Yang v The St Brigids Convent of Mercy Perth Ltd - [2021] WADC 132

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   YANG -v- THE ST BRIGIDS CONVENT OF MERCY PERTH LTD [2021] WADC 132
CORAM:   LONSDALE DCJ
HEARD:   1 SEPTEMBER 2021
DELIVERED          :   22 DECEMBER 2021
FILE NO/S:   APP 12 of 2021
BETWEEN:   CHIA HUI YANG
Appellant
AND
THE ST BRIGIDS CONVENT OF MERCY PERTH LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR VAN ZALM
File Number            :   A91207 of 2021

Catchwords:

Workers' compensation - Appeal from Workers' Compensation Arbitration Service - Leave to appeal - Section 60 application for suspension of weekly payments - Whether arbitrator erred in law in finding there was no genuine dispute as to liability - Dispute as to liability - Whether s 60 application appropriate

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 5(a), s 58, s 60, s 61, s 62, s 62(2), s 71, s 213(4), s 247(2)(b), sch 1 cl 7 pt III div 5

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr B L Nugawela
Respondent	:	Mr J J Sheldrick

Solicitors:

Appellant	:	WA Legal Pty Ltd
Respondent	:	Hall & Wilcox

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

Antonio Suero v Georgiou Group Pty Ltd (Unreported, C12-2009 (McCann PP) 13 May 2009)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Catholic Education Office of WA v Granitto [2012] WASCA 266
Commercial Industries v Stegic (Unreported, WASCA, Library No 9052, 13 September 1991)
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Department of Education v Kenworthy (1990) 3 WAR 1
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Lockwood-Hall v BHP Billiton Nickel West Pty Ltd [2015] WASCA 232
Mokta v Metro Meat International Ltd [2005] WASCA 143
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Purkess v Crittenden (1965) 114 CLR 164
Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50
Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212
St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37
State of South Australia v Wall (1980) 24 SASR 189
State of Western Australia v Bond Corporation Holdings Ltd (1991) 28 FCR 68
Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992)
The State of Western Australia (Department of Education) v Leek [2014] WADC 10
Vurlow v Leighton Nursing Home [1978] WAR 15
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Weeks v Harbourworks Clough [1985] WAR 327
Wilson v Metaxas [1989] WAR 285

LONSDALE DCJ:

Introduction

On 10 September 2019 the appellant, Ms Yang, was injured in the course of her employment at the Villa Maria Hostel, an aged cared facility owned and run by the respondent. The appellant, a food service assistant, was picking up a tray containing empty dishes and cutlery when she felt a sharp pain in her right wrist. She reported the incident immediately. The next day she lodged a claim for workers' compensation pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA).
The claim form contained questions directed to whether the part of the body affected was healthy prior to the occurrence and/or whether there had been a similar injury on a prior occasion. To those questions, the appellant responded in the negative.[1]
[1] Appellant's claim form filed 24 September 2019 (appellant's book documents - ABD 223).
The appellant's claim was supported by a first certificate of capacity signed by Dr Annie Naveed and dated 11 September 2019. Dr Naveed declared that the appellant had suffered a wrist sprain and that this was a 'new condition'.[2]
[2] First certificate of capacity (ABD 104 - 105).
In late October 2019, following receipt of the claim form and first certificate of capacity, the respondent accepted liability for the payment of workers' compensation. The respondent commenced weekly payments effective from 11 September 2019.
Subsequently, it came to the attention of the respondent that the appellant had suffered an injury to her right wrist some 20 years earlier.[3] The appellant had not disclosed the earlier injury in her claim form.
[3] Report of Dr Rodney Greenberger dated 18 September 2019 (ABD 110 - 111).
In January 2020, at the respondent's request, consultant specialist Dr Meyerkort examined the appellant. Dr Meyerkort diagnosed the appellant as suffering degeneration of and changes to her wrist consistent with the earlier injury. Dr Meyerkort said he would not have expected the severe, chronic symptoms she had presented with to have resulted from the appellant's workplace activities. Dr Meyerkort's opinion was that the appellant would have developed her condition irrespective of the incident on 10 September 2019 and that the 'most significant cause' of her injuries was the pre‑existing injury.[4]
[4] Report of Dr Phillip Meyerkort dated 29 January 2020 (ABD 191 - 203).
Following receipt of Dr Meyerkort's opinion, the respondent filed an application for arbitration seeking an order for the cessation of weekly payments under s 60 of the WCIMA. The respondent claimed it had a genuine dispute as to liability ab initio; the respondent claimed that the genuine dispute arose because of the appellant's failure to disclose matters relevant to causation, namely her history of right wrist injury.
On 11 February 2021, following a hearing of the respondent's application, the arbitrator ruled in favour of the respondent, finding that there was a genuine dispute within the meaning of s 60 of the WCIMA, the substance of that dispute being as to liability ab initio. The arbitrator declined to exercise his discretion under s 60(2) of the WCIMA to continue weekly payments.[5]
[5] Arbitrator's reasons for decision dated 11 February 2021 [11] (Reasons) (ABD 13).
Prior to the arbitration hearing, the appellant had filed an application pursuant to s 58 of the WCIMA which provides for an arbitrator to determine liability for weekly payments.
The respondent had also filed an application pursuant to s 71 of the WCIMA which provides a mechanism for the recovery of payments made where the worker was not lawfully entitled to receive them.
The nature of proceedings under s 58 and s 71 of the WCIMA is that they are determinative of the substantive issues, namely whether the worker is, or was ever, entitled to the payment of compensation.
By contrast, the nature of proceedings under s 60 of the WCIMA is interlocutory. Section 60 provides:
60Discontinuing or reducing weekly payments, order as to
(1)Where weekly payments are made to a worker pursuant to this Division, the employer may apply at any time for an order of an arbitrator that such payments be discontinued or reduced.
(2)If the employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the arbitrator may order that the payments be suspended for such time as the arbitrator directs or be discontinued or be reduced to such amount as the arbitrator thinks proper or the arbitrator may dismiss the application.
The arbitrator here was only required to determine an application under s 60. He declined to deal with the merits of either the s 58 or s 71 applications and ordered those applications be heard together at a later date. The substantive issue of whether the appellant is, or was ever entitled to weekly payments of compensation is therefore yet to be determined.

