Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd
[2005] NSWWCCPD 24
•18 April 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSW WCC PD 24
APPELLANT: Westpac Banking Corporation
FIRST RESPONDENT: Rodney John Kilby
SECOND RESPONDENT: Bananacoast Community Credit Union Ltd
INSURERS:For the Appellant: Westpac Banking Corporation Workers Compensation Unit
For the Second Respondent: Allianz Australia Ltd
FILE NUMBER: WCC3520-04
DATE OF ARBITRATOR’S DECISION: 21 September 2004
DATE OF APPEAL DECISION: 18 April 2005
SUBJECT MATTER OF DECISION: Error of fact; error of law; findings contrary to the evidence; decision could not be made on the basis of the available evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Moray & Agnew Solicitors
First Respondent: Stone & Partners Lawyers
Second Respondent: A O Ellison & Co
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is ordered to pay the costs of the appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 20 October 2004 Westpac Banking Corporation (the Appellant/Westpac) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision dated 21 September 2004.
The First Respondent to the Appeal is Rodney John Kilby (The First Respondent/Mr Kilby) and the Second Respondent to the Appeal is Bananacoast Community Credit Union Limited (The Second Respondent/Bananacoast).
Mr Kilby says that he was first employed by Westpac at the age of 16, on 23 November 1973. He worked for Westpac in varying capacities until 20 December 2000, when he took a voluntary redundancy and left Westpac’s employ. He commenced work with the NRMA on 29 January 2001 at Ballina and was required to drive to Lismore and Tweed Heads in the course of this employment. Mr Kilby says that in about August 2001 it became evident to him that the NRMA was undergoing a restructure. For that reason he sought and obtained employment at Bananacoast Community Credit Union Ltd, where he commenced on 2 October 2001.
In his statement dated 15 July 2004 Mr Kilby sets out in some detail the relevant aspects of the history of his employment with Westpac and Bananacoast, including the alleged injuries and diseases that gave rise to the claims made against these employers.
Mr Kilby was appointed Branch Manager at Westpac, based in Ballina, in 1996. He says that in 1999 Westpac changed its internal structure and Ballina became a call centre for much of the far north coast of New South Wales. It was staffed by three persons, including himself. Each person was provided with a computer, a telephone and headset and a chair. The way that business was done changed significantly and all customer details were computerised by Mr Kilby and his colleagues. He says that it was not unusual to receive 40 or 50 calls per day. He worked from 8 am to about 6 pm each day, answering calls and typing information into the computer, with a 15 minute lunch break. Mr Kilby says that he basically sat at his desk for 10 hours each day with one short break for lunch.
Mr Kilby says that by the end of 1999 he was very stiff and sore, he was getting headaches, his neck was aching all of the time, and his arms (particularly his right arm) were aching, and at times, they were “tingling”. He goes on to say, “I would get a pain down my right arm extending from my shoulder down to the outside of the arm to the elbow, and would often have pins and needles in my fingers at the end of a day.” Mr Kilby says that the typing was not difficult, apart from the “sheer volume of it, the repetitive nature of it, and the absence of any break from it all culminated in [a] severe neck condition.” He goes on to further describe his symptoms and the medical and other treatment that he underwent.
Mr Kilby says that he completed a workers compensation claim form and lodged it with Westpac on 19 May 2001. As already stated, he took a voluntary redundancy and says that he would normally have finished his employment in November 2000. However, he was asked to continue until 20 December 2000 as Westpac was left short of staff.
Mr Kilby underwent further medical treatment and then took up his employment with the NRMA.
He says that he was not required to sit, stand, keep his neck flexed in one position, or carry out any significant amount of keyboard work for any extended period. Nevertheless, he found that he still suffered a degree of pain, and sought further medical treatment.
Mr Kilby says that the method of work at Bananacoast was physically easy for the first twelve months. However, he maintains that his back and neck pain continued. He did not seek further treatment at that time “as I had been to them [the physiotherapist and the chiropractor] previously and they had not cured the condition.” Mr Kilby said that during his first twelve months with Bananacoast, he did not consider that there was any noticeable aggravation of the pain.
