Walsh v Fortescue Metals Group Ltd - [2016] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WALSH -v- FORTESCUE METALS GROUP LTD [2016] WADC 140

CORAM: HERRON DCJ

HEARD: 27 MAY 2016

DELIVERED : 22 SEPTEMBER 2016

FILE NO/S: APP 14 of 2016

BETWEEN: GARY WALSH
Appellant
AND
FORTESCUE METALS GROUP LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKCOVER WA
Coram  :ARBITRATOR NUNN
Citation  :A26112

Catchwords:

Worker's Compensation - Section 61 Worker's Compensation and Injury Management Act 1981 - Nature and extent of s 61 application - Interim application - Cannot be used to determine whether worker has suffered a disability - Observations regarding nature of hearings before arbitrator

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant: Mr A Stewart
Respondent: Mr C Rimmer

Solicitors:

Appellant: Chapmans Barristers & Solicitors
Respondent: Jarman McKenna

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

Department of Education v Kenworthy (1990) 3 WAR 1
Glenn-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Qantas Flight Catering v Joncevski [2004] WASCA 121
Vurlow v Leighton Nursing Home (1978) WAR 15

HERRON DCJ:

Introduction

On 24 March 2015 the appellant, Mr Walsh, suffered injuries to his left arm when he swung a tool bag to his shoulder during the course of his employment with the respondent, Fortescue Metals Group Limited. In his workers' compensation claim form signed by him on 27 March 2015 he described the injury as a strain to his left biceps while lifting a work tool bag. He was seen by Dr Hurworth who issued a first medical certificate dated 24 March 2015. She described the injury as a left arm injury and assessed Mr Walsh as suffering a ruptured long head of left biceps.
Dr Hurworth referred Mr Walsh to a surgeon, Dr Marchant. She certified Mr Walsh as having some capacity for work on the basis he was fit for modified or alternative duties.
By letter dated 7 April 2015 the workers' compensation insurer, GIO, informed the employer that liability was accepted in respect to weekly payments and medical expenses. The letter did not identify any specific injury, rather it referred to 'Nature of Incapacity – left biceps strain'.
By notice dated 26 June 2015 issued pursuant to s 61 of the Workers' Compensation and Injury Management Act 1981 (WCIM Act) the employer informed Mr Walsh it intended to discontinue his weekly payments of compensation. The s 61 notice was based upon two medical reports of Dr White dated 27 May 2015 and 18 June 2015. On 19 August 2015 Mr Walsh filed an application pursuant to s 61 challenging the employer's right to discontinue weekly payments.
An initial hearing was held to determine, 'as a preliminary issue', the validity of the s 61 notice and medical certification. The parties filed written submissions and the application was heard and determined on the papers. On 9 November 2015 an arbitrator published written reasons for decision in which at [44(c)] he determined Dr White's medical reports:
Expressed a clear and unequivocal opinion that the worker's compensable left bicep muscle injury has resolved sufficiently to enable him to return to his pre‑accident duties on a full‑time basis and that his present incapacity for work results from the non‑compensable pre‑existing left shoulder condition.
At [45] – [46] he concluded:
In my opinion, the Form 5 Notice is valid. On a fair reading it substantially complies with the requirements for a notice under s 61(1) and (2) the Act.
On this basis the worker's preliminary challenge to the validity of the Form 5 Notice is dismissed. The worker's application for continuation of weekly payments under s 61(3) may otherwise proceed to a determination of the dispute 'on the merits'.
There is no appeal from those findings.
Thereafter, on 14 December 2015, a further hearing was held before a different arbitrator, Mr Nunn, who delivered written reasons for decision on 19 January 2016 dismissing Mr Walsh's application that his weekly payments of compensation not be discontinued. The arbitrator ordered that weekly payments for compensation be discontinued as and from 17 July 2015.

Appeal to the District Court

By notice of appeal dated 17 February 2016 Mr Walsh appeals from the decision of the second arbitrator, Mr Nunn, of 19 January 2016 on the basis the arbitrator erred in law in ordering that Mr Walsh's payments be discontinued.
The grounds of appeal are confusing, repetitive and do not clearly identify the question of law which is said to arise from the arbitrator's reasons for decision. However, as it emerged during the course of the hearing before me, the alleged error of law is that the learned arbitrator misconstrued s 61(1) of the WCIM Act and applied the wrong test in determining Mr Walsh's application pursuant to s 61(3). I therefore propose to determine this appeal by determining whether the learned arbitrator erred in law by misconstruing s 61(1) and by misdirecting himself as to the issues he had to determine under s 61(1), rather than by specifically addressing each of the grounds of appeal in the notice of appeal.
The hearing before me was conducted on that basis. A question of law is raised because it involves the proper construction and application of s 61.

Application for leave to adduce fresh evidence

Mr Walsh also applies, pursuant to s 247(6) of the WCIM Act to adduce fresh evidence, being medical certificates of Dr Tyler-Freer dated 27 and 29 January 2016. That application is opposed by the respondent. I will deal with the application during the course of these reasons.

Adequacy of appeal book

Unhelpfully, the appeal book filed for the purposes of the hearing of the appeal before me does not include a copy of the application determined by the arbitrator, nor a copy of the employer's reply to the application. Nor does the appeal book include a copy of the first arbitrator's written reasons for decision delivered on 9 November 2015 and any documentation before him on which he determined the matter. Although there is no appeal against his determination, it seemed to me to be a matter relevant to the hearing of the appeal before me which would inform the background to the dispute between the parties and why the hearing before Arbitrator Nunn proceeded in the way it did. I, accordingly, requested the parties to provide me with copies of documentation relevant to that application and the determination of the arbitrator. That documentation was later provided to me.

The issue before the arbitrator

Under the heading 'Issues' at [11] the arbitrator defined the issues before him as:
Having regard to the parties' cases it seems to me that the issues to be determined, whether or not these have been expressly framed this way by the parties or not, are as follows.
(a)Can Mr Walsh's shoulder injury be considered in the context of these proceedings? This includes consideration of whether the shoulder injury is encompassed by FMG's admission of liability for the biceps strain and whether the shoulder injury 'results from' the biceps strain?
(b)If it can, is the surgery performed a reasonable expense?
(c)If it cannot and the dispute is confined solely to Mr Walsh's biceps injury, is Mr Walsh able to resist FMG's attempt to discontinue his payments?
(d)If yes, is the surgery performed a reasonable expense in the context of the compensable left bicep injury?
The arbitrator later explains that after the preliminary issue was determined by another arbitrator [14]:
The dispute was therefore listed for determination according to its substantive merits.
He goes on to identify the issues in dispute before him to [20]:
… hinge on medical opinions as to Mr Walsh's capacity for employment as well as whether Mr Walsh's shoulder injury can form part of this dispute.
The learned arbitrator's identification of the issues in dispute was made against the background of the early arbitrator's finding that Mr Walsh's present incapacity for work resulted from a non‑compensable pre‑existing shoulder injury. At [21] the learned arbitrator observed:
Additionally, it is apparent that there is no, or no significant, contest that:
(a)Mr Walsh has a degenerative left shoulder condition which included tears to his rotator cuff tendons.
(b)In July 2015 Mr Walsh underwent surgery performed by Dr Duke. This surgery repaired Mr Walsh's torn supraspinatus tendon as well as his bicep injury.
(c)Mr Walsh remains certified as unfit for work following this surgery.
At [23] – [24] the arbitrator rejected Mr Walsh's contention that the injury suffered by him on 24 March 2015 was an injury to his left bicep and to one or more of the tendons of his left shoulder, that is, the compensable injury was an injury to the left bicep and left shoulder, not just an injury to the bicep. The arbitrator ruled [37] – [42] that whether Mr Walsh suffered a fresh tear to the tendons of his left shoulder or aggravated the pre‑existing degenerative changes at the same time as he suffered the left bicep injury was not able to be litigated in the application before him and could only be the subject of a fresh claim. He determined the application on the basis that it was confined to whether Mr Walsh was entitled to ongoing weekly payments of compensation in respect of the bicep injury only. It is implicit in the learned arbitrator's reasons, if not express, that he determined he was constrained to determine the application on the basis that only the bicep injury was relevant to his determination because that is the injury identified by Mr Walsh in his s 61 application. It is also the injury identified by Mr Walsh in his original claim form and in the supporting medical documentation. It is that injury for which the employer/insurer accepted liability and which is identified in the s 61 notice. The arbitrator further summarised the issue requiring his determination at [59] – [60] as:
Accordingly the substantive merits of this dispute are confined to the impact on Mr Walsh of his bicep injury (and any consequential injury that results from that). Consideration of any other injury is immaterial for the purposes of this dispute.
It will be for Mr Walsh to establish, by a separate claim, that he is entitled to compensation in regards to some other separate injury.
Whether the learned arbitrator was correct in so defining the matter for determination before him is the issue to be addressed by this appeal.

