Youth Off the Streets Ltd v Price - [2013] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Youth Off The Streets Ltd v Price [2013] NSWWCCPD 43
APPELLANT:	Youth Off The Streets Ltd
RESPONDENT:	Kathy Price
INSURER:	Catholic Church Insurances Ltd
FILE NUMBER:	A1-7061/12
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:	22 April 2013
DATE OF APPEAL DECISION:	20 August 2013
SUBJECT MATTER OF DECISION:	Challenge to Arbitrator’s finding of fact; s 9A of the Workers Compensation Act 1987; duty to provide sufficient reasons for determination
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray Lawyers
Respondent:	Gerard Malouf & Partners
ORDERS MADE ON APPEAL:	1. The findings of the Arbitrator and the determination as found in Certificate of Determination dated 22 April 2013 are confirmed. 2. The appellant is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Ms Kathy Price commenced employment as a Youth Support Worker with Youth Off The Streets Ltd (the appellant) in 2009. It is not in dispute that Ms Price, on 12 January 2011, was injured in the course of that employment. On that day a young male person in Ms Price’s care pushed a door heavily as it was being closed by her, causing the door to strike her left shoulder. The young person’s behaviour immediately prior to this incident had been aggressive and abusive.
The appellant accepts that Ms Price received injury to her left shoulder as a result of that incident. Ms Price, in these proceedings, alleged that she received not only a shoulder injury, but also an injury to her neck. The appellant disputes the allegation of neck injury.
On 26 April 2012, Ms Price made a claim against the appellant in respect of lump sum compensation pursuant to the former ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim concerned alleged whole person impairment of 15 per cent resulting from injury to both the left shoulder and the cervical spine.
The appellant responded to the claim by service of a Notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That Notice informed Ms Price that the claim was disputed upon the basis that she had “recovered from the effects” of the left shoulder injury and, further, that she had not received injury to her “cervical spine/neck within the meaning of s 4 of [the 1987 Act]”.
The dispute came before Arbitrator Christine D’Souza for determination, following the filing, by Ms Price, of an Application to Resolve a Dispute with the Commission. The matter was listed for conciliation/arbitration before the Arbitrator on 13 December 2012, at which time the appellant accepted that the question of any whole person impairment by reason of left shoulder injury should be determined by an Approved Medical Specialist (AMS) in accordance with the terms of the Acts. The appellant maintained its denial of the occurrence of neck injury. The matter proceeded to arbitration following which the Arbitrator reserved her decision.
A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 22 April 2013. A finding was made by the Arbitrator that Ms Price had received injury to her cervical spine as alleged. The following orders were made:
“The Commission determines:

1. The claim for compensation pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment with respect to the left upper extremity and the cervical spine, with a date of injury of 12 January 2011.
2. The Application to Resolve a Dispute and attachments, the Reply and attachments, the Applications to Admit Late Documents dated 10 July 2012, 17 September 2012, 3 October 2012, and 11 December 2012 (x3) and all attachments, and a copy of this Determination are to be provided to the Approved Medical Specialist.
3. Respondent to pay applicant’s costs as agreed or assessed at the conclusion of the proceedings.
Certification of Complexity
The matter is certified complex pursuant to the Workers Compensation Regulation 2010 such as to warrant an increase of 10 per cent above the maximum costs payable in respect of both parties on the basis of complexity with respect to medical and factual issues.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

There are four “grounds” of appeal enumerated by the appellant which appear at Part B of its application filed concerning this appeal. It must be said that grounds one to three inclusive have been poorly expressed. However, it is clear that the appellant’s primary complaint is that the Arbitrator has erred in finding that Ms Price had received injury to her cervical spine on 12 January 2011 as alleged (grounds one and two). A complaint is also made concerning the Arbitrator’s conclusion that Ms Price’s employment was “a substantial contributing factor to her cervical spine injury” (ground three).
The fourth ground relied upon suggests error on the part of the Arbitrator in failing “to provide adequate and sufficient reasons” for her finding of injury to the cervical spine.

