsulitis results from the injury, as a necessary precursor to his contention that the arbitrator thereby erred in not drawing the only logical conclusion that followed from that finding.
The arbitrator accepted that it was clear that Mr Waite suffered pain in his shoulder, reported this to Mr Tompsett, took painkillers and kept on working, albeit in pain: [86] and [117]. Applying the definition of injury that I have referred to, the mere fact that a person has experienced pain does not in and of itself establish a personal injury by accident.
As noted, Dr Rostin's evidence was that Mr Waite's symptoms appeared to have developed and deteriorated sometime after the incident which was inconsistent with acute trauma or a sudden aggravation of underlying pathology.
As I note below, Mr Waite confined his case to one of injury by personal injury by accident as defined by s 5(a) of the Act, as opposed to disease as defined by s 5(c) or (d). A disease is a condition that does not necessarily require a sudden and identifiable physiological change, whereas a personal injury by accident does on the holding in Military.
The arbitrator was entitled to have regard to Dr Meyerkort's opinion that the capsulitis is of uncertain origin and could not be directly linked to the 7 February 2016 incident.
No error of law is established by ground 7(a) nor, for the same reasons, ground 16 (b).
Ground 7(b)
No error of law is established by ground 7(b) for the reasons I set out when considering ground 6.
Ground 7(c)
By this ground Mr Waite asserts that the arbitrator erred in law in failing to conclude that the mild subacromial subdeltoid bursitis, detected in the MRI is in fact the soft tissue injury, and is the injury that caused the impingement.
Dr Koh's report, in itself, does not compel a conclusion that Mr Waite suffered a personal injury by accident on 7 February 2016. This ground does not establish an error of law.
Ground 7(d)
This ground seemingly asserts that on the medical evidence before him the arbitrator erred in law in not concluding that impingement of the supraspinatus tendonitis leads to supraspinatus tendinosis (mild supraspinatus tendinosis without evidence of supraspinatus tendon tear was detected in the MRI).
The arbitrator was not compelled to so conclude. This ground does not establish an error of law.
Ground 7(e)
Ground 7(e) simply repeats ground 3 which as I have found did not establish any error of law.
Ground 7(f)
By ground 7(f) Mr Waite complains that the arbitrator failed to find that the low grade AC joint sprain injury detected in the MRI scan was an injury. As noted, however, as Dr Meyerkort observed, the MRI merely revealed that a low grade AC joint sprain injury may be present.
Further, based on the reports of Dr Meyerkort and Mr Phillips, the arbitrator concluded that the AC joint sprain identified on the MRI could not be any 'soft tissue injury' suffered, by accident, on 7 February 2016. That was because such an injury would have resolved within two to six weeks and so would not still be discernible on the MRI on 28 April 2016: [104] - [107].
No error of law has been established by this ground.
Ground 7(g)
As was the case with Ground 7(a), this ground also mis‑states the conclusions of the arbitrator by omitting the qualifying words in [166], 'if Mr Waite did suffer a personal injury by accident on 7 February 2016 (which I do not consider he has led sufficient evidence to establish)'.
Whether or not one can work backwards from medical evidence showing that Mr Waite was suffering from adhesive capsulitis to conclude, therefore, that Mr Waite had established that he suffered a personal injury by accident on a particular date was a question of fact for the arbitrator. Again, the fact that Mr Waite confined his case to personal injury by accident, and not injury in the sense of disease is relevant. No error of law has been established by this ground.
Ground 7(h)
For the reasons I set out in considering ground 6, I do not consider that any error of law has been established by this ground.
Ground 7(i)
Mr Waite's fundamental difficulty on this ground is that he filed particulars of injury on 17 March 2017 which confined his case to one of total, not partial, incapacity for a personal injury. Further, that it was injury by accident and not by an aggravation, acceleration or recurrence of a pre‑existing disease: [7] - [9] of the arbitrator's reasons.
Mr Waite is bound by the way in which his case was conducted at the hearing before the arbitrator for the reasons explained in A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 at [111] – [115] as cited in BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [64] (Herron DCJ).
It is not open to Mr Waite to seek to bring a case confined to s 5(a) before the arbitrator to one, on appeal, potentially also coming within s 5(d) which refers to the recurrence, aggravation or acceleration of any pre‑existing disease.
No error of law has been established by this ground.
Ground 7(j)
No error of law has been established by this ground for the reasons set out in considering ground 7(a).
Ground 8
By ground 8 Mr Waite complains that the arbitrator erred in law in not disregarding Dr Meyerkort's report entirely, because his prognosis as to recovery was wrong. The basis for that assertion is Mr Phillips' assessment on 6 February 2017.
As I have noted, however, Mr Phillips thought it was possible that fear avoidance was in part causing a persistence of disability. Mr Phillips felt that mental health issues complicated the whole presentation.
In any event a decision not to entirely set aside the report of one medical expert does not constitute an error of law.