Medical background

I have earlier noted Dr Hurworth referred Mr Walsh to an orthopaedic surgeon, Dr Marchant. Dr Marchant reviewed Mr Walsh on 25 and 26 March 2015 and provided a report dated 24 April 2015. Dr Marchant referred Mr Walsh for a MRI scan which he described as showing 'evidence of a chronic rotator cuff tear with wasting atrophy of the muscles of his rotator cuff. He also had a long head of biceps rupture'. Dr Marchant recommended against surgery and arranged for a rehabilitation therapy program. He said Mr Walsh was not fit to do any physical work involving his left arm but may be suitable for work involving his right arm only or, alternatively, office‑based supervisory duties.
Dr Marchant reviewed Mr Walsh on 6 May 2015 and issued a report on the same date in which he said:
The majority of his problem appears to be longstanding and chronic … he has chronic rotator cuff tears with significant atrophy of the cuff muscles. He has some early degenerative changes in the shoulder … His acute injury of a long head of biceps rupture is obviously relevant.
He considered Mr Walsh was fit for suitable duties avoiding any heavy or repetitive physical lifting or activity with his left arm.
At the request of the insurer, Mr Walsh was reviewed by an occupational physician, Dr White, on 21 May 2015. Dr White subsequently provided a report dated 27 May 2015. Dr White referred to the MRI of the left shoulder requested by Dr Marchant which he said reported a rupture of the long head of the biceps tendon and that there were tears involving both supraspinatus and the subscapularis. In his summary and assessment, Dr White said the MRI
revealed evidence of significant chronic degenerative shoulder changes, including osteoarthritic changes as well as multiple longstanding rotator cuff tears and tendon retraction. His current symptoms predominantly affect the shoulder region.
He later said that the acute pain and initial findings reported on examination by Dr Hurworth had resolved and the current signs and symptoms predominantly related to the pre‑existing chronic degenerative shoulder changes.
When Dr White recorded the history of the injury he noted Mr Walsh described left upper arm pain following an incident at work when lifting a bag of tools. He later described the nature of the injury to be a work‑related left long head of biceps tear. Dealing with the left shoulder, he concluded that the rotator cuff tears and tendon retraction were longstanding and any current symptoms and signs related to those changes.
Dr White concluded:
Mr Walsh is considered to have made a total recovery from the work place incident. The long head of biceps remains torn but the acute pain and tenderness have resolved. He denied discomfort on biceps flexion. He continued to describe left biceps discomfort on resistant supination and, to a lesser extent, on resisted pronation. The symptoms are very minimal in nature and severity and do not impact upon Mr Walsh's functional capacity.
Dr White was asked for a further report, which he provided on 18 June 2015. He did not further review Mr Walsh but responded to specific questions asked of him by the insurer. He reiterated that he considered Mr Walsh to have sustained a work-related left long head of biceps tear and that the initial findings reported on examination by Dr Hurworth had resolved and he had made a complete recovery from the acute effects of the left biceps strain of 24 March 2015. However, the recovery was incomplete because the long head of the left biceps remained torn. He reiterated the left shoulder condition involved age‑related degenerative osteoarthritic changes and multiple longstanding rotator cuff tears and tendon retraction. Those conditions placed Mr Walsh at a higher risk for future injury.
Dr White considered Mr Walsh unfit to return to his full pre‑accident hours and duties due to what he described as a pre‑existing non‑work‑related left shoulder condition.
Mr Walsh was later reviewed by an orthopaedic surgeon, Dr Duke, on 19 June 2015 and subsequently on 6 July 2015. Dr Duke performed surgery on 9 July 2015 and again reviewed Mr Walsh following surgery on 17 July 2015.
In a report dated 22 July 2015, Dr Duke described 'the significant findings were that he had left shoulder rotator cuff problems'. He related the history of the injury as Mr Walsh feeling a pop in his shoulder on the left side with significant onset of pain. Dr Duke noted the course of conservative treatment undertaken by Mr Walsh and Dr Marchant's advice that surgery was not recommended. Dr Duke disagreed with that advice.
Dr Duke described Mr Walsh as suffering chronic cuff degeneration with a recent tear of the long head of biceps and supraspinatus. He noted a past history of left shoulder problems in 2004 but with a history of not having any significant pain in the left shoulder until there was a change in symptoms which came on acutely on 24 March 2015 'when he ruptured the long head of biceps and the supraspinatus with the work injury' (emphasis added). At operation he found degeneration in all areas and evidence of a full thickness tear of the supraspinatus. There was also partial tearing of the subscapularis and a lot of tearing of a long head of biceps. It was his opinion that part of those findings were from the pre‑existing degeneration but part of it was from the injury, noting that prior to the injury Mr Walsh was asymptomatic, or relatively so, and following the injury he could not use the shoulder. Therefore, in his opinion, the work incapacity clearly dated from 24 March 2015.
Dr Duke concluded:
This gentleman has had more than a bicep injury. He has had a bicep injury, which was an aggravation of a pre‑existing long head of biceps degeneration, as well as a full thickness tear of supraspinatus, again an aggravation of an underlying problem to make them both symptomatic.
It is evident that Dr Duke was of the opinion Mr Walsh had suffered two separate injuries in the work accident, being a ruptured long head of biceps and a full thickness tear of the supraspinatus, both of which he described as an aggravation of an underlying problem making both conditions symptomatic. That opinion conflicts with the opinions of Dr Hurworth and Dr White who described the left shoulder symptoms as arising from long-standing degenerative changes. In other words, they did not diagnose the fresh injury described by Dr Duke as the full thickness tear of the supraspinatus. It might reasonably be argued that as Dr Duke's opinion was based upon his findings following surgery he was better placed to diagnose and form an opinion as to the nature of any injuries suffered by Mr Walsh in the workplace accident. Although the earlier medical opinions are contrary to Dr Duke's opinion, there are apparently no medical reports commenting upon or responding to Dr Duke's findings following surgery.

The issue in the appeal

As there is a conflict in medical opinions as to the correct diagnosis of the injuries suffered by Mr Walsh in the accident, and given Dr Duke's opinion is based upon his findings following surgery performed by him, it is clear the real dispute between the parties was as to the nature of the injuries suffered by Mr Walsh in the accident and, in particular, whether it involved a left shoulder injury described by Dr Duke as a full thickness tear of the supraspinatus. In those circumstances the question arises as to whether that issue was able to be, and if so whether it should have been, addressed and dealt with by the arbitrator in the s 61 application, that is, should the arbitrator have been required to make findings as to whether Mr Walsh had also suffered an injury to his left shoulder and not define the matter for determination before him in the limited way in which he did. Did the arbitrator err in law by ruling that consideration of whether Mr Walsh had suffered an injury to his left shoulder, as distinct from an injury to his bicep, was immaterial to the dispute to be determined by him?
The resolution of that issue involves the proper statutory construction and application of s 61 of the WCIM Act which requires a consideration of the nature and extent of an application brought pursuant to s 61.
It also involves consideration of the jurisdiction and the statutory power of arbitrators to hear and determine disputes.