The basis for the payment of compensation pursuant to the WCIMA

Part III of the WCIMA sets out the circumstances in which compensation is payable. Compensation is payable under sch 1 cl 7 where the worker establishes that there is an injury and has incapacity which 'results from' the injury: Catholic Education Office of WA v Granitto [2012] WASCA 266 [21]; Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50 [13].
The definition of 'injury' is contained within in s 5 of the WCIMA, and reads:
injury means -
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
(b)a disease because of which an injury occurs under section 32 or 33; or
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e)a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.
The appellant lodged her claim on the basis that the injury was a new condition and thus it is to be inferred that she was relying on the definition of injury in s 5(a) of the WCIMA.

Procedures for the review of payments of compensation

Once liability for compensation is established and payments of compensation have commenced, payments are subject to review under the provisions of pt III div 5 of the WCIMA. Mechanisms for the cessation of weekly payments are provided for in s 58, s 60, s 61 and s 62 of the WCIMA.
This appeal concerns whether the arbitrator was right to order the cessation of weekly payments pursuant to the mechanism provided for in s 60 of the WCIMA.

Leave to appeal from the arbitrator's decision is required under s 247(2)

To appeal to this court from a decision of a workers' compensation arbitrator, the appellant must seek leave under s 247(2) of the WCIMA which reads:
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5,000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
The appellant submits that this appeal involves a question of law and relies on the second limb of s 247(2) of the WCIMA.

The notice of appeal

Prior to the hearing of the appeal, the appellant filed an amended notice of appeal in which some of the grounds contained in the original notice of appeal were abandoned.[6]
[6] Amended notice of appeal filed 23 August 2021.
At the hearing of the appeal the appellant sought leave to amend grounds 1 and 3. The respondent did not object to the application and I granted the appellant leave to amend.
After the hearing of the appeal the appellant wrote to the court seeking leave to abandon grounds 6 and 8(a). I do not consider that leave is required to abandon a ground of appeal, but I will proceed on the basis I am not required to deal with those grounds.
The remaining grounds of appeal (with amendments made on the day of the hearing of the appeal appearing in italics) now read as follows:
1.The learned Arbitrator erred in law in determining that the medical evidence of Dr Meyerkort supported a finding of a s 60 genuine dispute [p 36], when the medical evidence of Dr Meyerkort did not supply evidence that properly addressed the relevant test on causation [p 26] and/or at best went to the section 62 as to the past or present condition of the worker and/or the s 61 question as to whether the incapacity was no longer as a result of the injury.
Particulars
(a)Dr Meyerkort's report did not state that the sole and entire cause of the appellant's condition was due to a pre‑existing condition;
(b)Dr Meyerkort's report did not contain grounds upon which the Respondent could rationally or reasonably genuinely dispute its liability to pay compensation as claimed (ie: ab initio);
(c)at best, Dr Meyerkort's report opined that at some undetermined point after 10 September 2019, there were competing causes for the Appellant worker's incapacity.
2.The learned Arbitrator erred in law in determining that he did not have to make any finding on the merits of the report from Dr Meyerkort [p 36], when the content of the report was crucial in determining if the Respondent could hold a belief of a genuine dispute (given also that there was no statement from the Respondent) [p 35] and further, that the content of the report from Dr Meyerkort failed to establish grounds of a s 60 genuine dispute as to entitlement (rather than the past or present condition of the worker).
3.The learned Arbitrator erred in law in finding at [p 60] that a s 62 application or section 61 proceeding under the WCIMA was not available, in circumstances where the medical evidence supported a section 61 proceeding or section 62 application rather than a section 60 application.
4.The learned Arbitrator erred in law in that he found (in the circumstances of the case that there existed a genuine dispute when there was no statement from the Respondent certifying grounds for the belief and where there was insufficient evidence to safely conclude that he (sic) Respondent genuinely disputed the Appellant's entitlement to compensation under s 60 the Act [p 34].
7.The learned Arbitrator erred in law in considering evidence provided by the respondent's counsel given 'at the bar'.
Particulars
(a)the appellant was not cross-examined on whether the pre-existing injury and symptoms to her right wrist had any bearing to her relevant workplace injury, given that the symptoms were entirely different and in a different location of the wrist;
(b)the matters contained at Reasons [32];
(c)that the Respondent would have denied liability if the appellant had disclosed a previous injury [p 34 and 35].
8.The learned Arbitrator failed to provide adequate reasons for decision.
Particulars
(b)the learned Arbitrator provided no, or inadequate, reasons for concluding that a genuine dispute existed.

Question of law must be 'involved'

As s 247 of the WCIMA makes plain, for the appeal to succeed, the appellant must establish that the appeal 'involves a question of law'. If no question of law can be identified from the arbitrator's decision, there is no jurisdiction to grant leave: Catholic Education Office of WA v Granitto [53] ‑ [54].
A question of law permits an appeal based on an error of law or mixed fact and law: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to the result and but for the error the decision would have been or might have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15].
The distinction as to what constitutes an error of fact and an error of law was discussed in Australian Broadcasting Tribunal v Bond where Mason CJ at (355) ‑ (356) said:
…
The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (46); Australian Gas Light Co v Valuer‑General (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v Bathurst City Council (48). This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (49). So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (50).
But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (51), per Brennan J. Similarly, Menzies J. observed in Reg. v. District Court; Ex parte White (52):
"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg: illogical) inference of fact would not disclose an error of law."
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.'
…
Frequently, in workers' compensation appeals, matters of law and matters of fact are intertwined. In Pacific Industrial Co v Jakovljevic [2008] WASCA 60, Wheeler JA said, in relation to the materially similar provisions as they then appeared in the WCIMA:
18The legislative use of the term 'involved' indicates that the commissioner's role is not confined to the determination of pure questions of law. Plainly, it extends to questions of mixed fact and law. Further, in other contexts, it has been held that, if an appeal is provided for where a question of law is "involved", the result is that if some question of law is involved, the whole of the decision appealed from is open to review, and not merely the question of law: Ruhamah Property Co Ltd v The Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148, 151 (Knox CJ, Gavan Duffy, Powers and Starke JJ), XCO Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 37; (1971) 124 CLR 343, 348 (Income Tax Assessment Act 1922, 1936 (Cth)); Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199; (2001) 115 LGERA 152 [12] (McLure J) (Town Planning and Development Act1928 (WA)). The commissioner's function on a review differs from that of this court, to which an appeal under the Act may only be brought "on a question of law": Fitzgerald v Smorgon Steel Pty Ltd [2004] WASCA 185 [3] (Murray J).
19To the extent that the commissioner's reasons might be understood as suggesting that the commissioner is precluded from considering or reviewing errors of fact, he has, in my respectful view, erroneously confused a necessary precondition to the grant of leave (the existence of a question of law) with the task to be undertaken during the course of a review.
It is sometimes difficult to say whether an error is properly characterised as an error of law without examining the substantive merits of the appeal. In such circumstances, it is necessary to examine the merits of the appeal before deciding whether to grant or refuse leave: BHP Billiton Iron Ore Pty Ltd v Brady [14]; BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [52] ‑ [54].