According to Mr Kilby’s statement, “the work got busier and busier and the hours got longer at BananaCoast Credit Union” from about March 2000.
He underwent a CT scan on 15 April 2003 and on 28 April 2003 he completed and submitted a workers compensation claim.
The further medical treatment received by Mr Kilby is set out in his statement of 15 July 2004. Since April 2003 he has been able to restrict his working hours to 25 hours per week and he says that this has not aggravated his neck. He states, “Even with a 25 hour week, my neck and arms are sore, but they are manageable.”
An ‘Application to Resolve a Dispute’, claiming payment of “weekly benefits compensation and for permanent impairment/pain and suffering”, was lodged in the Commission by Mr Kilby against Westpac and Bananacoast, and was registered on 25 February 2004.
The matter was determined by the Arbitrator on 21 September 2004 and an ex tempore decision was made on that date.
THE DECISION UNDER REVIEW
The Arbitrator’s orders given orally to the parties on 21 September 2004, that were published in writing on 28 September 2004, are as follows:
“The orders made are as follows:
1.That the date of injury was 20 December 2000.
2.That the Application against Banana Coast [sic] Credit Union Ltd be dismissed.
3.That the Application for compensation under Section 66 be referred to Dr Bodel an Approved Medical Specialist.
4.That the Respondent Westpac Banking Corporation Limited [sic] pay the Applicant’s Costs of the arbitration hearing today as agreed or assessed.
5.That the Application for weekly benefits be discontinued.
6.That the requirement to file a written notice of discontinuance is dispensed with.
7.Certify the Application as complex.”
Westpac has appealed the Arbitrator’s decision on the basis that the Arbitrator made errors of fact; made findings of fact contrary to the evidence; made errors of law, and was not entitled to come to the decision reached on the basis of the evidence available.
ON THE PAPERS REVIEW
Westpac requested that the appeal be set down for hearing given the complex issues that would need to be argued pursuant to sections 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act). Mr Kilby submitted that the appeal could be dealt with on the papers, but that the Presidential Member should have the benefit of the transcript of the proceedings before the Arbitrator and his decision. Mr Kilby further submitted that all submissions on appeal should be written rather than oral. Bananacoast made no submissions as to the way in which the appeal should be determined.
On 2 December 2004 I issued Directions, noting that a copy of the transcript of the proceedings before the Arbitrator had been supplied to each of the parties, and allowing all parties to make further written submissions.
I granted leave to appeal on the same date.
No further written submissions have been received from any of the parties, relating to the substance of this appeal.
All of the evidence that was before the Arbitrator, and the transcript of the proceedings before him, are before me in this appeal.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
EVIDENCE AND SUBMISSIONS
Submissions made by Westpac
Westpac submits that the decision appealed against is “with respect to liability for hospital and medical expenses and payment of weekly compensation on an ongoing basis from 28 April 2003.”
Westpac further submits Mr Kilby made a claim for compensation for physiotherapy and chiropractic treatment on 19 May 2000 and this claim was paid. However, he lost no time from work at Westpac and continued in his normal duties until being made redundant on 20 December 2000.
It is further submitted that Mr Kilby began to receive treatment in January 2001 while employed by the NRMA but lost no time from work while employed by that organisation.
Westpac submits that Mr Kilby’s condition deteriorated in March 2003 while employed by Bananacoast and a claim for workers compensation was lodged on 28 April 2003. Furthermore, the first medical certificate certifying Mr Kilby as incapacitated for work was obtained on 5 May 2003, some two and a half years after leaving Westpac and having been in virtual full time employment since that time. Westpac notes that Mr Kilby is now only able to work 25 – 30 hours per week, depending on his symptoms.