WCIM Act

By s 176(3):
Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
By s 177:
177Object of this Part
(1)The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that —
(a)is timely; and
(b)is accessible, approachable and professional; and
(c)minimises costs to parties to disputes; and
(d)in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
(2)Dispute resolution authorities and officers of WorkCover WA mentioned in section 181(2)(b)(ii) or 182ZO(2)(b)(ii) are to have regard to the object of this Part when they perform their functions.

By s 188:
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.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(4)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.

By s 189(1):
The granting of relief or redress under this Act is not necessarily to be restricted to the specific claim made nor to the subject matter of the claim.
By s 190:
190. Directions by arbitrator
(1)An arbitrator may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
(2)An arbitrator may give directions on the initiative of the arbitrator or on the application of a party.
(3)A directions hearing conducted by an arbitrator may be held for the purposes of this section before the hearing of the proceeding.

Section 61 of the WCIM Act

Section 61 reads:
61. Discontinuing or reducing weekly payments without order
(1)Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).
(2)Weekly payments of compensation for total or partial incapacity shall not be discontinued or reduced pursuant to subsection (1) unless the notice referred to in that subsection contains a clear statement —
(a)informing the worker of the effect of failing to make an application under subsection (3) within the time referred to therein; and
(b)informing the worker that he may obtain information from WorkCover WA as to the ways and means available to him to establish or protect his rights in respect of his injury; and
(c)containing such other information as may be prescribed.
…
(3)A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.
(4)Upon the hearing of an application referred to in subsection (3) an arbitrator shall —
(a)adjourn the application on such terms as the arbitrator thinks fit; or
(b)dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or
(c)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.
…
(5)Subject to subsections (7) and (8), weekly payments shall not be discontinued or reduced otherwise than in accordance with this Act.
Penalty: $2 000.

Supplementary submissions

Following the hearing of the appeal before me on 27 May 2016 at my request supplementary written submissions by the parties were provided addressing the correct statutory construction of s 61 and the relevance of dicta of Rowland J in Heat Containment Industries v Kimberley (1990) 2 WAR 47. I refer to that authority and the reasons of Rowland J at [50] later in these reasons.

Legal principles – s 61

An application pursuant to s 61 is in the nature of an interim or interlocutory application. It is intended to determine in an expeditious way, but on an interim basis, whether the status quo should remain, that is, whether a worker is entitled to ongoing weekly payments of compensation in the interim period. It is intended to prevent arbitrary discontinuance or reduction in weekly payments by an employer. It does not finally determine the rights and entitlements as between a worker and an employer: Heat Containment Industries v Kimberley; Qantas Flight Catering v Joncevski [2004] WASCA 121 [20] (Murray J) (Roberts‑Smith & McLure JJ).
Historically, applications pursuant to s 61 (and its predecessor, s 12B of the Workers' Compensation Act 1912) were dealt with quickly and simply as an interlocutory application in which the worker swore an affidavit annexing the s 61 notice and any medical reports and certificates annexed to the notice, and any further medical reports the worker relied upon to dispute the employer's right to reduce or terminate payments. The application was then heard in chambers before the Workers' Compensation Board (or sometimes before a registrar) and determined after brief oral submissions. Providing the s 61 notice complied with the requirements of s 61, the Board would consider the matter on the merits. The employer was not entitled to adduce any further medical evidence to cure any defects in the s 61 notice or the medical documentation relied upon in support of the notice, but was entitled to adduce further evidence if the s 61 notice was found to be valid and the Board then considered the merits of the application. If, upon consideration of the merits of any dispute between the worker and employer, the Workers' Compensation Board was of the view there was an issue regarding the worker's ongoing entitlements, the Board would often order payments to continue subject to the worker expeditiously proceeding with a substantive application to finally determine the issues in dispute between the parties.
A s 61 notice must, with reasonable clearness, contain the opinion or conclusion of a medical practitioner upon the matters expressed in s 61, namely:
(i)that the worker has a total capacity for work;
(ii)that the worker has partial capacity for work;
(iii)that the incapacity is no longer a result of the injury; and
(iv)the medical practitioner must set out his or her grounds for that opinion.
To certify that a worker has a total or partial capacity for work, or that the incapacity is no longer a result of the injury, requires the medical practitioner to state what is the injury which has given rise to the incapacity and that the injury no longer incapacitates the worker or that any incapacity which may exist is no longer a result of the injury: Vurlow v Leighton Nursing Home (1978) WAR 15, 16 (Burt CJ), 18, 19 (Wickham J).
In Heat Containment Industries v Kimberley (49) Malcolm CJ observed:
By a notice purporting to be made under s 61(1) of the Workers' Compensation and Assistance Act 1981 the employer gave notice that weekly payments made by the appellant to the respondent would be discontinued or diminished. The notice was accompanied by a medical report. It was conceded before the Board that the report was inadequate as a certificate to satisfy the requirements of s 61(1) because it did not certify to all the matters referred to in s 61(1): cf Vurlow v Leighton Nursing Home [1978] WAR 15. The respondent made an application under s 61(3) that the payments not be discontinued or diminished. It was submitted to the Board that once such an application was made, the insufficiency of the s 61(1) notice ceased to be relevant and the application under s 61(3) should be considered on its 'merits'. This submission was rejected by the Board. On 21 April 1989 the appellant was granted leave to appeal against the Board's decision.
… There are, however, some additional comments which I desire to make. It is well established by the line of authority commencing with Vurlow (supra) that the relevant medical certificate must comply with the requirements of s 61(3). The conditional right to discontinue or diminish weekly payments conferred on an employer by s 61(3) is conditioned by the requirement that a copy of the certificate together with the notice be served by the employer on the worker. If the notice is not given at all and the payments are discontinued or diminished the worker may make an application under s 61(3) within 21-days of the day on which the payments were discontinued or diminished. Where the notice is given but the worker disputes the right of his employer to discontinue or diminish the payments, the worker may make an application under s 61(3) within the period of the notice. Where the notice is given, but is defective because the medical certificate does not comply or because the notice is less than a 21-day notice or otherwise does not comply with the requirements of s 61(1), I consider that the result would be that the notice was invalid. In these circumstances the case should be treated as one in which the employer has failed to give the notice required under s 61(3) in which case the conditional right will not have arisen. The application under s 61(3) in those circumstances could be made at any time until 21 days after the payments were discontinued or diminished. It does not follow that an application made before the payments had been discontinued or diminished would be premature.
Rowland J at (54) observed:
It seems to me to follow that, after Vurlow, the Board was bound to ensure that the certificate contained the information required under s 12B(1) and that, if it did, then, in an application made under s 12B(2), the Board could hear evidence which challenged the medical opinion contained in the certificate. It may well follow that implicit in that decision is the conclusion that, absent a valid certificate, then it is unnecessary for the Board to consider the matter further. The applicant is automatically then entitled to an order that the payments not be discontinued, or, alternatively, in the express words of the section, that the weekly payments be continued until further order.
Further, at (57 – 58) he said:
There is no doubt, of course, that if the Board, on the hearing of the application, decides that there is a valid certificate, then it will not necessarily dismiss the application. It must, in conformity with Vurlow's case, hear the merits of any dispute which the applicant has with the facts or opinions contained in the certificate. If, however, the facts and medical opinions in the certificate are not sufficiently doubted and cl 8 cannot apply, then the Board has power under s 61(4)(b) to 'dismiss the application in which case the weekly payments may be discontinued or diminished, as the case may be'.
…
The worker has his rights under subs (3) and, in my view, he can insist upon the performance by the employer of the first condition which could lead to a discontinued or diminished payment, namely, the giving of a valid certificate containing the information required by the statute. And if that is satisfied, he can then be heard on the merits of the certificate or on matters contained in cl 8.
…
The Board will deal with the matter on an interlocutory basis, and the evidence before the Board will be so limited. For example, this type of application cannot be used by the employer or the worker to debate questions of whether the worker has suffered a disability at all, or whether that disability was suffered in the course of the worker's employment. There are other procedures laid down in the Act for the resolution of these questions and for hearings that are meant to dispose of the proceedings on a more permanent basis. (emphasis added)
The relevant principles were helpfully summarised by the Full Court in Glenn-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122, 128 ‑ 129, after the court referred to Vurlow and Heat Containment Industries, as follows:
…
(a)a notice under s 61(1) must comply substantially, though not necessarily strictly, with s 61(1) and in particular, it must contain all of the information set out in s 61(1);
(b)the employer's conditional right to discontinue or diminish weekly payments is conditioned upon the service of a valid notice under s 61(1) and further upon the worker not having commenced proceedings under s 61(3) within the prescribed time;
(c)a notice under s 61(1) which is invalid, cannot be rectified by the service of additional material;
(d)in an application under s 61(3) a worker is at liberty to challenge the validity of the s 61(1) notice as well as to argue the merits of the application;
(e)if, in a s 61(3) application the validity of a s 61(1) notice is conceded or established, the Board should go on to consider the merits of the medical evidence; and
(f)proceedings under s 61(3) are interlocutory in nature and do not finally determine the issue between the parties.
The Full Court at (129 – 130), having referred to the then s 118(1), which is now reflected in s 188(2)(b) (which I have earlier set out at [39]), observed:
… There is no express prohibition on the presentation of evidence and no such prohibition arises by implication from the scope and purpose of the Act. It seems to us that the dual notions of 'a determination according to substantial merits' and 'a right to be heard' require that both parties be at liberty to adduce evidence which would be admissible under conventional principles. To hold otherwise would, in our view, be inconsistent with principles of procedural fairness which underlie all judicial and quasi‑judicial functions.
…
The result is that where, in an application under s 61(3), the medical reports are in conflict, it will be necessary for the Board to determine whether the matter can be heard in Chambers, with cross-examination of deponents of affidavits, or whether there should be an order that the application be heard in open court. We are conscious of the practical implications of this requirement.
Those later observations must, however, be read with what was said by Rowland J in Heat Containment Industries (58), with whom Malcolm CJ and Ipp J agreed, in which he said a s 61 application cannot be used by a worker to debate questions of whether the worker suffered a disability at all and whether the disability was suffered in the course of the worker's employment.
The proper construction of s 61 was also considered in Qantas Flight Catering v Joncevski. It was argued on behalf of the appellant employer that following the substantial amendments made to the then Worker's Compensation and Rehabilitation Act 1981 by the amending Act (number 48 of 1993 which, inter alia, abolished the Workers' Compensation Board and introduced a new dispute resolution jurisdiction), that Heat Containment Industries should be held to have no application to s 61. Apparently it was submitted that once a s 61 application was before an arbitrator the full merits of the dispute ought to be heard and determined and the arbitrator's jurisdiction was not limited to determining whether the s 61 notice was a valid notice and then, if it was, considering the merits of the dispute between the parties in the context of a s 61 application. Murray J at [13] – [21] (Roberts-Smith & McLure JJ) held that Heat Containment Industries had been rightly decided and continued to have application in the context of the then dispute resolution provisions.
In his supplementary written submissions Mr Walsh submits Heat Containment Industries v Kimberley has no application to the present appeal and is not authority supporting the arbitrator's decision that the dispute before him was confined to determining the impact of Mr Walsh's biceps injury and consideration as to whether Mr Walsh had suffered a left shoulder injury was immaterial for the purposes of the dispute. In part, Mr Walsh submits s 61 must be construed in the context of a different dispute resolution framework which, it is submitted, differs significantly from the dispute resolution provisions which existed when Heat Containment Industries v Kimberley was decided. In particular, Mr Walsh refers to s 61(4a) which was introduced after Heat Containment Industries was decided. The present provisions of the Act are in stark contrast to the provisions considered in Heat Containment Industries in which, so it is submitted:
… the vast majority, if not all, of disputes brought before an arbitrator at WorkCover are intended to resolve a dispute in its entirety, … on a permanent basis. It cannot be seen disputes determined by an arbitrator at WorkCover WA, not least the dispute the subject of this appeal, are interlocutory in nature.
It is accepted that the adequacy of a notice issued pursuant to s 61 can be determined as a preliminary issue, as it was in this case, but once the preliminary issue was determined against Mr Walsh and the application was referred to a substantive hearing before the arbitrator it is submitted the dispute proceeded to a final hearing on the basis that the decision would be permanent and final and in which the arbitrator was required to determine the nature and extent of any injuries suffered by the worker for the purposes of s 5. In effect, it is submitted Mr Walsh is not required to establish liability for a left shoulder injury by a separate claim and he was entitled to litigate and have determined by the arbitrator his entitlement to, and the employer's liability for, worker's compensation entitlements arising out of a left shoulder injury in the s 61 application. Specifically, that Mr Walsh was entitled to seek a determination that the employer was liable to make worker's compensation payments and payment of statutory allowances arising from 'a full thickness tear of the supraspinatus' suffered in a workplace accident on 24 March 2015, notwithstanding his application did not make a claim in respect of such an injury.