Procedure on appeal if error of law established

If the appellant can establish that one of the grounds involves a question of law I must conduct a 'real review' of the whole of the arbitrator's decision and not merely the question of law itself: Australian Broadcasting Tribunal (353).
In this case, for the reasons which follow, I am satisfied that the appeal 'involves' an error of law and so leave should be granted.

Which of the grounds of appeal involve an error of law?

Grounds 1, 2 and 7 can be grouped together. Each of these grounds assert that the arbitrator made errors of law. But closer examination of the grounds reveal challenges to the arbitrator's factual conclusions. In my view, these grounds assert mere errors of fact.

Ground 3 asserts that the evidence established that the arbitrator could have dealt with the respondent's application under a different section of the WCIMA, thus denying the respondent the right to invoke s 60. This ground clearly involves an error of law because it invites the court to consider the proper application of legislation: Regis Aged Care Pty Ltd v Hunter [41].
Ground 4 is a 'sufficiency of evidence' ground. This also 'involves' an error of law because it is a question of whether a particular inference can be drawn from facts: Australian Broadcasting Tribunal (335) ‑ (336).
Ground 8(b) asserts the arbitrator failed to give adequate reasons for concluding that a genuine dispute existed. The failure to give adequate reasons could involve an error of law. However, a mere assertion of a failure to give adequate reasons is insufficient. This ground does not provide any particulars of the failure to give reasons. The appellant's submissions at the hearing of the appeal did not elucidate an argument which could sustain a finding of a failure to give adequate reasons so I consider that this ground does not involve an error of law.
As I am satisfied that a question of law is involved, at least in respect of grounds 3 and 4, I can grant leave to appeal. I turn now to consider whether leave should be granted.

Principles relating to appeals from interlocutory orders

At the hearing of the appeal, counsel for the appellant invited the court not to apply a 'gloss' on s 247 of the WCIMA by requiring the appellant to demonstrate not only that the appeal involves a question of law, but that there would be a 'substantial injustice' if leave were not granted.
Counsel for the appellant referred to two decisions in which it was held that common law principles pertaining to the grant of leave to appeal from interlocutory orders in workers' compensation matters should apply, thus requiring an appellant to show 'substantial injustice' before leave could be granted. See: St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37 (Schoombee DCJ) and Antonio Suero v Georgiou Group Pty Ltd (Unreported, C12-2009 (McCann PP) 13 May 2009).
The court, in these two cases, applied the common law principles relating to interlocutory appeals described by Malcom CJ in Wilson v Metaxas [1989] WAR 285, 294 where his Honour said:
The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible: Perry v Smith (1901) 27 VLR 66; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 408. The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Perry v Smith; Niemann v Electronic Industries Ltd [1978] VR 431; Stanley-Hill v Kool [1982] 1 NSWLR 460; Monash University v Burg [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VR 756. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd at 759, per Fullagar J. In the present case, persons who are made subject to an order for examination have only very limited protection against self‑incrimination. Thus, although an order refusing to set aside an order made ex parte for an examination is in the nature of an interlocutory order, the effect of it is to change substantive rights. Further, upon the hearing of the. application for leave, which necessarily extended to hearing the arguments on the merits of the appeal, it seemed to me that the decision of Wallace J was attended with sufficient doubt to warrant its review by this Court. In the circumstances, I am of opinion that to deny that review, having regard to the significance of the question of construction raised, could have worked a substantial injustice in the circumstances of this particular case.
The appellant submitted that St John Ambulance v Annesley and Antonio Suero were wrongly decided. The appellant submitted that the right of appeal conferred by s 247 of the WCIMA is a creature of statute and so common law principles pertaining to appeals against interlocutory orders do not apply. Thus, it was submitted the appellant is not required to establish that there would be a 'substantial injustice' if leave is not granted.
There is in fact no requirement for an appellant to show that there would be a substantial injustice in order to obtain leave to appeal against an interlocutory order. As Malcolm CJ made plain in Wilson v Metaxas, such a 'requirement' is, in fact, only a guideline. The ultimate touchstone is whether leave to appeal is in the interests of justice: State of Western Australia v Bond Corporation Holdings Ltd (1991) 28 FCR 68; (1991) 5 WAR 40 [56] ‑ [57].
It follows that it is unnecessary for me to decide whether I should apply the 'substantial injustice' test and express any opinion about whether the two decisions referred to by the appellant were wrongly decided.
In any event, I have decided that I should grant leave because a question of law is involved and, in my opinion, it is in the interests of justice that leave be granted. Although the arbitrator's order made here under s 60 of the WCIMA is interlocutory (in that it does not finally determine the appellant's right to compensation) the effect of the order on the appellant's right to compensation is substantive: the arbitrator's order under s 60 of the WCIMA has resulted in the termination of payments to the appellant until the issue of liability is resolved. As neither the s 58 nor s 71 hearings have yet been listed, the appellant is unlikely to receive any payment for the foreseeable future. Therefore, it is in the interest of justice that this court examine whether the arbitrator's decision to cease payments was right and whether weekly payments should be reinstated.
Leave to appeal is granted.
Having granted leave to appeal, I must now conduct a 'real review' of the arbitrator's reasons.

