Wyllie-Gray v Fitness First Australia Pty Ltd - [2019] NSWWCCPD 32

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Wyllie-Gray v Fitness First Australia Pty Ltd [2019] NSWWCCPD 32
APPELLANT:	Lesley Wyllie-Gray
RESPONDENT:	Fitness First Australia Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-5212/18
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	9 January 2019
DATE OF APPEAL DECISION:	10 July 2019
SUBJECT MATTER OF DECISION:	Causation of a consequential condition
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Walker Law Group
Respondent:	Barker Henley
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 9 January 2019 is revoked. 2. The matter is remitted pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

Lesley Wyllie-Gray (Ms Wyllie-Gray/the appellant) suffered injury to her left hip on 7 March 2016, while conducting a Pilates class in the course of her employment as a Group Exercise Instructor with Fitness First Australia Pty Ltd (the respondent). The respondent initially accepted liability voluntarily. Its insurer subsequently denied liability in a s 74 notice dated 25 January 2017.[1] Ms Wyllie-Gray commenced proceedings in the Commission, and a decision was issued on 17 July 2017.[2] Ms Wyllie-Gray succeeded on ‘injury’ and associated issues, and an arbitrator made orders for the payment of medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), to include the cost of a left total hip replacement. An allegation of injury to, or symptoms involving, the back did not form part of the claim at that time. The left hip replacement was performed on 13 October 2017.[3] Ms Wyllie-Gray resumed selected duties, initially on reduced hours, from December 2017.[4]
[1] Application to Resolve a Dispute (ARD), pp 133–136.
[2] Wyllie-Gray v Fitness First Pty Ltd [2017] NSWWCC 166.
[3] ARD, pp 98–99.
[4] Dr Endrey-Walder’s report dated 12 June 2018, ARD, p 8.
Dr Endrey-Walder, a surgeon, reported at the request of Ms Wyllie-Gray’s solicitors on 12 June 2018.[5] He assessed Ms Wyllie-Gray’s whole person impairment at 24 per cent, in respect of the left hip, surgical scarring and the lumbar spine. A claim pursuant to s 66 of the 1987 Act, consistent with this assessment, was made on 18 June 2018.[6] The respondent’s insurer arranged assessment by Dr Powell, orthopaedic surgeon, who reported on 21 August 2018. The insurer issued a s 74 notice dated 20 September 2018. The notice declined liability for what was described as “the alleged secondary injury to your lumbar spine”.[7]
[5] ARD, pp 7–12.
[6] ARD, p 167.
[7] Reply, pp 11–15.