Westpac further submits that the Arbitrator erred in his understanding of the facts and his application of the law, in finding that the disease of gradual process suffered by Mr Kilby was a result of the nature of the work he was performing in the last 12 months at Westpac. The Arbitrator conceded that on reading the medical reports of Drs Weidman, Douglas and Spittaler, it would be “easy to find” that employment with Bananacoast was a substantial contributing factor to Mr Kilby’s condition. However, he went on to qualify that comment by referring to the advantage of hearing Mr Kilby’s evidence and reading the lay evidence of Mr Kilby’s employers at Bananacoast. Westpac submits that the Arbitrator relied upon this lay evidence to “dismiss the expert opinions of Drs Weidman, Douglass and Spittaler that was [sic] unanimous in accepting that the applicant suffered from a disease; being a constitutional degenerative condition of the cervical spine.” Westpac submits that despite the unanimity of expert opinion, the Arbitrator purported to make a finding that Mr Kilby suffered an injury while employed at Westpac, that is that he contracted a disease of gradual process in the last twelve months of his employment. It submits that there is no basis upon which to make such a finding and the “evidence of lay witnesses was immaterial to determining the issue of causation.” The Arbitrator “must have been satisfied that the doctors’ evidence could be relied upon”, but he chose to ignore the expert evidence, notwithstanding that the requirements governing expert opinion were satisfied: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita).
Westpac submits that the Arbitrator could not and should not have made a finding pursuant to section 15 of the 1987 Act, and the only option open to him on the evidence was a finding pursuant to section 16 of that Act, that Mr Kilby suffered from a degenerative disease condition, which all of the medical practitioners accepted had been exacerbated or aggravated to some degree by employment both with Westpac and Bananacoast. In any event, it is submitted that Mr Kilby in his statement and in oral evidence, confirmed that the nature of his employment with Bananacoast aggravated or exacerbated his condition.
Westpac further submits that if the Arbitrator were to apply section 16 of the 1987 Act, he would then be required to determine whether Mr Kilby’s employment with Bananacoast was a substantial contributing factor to the aggravation or exacerbation of his condition. Mr Kilby’s own evidence was that it was not until he commenced employment with Bananacoast and that his work had increased in intensity, that he needed to take time off work. He took no time off work while employed with Westpac or the NRMA, “and indeed continued in his normal duties with Westpac up until he accepted a compulsory redundancy for matters unrelated to any injury.”
It is submitted that Mr Kilby’s evidence was that the only aggravation caused to his condition was in the workplace, both at Westpac and Bananacoast. It is necessary in establishing whether employment is a substantial contributing factor, to consider whether the injury could have occurred away from the workplace, and whether there may be more than one substantial contributing factor: Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (Mercer).
Having regard to the evidence, Wespac submits that the unavoidable conclusion, despite oral evidence to the contrary, is that employment with Bananacoast must have been regarded as being a substantial contributing factor to the aggravation of the disease condition. “The date of injury would then need to be fixed pursuant to s16 as having occurred while employed with BCCU.”
Westpac contends that there was no advantage in the Arbitrator hearing Mr Kilby’s oral evidence and there was no issue on credit. The oral evidence did not differ from statements tendered in evidence. In any event, the Commission ought to rely upon the “uncontested expert opinion.” Reliance on uncontested evidence and facts is critical: Makita; Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254 (19 September 2003) (Milat); Abalos v Australian Postal Commission (1990) 171 CLR 167 (Abalos), “and as espoused in 1924 by Atkin LJ in Societe d’Advances Commerciales v Merchant Marine Insurance (the Paliatania), ‘An ounce of intrinsic merit or demerit in the evidence, that is to say the value of the comparison of evidence with known facts, is worth pounds of demeanour.’”
Westpac submits that the decision of the Arbitrator should be revoked and that liability be fixed on Bananacoast, the relevant date of injury being the date the claim was made on it, that is, 28 April 2003.
Submissions made by Mr Kilby
Mr Kilby agreed that the Arbitrator “has referred the matter to an Approved Medical Specialist to determine entitlements for lump sum compensation and has left to the parties the means by which to adjust payments of weekly compensation. Weekly compensation had been paid on a voluntary basis by the BCCU.”