Analysis

I reject Mr Walsh's submissions. In my view, the submissions misconstrue s 61 and misconceive the nature of a s 61 application. The observations of Rowland J regarding the correct construction and application of s 61 remain relevant and binding. A s 61 application cannot be used by either an employer or a worker to debate questions over whether an injury (or a disability as it was previously defined) has been suffered. A s 61 application cannot be used to establish or dispute liability for an injury. That is made clear by both a consideration of the terms of s 61(1) and also by a broader consideration of the provisions under the WCIM Act by which liability for an injury is established.
The source of an employer's liability to make worker's compensation payments, and the corresponding entitlement of a worker to such payments, is s 18.
Further, by s 21:
Compensation payable from date of incapacity
An employer is liable to pay compensation under this Act from the date of incapacity resulting from the injury but clause 9 applies in any case.

Therefore to establish liability for, and an entitlement to, compensation under the Act a worker must establish what is the relevant injury as defined in s 5.
A s 61 application is only concerned with a worker's entitlement to weekly payments for compensation for incapacity in respect of an injury for which liability has been established. In Mr Walsh's case the employer became liable to pay compensation pursuant to s 18 and s 21 in respect of an injury to his left biceps when it admitted liability for that injury. Liability was not admitted in respect of an injury to the left shoulder, specifically a tear of the left supraspinatus. As liability was not admitted in respect of such an injury, which remains disputed by the employer, it remains for Mr Walsh to establish the employer is liable to pay compensation in respect of that injury. Therefore an employer only becomes liable to pay compensation if the employer admits liability, as in this case, or if liability is disputed or not admitted, the worker establishes the employer is liable to make compensation payments. Accordingly, as liability to pay compensation for a left shoulder injury was not established, any notice issued by the employer pursuant to s 61, seeking to terminate or reduce the worker's weekly payments, could only have been issued in relation to an injury in respect of which liability had been established, that is, the left biceps injury. It was only in respect of that injury that Mr Walsh was receiving weekly payments and to which the s 61 notice must necessarily have related.
A hearing of an application to establish liability for worker's compensation payments pursuant to s 18 and s 21 involves an entirely different inquiry to that of a s 61 application. The former application involves an inquiry into, and determination of, whether a compensable injury has been suffered. A s 61 application only involves an inquiry into the matters limited by s 61(1). A s 61 application is only concerned with whether there is an ongoing incapacity for work arising from a compensable injury, that is, an injury for which liability has already been established. Whether or not a s 61 application can still be considered an interim or interlocutory application is perhaps beside the point. Whether such an application is interlocutory or finally determines a dispute between a worker and employer, the bounds of that dispute and what can be determined is constrained by the terms of s 61. In my view, on a correct construction, s 61 does not permit a determination to be made regarding an employer's liability to pay compensation pursuant to s 18. That is, there is no power under s 61 to determine whether a worker has suffered an injury and whether an employer is liable to pay compensation in respect of that injury. Section 61 is only concerned with liability to make ongoing weekly payments for incapacity in respect of an injury for which liability has already been established.
In Qantas Flight Catering a similar submission, regarding whether Heat Containment Industries was binding in the context of a different dispute resolution jurisdiction, was made to that which is made by Mr Walsh in this appeal. Mr Walsh's supplementary written submissions do not make reference to Qantas Flight Catering. Although the dispute resolution provisions considered in that case have since been further amended and there is another dispute resolution system now operating, the current dispute resolution provisions are not, in my view, significantly different to the dispute resolution provisions considered in Qantas Flight Catering. In my view, the current dispute resolution provisions do not lead to a different result. In particular, and while I accept in the context of the current dispute resolution jurisdiction there is less significance to a s 61 application being regarded as an interim or interlocutory application than was the case when Heat Containment Industries v Kimberley was decided, it remains clear that s 61 does not enable a determination to be made as to whether a worker has suffered an injury, and whether an employer is liable to pay compensation in respect of an injury.
Generally, s 61 applications before the Workers' Compensation Board were dealt with simply and quickly. If during the course of those proceedings the true nature of the dispute between the parties emerged, that dispute generally proceeded by way of a substantive application, which if it was not able to be resolved by mediation, proceeded to a full hearing in which both parties were entitled to call evidence and the worker's entitlements were finally determined.
The relative simplicity and efficiency of that process, that is, any dispute as to the worker's entitlements was determined on a final basis and not on an interlocutory or interim basis is to be contrasted with what has happened in this matter. Mr Walsh filed his s 61 application (application for arbitration – Form 150) on 19 August 2015 to which he annexed a large volume of documentation including the s 61 notice and various medical reports and certificates. In his application Mr Walsh defined the issue in dispute in fairly standard terms by setting out he disputes the right of the employer to discontinue or reduce payments in accordance with s 61(1) of the Act and applying for an order pursuant to s 61(3) that his weekly payments not be discontinued or reduced and, further, not conceding that the s 61 notice is a valid notice. He also sought an order that the respondent pay his statutory allowances, including but not limited to the surgery performed by Dr Duke. He stated the nature of the injury to be 'Left Biceps' and that he sustained an injury to his left bicep [sic] in the course of his employment as an electrician with the respondent employer. Therefore, from the terms of the application it was not apparent that there was any claim for worker's compensation arising out of a left shoulder injury nor that there was likely to be an issue regarding the correct diagnosis of the nature of the injury suffered by Mr Walsh in the work accident.
In response Fortescue Metals Group filed a reply (reply to an application for arbitration - Form 154) dated 26 August 2015 which annexed a large volume of reports including the s 61 notice. The reply also set out in a detailed four‑page written submission the basis upon which the s 61 application was disputed. Importantly, at par 10 the reply states:
At its heart, there appears to be a dispute as to the nature of the injuries suffered by the applicant in the accident.
At par 14 the reply goes on to state:
The respondent therefore disputes that:
(a)The applicant suffered an injury to his left shoulder.
(b)The surgery performed by Dr Phillip Duke, orthopaedic surgeon, was causally related to the accident, and any injury sustained therein, and/or that the applicant requires any further treatment as a result of any injury suffered in the accident.
(c)The applicant is incapacitated for work by reason of any injury suffered in the accident and therefore entitled to weekly payments.
(d)The applicant is restricted for work by any reason of any injury suffered in the accident therefore entitled to weekly payments.
Therefore if it was not already apparent from the conflicting medical reports of Dr Duke, Dr White and Dr Marchant, it must have been clear to Mr Walsh after receipt of the reply to his s 61 application that the real issue between the parties was as to whether in the work accident he had suffered an injury to his left shoulder. Given the identification of that dispute, it was always open to Mr Walsh to lodge a claim for the left shoulder injury and to commence a separate application seeking a determination of liability in relation to that injury. At the very least it was open to him to clearly identify the real issue between the parties which he sought to be determined by the arbitrator was as to whether Mr Walsh had also suffered an injury to his left shoulder in the work accident.
After the reply was filed each of the parties then filed written outlines of submissions, including a reply by Mr Walsh to the employer's submissions, for the purposes of the determination of the 'preliminary issue' of the validity of the s 61 application, which, as I have earlier observed, was determined on the papers. Thereafter, as I have already explained, an arbitrator determined the preliminary issue in favour of Fortescue Metals Group and ordered that the s 61 application proceed to a determination of the dispute on the merits.
In his reasons the first arbitrator at [25] stated there was no dispute that the worker was presently incapacitated for work and the preliminary issue for him to determine was whether the s 61 notice validly certified that the worker's incapacity no longer resulted from the compensable left arm biceps injury and was now wholly the result of the non-compensable pre‑existing chronic degenerative left shoulder changes.