THE ARBITRAL PROCEEDINGS AND DECISION

The current proceedings, which seek lump sum compensation consistent with Dr Endrey-Walder’s assessment, were listed for arbitration hearing on 6 December 2018. Mr Moffett instructed by Mr Walker appeared for Ms Wyllie-Gray. Mr Saul appeared for the respondent. There were no applications to call oral evidence or to cross-examine.
The way in which the allegations were pleaded, in the ARD at Pt 4, suggested that all of the allegations (including injury to the lumbar spine) were based on allegations of injury in the course of employment, with a deemed date of 7 March 2016. Notwithstanding this pleading it was made clear, at the hearing, that only the lumbar spine was in dispute, and the lumbar condition was alleged by Ms Wyllie-Gray to be consequential to the left hip injury of 7 March 2016.[8] Counsel addressed and the Arbitrator reserved her decision. The Commission issued a Certificate of Determination dated 9 January 2019, accompanied by 10 pages of reasons.[9]
[8] Transcript of arbitration hearing on 6 December 2018 (T), T 4.5–26.
[9] Wyllie-Gray v Fitness First Pty Ltd [2019] NSWWCC 36 (the reasons).
The Arbitrator correctly described the limited nature of the dispute before her.[10] She referred to Ms Wyllie-Gray’s statements.[11] She discussed the reports of Dr Endrey-Walder in some detail.[12] The Arbitrator referred to reports from treating doctors, paying particular attention to the occasions and circumstances in which complaints of back symptoms were recorded.[13] She referred to reports obtained by the insurer, connected with injury management and rehabilitation (Dr Tang and the Kyzen Group respectively) together with its medicolegal report from Dr Powell.[14]
[10] Reasons, [10]–[12].
[11] Reasons, [16]–[20].
[12] Reasons, [21]–[29].
[13] Reasons, [30]–[49].
[14] Reasons, [50]–[54].
The Arbitrator described her task as being “to determine if these [back] symptoms and signs are as a consequence of [Ms Wyllie-Gray’s] accepted left hip injury or as a result of some other factor or factors”. She stated that she accepted the complaints of reported back pain, she accepted that Ms Wyllie-Gray was “not a complainer”, and she accepted that “it is not uncommon for people who have had a significant injury to one body part to ignore or minimise symptoms in other areas”. She accepted there had been a serious injury to the left hip.[15]
[15] Reasons, [56]–[60].
The Arbitrator said the seriousness of Ms Wyllie-Gray’s left hip injury did not “automatically suggest that she had altered gait which was responsible for the development of back symptoms”. She said there was “minimal evidence that she was experiencing altered gait as a consequence of her hip injury”.[16] The Arbitrator referred to Dr Delaney, who “noted some back pain on extension” on examination in September 2016, and Dr Scott, who in December 2016 referred to “some right sided back pain … as a result of some ‘compensatory movement patterns and posture’”. Dr Walter in December 2016 “did not record any complaints of back pain”, nor did Dr Endrey-Walder in February 2017. The Arbitrator said she accepted that, in late 2016, Ms Wyllie-Gray “on occasions experienced some back pain … in the context of significant ongoing problems with her left hip”.[17]
[16] Reasons, [61]–[62].
[17] Reasons, [65]–[68].
The Arbitrator referred to Dr Endrey-Walder’s second report dated 12 June 2018, in which the doctor recorded increasing lower back pain since March 2018 “in line with her gradually increasing work activity”. She said Ms Wyllie-Gray had resumed work “both with the respondent and in her private capacity, suggesting a significant amount of activity, about which there is very little evidence”.[18]
[18] Reasons, [69]–[71].
The Arbitrator noted Ms Wyllie-Gray’s submission that the evidence was sufficient to conclude the back condition was “consequential”, that is, the symptoms were “materially contributed to by the left hip injury”. She quoted a passage from Kooragang Cement Pty Ltd v Bates[19] dealing with causation, and the requirement for a “common sense evaluation of the causal chain”. She referred to Ms Wyllie-Gray as suffering “a significant back injury in about 1993, as x-rays at that time confirmed”.[20]
[19] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang Cement).
[20] Reasons, [73]–[76].
The Arbitrator said that although there was “some back pain at times in 2016, that pain, on her own evidence, really set in in 2018 when she resumed work”.[21] The Arbitrator continued:
“In my view, a common sense evaluation of the causal chain suggests that it was the ‘increased workload’ she performed between about February and May 2018 (when a further x-ray was performed) that was the principal and indeed the material cause of her back symptoms.”[22]
[21] Reasons, [78].
[22] Reasons, [79].
The Arbitrator described this as “precisely what [Ms Wyllie-Gray] says as does Dr Endrey-Walder”. There was a history of previous lumbar disc prolapse in 1993.[23] The Arbitrator said that Dr Endrey-Walder’s reference to a “recurrence of some back symptoms in the past” suggested the symptoms were “consequent upon the earlier back injury”. Dr Tang’s report in April 2018 said Ms Wyllie-Gray’s low back pain was “as a result of the pains in her left hip”. The Arbitrator said that, read in context, the suggestion was that this resulted from Ms Wyllie-Gray resuming normal duties too soon. She also said that Dr Tang was not told of the prior back injury.[24] She noted that Ms Wyllie-Gray “conceded that she ‘recovered well’ from the operation” (the hip replacement). She contrasted this with “the opinion of Dr Endrey-Walder that she ‘fared rather poorly following this operation’”.[25]
[23] Dr Endrey-Walder’s report dated 21 February 2017, ARD, p 4.
[24] Reasons, [80]–[83].
[25] Reasons, [84].
The Arbitrator made the following findings:
“85. In these circumstances, I am not persuaded that her back condition could be described as ‘consequential’: it seems to me to reflect either a new injury occurring in 2018 or an aggravation of her earlier back injury, irrespective of her left hip injury.
86. Thus in my mind, the causal chain has been broken.”
The Arbitrator referred to Dr Powell’s report, saying that it did not greatly assist, as it focussed on the definition of ‘injury’ in s 4 of the 1987 Act. She noted that Dr Powell “set out his reasons for concluding that her back condition was both pre-existing and significant”.[26]
[26] Reasons, [87].
The Arbitrator made an ultimate finding of fact:
“For these reasons, and weighing all the evidence as a whole, I am not satisfied on balance that the left hip injury materially contributed to the applicant’s back condition since there is ample evidence of other factors which explains her back symptoms, such that her back condition cannot be described as ‘consequential’.”[27]
[27] Reasons, [88].
The Arbitrator entered an award in the respondent’s favour on the allegation of a consequential condition of the back. She referred the balance of the lump sum claim for assessment by an Approved Medical Specialist (AMS).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[28] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[29] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[30]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[31]
[28] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[29] (1966) 39 ALJR 505, 506.
[30] [1996] HCA 140; 140 ALR 227.
[31] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[32] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[33]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[34]
[32] [2017] NSWWCCPD 5, [67].
[33] [2001] FCA 1833, [28].
[34] Raulston, [20].
In Northern NSW Local Health Network v Heggie[35] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[35] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