THRESHOLD MATTERS

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

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded, a transcript has been produced and a copy made available to the parties. The documentary evidence tendered at the hearing was noted (at T1) and later recorded by the Arbitrator at [6] of her Reasons. No oral evidence was adduced by either party.
It was noted by the Arbitrator that agreement had been reached that the question of assessment of any whole person impairment concerning the accepted injury to the left shoulder was to be determined by an AMS in accordance with the Acts.
It is recorded in the transcript that the injury to the cervical spine as alleged was said to be a “frank” injury and not a “consequential condition” following injury to the shoulder. It was agreed that, notwithstanding the absence of cross-examination of Ms Price, no point was to be taken placing reliance upon the rule in Browne v Dunn (1893) 6 R 67.

The evidence

A written statement made by Ms Price on 12 September 2012 was tendered in her case. Her duties, as described in that statement, “involves supporting young people aged 12–18 years with complex behaviours including assisting with cooking, cleaning, family visits, outings, sporting activities, schooling, therapeutic crisis intervention and life space interviews”.
Ms Price described in evidence her dealings with a young person in the course of those duties on 12 January 2011. Ms Price entered an office “to take some personal space” following difficulties experienced with the young person at which time, as she was pushing the door closed, “the young person charged at the door, pushing it heavily into my left shoulder and knocking me approximately one metre back from the door. I then raced back to the door, pushed it closed and locked it before calling On-Call to report the incident”.
Ms Price further states that she felt immediate pain in her left shoulder, down into her left arm. Following that shift she took a few days off work and consulted her general practitioner, Dr Basil (Bill) Conomos. X-rays and scans were arranged.
Ms Price described symptoms experienced by her following that incident as follows:
“Although the initial pain and discomfort was in my left shoulder and left arm, a few months after the incident, I started to develop pain and discomfort and stiffness in my neck. This gradually got worse and eventually led to me getting headaches more and more often. I reported this to my treating General Practitioner, Dr Conomos and he suggested it was likely to be as a result from the injury to my left shoulder.”
Ms Price’s statement includes a summary of her intermittent absence from work by reason of painful symptoms following the subject incident. Whilst that incident was reported by Ms Price to her employer shortly after its occurrence, a formal compensation claim was not made until September 2011. It is stated that liability was initially accepted and medical expenses and weekly payments were paid; however, further liability was denied by the insurer on 29 September 2011. Ms Price states that since that time light duties had been provided to her by her employer up until August 2012 at which time she ceased those duties because, as stated, “the one and a half hour trip to work was proving too painful and I could not cope.”
Ms Price further states that she had “never had any other injury to [her] shoulder or neck in the past”. It is stated that Ms Price had a previous claim in respect of compensation benefits following a workplace accident in June 2008 at which time she received injury to her lower back.
There is in evidence a copy of a Notice of Injury Form signed by B McGuire, dated 21 January 2011 which records details of the subject incident. That form records “diagnosis of workplace injury” as “left shoulder injury”.
A number of WorkCover NSW medical certificates issued by Dr Conomos were tendered in evidence by Ms Price. The detail found in those certificates is addressed in the course of discussion below.
Ms Price relied upon a report by Dr Sheikh M Habib, specialist surgeon and consultant in orthopaedics and trauma, dated 16 March 2012. That report was prepared by Dr Habib at the request of Ms Price’s solicitors for the purposes of this litigation. Dr Habib assessed total whole person impairment in respect of injury to the neck and left shoulder as being 15 per cent. The content of that report is the subject of discussion below.
A copy of a Notice issued by the appellant’s insurer pursuant to s 74 of the 1998 Act, dated 22 June 2012, is in evidence. As earlier noted, that Notice declined liability with respect to the lump sum claim made on behalf of Ms Price. It is recorded in that Notice that there was “no reference” to Ms Price receiving injury to her neck as a result of the subject incident to be found in the report and notification documents which were completed soon after its occurrence. It is further noted that “it is not until a certificate dated 6 May 2011 that there is reference to your neck”.
The evidence relevant to the issues raised on this appeal relied upon by the appellant includes a number of WorkCover NSW medical certificates issued by Dr Conomos, some of which were not included in the tender of Dr Conomos’ certificates made by Ms Price. A number of short reports from Dr Conomos addressed to the insurer were tendered by the appellant. Also in evidence were three reports from Dr Kim Edwards, surgeon, dated 4 July 2011, 8 August 2011 and 4 June 2012. The contents of those certificates and reports are addressed below.
The appellant tendered in evidence copies of clinical records including those compiled by Eastbrooke Medical Centre of Bowral, New South Wales and the clinical records of Dr Conomos. It appears from those documents that Dr Conomos was originally engaged in practice at Eastbrooke Medical Centre, Highland Medical Services and that he subsequently established an independent practice. The notes as produced are in a state of some confusion. Those documents do record attendances upon various practitioners by Ms Price dating from 5 December 2009. The documents as tendered also include a report from Dr Leon Le Leu, consultant occupational physician, dated 23 March 2010 addressed to Employers Mutual Management Pty Ltd in Adelaide. That report relates to an assessment conducted by Dr Le Leu concerning the consequences of an apparent work injury which occurred in South Australia on 24 March 2008. The detail of that report, where relevant, is addressed in the course of discussion below.