The s 61 application then proceeded to a full hearing before a different arbitrator where the parties called evidence and made submissions. Mr Walsh was called as a witness and was cross-examined. It is unclear to me why, given in its written response to the s 61 application, the employer clearly identified the dispute between the parties was as to the nature of the injuries suffered by Mr Walsh in the accident, in particular whether it was just a left biceps injury or whether it was also an injury to his left shoulder or, as described by Dr Duke, 'a full thickness tear of supraspinatus', that issue was not precisely identified as the issue between the parties at the outset of the hearing before Arbitrator Nunn on 14 December 2015, and whether that issue could be determined, by the arbitrator in the context of s 61 application. At the commencement of the hearing there were some initial discussions with the arbitrator during which he sought to identify the issue between the parties he was required to determine (AB 115 – 116):
… Mr Rimmer, before we jump into things, before we get too far into this, you're suggesting – and I'm referring at paragraph 7 – that Mr Walsh bears the onus to show that he remains incapacitated for work as a result of a compensable injury. Well, I'd accept that and I would go narrower as to say it's as a result of the compensable injury, for which liability is admitted.
MR RIMMER:   Yes.
MR NUNN:   What are you getting at at 7.2 - because this isn't a 58 - I accept that the medical nature of any shoulder injury he may have suffered might be relevant to determining whether it's either a sequelae or results from, in the Napier sense (indistinct) Court of Appeal to give authority on that particular proposition, I don't know, but anyway we have it now – results from in a standard sense the injury for which liability was admitted. This whole recurrence, aggravation, definition of compensable injury under limb D and 5(5) factors, that's all a bit of a furphy, isn't it?
MR RIMMER:   Well, I think, what 7.2 – in some respects, you could actually just ignore 7.2 in its entirety because it's really all about 7.1. I think what 7.2 is alluding to is in a sense the argument and, at least, the evidence put up by the applicant to demonstrate that he – essentially to tie the shoulder in to being the compensable injury.
MR NUNN:   Well, that's a question to the medical nature (indistinct) decided this invites a whole exploration into whether there's a compensable injury. Whether the shoulder is compensable is just - doesn't result from – and nothing more in my view.
MR LOUREY:   Well, it doesn't – that potentially opens the prospect that the shoulder, along with the bicep, is the primary injury.
MR NUNN:   Except for the fact he never claimed for it.
MR LOUREY:   Well, no, he claimed (indistinct) injury of 24 March 2000 and ‑ ‑ ‑
MR NUNN:   The claim on the first medical certificate and the injury on the claim form is for a left bicep strain.
MR LOUREY:   If that's sufficient, sir, and you find from there or determine that the compensable injury is solely the left bicep's tear on the basis that a claim form filled out on the date of injury after initial diagnosis from a medic in the respondent's first aid ‑ ‑ ‑
MR NUNN:   So what you're trying to do here is lead enough evidence to resist FMG exercising its conditional right and I'm not terribly – I wouldn't have thought we were going down that rabbit hole, but in any event, all right. So at 10, Mr Rimmer, why are the discrepancies in – and we'll cover all this in the fullness of time, but just in preparing for this case, why are the significant discrepancies relevant in Mr Walsh's account of the accident? You admitted liability for the injury.
MR RIMMER:   Well, we admitted liability for a bicep strain ‑ ‑ ‑
MR NUNN:   Yes.
MR RIMMER:   ‑ ‑ ‑ not for a completely torn supraspinatus and various other problems that are inherent in the left shoulder.
MR NUNN:   Okay. That's why you say that's relevant. Right … (emphasis added)
Counsel for Mr Walsh (appeal book, pages 121 – 122) opened the case on behalf of Mr Walsh as follows:
MR LOUREY: ‑ ‑ ‑ I'll do that just by way of simple background. It's implicit in the whole matter, the outline of submissions and the presentation of my client's case today, our client suffered a personal injury by accident at work on 24 March this year, only some seven or eight months ago – closer to eight in fact – simple arithmetic. That was an injury to his left and/or shoulder. He made forthwith a claim for statutory compensation which appears to have been handled quite quickly by his employer in forwarding it to the gazetted insurer, who forthwith accepted liability.
The issues before you today, sir, and you've covered that in your opening comments, there is principally a section 61 subsection (3) application made. In addition, there is an application for clause 17 and related clause 19 expenses to the extent those have not been paid by the respondent. It's fundamental to the applicant's position, sir, or – and it's fundamental to your determination of the dispute the question – and this will need to be necessarily determined – the nature and extent of the injury of 24 March 2015.
Now, the respondent says on the basis of the initial diagnosis on site and the claim as it was made by our client that the injury is solely a decisive injury, nothing else is caught within the injury claimed for in that initial claim form. Now, we disagree with that. We say firstly that the injury on the day was an injury to the biceps and to one or more tendons, particularly to the supraspinatus tendon and to a lesser extent perhaps aggravation of other tendon injuries, albeit that prior to the events of 24 March 2015, I don't – which I don't think are in dispute – but to the extent there was a pre-existing condition there, it was asymptomatic – relevantly asymptomatic so that anything that affects our client's function, his ability to engage in return to work activity or to find replacement employment, the equivalent of his pre‑injuries with the respondent, that results from the events of 24 March 2015 constitutes part of the compensable injury.
In making that claim and in seeking the determinations that we do, we rely in particular on the evidence put forward by a GP, Dr Hayning, from the practice that our client attends in his local – in the area of his residence and also the specialist evidence of his orthopaedic surgeon, Dr Phillip Duke from Brisbane, who has treated him initially by way of second opinion after he'd seen Mr Marchant on his return from site soon after the injury had occurred when Dr Duke was in fact away on leave. When he saw Dr Duke initially by way of second opinion some months had passed, other treatment modes had been employed without a respiration of function that was sufficient either to allow him to engage in return to work activity or at that point, given his employment had been terminated in or about May on the grounds of redundancy, to replace that employment wholly because, of course, it's implicit in terms of the capacity argument that because of the damage to his arm and shoulder suffered on 24 March 2015, or as a result of that – and that is an alternative argument – his capacity to sell his labour as an electrician and the types of work that he's done over an extended period of time is in fact (indistinct) and part of the documentation that you've just seen with the interlocutory application is the surgeon's most recent ‑ ‑ ‑ … (emphasis added)
The following exchange then occurred between counsel for Mr Walsh and the arbitrator:
MR NUNN:   Well, your argument clearly is that there's the injury, the shoulder relates to the injury, whatever the nature of that injury was and as a result of recently having the surgery, Mr Walsh can't work.
MR LOUREY:   Yes, sir. I was referring just to the most recent certificate from Dr Duke. I think there's reference to it in the interlocutory application as being a certificate dated 2 December - I think it's fact 7 December, although Dr Duke's handwriting as to the date is a bit difficult to decipher.
MR NUNN:   The doctor's (indistinct)
MR LOUREY:   Yes. In fact the seven is remarkably like the two, but I understand from my client that – although other dates do look like the 2nd, so it's a bit hard to tell, but I'm not sure what turns on that but the ‑ ‑ ‑
MR NUNN:   December, this month, that's recent enough for me.
MR LOUREY:   Yes, sir. And that certifies our client as continuing to have no capability for any type of work until 7 March 2016. So we say he's unfit for any type of work as a result of the surgery, the surgery being to the – and two things occurred in the surgery, sir, and you'll no doubt have looked at Dr Duke's report that appears at page 11 to 14 of the book, but there were two aspects prepared and that was the torn long headed biceps as well as the torn supraspinatus tendon and it's because of that injury and the consequential surgery that our client is unfit for work at the moment and according to Dr Duke, at least, until March 2016. Unless you've got any particular queries of me, sir, I'm happy to move on and ask my client to move to the end of my table. …
The reference by the arbitrator to the Court of Appeal decision of Napier appears to have been a reference to Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230. That case was concerned with a worker's entitlement to payment of statutory allowances, or medical and surgical expenses, and what was the necessary connection or relationship between the compensable injury and the treatment or surgery received for the worker to be entitled to recover those expenses. In considering various provisions of the WCIM Act, Buss JA (McLure P & Newnes JA) considered the expression 'results from' which requires a causal connection to be established between a particular injury and the incapacity, it being a question of fact whether in a particular case incapacity 'results from' an injury under the Act.
Mr Walsh then gave evidence. In his evidence-in-chief Mr Walsh agreed in his claim form the injury he suffered was a left biceps strain. He sought a second opinion from Dr Duke because the nature of the ongoing pain he was suffering was in his upper arm and shoulder. In cross-examination he said his whole arm was sore after the accident and he could see his bicep was hanging in his elbow. It was put to him (AB132) that he drove a motor vehicle between 15 and 19 May and that on 19 May he had a new and different pain in his left arm and shoulder which he had not experienced previously. Mr Walsh denied that and said he had more pain in the upper arm/shoulder area, a more intense pain. Mr Walsh was also cross-examined regarding right shoulder pain and about any difference in symptoms between the two shoulders. Generally he was cross-examined about the circumstances in which he suffered pain in both his left and right shoulders and the medical treatment he received.