GROUNDS OF APPEAL

Ms Wyllie-Gray raises the following grounds of appeal:
(a)    Identifying the wrong test for causation. (Ground No. 1)
(b)    Having account of the irrelevant consideration of whether the back condition was a section 4 ‘injury’. (Ground No. 2)
(c)    Drawing the wrong inferences and reaching the wrong conclusion. (Ground     No. 3)
(d)    Failing to weigh the evidence. (Ground No. 4)

GROUND NO. 1: IDENTIFYING THE WRONG TEST FOR CAUSATION

GROUND NO. 2: THE IRRELEVANT CONSIDERATION OF WHETHER THERE WAS A SECTION 4 INJURY TO THE BACK

These grounds both raise an issue regarding the test of causation applied by the Arbitrator. It is convenient to deal with them together.

Ms Wyllie-Gray’s submissions

Ms Wyllie-Gray submits the Arbitrator identified the correct test governing causation of the disputed consequential condition, when she referred to Kumar v Royal Comfort Bedding Pty Ltd[36] and Kooragang Cement.[37] It is submitted that at another point the Arbitrator described the test erroneously, as if it were “a choice between the accepted left hip injury and some other factors”,[38] saying:
“My task however is to determine if these symptoms and signs [of back pain] are as a consequence of her accepted left hip injury or as a result of some other factor or factors.”[39]
[36] [2012] NSWWCCPD 8.
[37] Reasons, [75].
[38] Appellant’s submissions, [8].
[39] Reasons, [57].
Ms Wyllie-Gray submits this error was repeated, when the Arbitrator said:
“In my view, a common sense evaluation of the causal chain suggests that it was the ‘increased workload’ she performed between about February and May 2018 (when a further x-ray was performed) that was the principal and indeed the material cause of her back symptoms.”[40]
[40] Reasons, [79].
Ms Wyllie-Gray submits the Arbitrator’s approach involved error; injuries (and consequential conditions) can have more than one cause. Evidence can simultaneously satisfy the test of a s 4 injury, and a consequential condition, such that there can be an entitlement to pursue one or the other (reference is made to Lagana v Australian Retirement Partners Realty Pty Ltd[41]). Ms Wyllie-Gray submits the Arbitrator erred in approaching the issue as if “she was required to choose a competing cause among competing factors”.[42]
[41] [2015] NSWWCCPD 55 (Lagana), [44]–[46].
[42] Appellant’s submissions, [8]–[11].

The respondent’s submissions

The respondent makes general submissions, not directed to any specific ground, that Ms Wyllie-Gray’s grounds of appeal do not comply with Practice Direction No. 6, and it is not possible to identify what errors of fact, law or discretion are alleged. It submits Ms Wyllie-Gray, in both her submissions and her chronology, fails to refer to refer to a significant lower back injury in 1993, and a “flare-up” of that condition in 2015, prior to the left hip injury. These are submitted to be “critical to the [A]rbitrator’s reasoning”, and the absence of reference to these matters is submitted to be “a fatal flaw in this appeal”.[43]
[43] Respondent’s submissions, [2.7(1)]–[2.7(5)].
The respondent submits the Arbitrator correctly identified the relevant causation test, by reference to the decisions of Kumar and Kooragang Cement, in her reasons at [75]. She was not satisfied there was an unbroken chain of causation between the left hip injury and the back condition.[44] This finding should be read in conjunction with the reasons at [80] to [86].[45] The respondent describes it as “trite law that an injury may have more than one cause”. However, Ms Wyllie-Gray “carried the onus of proving that her left hip injury materially contributed to her back condition and that there was an unbroken chain of causation between that injury and her back condition”. On a common sense evaluation of the causal chain the Arbitrator was not satisfied of this on the probabilities. There was no error.[46]
[44] Reasons, [79].
[45] Respondent’s submissions, [2.8(1)]–[2.8(3)]
[46] Respondent’s submissions, [2.8(4)]–[2.8(5)].
The respondent describes Ground No. 2 as “difficult to comprehend”. It submits the Arbitrator found the back symptoms resulted from the 1993 injury and/or an aggravation as a result of her employment duties from February to May 2018.