Submissions before the Arbitrator

Counsel appearing on behalf of the appellant sought to emphasise the statement made by Ms Price concerning the delay between the occurrence of the subject injury and the onset of neck symptoms. It was noted that the recorded complaints concerning neck symptoms are to be found in relevant medical records no earlier than May 2011. Attention was also given to the history given to Dr Habib and Dr Edwards concerning the time of onset of the neck symptoms. Both those doctors, it was put, had recorded an immediate onset of neck pain following the incident. Upon acceptance of Ms Price’s evidence concerning the delay of some months before the manifestation of symptoms, it was argued that the factual basis of the reports of both those practitioners was flawed and that such deficiency deprived the opinions expressed by those practitioners of any relevant evidentiary weight. Attention was also given in the course of argument to complaints of neck and left shoulder pain recorded in the relevant medical records on dates prior to the subject incident. Argument as advanced appears to have constituted a challenge to the credit of Ms Price as a witness. It was put that the Arbitrator could not, on the evidence, be satisfied that Ms Price had discharged the onus upon her of proving injury to the cervical spine resulting from the subject incident.
Counsel appearing on behalf of Ms Price drew attention, in the course of submissions, to Dr Conomos’ note made on 14 January 2011 that, following the subject incident Ms Price, in addition to experiencing pain in her shoulder, had “tingling in her left hand”. It seems to have been suggested in the course of argument that that symptom of “tingling” could be “radiculopathy”. It was noted that similar symptoms were complained of by Ms Price when examined by Dr Edwards in July 2011. Counsel drew attention to the notation of Dr Helen Maloof, general practitioner, made in May 2011, concerning worsening of shoulder pain and, as recorded, the wording “sounds like some neck elements in this”.
Counsel proceeded to suggest in argument that the history as recorded by Dr Edwards and Dr Habib concerning the onset of neck symptoms may be explained given that Dr Conomos had earlier, as stated by Ms Price, advised his patient that the neck pain was likely to be the result of the injury to the left shoulder. Counsel also sought to distinguish the nature of complaint made by Ms Price concerning her neck pain prior to the subject incident and her complaints as recorded following its occurrence. It was further emphasised by counsel that the clinical records demonstrate that Ms Price had made no complaint of neck symptoms for a period of approximately 10 months prior to the occurrence of the subject incident.

The Arbitrator’s decision

The Arbitrator noted that the only issue in dispute concerned the question as to whether Ms Price had received an “injury to her cervical spine pursuant to ss 4 and 9A of the 1987 Act”. Consideration was then given to the state of the evidence concerning the occurrence, or otherwise, of such injury. The Arbitrator noted that both Dr Habib and Dr Edwards had taken an “incorrect history”, that Ms Price had felt pain in her neck at the time of the incident on 12 January 2011. It was accepted by the Arbitrator, as argued by the appellant, that, given the incorrect history as recorded by those practitioners, she should give the opinions expressed in the reports “little weight”. The Arbitrator’s approach to the evidence in this respect was guided by the decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218.
The Arbitrator acknowledged the correctness of the appellant’s submission that the clinical notes of the general practice attended by Ms Price demonstrate that “neck symptoms arose some months after the incident in January” (at [31]). The Arbitrator proceeded to state that she preferred the opinions of Dr Conomos and the other treating medical practitioners whose evidence was before the Commission to those opinions expressed by the medico legal consultants [Dr Habib and Dr Edwards]. That preference was explained by the Arbitrator upon the basis that the general practitioners saw Ms Price “frequently” and that their evidence and observations were “contemporaneous” and that the general practitioners were in “the best position to assess [Ms Price] and the probable cause of her neck symptoms”. The Arbitrator proceeded to make the following findings (between [32] and [34]):
“I am satisfied on the evidence of Drs Malouf (sic, Maloof), Conomos and other general practitioners that Ms Price’s symptoms came to light soon after her left shoulder injury. I am satisfied on the opinions of the treating doctors that her symptoms indicated a neck injury which had resulted from the incident on 12 January 2011. I accept Ms Price’s statement that the neck injury was not apparent earlier. Although there is clear evidence that Ms Price suffered from neck symptoms prior to January 2011 there are no references to ongoing problems for some time prior to the 12 January 2011 incident.