Overview of the arbitrator's reasons

In his written reasons, the arbitrator stated the legal principles relevant to s 60 of the WCIMA by reference to the authorities of State of South Australia v Wall (1980) 24 SASR 189; Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992) 15 ‑ 16 (Owen J); The State of Western Australia (Department of Education) v Leek [2014] WADC 10; and Department of Education v Kenworthy (1990) 3 WAR 1, 17.
The arbitrator stated, based on those authorities, the following principles relevant to the application of s 60.
First, the threshold for establishing a genuine dispute under s 60 is low.[7]
[7] Reasons [14].
Secondly, an application could only be made under s 60 if neither s 61 nor s 62 were applicable.[8]
[8] Reasons [16] - [18].
Thirdly, it is not always necessary that a witness provide direct evidence of grounds for a genuine dispute.[9]
[9] Reasons [20].
After summarising the legal principles relevant to an application under s 60, the arbitrator then summarised the positions of the parties.[10]
[10] Reasons [22] - [32].
The arbitrator identified that the only issue he needed to decide was whether there was a genuine dispute.
The learned arbitrator noted there was no basis for the respondent to have denied liability had the appellant disclosed the earlier injury at the time she lodged her claim.
The arbitrator cautioned himself against making a finding about the issue of causation ie: whether the appellant's injuries were pre‑existing or were compensable within the definition of injury contained in s 5 of the WCIMA.
After stating the relevant legal principles and identifying the issue to be determined, the arbitrator concluded there was a genuine dispute as to liability ab initio on the evidence before him.[11] In this regard, the arbitrator said: [12]
... on the basis of the evidence (particularly the first certificate of capacity dated 11 September 2019, the claim for (sic, form) dated 24 September 2019 lodged on behalf of [the appellant], [appellant's evidence], Dr Meyerkort's report dated 16 January 2020 and Mr Homan Zandi's report dated 8 April 2020) that there is a genuine dispute within the meaning of the Act.
[11] Reasons [36] - [37].
[12] Reasons [38].

Overview of the appellant's contentions

The appellant's grounds of appeal amount to three principal contentions.
The first contention is that there was an insufficient evidentiary basis for the arbitrator to conclude that the respondent had a genuine dispute as to liability ab initio.
The second contention is that, if the respondent did have a genuine dispute as to liability for payment of compensation, it could not invoke s 60 of the WCIMA because the mechanisms provided for in s 61 or s 62 were available. The appellant submits that the arbitrator failed to give adequate reasons for invoking s 60 of the WCIMA in circumstances where the appropriate remedy for the respondent was either s 61 or s 62.
The third contention is that the opinion of Dr Meyerkort was contradictory and insufficient to ground a genuine dispute by the respondent.
The appellant's contention that the respondent could also have pursued an application under s 61 (as well as s 62) of the WCIMA was raised for the first time at the hearing of the appeal, and was the subject of an application to amend the grounds. The respondent did not object to the appellant's application to amend and conceded it was not prejudiced. Leave to amend was granted.

Overview of the respondent's contentions

The respondent submits that there was a basis for the genuine dispute as to liability ab initio based on the opinion of Dr Meyerkort, which raised a significant question as to the issue of causation.
The respondent further submits that the only remedy for the respondent to have challenged liability ab initio was to seek an order under s 60 of the WCIMA to cancel the appellant's weekly payments.

The legal principles relating to s 60 - s 62 of the WCIMA

It is convenient to set out the legal principles relating to the review of weekly payments in the WCIMA.
Section 60 of the WCIMA provides:
60Discontinuing or reducing weekly payments, order as to
(1)Where weekly payments are made to a worker pursuant to this Division, the employer may apply at any time for an order of an arbitrator that such payments be discontinued or reduced.
(2)If the employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the arbitrator may order that the payments be suspended for such time as the arbitrator directs or be discontinued or be reduced to such amount as the arbitrator thinks proper or the arbitrator may dismiss the application.
Section 61 of the WCIMA provides:
61Discontinuing 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.
…
(7)Subsections (1) and (2) do not apply to a discontinuance of payments -
(a)on payment in full of the prescribed amount; or
(b)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, on the worker reaching the age at which his entitlement to compensation ceases; or
(ba)if section 93E(8) or 93P(2)(b) applies to the payment of compensation; or
(c)on suspension of payments in accordance with section 72, or 145D; or
(d)on failure to comply with section 69 by a worker who does not reside in the State.
(8)Subsections (1) and (2) do not apply to a discontinuance or reduction of weekly payments of compensation under section 59(7).
Section 62 of the WCIMA provides:
62Reviewing and discontinuing, suspending or changing weekly payments
(1)Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2)An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.
The legal principles relating to s 60 - s 62 were summarised by the Court of Appeal in Regis Aged Care Pty Ltd [47] - [55].
47The effect of s 60 ‑ s 62 may be summarised as follows. Under s 60, where an employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation, or as to quantum, the arbitrator may order that the payments be suspended or discontinued or reduced. By s 61, upon giving aworker 21 days' notice, an employer can discontinue or reduce payments if the worker has returned to work or if 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. Otherwise, subject to presently immaterial exceptions,⁴¹ the employer may only discontinue or reduce payments if the worker consents or if an arbitrator so orders. If, upon receipt of the 21‑day notice, the worker disputes the right of his employer to discontinue or reduce the weekly payments, the worker may apply for an order of an arbitrator that the weekly payments not be discontinued or reduced. Section 62 permits an employer or a worker to apply to an arbitrator to discontinue, reduce or increase the weekly payments having regard to the present or past condition of the worker.
48An element of the statutory scheme is that once weekly payments have been commenced, an employer is not permitted to reduce or discontinue them other than as authorised by the Act.
49The evident scheme of these provisions was outlined by Murray J, with whom Roberts‑Smith and McLure JJ agreed, in Qantas Flight Catering v Joncevski, as follows:
Section 61 finds its place among provisions which are designed to ensure that a worker in receipt of weekly payments of compensation has some guarantee of their continuance, except in the limited circumstances to which s 61(7) and (8) refer, or where it is determined that there is no continuing entitlement to them. As to that, the clear purpose of s 61(1) is to limit the circumstances in which the employer may unilaterally discontinue or reduce the payments without the consent of the worker or an order of the Directorate. If the statutory procedure is followed by both the employer and the worker the result, on the hearing of a s 61(3) application, pursuant to s 61(4) and (4a), will be that there will be a capacity to examine the merits of the worker's entitlement to compensation.
In addition, under s 60, the employer may apply at any time for an order that the weekly payments be discontinued or reduced, or alternatively, under s 62, an application may be made to review the weekly payments. Where under s 60(2) the employer is seen to be genuinely in dispute as to the liability to pay compensation or the amount of such payments, then the payment may be suspended, in which case under s 63 no compensation is payable, or the payments may be reduced in amount. There is, in my opinion, under the statutory scheme, ample capacity for the employer to protect its position where a genuine dispute exists. Alternatively, if the worker consents, then, as has been seen, the employer may act unilaterally without the benefit of an order to discontinue or reduce the payments.
50In Star Broken Meats, Owen J, with whom Pidgeon J agreed and Rowland J generally agreed, construed s 61 and s 62. His Honour held that s 61 was a specific legislative provision requiring a 21‑day notice for the protection of the worker. Consequently, the Act should not be construed as permitting an employer to circumvent s 61 by commencing proceedings under s 60 in a situation to which s 61 applies. Otherwise, s 60 is not limited, and can apply to disputes arising from changing circumstances.
…
52In order to invoke s 60, the applicant employer must show that it sincerely and seriously disputes the worker's claim. That is a matter to be determined on the materials as a whole. It is not always necessary for an employer to file an affidavit reciting that the claim was sincerely and seriously disputed.
53Section 61 and its equivalent in the predecessor to the Act have been strictly construed in decisions of this court's predecessor. In particular, it has been held that a valid 21‑day notice and a medical certificate to one of the effects stated in s 61(1) are preconditions to the effective engagement by an employer of that provision. In Vurlow v Leighton Nursing Home, Burt CJ construed s 12B of the Workers' Compensation Act 1912 (WA) (1912 Act). With one exception, that provision was in terms materially indistinguishable from s 61(1) of the Act. Adjusting what Burt CJ said to take account of the change in statutory language, his Honour construed the provision as follows:
1.A medical certificate for the purpose of this section can take any form so long as it appears with reasonable clearness that a medical practitioner intends to and is expressing a conclusion by way of opinion on one of the following:
(a)that a worker has total capacity for work; or
(b)that a worker has partial capacity for work; or
(c)that the incapacity is no longer a result of the injury;
and the document sets out the grounds of that opinion.
2.The right of an employer under the section is conditioned on, among other things, service on a worker of a document by which a medical practitioner certifies to one or other of pars (a) ‑ (c) above.
3.If the document served by an employer does not meet the requirements set out in 1 above, a condition of the employer's right is unsatisfied and cannot be subsequently made good by the employer producing on application before an arbitrator one or more further certificates.
54The difference between the third opinion (ie, the opinion referred to in par 1(c) of [0] above) and the first two opinions (ie, the opinions referred to in pars 1(a) and (b) of [53] above) is that the third opinion recognises the continuing incapacity for work (total or partial, as the case may be), but expresses the view that the incapacity is not now (no longer) a result of the relevant injury.
55In Heat Containment Industries v Kimberley, Malcolm CJ construed s 61 as follows:
1.The relevant medical certificate must comply with the requirements of s 61, adopting what had been said by Burt CJ in Vurlow.
2.If a 21‑day notice is given by an employer but is defective because the medical certificate does not comply with s 61, the notice is invalid.
3.In those circumstances, the position will be equivalent to where no notice was given, so that an employer's conditional right under s 61 will not have arisen.
(footnotes omitted)