Consideration

Grounds Nos. 1 and 2 adequately identify the basis of the challenge made against the Arbitrator’s findings, particularly when they are read with the submissions. Grounds Nos 3 and 4 are very generally expressed. The basis of Ms Wyllie-Gray’s challenge in Ground No. 3 appears adequately, when read in conjunction with the relevant submissions. Ground No. 4 and the accompanying brief submission adds nothing to the appeal. For reasons that follow, the appeal is dealt with by reference to Grounds Nos. 1 and 2, and it is unnecessary to deal with the other grounds. I am in any event required to “act according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms”.[47] The respondent refers to a lower back injury in 1993 and a “flare-up” of that condition in 2015. It states that a failure by Ms Wyllie-Gray to refer to these factual matters in the appeal is “fatal”. There is no developed submission dealing with the basis of this assertion, which I do not accept.
[47] Section 354(3) of the 1998 Act.
The Arbitrator referred to the Presidential decision of Kumar, in which Roche DP applied the following frequently cited passage from Kooragang Cement:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”[48]
[48] Kooragang Cement, at 463–464, quoted in reasons, [75].

The Arbitrator set out the opening sentences from this passage in her reasons. Neither party, in its submissions, questions the correctness or the applicability of the above passage.[49]
[49] Ms Wyllie-Gray’s submissions, [8], respondent’s submissions, [2.8(1)].
Ms Wyllie-Gray submits that an injury, including a consequential condition, can have more than one cause, referring to Lagana (which sets out a number of the relevant authorities). In that decision Roche DP said:
“It does not matter that the numbness in Ms Lagana’s right heel played a role, even a substantial role, in causing Ms Lagana to fall. Nor does it matter that she had fallen in January 2012 because of the numbness in her right heel. It is trite law that an injury can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40; ACQ Pty Ltd v Cook [2009] HCA 28; 237 CLR 656 at [25] and [27]).”[50]
[50] Lagana, [46].
It is helpful to refer to Calman v Commissioner of Police,[51] (cited in Lagana) in which the High Court stated:
“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause.”[52] (footnotes omitted)
[51] [1999] HCA 60; 167 ALR 91; 73 ALJR 1609 (Calman).
[52] Calman, [38].
The respondent’s submissions take no issue with the proposition that “an injury may have more than one cause”, describing this as “trite law”.[53]
[53] Respondent’s submissions, [2.8(4)].
The Arbitrator’s ultimate finding of fact is quoted at [14] above. The question to which she directed herself was whether “the left hip injury materially contributed to [Ms Wyllie-Gray’s] back condition”. This was consistent with a submission put on Ms Wyllie-Gray’s behalf.[54] This finding is quoted, in part, in the respondent’s submissions, where it submits “[t]his finding should be upheld”.[55] Neither party’s submissions are critical of the reference to this test, which is consistent with authority.[56]
[54] Reasons, [73].
[55] Respondent’s submissions, [1] of Summary in [2.8].
[56] Accident Compensation Commission v CE Heath Underwriting and Insurance (Aust) Pty Ltd [1994] HCA 68; 121 ALR 417; 68 ALJR 525, [5], per Brennan J (Mason CJ, Deane, Dawson and Toohey JJ agreeing), Sutherland Shire Council v Baltica (1996) 39 NSWLR 87, 97G–98A, Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, [57]–[58], Secretary, Department of Family and Community Services v Jones by Executor of her Estate Hewston [2016] NSWWCCPD 63, [43]–[45].
The parties do not disagree on the principles, but rather on whether the Arbitrator applied them appropriately.
The specific paragraphs of the Arbitrator’s reasons, on which the appellant relies in respect of Grounds Nos. 1 and 2, are set out below:
“57. My task however is to determine if these symptoms and signs are as a consequence of her accepted left hip injury or as a result of some other factor or factors.”
“79. In my view, a common sense evaluation of the causal chain suggests that it was the ‘increased workload’ she performed between about February and May 2018 (when a further x-ray was performed) that was the principal and indeed the material cause of her back symptoms.”
“85. In these circumstances, I am not persuaded that her back condition could be described as ‘consequential’: it seems to me to reflect either a new injury occurring in 2018 or an aggravation of her earlier back injury, irrespective of her left hip injury.”