Frequent correspondence from Dr Conomos to the insurer further convinces me that his view was that her complaints were genuine and were related to the work incident. I am satisfied based on the evidence of Ms Price and her general practitioners that although the neck symptoms emerged after a relatively short period of time, the injury to the neck occurred in the incident on 12 January 2011.
Having taken into account the provisions of sections 4 and 9A of the 1987 Act and the matters set out in section 9A(2), for the reasons given above I find that on 12 January 2011 Ms Price suffered an injury to her cervical spine arising out of or in the course of her employment and that her employment was a substantial contributing factor to that injury.”

The Arbitrator proceeded to make the orders noted at [6] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

Grounds one and two relied upon by the appellant suggest error of “fact and law” on the part of the Arbitrator in the following respects:
(1) finding that Ms Price had adduced sufficient evidence to discharge the onus of proof that she sustained an injury to her cervical spine on 12 January 2011, and
(2) deciding that the documentation supplied by Dr Conomos and Dr Maloof supported injury to the cervical spine as having occurred on 12 January 2011.
Those grounds are addressed jointly in submissions. It is not suggested that there was no evidence adduced in support of the finding of injury. The complaint is that there was insufficient evidence of that alleged fact to permit the conclusion reached by the Arbitrator. The appellant’s argument is, perhaps, most plainly stated at [3] of submissions put in support of the appeal as follows:
“the [appeal] is not premised on the [Commission on appeal] drawing a different inference from the evidence of the case, but rather that, on viewing the evidence as a whole, the finding made by the Arbitrator concerning injury to the neck was not open on the evidence before her”.
The evidence relied upon by the Arbitrator was identified by her as is noted at [29] above. It is the appellant’s contention that her conclusion should, on appeal, be found to be wrong. That is, that relevant error of fact has been made.
The appellant for present purposes adopts the statement by Hodgson CJ in Eq in Ambulance Service (NSW) v Daniel [2000] NSWCA 116; 19 NSWCCR 697 (Daniel) that the question raised on this appeal “is not whether there is any evidence at all [as to the occurrence of injury to the neck], but rather whether the evidence on the point is sufficient, in the sense that it is evidence which if fully accepted could properly base the finding of fact” (at [56]).