Ground 9
By ground 9 (coupled with the comments under the heading 'the respondent dispute that (b)'), Mr Waite presses the following argument. In deciding whether an inference could be drawn that a shoulder injury arose from the events of 7 February 2016, the arbitrator should have had regard to the fact, if the evidence so established, that Mr Waite had no shoulder injuries of any sort immediately prior to 7 February 2016. In the period closely following the accident he developed a shoulder injury for which no other explanation emerged the evidence. Accordingly, Mr Waite argues, that leads to an irresistible inference that the shoulder injury must have arisen from an accident on 7 February 2016.
Against that argument was the fact that no medical attention was sought until 26 March 2016, almost seven weeks after the collision. The arbitrator made the findings I have already referred to that he was not satisfied that the collision was as intense as described by Mr Waite and that he could not draw any particular inferences from the extent of any damage.
The argument that something must have occurred on 7 February 2016 to give rise to the symptoms discerned from 26 March 2016 onwards, was one that counsel for Mr Waite was entitled to press before the arbitrator. The fact that the arbitrator was not sufficiently persuaded to find that there had been a personal injury by accident on 7 February 2016, in the sense that sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, does not constitute an error of law. This ground does not constitute an error of law.
Ground 17
Mr Waite argues that the arbitrator's reasoning was unreasonable in the 'Wednesbury sense' that is, that it was so unreasonable that no reasonable arbitrator could have made it. By this ground, Mr Waite refers to the decision of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.
A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law: Paridis v Settlement Agents Supervisory Board (Buss JA) [56].
The implicit suggestion in par 74 of Mr Waite's written submissions in support of this ground that some unspecified extraneous material has improperly influenced the arbitrator's decision (seemingly after the hearing but before the decision) must be rejected. The assertion that there are a 'ridiculous amount of contradictory statements used throughout the whole report' is not borne out by a fair reading of the arbitrator's reasons and must also be rejected. The assertion that, 'every statement he made in arbitration is the complete opposite to the final decision' is not accurate.
I am quite satisfied that the arbitrator properly applied the relevant law, considered all relevant matters and excluded irrelevant matters from his consideration.
No error of law has been made out by ground 17.
Grounds 4, 10 and 11
Mr Waite's complains, by grounds 4, 10 and 11 that the arbitrator's stated reasons were inadequate. In a different context, the High Court spoke of the obligation on the tribunal of fact to expose the reasoning process behind the acceptance of relevant facts so as to justify the ultimate result: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 [44]. In considering this ground I have looked at the arbitrator's reasons as a whole.
The arbitrator was required to summarise the crucial arguments of the parties, formulate the issues, resolve issues of law and fact and in so doing explain how the judge dealt with the parties' contentions in the resolution of those matters, apply the law to the facts as found, and explain how the final result followed: Velez Pty Ltd v Tudor [2011] WASCA 218 (Murphy J) [62]. I consider that the arbitrator did so.
The arbitrator set out his findings as to why he preferred one set of evidence to another. The arbitrator's reasons were comprehensive, whilst avoiding the vice identified by Commissioner Nisbet in Heatley v Jovista Pty Ltd [2006] WACC C12-2006, commentating on the effect of the Summit Homes v Lucev (1996) 16 WAR 566 decision on arbitrators' reasons.
Commissioner Nisbet observed at [9]:
… Ipp J's criticism of….the inadequacy of review officers' decisions, led to an increase in the length of arbitrators' decisions, some going over 100 pages as review officers sought to demonstrate by regurgitating the evidence before them, that they had firstly considered the evidence, secondly given it appropriate weight, and thirdly had exposed every single step in their reasoning process.
Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. It is against that background that the arbitrator is required only to identify the facts accepted and to give the reasons for doing so. The legislature was intending that the arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection: Sotico Pty Ltd v Wilson [2007] WASCA 112 (Wheeler JA, Steytler P agreeing) [23] ‑ [24].
This was not a case where some of the medical opinions which were not preferred attacked the reasoning process of opinions which were accepted. Nor were the reports that were not accepted based, for example, on a clinical examination which had a result very different from that outlined in the reports to be accepted.
Mr Waite has not demonstrated any inadequacy in the arbitrator's reasons and none of these grounds constitute a proven error of law.
Ground 15
Finally, Mr Waite's complaint by ground 15 is that the arbitrator denied procedural fairness to Mr Waite by not allowing his counsel to cross‑examine the witness Mr Tompsett on a particular document. I am far from satisfied that any error of law is established in this regard. The arbitrator did not, in fact, prevent cross‑examination. Rather, he enquired about relevance and counsel did not press the point any further.
Conclusion
None of the grounds of appeal reveal any error of law. It is not necessary to deal with the respondent's notice of contention. Nor is it necessary to explore the issue that, despite the multiplicity of appeal grounds, the arbitrator's second basis for dismissing the application, namely that total incapacity was not established, was not addressed by any of the grounds of appeal.
The appeal is dismissed. 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.
MW
ASSOCIATE TO JUDGE TROY8 NOVEMBER 2018
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