The respondent specifically refers to the reasons at [79], on the basis that “the [A]rbitrator was not satisfied that there was an unbroken chain of causation”. The respondent submits the finding at [79] “should be read in conjunction with” the reasons at [80] to [86]. These are set out below (save for [85] which is already reproduced):
“80. This is precisely what the applicant says as does Dr Endrey-Walder.
81. In short, her case is essentially that her back symptoms arose as a consequence of the increase in work load, as supported by the opinion of Dr Endrey-Walder.
82. Moreover, of significance in my view is the reference by Dr Endrey-Walder to ‘recurrence of some back symptoms in the past’ suggesting that the back symptoms were consequent upon the earlier back injury.
83. Although Dr Tang in April 2018 reported that ‘She also has low back pain as a result of the pains in her left hip…’ read in context with the rest of his report, the applicant was clearly suggesting that this was because she resumed normal duties too soon. I also note that the applicant did not tell Dr Tang of her prior back injury.
84. The applicant herself conceded that she ‘recovered well’ from the operation somewhat inconsistent with the opinion of Dr Endrey-Walder that she ‘fared rather poorly following this operation…’
…
86. Thus in my mind, the causal chain has been broken.”
The question posed by the Arbitrator, in the reasons at [57], was framed on the basis that if the back symptoms resulted “from some other factor or factors”, this was inconsistent with the proposition that the symptoms were also “a consequence” (or result) of the left hip injury. To the contrary, there was no legal impediment to the symptoms resulting from “some other factor or factors”, and also from the left hip injury. The question requiring an answer was whether the accepted left hip injury was a material contributing factor to the back symptoms.[57] If it was, the back symptoms would result in the relevant sense from the left hip injury. It would not matter that the back symptoms resulted also “from some other factor or factors”. The question posed in the reasons at [57] was inconsistent with the accepted test of causation, and the fact that the symptoms could result from multiple causes.
[57] See the authorities in footnote [56].
The reasons at [79] present a similar difficulty. The Arbitrator referred to Ms Wyllie-Gray’s “increased workload” between about February and May 2018, and concluded that this increased workload “was the principal and indeed the material cause of her back symptoms”. The reference to “the material cause” (emphasis added) suggests there could only be one material cause. If the Arbitrator had found that the increased workload was the only cause, this would have precluded other causes, but there was no such finding. The relevant test depended on whether Ms Wyllie-Gray’s left hip injury was a material contributing factor to her back symptoms. It did not matter that there may also be other material contributing factors. This is consistent with the passage from Calman quoted at [35] above. To similar effect, Cluffv Dorahy Bros (Wholesale) Pty Ltd[58] is authority that incapacity potentially may result from two different incidents of injury in two employments, such that compensation could be recovered from either employer in respect of the same incapacity. This principle is the same, regardless of whether or not both incidents are compensable.[59]
[58] [1979] 2 NSWLR 435 (Cluff), per Reynolds JA (Hope and Glass JJA agreeing), 439.
[59] Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39, 10 DDCR 506, [50].
It is apparent from the above that there are aspects of the reasons which in my view are inconsistent with the authorities referred to above dealing with causation.
It is necessary that the Arbitrator’s reasons be read as a whole.[60] The Arbitrator’s reasons at [85] are reproduced at [39] above. The finding at [85] could have been expressed with more clarity, as a specific finding on causation, rather than on what the evidence overall reflected. Be that as it may, that paragraph is consistent with a conclusion that Ms Wyllie-Gray’s back condition resulted from either “a new injury occurring in 2018”, or “an aggravation of her earlier back injury”, in either case “irrespective of her left hip injury”. In the reasons at [85] the Arbitrator referred to this conclusion in support of her finding that she was “not persuaded that [Ms Wyllie-Gray’s] back condition could be described as consequential”. This, read on its own, could be consistent with a finding that the left hip injury was not a material contributing factor to Ms Wyllie-Gray’s back symptoms. The Arbitrator then proceeded, in the reasons at [86], to find that “the causal chain has been broken”. This was consistent with a finding by the Arbitrator that the left hip injury was not a material contributing factor to the back condition.
[60] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The Arbitrator then made the following finding in the reasons at [88]:
“For these reasons, and weighing all the evidence as a whole, I am not satisfied on balance that the left hip injury materially contributed to the applicant’s back condition since there is ample evidence of other factors which explains her back symptoms, such that her back condition cannot be described as ‘consequential’.” (emphasis added)