Mr Kilby disputes the grounds of appeal. He submits that contrary to Wespac’s assertion, the Arbitrator did give appropriate and specific consideration to the evidence, as required.
Substantially, Mr Kilby agrees with Westpac that there was no inconsistency between the written and oral evidence, which was given. However, he submits that Westpac’s contention that he lost no time from work while employed by it and continued in his normal duties until being made redundant on 20 December 2000, is not strictly correct. He states, “The Applicant’s evidence cannot be summarised in this way.” He also disagrees with Westpac’s contention that prior to March 2003, he had lost no time from work as a consequence of the neck/right arm complaints.
Mr Kilby does not dispute Westpac’s statements in relation to his medical condition while employed by Bananacoast, but submits that “reference must be made to the whole of the Applicant’s evidence.”
It is not disputed that the first medical certificate certifying Mr Kilby as incapacitated for work was obtained on 5 May 2003, some two and a half years after leaving Westpac and having been in virtual full-time employment since. He also agrees that he is now only able to work 25 – 30 hours per week, depending on his symptoms.
Mr Kilby submits that the conclusion by the Arbitrator that the disease of gradual process suffered by him was a result of the nature of the work he was performing in the last 12 months at Westpac, was open to the Arbitrator and is supported by the evidence.
The comments and observations attributed to Drs Douglas and Weidman by Westpac are not disputed. Mr Kilby also agrees that the following comment made by Westpac in its submissions “summarises the medical opinions as to apportionment”.
“Dr Weidman, in a separate report then went on to assess 80% of the overall impairment being due to the pre-existing degenerative changes affecting the cervical spine with the remaining 20% which Dr Weidman distributed that impairment equally between the periods of employment with Westpac and BCCU.”
Mr Kilby refers to the report of 4 September 2003 of Dr Peter Spittaler, the treating neurosurgeon, as commented upon by Westpac in its submissions. While in agreement, Mr Kilby submits that reference must be made to the whole of his evidence before the Arbitrator. Mr Kilby also agrees that Dr Spittaler made the following comment in a subsequent report dated 17 September 2003:
“I would consider the patient’s employment at Westpac initiated his cervical and arm symptoms, but that his current employment has certainly exacerbated the symptoms and condition.”
In terms of Westpac’s submission that the Arbitrator “qualified” his view that it would be “easy to find” that the employment with Bananacoast was a substantial contributing factor to Mr Kilby’s condition, Mr. Kilby submits that the Arbitrator made it clear that he had the advantage of obtaining a history far more detailed and probative than any of his doctors, or any of the specialists qualified by Westpac, whose reports clearly show that they took only limited histories into account. He submits that the assertion that the Arbitrator relied unduly on lay evidence and dismissed the expert opinions of Drs Weidman, Douglass and Spittaler, is too broad a generalisation of the Arbitrator’s findings, which must be read as a whole to put that aspect into proper context. Mr Kilby further submits that he disagrees with Westpac’s submission that the Arbitrator had no basis to find that he had contracted a disease of gradual process in the last twelve months of his employment with Westpac.
Mr Kilby disputes Westpac’s submissions that the Arbitrator should not have made a finding pursuant to section 15 of the 1987 Act and does not agree that the only option available to the Arbitrator on the evidence was a finding pursuant to section 16 of that Act.
Mr Kilby disputes Westpac’s submission that the Arbitrator chose to ignore expert evidence. He contends that the Arbitrator is entitled to use the expert medical evidence as a guide and not as a prescription. Moreover, he is entitled to substitute his own conclusions in the light of the facts before him that were “not made known to, or not properly taken into account by the reporting doctors.”