Could an application have been made under s 61 or s 62 of the WCIMA?

It follows from the analysis of these sections in Regis Aged Care that s 60 of the WCIMA could not have been invoked if the respondent was entitled to rely on either s 61 or s 62. Could the respondent here have invoked the procedure under s 61 or s 62 of the WCIMA?
Cases concerning the competence of a s 60 application (where it was contended that either s 61 or s 62 was applicable) do not assist the appellant. Such cases concern the question of ongoing liability for weekly payments as opposed to liability ab initio: see eg: The State of Western Australia (Department of Education) v Leek; Department of Education v Kenworthy; Taylor v Star Broken Meats.
The case of Weeks v Harbourworks Clough [1985] WAR 327 dealt specifically with the application of s 62. That case makes it plain that the mechanism provided for under s 62 is to be used where the employer alleges a change in circumstances and (having regard to the past or present condition of the worker) there is incapacity resulting from the injury. Section 62 therefore focuses on the issue of a worker's capacity rather than an employer's liability.
Here, unlike in Weeks v Harbourworks Clough, the substance of the respondent's dispute does not rely on a change in circumstances affecting the issue of the worker's capacity. Rather, the respondent's case is that it is not liable ab initio having regard to matters pertaining to issues of causation. Thus, in my view, s 62 of the WCIMA could not have been invoked here. In other words, if, (as the respondent submits) it was never liable for weekly payments, those payments cannot be 'reviewed' having regard to the worker's past or present condition. For these reasons, the arbitrator was right to conclude that the s 62 review mechanism was not a remedy available to the respondent.
I turn now to consider whether the respondent could have sought relief under s 61 of the WCIMA.
In order to issue a notice under s 61 of the WCIMA the respondent would need to have demonstrated that the appellant was fit to return to work or that a medical practitioner had certified that the appellant's incapacity for work was 'no longer a result of the injury' (emphasis added).
Neither of those circumstances were present here. The respondent had not sought to establish that the appellant had become fit to return to work. Nor did the respondent seek to establish the appellant's incapacity no longer resulted from the occurrence. Rather, the respondent sought to establish an argument that the appellant had never suffered an injury that 'resulted from' (ie: was caused by) the occurrence. On this basis, the respondent sought to place the onus of establishing liability on the appellant.
The appellant did not point to (and I could find no evidence of) a medical certificate stating that the appellant's incapacity was 'no longer a result of the injury'. Dr Meyerkort's report was certainly not expressed in such terms. Rather, Dr Meyerkort's opinion was to the effect that the appellant's ongoing symptoms had resulted from the pre‑existing condition rather than the appellant having recovered from the injury suffered in September 2019.
A reasonable interpretation of Dr Meyerkort's opinion is that the appellant had not suffered an injury resulting from the occurrence. Thus, s 61 had no application: Regis Aged Care Pty Ltd [59] citing Vurlow v Leighton Nursing Home [1978] WAR 15 (16) ‑ (17); Heat Containment Industries v Kimberley (1990) 2 WAR 47, 48 - 49.
As the respondent could not have invoked either s 61 or s 62 of the WCIMA, the respondent could only have relied on s 60 in order to have the appellant's payments reviewed.
Having concluded that the respondent was correct to rely on s 60, I now turn to the question of whether the arbitrator was correct to conclude that the respondent had a genuine dispute.