In re-examination he said he physically heard a pop in his left arm bicep area and could actually see the bicep sitting in his elbow, he could see the deformity which is why he put the injury down as a left biceps injury. However, he said that his whole upper arm was sore. He was asked whether the location of the pain had changed and he said no, it was from his bicep into his shoulder and the pain was in that area and depending on what he did, different areas may hurt more than others.
In his closing submissions, counsel for Fortescue Metals Group directly addressed Mr Walsh's outline of submissions which claimed Mr Walsh suffered an injury both to his left bicep and left shoulder and then responded to Dr Duke's opinion as set out in his medical reports to which I have earlier referred. It was submitted (AB145) that Dr Duke's opinion was not sufficient to make the causal connection between the incident at work on 24 March 2015 and the supraspinatus tendon tear. Counsel made submissions as to whether the tear diagnosed by Dr Duke was a recent tear or related to degeneration. It was submitted Mr Walsh had not discharged the onus of proof upon him to prove a causal connection between the incident on 24 March 2015 and the supraspinatus tear and subsequent surgery which had led to his incapacity for work (AB145). Then at (AB146) the following exchange occurred:
MR NUNN:   And even then we're going to have to have regard downstream – because if we say, 'Look, there's the surgery of the tendon,' which if I find the view that that was reasonable in the circumstances, that's going to be a matter of determining between whether that was (indistinct) we'll have to then split up any subsequent period of post‑surgical incapacity and what that results from and I don't know I have medical evidence for that because everything seems to be hinging on this supraspinatus issue.
MR RIMMER:   Yes, I think that's right. I think though that the – I mean, the applicant carries the onus in that regard.
MR NUNN:   I don't disagree with that, no.
MR NUNN:   And so to the extent that there's a shortfall in the evidence on that issue then that would be the applicant's problem to deal with.
MR NUNN:   Except, and only for, the fact that your case – the case – is framed by the form 5 notice which says that at a particular point in time – and whatever the date of the form 5 was (indistinct) certification - Mr Walsh has a capacity for work. He's recovered.
MR RIMMER:   Yes, that's right.
MR NUNN: Now, if I form a view that, well, he hadn't recovered from the surgery because the surgery was necessary to fix the biceps, again the question of reasonableness of the surgery, then Mr Walsh succeeds, doesn't he? I don't then have to inquire into this issue of at what point was he incapacitated and when did he get better from that surgery. He only has to show enough evidence to resist your attempt to exercise your conditional right to discontinue payments. If that then opens the door for you to now bring another section 61 application downstream based on any findings I've made, that still secures Mr Walsh's payments, doesn't it?
MR RIMMER:   I think from the respondent's point of view, sir, the – its case is that the only injury suffered was the biceps tendon tear. The applicant was not incapacitated for work by reason of the biceps tendon tear. What has necessitated surgery is the other – what we say are unrelated issues ‑ ‑ ‑
MR NUNN:   You're saying if the (indistinct) the other way around.
MR RIMMER:   Yes.
MR NUNN:   You needed the supraspinatus and you got the biceps for free.
MR RIMMER:   Yes. Well, that's one way of putting it, yes. Yes.
MR NUNN:   Colloquially.
MR RIMMER:   Yes, that's right. So that – I mean, that's the way I would articulate the respondent's position. If you find that ‑ ‑ ‑
MR NUNN:   Isn't the short point it wasn't necessary to have surgery to fix the biceps ‑ ‑ ‑
MR RIMMER:   Yes, that's right. Well, that Marchant and Dr White say. That's right. The applicant made the decision to have the surgery, supported by Dr Duke and you've heard what I've had to say about Dr Duke's evidence and which I won't rehash. …
At (AB159), during Mr Walsh's counsel's closing submissions, the arbitrator said:
MR NUNN: It's not an issue and nor is it necessary for me to find (indistinct) ongoing incapacity. There's a section 61 notice issued at a particular point in time and if I particularly find that there's no incapacity as and relating to the certificates for which Dr White has issued and that that incapacity results from the injury, then that's the end of the matters (indistinct) or incapacity in a section 69 matter which lies behind this, apparently. They don't. They're a totally separate matter for the parties to have another stoush about. All right. Anything further?
In my view, from the passages I have set out above of the transcript of the hearing before Arbitrator Nunn, and while at times there may have been some lack of clarity as to the relevance of the left shoulder injury, the arbitrator has made it reasonably clear he was required to determine the s 61 application before him on the basis it was an interim or interlocutory application which did not finally determine the rights of the parties and which certainly did not determine the right of Mr Walsh to seek to establish the employer was liable for payment of compensation in respect of the left shoulder injury, the torn supraspinatus. The discussions about the left shoulder injury were in the context of whether that injury 'results from' the left biceps injury, that is, was the shoulder injury related to the left biceps injury. It is for that reason during the course of discussions with counsel he referred to Napier and why at [39] he says, in relation to the issue of whether at the time the biceps injury was suffered Mr Walsh also suffered tears in his shoulder, that that matter 'cannot be agitated for within the context of this proceeding, unless the condition of Mr Walsh's shoulder results from the bicep injury'. It was only to that limited extent Arbitrator Nunn was prepared to consider Mr Walsh's claim in relation to a left shoulder injury. He made it sufficiently clear to the parties that on the application before him he was unable to determine whether Mr Walsh had suffered a personal injury by accident to the left shoulder, being a torn supraspinatus. He was only to determine whether in respect of the left biceps injury, for which liability was admitted and therefore established, Mr Walsh remained incapacitated for work.