It is further disputed that Mr Kilby’s statement and oral evidence confirmed that the nature of his employment with Bananacoast aggravated or exacerbated his condition. Mr Kilby maintains that he only stated that an increase in physical activity highlighted the symptoms of his ever-present condition. He does not agree with Westpac that the Arbitrator should have applied section 16 of the 1987 Act, requiring him to determine whether the employment with Bananacoast was a substantial contributing factor to the aggravation or exacerbation of his condition. Moreover, he does not agree that it was not until he commenced employment with Bananacoast and that work had increased in intensity, that he needed to take time off work. He submits that he gave evidence of taking time off for treatment while employed by Westpac and of undertaking his duties with restrictions, inconvenience, pain and discomfort.
Mr Kilby states that Westpac’s submission that it is important to consider whether the injury would have occurred away from the workplace is irrelevant, as there is no evidence that he suffered any injury other than the work injury at Westpac.
Finally, Mr Kilby concurs with the submissions made by Bananacoast, in this appeal.
Submissions made by Bananacoast
Bananacoast submits that the Arbitrator made determinations of fact that were clearly open to him, and that having made those determinations, he correctly applied the law.
It is further submitted that there are a number of errors and omissions in Westpac’s submissions in respect to the evidence and the facts as found in the case, including but not limited to, the following:
·Bananacoast had not in fact made weekly payments of compensation on a voluntary basis. Payments were made to Mr Kilby on a salary maintenance basis pending the determination of the issue of liability. Representatives of Bananacoast were available for cross-examination before the Arbitrator, but this was not sought by Westpac’s representatives.
·Westpac concedes that there was “no issue on credit” in relation to Mr Kilby’s evidence, in which he stated emphatically that his level of capacity and symptoms remained no greater than they had been when he left his employment with Westpac. Mr Kilby further states that his work with Bananacoast did not aggravate his condition, capacity for work and/or his symptoms.
·Mr Kilby gave evidence that he would not be able to return to the duties he performed with Westpac and has not since leaving Westpac, been able to work more than 25 to 30 hours per week.
·There was unchallenged evidence before the Arbitrator confirming that the type and extent of work performed by Mr Kilby while employed by Bananacoast, was not of a nature that could have aggravated his underlying condition.
Bananacoast further submits that in relation to issues of fact and the application of the law:
·The Arbitrator was entitled to rely upon the medical evidence with respect to the diagnosis, and he did so. “There is no indication as to the basis upon which it is alleged that the Arbitrator ‘erred’. The issue that the Arbitrator is entitled to decide, based on the whole of the evidence, is causation.”
·The Arbitrator correctly reasoned that he was required to determine the matter based on the whole of the evidence before him, and not just the medical reports.
·There was no real dispute as to the fact that Mr Kilby suffered a disease. The only issue was the cause of the disease and/or whether there had been an aggravation of the disease.
·All of the evidence, including the evidence of lay persons, is material in determining the issue of causation. The Arbitrator’s decision was based on the whole of the evidence and he was entitled to come to the decision that he made. Based on the totality of that evidence, it was open to the Arbitrator to make a finding pursuant to section 15 of the 1987 Act.
·The Arbitrator did not ignore the expert medical evidence and in fact, he accepted the evidence in respect of diagnosis. Makita does not support Westpac’s submission. “The aforementioned decision supports the proposition that the arbitrator was entitled to come to his own conclusion in respect of causation (and/or liability) based on the whole of the evidence. The decision also confirms that the evidence of expert witnesses is of little or no value if based on an incorrect factual scenario.” The Arbitrator did not, and should not have relied solely on the medical evidence in making his determination. It is submitted that in fact, the Arbitrator found that the expert medical reports had probably been based on an incorrect premise.
·“Reliance is also placed upon the decision of the Court of Appeal in Manning Valley Senior Citizens Homes Ltd v Cleveland (unreported) (Cleveland) handed down on 29 August 1995. In that case, at first instance, Judge Burke of the then Compensation Court, made assessments pursuant to s.66 of the Workers Compensation Act, 1987 which were substantially different to the medical experts [sic] opinions relied upon by both the Applicant and the Respondent. The Respondent Employer appealed suggesting that the Judge was in error in not adopting the assessments of the medical experts.” In dismissing the appeal Meagher J said that it was the Judge’s task to arrive at a determination of loss by reference to all of the evidence and that “it does not matter that no medical witness gave a figure equal to that chosen by His Honour … He is not captive of the doctors. He heard the evidence of the worker, and was impressed by her.”