Legal principles concerning what constitutes a genuine dispute

I gratefully adopt Staude DCJ's summary of the legal principles concerning what constitutes a genuine dispute in The State of Western Australia (Department of Education) [82] ‑ [87]:
82The leading decision is State of South Australia v Wall, which was affirmed in Schilter v South Australian Institute of Technology (No 1) (1982) 31 SASR 316 and has been followed by the Full Court of the Supreme Court of this State in Commercial Industries v Stegic and Taylor v Star Broken Meats. The principles may be summarised as follows:
1.The words genuine dispute should be given a plain and uncomplicated meaning: State of South Australia v Wall (194) (Cox J).
2.The requirement that a dispute be genuine is a safeguard against an insincere denial of liability which would frustrate the legislative policy: State of South Australia v Wall (194).
3.The employer must show that it sincerely and seriously disputes the worker's claim: State of South Australia v Wall (198); Taylor v Star Broken Meats (19).
4.The sincerity and seriousness of the employer's attitude is a matter to be established on the materials as a whole: Taylor v Star Broken Meats (19) (Owen J).
5.It is not necessary for an employer to file an affidavit reciting that the claim is seriously and sincerely disputed. It is sufficient if that appears as a reasonable inference from the materials: Taylor v Star Broken Meat, (19).
6.An objective appraisal of the merits dispute is not required, but a dispute may not be found to be genuine if it is frivolous, made without adequate inquiry, or based on a patently feeble legal argument or on unsupported factual assertions: State of South Australia v Wall (194); Commercial Industries v Stegic (7) (Malcolm CJ).
7.In examining the genuineness of a dispute it may be relevant to consider the opportunity the employer has had to investigate the claim: State of South Australia v Wall (198).
8.The application of s 60 is not confined to the employer's initial liability to pay compensation, but can apply to a dispute as to ongoing liability which arises from changing circumstances and where the dispute is not amenable to review under s 61: Taylor v Star Broken Meats (16).
83In Airlite Cleaning Pty Ltd v Bosevski (CM-115/2) the compensation magistrate held, on the authority of Taylor v Star Broken Meats, that where there is a genuine dispute as to the level of incapacity arising following the payment of compensation it is open to an employer to bring an application pursuant to s 60 of the Act: [41].
84In that case there was material before the review officer revealing the employer's difficulty in assessing the worker's level of incapacity. For this reason the issue was not amenable to resolution pursuant to s 62. The fact that the employer had also filed a s 61 application was not fatal to the s 60 application for the reason that the issue raised by the latter might impede the resolution of the former.
85It is clear from the authorities that to ground a s 60 application, an employer is required to show that it genuinely, that is, sincerely and seriously, disputes its liability or the amount of compensation to be paid. The existence of a genuine dispute is to be determined having regard to all of the material filed in support. A genuine dispute is one that is based on adequate consideration and enquiry and not made on frivolous grounds.
86The question of whether there is a genuine dispute is to be determined on the materials as a whole. Accordingly, the learned registrar was required to give consideration to the combined effect of the employer's contentions. In my view an employer may point to a number of features of the claim which, looked at in isolation, may have less significance than when they are considered together in the context of the history of the matter.
87Nothing in s 60 restricts the nature of the dispute which grounds its application, other than that it is a dispute as to the liability to pay compensation or as to the proper amount to be paid. In Taylor v Star Broken Meats Owen J spoke of s 60 operating so as to fill a lacuna in the statutory scheme. Section 60 permitted the suspension of weekly payments in situations to which s 61 and s 62 did not apply. His Honour gave two examples of such situations, but went on to say that he was not to be taken as closing off the area of operation of s 60: (14).

The evidence relied on by the respondent as to the existence of a genuine dispute

The respondent submits there is a genuine dispute based on the evidence of the appellant's failure to disclose the earlier injury in her initial claim form together with the opinion of Dr Meyerkort. The respondent submits that the combination of these facts raises a serious question as to whether the appellant's incapacity resulted from a compensable injury within the meaning of sch 1 cl 7 of the WCIMA.
I interpolate to note that the respondent does not submit that the appellant was dishonest by failing to disclose the prior injury. The appellant did give a plausible reason for failing to disclose the prior injury in her claim form. Because of the lapse in time between the prior injury and the occurrence in September 2019, I accept that the appellant was not being disingenuous in failing to disclose the prior injury and genuinely believed her symptoms were unrelated to the injury suffered two decades ago.[13]
[13] Appellant's statement dated 7 September 2020.
The question of whether or not the sudden onset of pain experienced by the appellant can be attributed to her duties on the day the pain was noticed, or was a symptom of an older injury, is plainly a matter for determination. However, the question to be determined by the arbitrator was a different one. The question was whether the fact of the prior injury not having been disclosed, in combination with the medical evidence, established a basis for a genuine dispute.
Dr Meyerkort examined Ms Yang on 16 January 2020 and relevantly made the following findings:[14]
I am of the opinion that the most significant factor contributing to Ms Yang's condition is the underlying degeneration and previous injury. She had not attended work for several weeks at the time of attending for [an MRI] however, 'florid synovitis' was reported. This confirms that it is not her workplace activities that are the most significant cause of her condition and that she would have developed her condition irrespective of the incident reported to have occurred on 10 September 2019.
(emphasis added)
[14] Appellant's papers at page 196.
Dr Meyerkort went on to say that:[15]
Ms Yang's continued symptoms are due to degeneration and the sequelae of prior injury and … Ms Yang did not sustain an injury, but instead reported symptoms of the underlying degeneration and pathology affecting her right wrist.

The appellant's submission about whether Dr Meyerkort's opinion establishes grounds for a genuine dispute

[15] Appellant's papers at page 198.

It is uncontroversial that in order for the appellant to establish an entitlement to compensation, she need only show that the relevant occurrence was a material contributing cause of her injury: Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212.
The appellant submits that Dr Meyerkort misunderstood the relevant test for causation because it was not necessary (as his opinion implied) for the appellant to demonstrate that the injury was the sole cause of the incapacity.
The appellant calls in aid the opinion of orthopaedic surgeon Dr Homan Zandi whose opinion was that the appellant's incapacity had been an aggravation of a pre-existing asymptomatic degenerative radio‑ulnar joint and that her duties had contributed to the injuries to a significant degree:[16] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182; Mokta v Metro Meat International Ltd [2005] WASCA 143 [39]. If Dr Zandi's opinion is correct, then the appellant will succeed in establishing an entitlement to compensation on the basis of the definition of injury in s 5 of the WCIMA.
[16] Report of Dr Homan Zandi dated 8 April 2020.
The appellant submits that there is an evidentiary presumption in favour of the appellant and it was incumbent on the respondent to undertake an 'evidentiary disentanglement' of the cause of her injuries: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160 (Dixon J); Purkess v Crittenden (1965) 114 CLR 164, 169. The appellant further submits that the respondent failed to undertake the task of 'evidentiary disentanglement' because Dr Meyerkort did not address the issue of whether the occurrence was a contributing cause of or an aggravation or acceleration of a pre‑existing condition: Leggett v Argyle Diamond Mines Pty Ltd [22], [24].
The appellant submits that Dr Meyerkort's opinion is inherently weak because it is silent on the issue of whether the appellant's symptoms experienced immediately after the occurrence could be attributable to her work duties. (Rather, the opinion focused on whether her current condition was related to her work duties.)
Had the arbitrator's task been to decide the substantive issues (eg: on a s 58 or s 71 application) the appellant's contentions would have been correct. But the appellant faces two problems here. First, the appellant had not claimed in her application that her injury was a recurrence or aggravation of an old injury. Secondly, the nature of the proceedings before the arbitrator was interlocutory. To have required the respondent to undertake an 'evidentiary disentanglement' before the arbitrator would have invited the arbitrator to determine the claim on a basis not pleaded in her original claim.
The question of whether the appellant's injuries were caused at least in part by the occurrence raises legitimate issues. But the appropriate occasion to determine such issues is not at the interlocutory stage.
Thus, in my view, the arbitrator was correct to decline to conduct an 'evidentiary disentanglement' of the cause of the appellant's injuries and to decide the substantive issue of whether the appellant's incapacity had resulted from the occurrence.
It was necessary that the arbitrator be cautious not to make a finding on liability because of the interlocutory nature of proceedings under s 60 of the WCIMA. An objective appraisal of the merits on the issue of causation was not required. It would have been incorrect for the arbitrator to have conducted a wholesale review of the merits of the causation issue by conducting a detailed analysis of the merits of Dr Meyerkort's report: State of South Australia v Wall (194); Commercial Industries v Stegic (7).

What is a genuine dispute?

A genuine dispute is one which is found to be made without adequate inquiry or is based on a patently feeble argument or is made on the basis of unsupported factual assertions: State of South Australia (194); Commercial Industries v Stegic (Unreported, WASCA, Library No 9052, 13 September 1991) 7 (Malcolm CJ).
In my view, Dr Meyerkort's report considered, in light of the appellant's failure to disclose the earlier injury, does establish a serious issue to be tried concerning the issue of causation. Although there are parts of Dr Meyerkort's report that do not sit altogether comfortably and might seem contradictory, the effect overall does, in my view, raise a genuine issue about causation.
The respondent has frankly conceded there was no evidence before the arbitrator that the respondent could have denied liability merely on the basis that the appellant had not disclosed the pre-existing injury in her initial claim. The respondent acknowledged that the substantive issue of whether the appellant's incapacity resulted from the incident at work or was a recurrence or aggravation of a pre‑existing injury, is yet to be determined. The respondent's concession reflects an acknowledgement that it may well be liable, even if the occurrence was not the sole cause of the injury. But that concession (which was appropriately made) did not amount to a concession there was no genuine dispute as to liability ab initio.
As I have mentioned above, interlocutory proceedings are not the appropriate forum for the determination of substantive issues, nor are they to be a vehicle for an examination of the merits of the claim. The effect of s 60 of the WCIMA is not to deny the appellant the right to compensation ‑ but to place the onus on her to prove that her incapacity results from a compensable injury.
In my view, for the reasons articulated by the arbitrator, there is an issue concerning causation which requires examination. This issue amounts to a genuine dispute within the meaning of s 60 of the WCIMA.

The discretion under s 60 of the WCIMA

The arbitrator, having found that there was a genuine dispute under s 60, was entitled to exercise his discretion in any of the ways stipulated by s 60 ‑ that is, by discontinuing, suspending or reducing the amount of compensation.[17]
[17] Reasons [64] - [66].
In my view, the appellant has not shown the arbitrator to have erred in the exercise of his discretion.
I turn now to consider each of the grounds.

Ground 1 - did Dr Meyerkort's report address the correct test of causation?

In ground 1 the appellant asserts that Dr Meyerkort did not supply evidence that properly addressed the relevant test of causation (as to whether the appellant's symptoms were solely as a result of a prior condition or an aggravation of a prior condition). The appellant submits that, as Dr Meyerkort did not address the correct test of causation, there could be no genuine dispute.
Ground 1 misapprehends the nature of an application under s 60 of the WCIMA. As I have already said, an application under that section does not require the arbitrator to make a determination, provisionally or finally, on the issue of causation. It was not necessary for the arbitrator to conduct a wide‑ranging inquiry into the merits of the causation issue by reference to the medical evidence as the appellant asserts in ground 1.
In order to succeed under s 60 of the WCIMA, it was only necessary for the respondent to demonstrate whether matters had arisen since the initial acceptance of liability which would have impacted on the question of liability: Taylor (8) (Owen J).
As I have already said, it was plainly a relevant factor that the appellant had suffered a prior injury to her right wrist where there is medical evidence (from Dr Meyerkort) to suggest her current symptoms are symptoms of degeneration from that prior injury.
It is also relevant that the appellant had not filed her claim on the basis that she had suffered a recurrence, aggravation or acceleration of a pre‑existing condition to which her employment was a significant contributing factor. Had that been the case, she would have borne the onus of proof: Commonwealth of Australia v Beattie (1981) 35 ALR 369 (Evatt & Shepherd JJ). As the appellant puts her case, in the alternative, namely that her injuries are a recurrence or aggravation of a pre‑existing condition, the respondent is entitled to have the claim 'wound back', thus putting the onus of establishing liability on the appellant: The State of Western Australia (Department of Education) [104].
Ground 1 must be dismissed.

Ground 2 - was the content of Dr Meyerkort's report crucial to whether the respondent had a genuine dispute and therefore requiring the arbitrator to examine the merits of Dr Meyerkort's report?