The appellant’s reliance upon his Honour’s statement is in my view misconceived. The formulation of the question raised in Daniel followed consideration by his Honour of the decision of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) in which decision, his Honour stated, a “clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof.” (Daniel at [56]).
In Daniel his Honour, Hodgson CJ in Eq, considered a number of cases which followed Azzopardi and the view was expressed that the distinction drawn by Glass JA in Azzopardi “has not been stated so clearly in all [such cases]” (at [57]). Following discussion of a number of those decisions, his Honour proceeded to again confirm that:
“…the correct question, in relation to a matter where a finding has been made in favour of a person bearing the onus, is whether or not the finding could properly be made on the evidence, if fully accepted” (at [63]).
The appeal in Daniel was, relevantly, limited to addressing grievance founded upon error of law. Following a consideration of the state of the evidence, Hodgson CJ in Eq (with whom Sheller JA and, in this respect, Beazley JA (as she then was) agreed) concluded that he was “not satisfied that there was not evidence on which the finding made by the trial judge could properly have been made” (at [74]). Thus, those grounds relied upon by the appellant in Daniel suggesting error concerning the finding of injury failed given that no question of law, which would otherwise permit intervention, was identified.
The present appeal concerns suggested error of fact. The task for the Commission is thus distinguishable from that dealt with by the court in Daniel. In the present matter the question of the sufficiency of the evidence to satisfy the Arbitrator on the balance of probabilities as to injury becomes relevant. That is a different consideration of the question as to whether evidence was sufficient in the sense addressed by Glass JA in Azzopardi.
The Commission’s approach to a challenge on appeal to factual findings may be guided by those observations made by Allsop J (as he then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 which were made by his Honour following consideration of relevant authority, which observations were noted by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. Included in those observations of his Honour was as follows (at [28]):
“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.”
The Arbitrator accepted that “neck symptoms arose some moths (sic, months) after the incident in January” (at [31]). It is reasonably clear from her Reasons that the Arbitrator had treated Ms Price’s earlier complaints of neck symptoms, which had been recorded by Dr Le Leu and in the clinical notes, as being of no relevance to the question of injury given, as found by her, “that there are no references to ongoing [neck] problems for some time prior to the 12 January 2011 incident” (at [32]). I note that the clinical notes reveal that the last such complaint made before January 2011 was recorded on 27 February 2010 by Dr David Smith, general practitioner of Eastbrooke Medical Centre.
The Arbitrator stated that she had relied upon the “opinions of the treating doctors that her symptoms indicated a neck injury which had resulted from the incident on 12 January 2011” (at [32]). The evidence, as is emphasised by the appellant in submissions, did not include any report from Dr Conomos. There is in fact no report in evidence concerning treatment, diagnosis or opinion from any treating doctor. It is clear that the Arbitrator has relied upon material found in the clinical notes and the content of the medical certificates which have been tendered in evidence when reaching her conclusion concerning receipt of neck injury. That material may be summarised as follows:
(i)     the clinical notes produced by Eastbrooke Medical Centre recorded attendances by Ms Price concerning left shoulder symptoms following injury recorded as having occurred at work on 12 January 2011. The first such consultation occurred on 14 January 2011. Dr Conomos recorded on that occasion “Lt. shoulder pain, some tingles in her Lt. hand”. Those notes record a number of consultations thereafter concerning left shoulder and arm pain. WorkCover medical certificates were issued;
(ii)     on 6 May 2011, Dr Maloof of that practice was consulted by Ms Price. The relevant entry appears under “Actions”: “letter created – re. NSW – WorkCover. Has presented with worsening shoulder pain – very stressed and sounds like some neck elements in this”;
(iii)    a copy of a WorkCover NSW medical certificate issued on 6 May 2011 by Dr Maloof described the circumstances of work injury as stated by Ms Price in evidence. Diagnosis was stated as “shoulder and neck pain”. The date of injury is stated as being 6 May 2011. That date, being the date of the relevant consultation, conflicts with earlier certificates issued by the practice which specified the date of injury as being 12 January 2011;
(iv)    there are 15 WorkCover NSW medical certificates dated between 20 May 2011 and 28 September 2012 in evidence. Each of those documents again described the occurrence of injury as stated by Ms Price. Each makes reference to a diagnosis of both shoulder and neck pain and a number of those certificates state that Ms Price has a need for physiotherapy for “neck/shoulder”. Curiously the date of injury as stated in those certificates varies, often such date is said to be 13 April 2011. This variation is not explained. One certificate, as noted by the appellant in its submissions on appeal, dated 11 July 2011, makes reference to diagnosis as being “neck and left shoulder injury”;
(v)     a copy of correspondence from Dr Conomos to the appellant’s insurer dated 20 May 2011 states:
“Kathy Price in my opinion requires physiotherapy for her beck (sic neck) and Lt shoulder, to help her recover from her work injury and aid her return to work.
If you approve of this physiotherapy please send us a letter to state this, so we can sen (sic send) Kathy for treatment.”
(vi)    there is a copy of correspondence from Dr Conomos addressed to the appellant’s insurer dated 16 January 2012 which stated “injury sustained – neck pains and left shoulder injury in early 2011”. Dr Conomos describes the nature of treatment required (including hydrotherapy and physiotherapy) and stated “overall I think she will need ongoing treatment for at least two years and probably indefinite”.