Conclusion

In my view, when at [14] of his reasons for decision, having noted the dispute was listed for determination according to its 'substantive merits', and later at [20] and following, he confined his determination to whether the shoulder injury resulted from or was caused by the bicep injury, the arbitrator was correct. The issue for determination by the arbitrator was necessarily defined by the nature of the application before him. That application was an application pursuant to s 61. Both the s 61 notice issued by the employer and the s 61 application describe Mr Walsh's injury as an injury to his left biceps. As I have earlier explained, the purpose of s 61 is to determine on an interim or interlocutory basis whether an employer is entitled to reduce or discontinue a worker's weekly payments of compensation on the grounds set out in the s 61 notice. A s 61 application is limited to determining that limited issue as particularised by the s 61 notice. The terms of s 61(1) do not permit a dispute as to whether a worker has suffered an injury to be determined. A s 61(1) application cannot be used to seek to establish liability for an injury. Section 61 is only concerned with a worker's capacity for work in relation to an injury for which liability has been established. A s 61 application is not a far-ranging inquiry into the nature of any injury claimed by the worker to be suffered in a work accident or the liability of the employer to pay compensation. As is made clear from the dicta of Rowland J at (58) I have cited above in Heat Containment Industries, a s 61 application cannot be used to debate questions of whether the worker has suffered an injury (previously defined as 'a disability') at all or whether that injury/disability was suffered in the course of the worker's employment. Such matters must be the subject of a different application seeking to establish liability. Such a view is also supported by the comments of Murray J in Qantas Flight Catering v Joncevski.
At [41] and [42] Arbitrator Nunn determined that Mr Walsh's shoulder injury did not form any part of the proceedings before him and, even though that was not to say it was not a compensable injury, it was beyond the scope of the application before him. Later, at [60], he added:
It will be for Mr Walsh to establish, by separate claim, that he is entitled to compensation in regards to some other separate injury.
In making that determination it seems the arbitrator formed a view that the s 61 application before him did not enable him to determine whether Mr Walsh had suffered a compensable left shoulder injury and that any resolution of a dispute as to an entitlement to worker's compensation payments arising out of a shoulder injury could only be determined by Mr Walsh bringing a separate claim for compensation in relation to a shoulder injury: [125]. In my view, the arbitrator was correct in that determination. He did not make an error of law.
As I have earlier observed, Mr Walsh's written submissions misconceive the purpose and nature of a s 61 application and misconstrue s 61. Mr Walsh submitted in both his oral submissions before me and in his written submissions that the arbitrator was required to determine in the s 61 application whether Mr Walsh had suffered an injury to his left shoulder and whether the employer was liable to make payments of compensation in respect of that injury. For the reasons I have explained, those submissions involve an erroneous construction of s 61. That error is reflected in the grounds of appeal which allege error in failing to properly interpret the definition of injury in s 5 and which allege a denial of natural justice by failing to give notice that liability for the left shoulder injury could not be determined in the application.
As I have explained, although the issue regarding the left shoulder injury was not precisely identified at the outset of the hearing, I am satisfied the arbitrator sufficiently clearly explained liability for a left shoulder injury could not be determined in the proceedings. Even if he did not make that clear, it was the correct construction of s 61. The application before him did not permit him to determine liability in respect of a left shoulder injury. There was no denial of natural justice, nor any error in the arbitrator's determination that he could not determine liability for the left shoulder injury.
Although I am satisfied this appeal involves a question of law, and I would grant leave to appeal, it follows from my finding that the arbitrator did not make any error of law in the way in which he defined the issue for his determination, that the appeal be dismissed and I so order.