Assuming Dr Meyerkort's report was crucial to the issue of whether there was a genuine dispute does not mean that the arbitrator was required to conduct an in depth review of the merits of his findings and the extent to which findings were qualified or contradictory.
The following statement from State of South Australia (194) and cited with approval in Commercial Industries (7) shows why ground 2 is misconceived:
… Requiring the Court to be satisfied that the dispute is a genuine one is a safeguard against allowing a colourable and insincere denial of liability to frustrate the policy underlying sub-so (1). A less legitimate reason, however, for making things more difficult for the employer has been the interpreting of par. (b) of sub-so (2) so as to require what has been called an "objective" appraisal of the dispute by the Court with the result that an employer who genuinely disputes his liability might well be told that, notwithstanding his attitude, in the opinion of the Court a genuine dispute about liability does not exist. This kind of thinking has led the Court on occasions to make its own appraisal of the merits of the employer's case, whether as to the law or the facts. in order to determine whether they are sufficient to constitute a dispute within the meaning of the paragraph. No doubt a patently feeble legal argument. or an assertion of facts unsupported by evidence, would more readily disincline the Court to consider the dispute to be a genuine one, so far as the employer is concerned. Otherwise I should not expect the merits of the employer's denial to have any bearing upon the question before the Court. …

For the reasons given above, a review of the merits of Dr Meyerkort's report was not required. The issues raised by his report were far from being 'patently feeble' or unsupported on the evidence: State of South Australia (cited with approval in Commercial Industries).
For the reasons given above, this ground has no merit.

Ground 3 - did the medical evidence support a s 61 or s 62 application rather than a s 60 application?

As demonstrated in Regis Aged Care Pty Ltd [21] s 60 permits the suspension of weekly payments only in situations in which s 61 and s 62 did not apply.
For the reasons given above, neither s 61 nor s 62 had application and so there is no merit in this ground.

Ground 4 - the absence of a statement from the respondent that the respondent held a belief that there was a genuine dispute

The arbitrator's reasons for whether there was a genuine dispute appear at [22] - [24]:
22It was submitted on behalf of St Brigids that it can be ascertained from the material as a whole that it had an understanding at the time of accepting liability that Ms Yang had no wrist injury prior to 10 September 2019. It is submitted on behalf of St Brigids that as a result of this understanding it concluded that the accepted injury was related solely to the alleged workplace accident on 10 September 2019.
23St Brigids argues that the evidence now supports that Ms Yang had a history of a right wrist injury and that she has ongoing symptoms which are directly related to the issue of causation and which ought to have been disclosed to it by her when she made the workers' compensation claim.
24St Brigids submits that the report of Dr Meyerkort, occupational physician, dated 16 January 2020, the medical certificates and the claim form raises a genuine dispute whether Ms Yang had suffered a compensable injury within the meaning of s 5 of the Act because Ms Yang's present condition it is not the result of a personal injury by accident (PIBA) at work with St Brigids on 10 September 2019 but is entirely caused by a pre-existing condition.
The arbitrator did not err in his reasons. There was no requirement for the respondent to certify that it has a belief that there is a genuine dispute: Taylor (15) - (16) (Owen J).
The question of whether there is a genuine dispute can be resolved by inference. The arbitrator inferred that the respondent held a belief as to the existence of a genuine dispute.
Ground 4 must be dismissed.

Ground 7 - was there an error by the arbitrator in 'considering evidence given at the Bar'?

The appellant has failed to particularise ground 7.
In any event, the ground has no merit. Nowhere in the arbitrator's reasons does he demonstrate that he relied on evidence from the bar table.
Ground 7 is dismissed.

Ground 8 - did the arbitrator fail to give adequate reasons?

The appellant complains that the arbitrator failed to give or gave inadequate reasons that a genuine dispute existed.
The impugned reasons are at [59] - [65] of the arbitrator's reasons which read:
59I am not prepared to make a positive finding in the present matter that s 62 of the Act is the appropriate facility under which St Brigids ought to apply in relation to the dispute. The dispute relates to whether or not St Brigids had any liability to pay weekly payments compensation in relation to the accepted injury in the first place. In my view the dispute is not only as to capacity and does not necessitate a review of Ms Yang's weekly payments of compensation based on her past and present condition.
60As a result of s 62 not being open to St Brigids a lucuna exists in which s 60 can operate.
61Section 60 of the Act does not provide me with a discretion that if I am satisfied that there is a genuine dispute as to liability to pay compensation or as to the proper amount f such weekly payments. In particular s 60(2) provides that I may order that the payments be suspended for such time as I direct, be discontinued or be reduced to such amount as I think proper or I may dismiss the application.
62Mr Nugawela submits that that as St Brigids has already commenced Ms Yang on wages, that payment is sufficient to sustain a right for Ms Yang to have continuance of those wages pending a determination in the employer's favour: see WA Coastal Shipping v Wallner (1980) 144 CLR 110 at 117.
63It is further submitted that Ms Yang has made a s 58 application pending the result of St Brigids' s 60 application. The s 58 application is close to being listed for hearing and as such the prejudice to St Brigids is far less than the prejudice Ms Yang would suffer if order were made to cease the wages.
64At the commencement of the arbitration before me, Counsel for St Brigids confirmed that a s 58 application was on foot and that it had offered to adjourn these proceedings until the hearing of the s 58 of the Act.
65In my view I ought to exercise my discretion to discontinue payments from the date of my decision. Whilst there is clearly hardship to Ms Yang this is balanced by the fact that St Brigids has been paying weekly payments of compensation for the accepted injury as a result of an alleged non‑disclosure. I am also taking into account that the s 58 application is in a position to be listed for hearing.
Section 213(4) of the WCIMA sets out the requirements for the provision of reasons by the arbitrator. It provides:
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
In my view, the arbitrator's reasons were careful, detailed and considered. The arbitrator dealt with all of the salient facts and identified the relevant legal principles. The reasons did disclose the intellectual process and engaged with the relevant issues: Lockwood-Hall v BHP Billiton Nickel West Pty Ltd [2015] WASCA 232.
There is no merit in this ground. Ground 8 must also be dismissed.

Conclusion

The appeal is dismissed.

Orders

Leave to appeal is granted.
The appeal is dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
22 DECEMBER 2021