·In light of the evidence of Mr Kilby and that of Ms Carol Ward and Mr Don Hogarth, it was open to the Arbitrator to find that Mr Kilby’s employment with Bananacoast was not a substantial contributing factor to an aggravation of his underlying condition.
DISCUSSION AND FINDINGS
The review by a Presidential Member on appeal is not a rehearing. The power of a Presidential Member to revoke the decision pursuant to section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 17; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). Moreover, it must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
There is relatively, little factual disagreement between the parties in this appeal. Essentially, the issues in dispute relate to the treatment of the evidence by the Arbitrator and whether the disease of gradual process was “a result of the nature of the work [Mr Kilby] was performing in the last 12 months at Westpac”, or whether he was in fact suffering from a degenerative disease that had been exacerbated or aggravated to some degree by employment with both Westpac and Bananacoast.
As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur where an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
Did the Arbitrator make findings of fact contrary to the evidence?
The Arbitrator gave a close analysis of the evidence, which is set out at pages 23 to 31 of the transcript of the proceedings before him. He states at page 24:
“I have had the advantage of hearing Mr Kilby’s evidence, and I have read his statements.
I found him a forthright witness. He answered questions simply, effectively and
spontaneously, and I accept his evidence. I have also had the advantage of statements of
two lay witnesses provided to me on behalf of Bananacoast Community Credit Union
Limited.They are the witnesses Carol Frances Ward and John Russell Hogarth. Those
statements are both dated 13 August 2004, and no application was made to cross-
examine them.”
On the same page the Arbitrator records that he has read every piece of medical evidence notwithstanding that he would not make specific reference to all of it in his decision. However, he did consider in detail, the evidence of Drs Weidman, Douglas and Spittaler. In referring to the evidence of Dr Fuller he said that he was “the odd man out amongst the medical specialists in that his opinion was that Mr Kilby suffered only a short-term aggravation from his work.”
The Arbitrator also accepted Mr Kilby’s evidence that there was no noticeable aggravation of his condition in the first twelve months that he worked at Bananacoast. He goes on to say that he accepts Mr Kilby’s evidence that he was quite “definite” about the fact that he had not suffered any greater at Bananacoast, than at Westpac. This is supported by the evidence of Ms Ward and Mr Hogarth. Both indicate that Mr Kilby was a most satisfactory employee, and Mr Hogarth said that Bananacoast first became aware of Mr Kilby’s injury in about April 2003.
The Arbitrator states correctly, Dr Weidman was of the opinion that Mr Kilby’s condition was only 20% work-related and he apportioned that equally between Westpac and Bananacoast. Dr Douglas was of the view that it was 50% work-related and he apportioned it two-thirds to Westpac and one-third to Bananacoast. Dr Spittaler acknowledged that his working conditions were responsible for worsening his symptoms and “his current employment appeared to exacerbate them.”
There was a degree of inconsistency as between the expert opinions of the Doctors upon which the parties relied. The Arbitrator states, and I agree, that neither of Doctor Weidman nor Doctor Douglas appear to have asked Mr Kilby to compare his degree of disability at Westpac with that at Bananacoast, and that “Mr Kilby was adamant in the witness box that apart from the occasional flare-ups it was no different.” He points out that the doctors did not have available to them the detailed history that was provided in evidence by Mr Kilby, who was cross-examined, and the evidence provided by Ms Ward and in particular, Mr Hogarth, whose evidence was not challenged.
The Arbitrator illustrates this at page 30 of the transcript of proceedings before him by reference to a discussion that Mr Hogarth said had taken place between himself and Mr Kilby. Mr Kilby told Mr. Hogarth that the injury to his neck was an old injury, which he had apparently experienced while employed by Westpac.