I have concluded above, that the Arbitrator’s reasons at [57] and [79] were inconsistent with the proposition, accepted by the parties, that the back symptoms could ‘result’ in the relevant sense from the accepted left hip injury, even if there were “other factors” at play. There are passages in the reasons that are potentially consistent with the Arbitrator applying a test consistent with authority. The finding at [85] was potentially consistent with a factual conclusion that the left hip injury did not materially contribute to the back condition, which would reflect application of an appropriate test. However, that finding was made on the basis that there were other causative factors, “either a new injury in 2018 or an aggravation of her earlier back injury” (emphasis added). It is noteworthy that no positive finding, regarding the “new injury in 2018 or an aggravation of her earlier back injury” was actually made at [85].
It is difficult to see how the potential existence of either of these postulated causes, in the absence of a positive finding of either, would preclude a finding that the left hip injury materially contributed to the back symptoms. If the accepted factual situation (and there was not a positive finding to this effect) was that Ms Wyllie-Gray developed worsening back pain in 2018, as a result of resuming work following her work related left hip replacement, it is difficult to see why this would be inconsistent with a conclusion that the left hip injury was a material contributing factor to the back symptoms.
The finding at [88], that Ms Wyllie-Gray had not discharged her onus of proving that the left hip injury materially contributed to the back condition, like the reasons at [57], [79] and [85], depended on the presence of “other factors” which could explain the back symptoms. The reasoning persistently returned to whether factors, other than the accepted left hip injury, could be identified as potentially causative of the back symptoms, on the basis this was inconsistent with the hip injury being relevantly causative. This was inconsistent with the proposition, properly accepted by the parties, that injury, and a consequential condition, can have multiple causes.
When the reasons are read as a whole, in my view Ms Wyllie-Gray has succeeded in establishing that the Arbitrator failed to apply an appropriate test on causation, consistent with the authorities referred to above. It follows that Ground No. 1 is upheld.
Dealing with Ground No. 2, Ms Wyllie-Gray submits “[e]vidence can simultaneously satisfy the description of a section 4 ‘injury’ and a consequential condition giving rise to an entitlement to pursue one or the other”.[61] This is true, and is consistent with Cluff (see [42] above), together with Lagana on which Ms Wyllie-Gray relies. Ground No. 2 however is dependent upon a false premise. It depends on the proposition that the Arbitrator decided that “the evidence supported a finding in favour of an unpleaded section 4 back injury”, and that the Arbitrator found the allegation of a consequential condition was not made out for this reason. Neither is accurate. The Arbitrator made no finding of a back injury pursuant to s 4 of the 1987 Act. The work Ms Wyllie-Gray returned to following her hip replacement surgery was not only with the respondent. The Arbitrator recorded in her reasons at [71]:
“In addition, I note that the applicant has resumed work both with the respondent and in her private capacity, suggesting a significant amount of activity, about which there is very little evidence.”
[61] Ms Wyllie-Gray’s submissions, [11].
If Ms Wyllie-Gray’s activities when she resumed work following her surgery caused physical injury, this would not necessarily constitute ‘injury’ with the respondent, and the Arbitrator made no such finding. The Arbitrator’s reasons at [85] are referred to above. Two possible bases for the back symptoms were suggested, a specific finding based on either of these was not made. It follows that Ground No. 2 is not made out.

DISPOSITION OF THE APPEAL

It flows from the above that the appeal should be allowed. The appropriate course in my view is that the matter should be remitted to another Arbitrator for re-determination. Ms Wyllie-Gray argues, in her submissions dealing with Ground No. 3, that the Arbitrator’s finding at [67], of some back pain in 2016 “in the context of significant ongoing problems with her left hip”, was sufficient that a referral to an AMS of the alleged consequential condition could have been made on that basis. There is some force to that submission. However, what was said at [67] did not amount to a finding of a consequential condition. The referral of a consequential back condition based on events up to 2016 (which predated the surgery) could arguably unduly restrict the scope of any such assessment, depending on the result when the matter is re-determined. It is not necessary to deal with Grounds Nos. 3 and 4 in the circumstances, and the preferable course is that I not do so.

DECISION

The Arbitrator’s decision dated 9 January 2019 is revoked.
The matter is remitted pursuant to s 352(7) of the 1998 Act for re-determination by a different Arbitrator.

Michael Snell

DEPUTY PRESIDENT

10 July 2019