Further observations

As I have already determined this appeal should be dismissed, it is unnecessary for me to make any further findings. However, I make the following observations in the hope that they might provide some guidance as to how, if similar disputes again arise, they might be determined.
In my view there is no reason why the issue as to whether Mr Walsh suffered a work-related injury to his left shoulder could not have been determined in the hearing of an application before the arbitrator at the same time as the hearing of the s 61 application. True, the application was an application pursuant to s 61 intended to, as I have already explained, determine a worker's entitlements on an interim basis pending a final determination of a worker's entitlement to compensation.
The issue to be determined was defined and limited by the s 61 notice and the terms of s 61. Although by s 3(3) Mr Walsh sought an order that his statutory expenses arising out of the surgery performed by Dr Duke be paid, that was not an order that could be sought pursuant to s 61. As the wording of s 61 makes clear, the arbitrator was only empowered to make an order that, the worker's, Mr Walsh's weekly payments of compensation be discontinued or reduced. Section 61 does not provide power to make an order for statutory allowances. Such a power lies elsewhere in the Act and when such relief is sought, it should be the subject of a different or separate application. To establish an entitlement to payment of the statutory allowances arising from the surgery performed by Dr Duke it was necessary for Mr Walsh to establish that he had suffered a left shoulder injury in the work accident and that the need for surgery was causally related to that injury: Napier v BHP Billiton (Worsley Alumina) Pty Ltd. That the application claiming payment of those statutory allowances describes the nature of the injury as 'left biceps' and not a left shoulder injury or torn supraspinatus highlights the inappropriateness of that application being able to determine liability for a separate left shoulder injury. Although an incorrect description of an injury is not a bar to the actual injury being considered in the proceedings, where, as in this case, two quite distinct injuries are involved, and liability is established in respect of a discrete injury, there is a need for the injury the subject of a dispute to be more clearly described. There would seem to be a difference between a biceps injury and a shoulder or supraspinatus injury.
Despite my conclusion regarding the nature of a s 61 application, and the limits which the terms of s 61 imposes upon the issue which can be determined, the way in which these proceedings have been conducted (and I am not being critical of anyone in particular) highlights the artificiality of continuing to regard, or characterise, a s 61 application as an interim application able to be determined quickly and simply pending a final determination of the rights of the parties in a 'substantive' application. Despite the s 61 notice being dated 26 June 2015 and the s 61 application being filed on 19 August 2015, it took until 19 January 2016, following two separate hearings, for the application to be determined. In my view, in circumstances where the insurer had clearly identified the issue between the parties, following the initial application which determined the validity of the s 61 notice as a preliminary issue and after the application had been referred for determination on the merits, there was nothing to prevent that issue (whether the employer was liable to make payments of compensation arising from a left shoulder injury, as distinct from an injury to the biceps) being determined at the next hearing, providing that issue was clearly defined or particularised and was the subject of an application with both parties being given the opportunity to adduce evidence and be heard in relation to that issue.
In my view the nature of the dispute, that is, whether Mr Walsh had suffered a work-related injury to the left shoulder for which he was entitled to worker's compensation, should have been clearly identified and should have been the subject of argument between the parties and the determination by the arbitrator, although I accept it could not have been the subject of the s 61 application. In my view the arbitrator had power to ensure that the true dispute between the parties, that is, whether Mr Walsh suffered an injury to his left shoulder and whether the employer was required to make payments of compensation in respect of that injury, as distinct from a left biceps injury, although unable to be determined pursuant to s 61, could have been appropriately dealt with under another the provision of the Act: compare Department of Education v Kenworthy (1990) 3 WAR 1, 13 (Nicholson J, Malcolm CJ & Seaman J).
Although by s 185(1) an arbitrator is required to determine a matter in accordance with the Act and the arbitration rules, and by s 185(2) is not to attempt to resolve any matter in dispute by conciliation, the arbitrator, having regard to the objects of the Act as set out in s 177 and in particular by s 177(1)(a), by which disputes are to be determined according to their substantial merits with as little formality and technicality as practicable, was empowered to determine liability in respect of the left shoulder injury. By s 189(1) the granting of relief or redress is not necessarily restricted to the specific claim made, nor to the subject matter of the claim. By s 190 the arbitrator was empowered to give directions at any time, either on his own initiative or on the application of either party, to do whatever was necessary for the speedy and fair conduct of the proceeding. Therefore although, for the reasons I have explained, liability could not be determined for the left shoulder injury in the s 61 application, there was, in my view, ample power which enabled that issue to be determined in the same hearing.
Any claim for statutory allowances in relation to the surgery performed by Dr Duke could also have been the subject of such an application. As I have found, there was nothing to prevent Mr Walsh issuing a separate application to determine his entitlement to worker's compensation payments, including statutory allowances, arising out of a left shoulder injury which could have been heard and determined at the same time as the second hearing before Arbitrator Nunn. Indeed, there remains no reason why Mr Walsh cannot now proceed with an application seeking to establish Fortescue Metals Group is liable to make worker's compensation payments to him in respect of the left shoulder injury. That was made clear by Arbitrator Nunn in his reasons for decision. Given the informal nature of the WorkCover jurisdiction and, while it is necessary to clearly identify what relief is sought and under which provision of the Act, there is, in my view, no need for a particular form of application. Providing the issues in dispute between the parties are clearly identified and each of the parties are on notice as to what the issues for determination are and have the opportunity to present evidence in the case addressing those issues, the issues can be determined. It is difficult to understand why in this case it is necessary for yet a further hearing, which is likely to involve much of the same evidence being adduced, to determine whether Mr Walsh has an entitlement to worker's compensation payments in relation to a left shoulder injury.
I was informed by counsel that it is the practice in hearings before arbitrators that medical practitioners are not called to give viva voce evidence and the parties simply rely upon the medical reports filed by each of them. Whether, in a matter such as this where there is a direct conflict in medical opinion as expressed in the written reports, that conflict can be properly resolved or determined by an arbitrator without the medical practitioners being called and their opinions being elaborated upon and tested by cross-examination is an issue to which, I respectfully suggest, an arbitrator at the hearing of the application would need to give consideration.
The Supreme Court authorities, to which I have earlier referred, which held that a s 61 application is only an interlocutory application, determining the right of an employer to terminate or reduce payments on an interim basis, must be read and understood in the context of the dispute resolution system which existed at the time when those decisions were delivered, when a dispute as to whether a worker was incapacitated for work, and the nature and extent of any injury, was determined after trial where medical practitioners gave viva voce evidence. In the context of how I am informed hearings are conducted before arbitrators, where findings are made on the basis of medical reports without the doctors being called, there would seem to be less need for an initial s 61 hearing in which evidence, including viva voce evidence, is given leading to an interim determination and then for a further hearing to finally determine whether a worker is entitled to ongoing weekly payments of compensation. Further, if, as occurred in this case, it became apparent during the course of a s 61 application there was an issue as to liability for an injury, which, for the reasons I have explained could not be determined in a s 61 application, it was incumbent upon both parties and the arbitrator, having regard to the purposes of the Act, to do what was necessary for that issue to be determined as expeditiously and as simply as possible, which, in my view, was to avoid the need for a further or third hearing. Providing the issue is clearly identified, and is properly the subject of an application, and each of the parties have the opportunity to present all of the evidence they would wish to in support of their respective positions, and make submissions, there would seem to be no reason, having regard to the objects of the Act as set out in s 3(c) and s 3(d), and also having regard to the powers of an arbitrator, why there is a need for a further or a third hearing. Mr Walsh gave evidence at the hearing before the arbitrator and was examined and cross-examined as to the circumstances in which it is alleged he suffered an injury to his left shoulder, as distinct from only an injury to his biceps, which is to be contrasted with how a s 61 application was dealt with by the Workers' Compensation Board which was on an interlocutory basis in chambers when viva voce evidence was not normally adduced. However, I reiterate the s 61 application issued by Mr Walsh, which disputed the right of the employer to discontinue or reduce payments in relation to an injury stated to be a left biceps injury, was not able to be used to establish liability for a separate injury to the left shoulder.

In the circumstances of this matter, which concerns an interim determination pursuant to s 61 of whether Mr Walsh's weekly payments for a left biceps injury shall not be discontinued or reduced, which is not a final determination, and where Mr Walsh is able to proceed with an application seeking to establish liability for a left shoulder injury, even had I been of the view the arbitrator had erred in law, I would have concluded it was not reasonable or appropriate for this matter to be remitted to an arbitrator for further hearing and would have refused leave to appeal.

Application for leave to adduce fresh evidence

As I outlined above at [12], Mr Walsh also applies for leave to adduce fresh evidence. Given my decision that the appeal ought be dismissed, it is unnecessary for me to consider the application. However, I observe that the medical certificates of Dr Tyler-Freer only highlight why the issue of whether Mr Walsh has suffered an injury to his left shoulder cannot be dealt with in the context of a s 61 application and why it is necessary for there to be a hearing to determine that dispute, unrestricted by the limits imposed by s 61.

Summary

For the above reasons, I grant Mr Walsh leave to appeal but order that the appeal be dismissed.
I will hear the parties as to costs.