Without restating in detail the evidence that was before the Arbitrator, and the detail of his analysis, it is clear that Mr Kilby has never resiled from the fact that his injury occurred while employed at Westpac. While the expert medical evidence contains opinion as to apportionment, the Arbitrator was entitled to find on the evidence that the doctors were not fully acquainted with Mr Kilby’s work history, which was known to and deposed by, Mr Kilby, Ms Ward and Mr Hogarth. Furthermore, I accept that in light of the history of medical treatment undertaken by Mr Kilby, it follows that he must have taken some brief time off work at least, while employed at Westpac.
Having closely examined the evidence that was available to the Arbitrator, I find that on the basis of that evidence, the Arbitrator’s analysis and conclusions are reasonable, and that he was entitled to arrive at those conclusions. It is clear that the Arbitrator undertook a thorough analysis of all of the evidence and made his decision on that basis. The medical evidence although not entirely consistent, was persuasive, as the Arbitrator said, but he went on to say, “I prefer the detailed lay evidence which was not available to the doctors and … accept Mr Kilby as I saw him being cross-examined, and I accept the other lay witnesses…”. I do not agree with Westpac that the Arbitrator is bound to accept unreservedly the expert medical evidence, nor that this was simply a contest between the medical evidence and Mr Kilby’s “demeanour”. The Arbitrator was bound to consider the whole of the evidence in arriving at his findings and conclusions. That is precisely what he did. I agree with Meagher J, in supporting Burke CCJ in Cleveland that the Arbitrator “is not a captive of the doctors” and was entitled to weigh up and arrive at his decision on the basis of the whole of the evidence before him. Furthermore, I concur in the submission by Bananacoast, that Makita supports the proposition that the Arbitrator was entitled to come to his own conclusion regarding causation based upon the whole of the evidence, and further that he was entitled to take into account the relative lack of factual knowledge of the doctors, with regard to Mr Kilby’s work history.
I can find no error on the part of the Arbitrator in relation to his consideration of the evidence that was before him. Consequently, I find that this ground of appeal is not made out and does not succeed.
Did the Arbitrator make errors of fact or law?
Westpac submits that Mr Kilby’s evidence was that the only aggravation caused to his condition was in the workplace, both at Westpac and Bananacoast. It submits that causation outside of the workplace should have been taken into account by the Arbitrator on the basis that “there may be more than one substantial contributing factor to an injury” (Mercer). However, there was no such evidence placed before the Arbitrator to facilitate such a consideration, apart from the general opinions of some of the doctors. The Arbitrator was not bound to embark upon an exploration of this assertion, given that none of the parties adduced any evidence in support of it.
Furthermore, having arrived at the conclusion that Mr Kilby “suffers an injury which is a disease contracted by a gradual process during the period of the last 12 months that he was employed by Westpac, and … that the injury does not consist of an aggravation, acceleration, exacerbation or deterioration whilst he has been employed by Bananacoast Credit Union”, the Arbitrator correctly applied the provisions of section 15 of the 1987 Act.
This ground of appeal does not succeed.
Was the Arbitrator entitled to come to the decision reached on the basis of the available evidence?
For the reasons set out above, I find that the Arbitrator was entitled to come to the decision that he reached on the basis of the available evidence. As previously stated, according to the transcript of the proceedings before him, his analysis of the evidence was thorough and it was a matter for him to give due weight to the relevant evidence that was before him.
This ground of appeal does not succeed.
DECISION
Having found no error of law, fact or discretion made by the Arbitrator in this matter, the decision of the Arbitrator is confirmed.
COSTS
As the appeal has been unsuccessful, the Appellant is ordered to pay the costs of the appeal, as agreed or assessed.
OTHER
The matter should be referred to the Approved Medical Specialist, forthwith, in accordance with the order made by the Arbitrator.
Gary Byron
Deputy President
18 April 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
27
10
0