The appellant’s detailed argument appears to be summarised at [8] of written submissions where it is put:
“The lack of medical evidence addressing the causal relationship between the alleged neck pain and an injury having occurred on 12 January 2011 was such that, in the appellant’s submissions, no finding of injury to that part of the body could have been made. Little (if any) weight was afforded by the Arbitrator to the report of Dr Habib, and accordingly the respondent worker was left with medical certificates referring only to neck pain – the first reference to which was some 4 months after the injury, an entry in the clinical notes that refers to possible neck involvement with no reference to work or the work injury, and one letter from Dr Conomos to the appellant insurer referring simply to physiotherapy for the neck and left shoulder, again with no explanation as to how such an alleged injury was sustained, and whether employment was a substantial contributing factor. The Arbitrator, with respect, erred by giving undue weight (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25) to the clearly inadequate and deficient medical documentation referring to the neck.”
Having considered the arguments advanced, I am not satisfied that the appellant has, as is required on the authorities, demonstrated relevant error. Whilst it is undoubtedly the case that the evidence in support of the Arbitrator’s conclusion was scant and in a number of respects deficient, and that there was an unexplained delay before manifestation of neck symptoms following the subject incident, it cannot be said that the Arbitrator’s conclusion concerning the occurrence of neck injury was made in error. It is clear that the form and content of the many WorkCover medical certificates issued following May 2011 provided a basis upon which an inference could be drawn that the neck symptoms were causally related to the work incident. The statements made to the insurer by Dr Conomos concerning the treatment of the neck symptoms again provided a basis upon which the Arbitrator may have drawn an inference that relevant injury had been received. Whilst minds may differ as to the persuasive force of such evidence I conclude that the Arbitrator’s finding was open on that material. No factual error has been made out.
Ground three relied upon by the appellant suggests “error of fact and law in finding that [Ms Price’s] employment was a substantial contributing factor to her cervical spine injury”. That ground places reliance upon the provisions of s 9A of the 1987 Act which provides that no compensation is payable unless the employment concerned was a substantial contributing factor to the injury.
The appellant correctly submits that “it is not sufficient that an injury under s 4 has been found”: s 9A(3)(a). It is put that the Arbitrator’s conclusion that employment was a substantial contributing factor was reached “without explanation”, and that the finding appears to be based merely upon the Arbitrator’s finding of injury to the neck.
The difficulty with the appellant’s argument is that no error concerning the finding of neck injury has been made out. The relevant facts concern injury received by a worker at her place of employment, during working hours whilst performing her normal duties and that the injury was caused by the conduct of a young person in her care. Such facts in my opinion establish beyond doubt that employment was a substantial contributing factor to injury as found: Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451. Ground three is not made out.
The fourth ground relied upon suggests “error of law by failing to provide adequate and sufficient reasons”. That there is an obligation upon an Arbitrator to provide sufficient reasons for determination of a dispute is clear. Any failure to do so may constitute an error of law: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (per Mahoney JA at 385–386). Further, the provisions of s 294(2) of the 1998 Act require that a “brief statement of its reasons” for its determination are to be provided by the Commission.
That the Arbitrator’s stated reasons for her determination were “brief” is self-evident. The question is whether the reasons provided were sufficient to meet that standard addressed by Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. His Honour stated in the course of that discussion (at 443):
“No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferrably logical as well.”
It is, in my opinion, clear that the Arbitrator has, in her summary of the evidence before her, noted those matters which had been said in submissions put on behalf of the appellant to be relevant to a determination of the allegation of injury to the neck. Those submissions were also, in my view, adequately summarised by the Arbitrator (Reasons [25(a)-(i)]). As the appellant acknowledges in submissions the Arbitrator accepted that, by reason of the inaccurate history recorded by Dr Habib and Dr Edwards, the evidence of those witnesses should be given little weight (Reasons [27]).
The appellant places particular emphasis in submissions upon the evidence, accepted by the Arbitrator, that neck symptoms “came on some months after the injury”. It is put that the Arbitrator has failed to “address the significance or relevance in (sic) the delay of onset of the symptoms, or how the neck symptoms constitute an injury under the Act”.
Whilst there is no “explicit finding” concerning the relevance or otherwise of the delay between the incident and onset of relevant symptoms, the Arbitrator has, in my view, made it “appropriately clear” that her conclusion was founded upon acceptance of the evidence found in the documents before her, and inferences drawn therefrom. That material, as discussed above, founded the inference that Dr Conomos and others had concluded that the neck symptoms were causally related to the subject incident. The appellant’s fourth ground must be rejected.

CONCLUSION

For the reasons stated, I conclude that the appeal must fail and the Arbitrator’s decision should be confirmed. Appropriate orders appear below.

DECISION

The findings of the Arbitrator and the determination as found in Certificate of Determination dated 22 April 2013 are confirmed.

COSTS

The appellant is to pay the respondent worker’s costs of the appeal.

Kevin O'Grady
Deputy President

20 August 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE