Issue 11: November 2013
On Appeal
Welcome to the 11th issue of ‘On Appeal’ for 2013.
Issue 11 – November 2013 includes a summary of the October 2013 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide
a brief overview of, and introduction to, the most recent Presidential and Court of
Appeal decisions. They are not intended to be a substitute for reading the
decisions in full, nor are they a substitute for a decision maker’s independent
research.
Please note that the following abbreviations are used throughout these summaries:
ADP
AMS
Commission
DP
MAC
Reply
1987 Act
1998 Act
2003
Regulation
2010
Regulation
2010 Rules
2011 Rules
Acting Deputy President
Approved Medical Specialist
Workers Compensation Commission
Deputy President
Medical Assessment Certificate
Reply to Application to Resolve a Dispute
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Regulation 2003
Workers Compensation Regulation 2010
Workers Compensation Commission Rules 2010
Workers Compensation Commission Rules 2011
Level 21 1 Oxford Street Darlinghurst NSW 2010 PO Box 594 Darlinghurst 1300 Australia
Ph 1300 368018 TTY 02 9261 3334 www.wcc.nsw.gov.au
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Table of Contents
Presidential Decisions:
Chep Australia Limited v Strickland [2013] NSWCA 351 .................................................. 3
Appeal from decision of Presidential member of the Commission upon appeal from a
decision of the Commission constituted by an arbitrator – Presidential member declined to
admit further evidence – whether decision that non-admission would not occasion
substantial injustice entailed error of law – whether reliance on a particular medical report
entailed error of law. .......................................................................................................... 3
Lee v Bunnings Group Limited [2013] NSWWCCPD 54.................................................... 7
Jurisdiction of the Commission to determine entitlements under s 38 of the Workers
Compensation Act 1987 (as amended by the Workers Compensation Legislation
Amendment Act 2012); s 105 of the Workplace Injury Management and Workers
Compensation Act 1998 .................................................................................................... 7
Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 .............. 9
Section 4(a) of the Workers Compensation Act 1987; arising out of employment; s 9A of
the Workers Compensation Act 1987; substantial contributing factor to injury; s 10(3A) of
the Workers Compensation Act 1987; real and substantial connection between the
employment and the accident or incident out of which the injury arose; procedural
fairness; obligation upon Arbitrator to afford a reasonable opportunity to present or meet a
case .................................................................................................................................. 9
Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50 ....................................... 13
Meaning and effect of a complying agreement made under s 66A of the 1987 Act;
distinction between increase in impairment and dispute concerning deductible amount; s
323 of the 1998 Act ......................................................................................................... 13
Backo v Adairs Retail Group Pty Ltd [2013] NSWWCCPD 53 ........................................ 16
Psychological injury; reasonable conduct with respect to discipline; s 11A Workers
Compensation Act 1987; factual findings; credit findings; assessment of conflicting
evidence; non-compliance with Practice Direction No 6 .................................................. 16
Taylor v PJM Building Management Pty Limited [2013] NSWWCCPD 52 ..................... 20
Section 9A Workers Compensation Act 1987; employment a substantial contributing factor
to injury ........................................................................................................................... 20
Sydney West Area Health Service v Hope [2013] NSWWCCPD 51 ................................ 22
Procedural fairness; wages schedules; non-compliance with Pt 15 r 15.5 of the Workers
Compensation Commission Rules 2011 .......................................................................... 22
Price v Solutions Personnel Pty Ltd [2013] NSWWCCPD 56 ......................................... 24
Challenge on appeal to factual findings founded upon finding of credibility of witness; duty
to provide sufficient reasons for decision ......................................................................... 24
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Chep Australia Limited v Strickland [2013] NSWCA 351
Appeal from decision of Presidential member of the Commission upon appeal from a
decision of the Commission constituted by an arbitrator – Presidential member declined to
admit further evidence – whether decision that non-admission would not occasion
substantial injustice entailed error of law – whether reliance on a particular medical report
entailed error of law.
Court of Appeal
25 October 2013
Facts:
Ms Strickland was employed by Chep Australia Ltd (Chep), as a machine operator/factory
worker. She worked on a process line, which required her to undertake repetitive work lifting
crates onto a conveyer line.
Commencing in around 2008, Ms Strickland began to experience symptoms in her right
elbow, left shoulder and left wrist.
On 19 August 2010, Ms Strickland was prescribed Mobic for the treatment of her symptoms.
She ceased taking Mobic on 7 October 2010. On 11, 12 and 15 October, Ms Strickland
complained to her general practitioner that she was experiencing symptoms of hypertension
and headache. She resumed taking Mobic on 28 October 2010, when her blood pressure
was normal.
On 17 November 2010, Ms Strickland was conveyed to hospital, where she was diagnosed
with a grade I subarachnoid haemorrhage secondary to a left posterior communicating artery
aneurysm. She was incapacitated from 17 November 2010 until 4 November 2011.
Ms Strickland alleged that the haemorrhage was caused by a sudden increase in blood
pressure brought about by consuming Mobic prescribed for the treatment of her symptoms
arising from the accepted work related injuries. A claim for weekly workers compensation
benefits and medical expenses was declined by the employer’s insurer.
The matter came before a Senior Arbitrator of the Commission for determination. The
Arbitrator noted that the only issue for determination was whether there was a causal
connection between the rupture of the aneurysm and the consumption of Mobic. The
Arbitrator held that Ms Strickland had established on the balance of probabilities that the
rupture of the aneurysm had resulted from the consumption of Mobic.
Chep appealed the Arbitrator’s decision to the Commission constituted by a Presidential
member. The principal ground of appeal was that the Arbitrator had erred in concluding that
there was a causal connection between the rupture of the aneurysm and the consumption of
Mobic.
Chep made an application for the admission of fresh evidence on appeal. The evidence in
question consisted of three documents: a report of Dr Affleck dated 5 March 2012, a report
of Professor Kiernan dated 8 March 2012 and clinical notes of Dr Hedge of 12 February
2010 to 2 December 2010.
The President declined to admit all three items sought to be tendered by Chep as the
President was not satisfied that the exclusion of the further evidence of Dr Affleck and
Professor Kiernan would cause substantial injustice to Chep. In addition, the President found
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that the clinical notes of Dr Hedge added nothing to the evidence already before the
Arbitrator and were consistent with the evidence put forward by Ms Strickland.
Issues on appeal to the Court of Appeal were whether the President erred in:
1)
refusing to allow fresh evidence, and
2)
placing weight on Dr McKechnie’s Report.
Held: The appeal to the Court of Appeal was dismissed with costs
Ground 1
Basten JA
1. The appellant’s grounds of challenge to the decision of the President of the
Commission were misconceived: they failed to come to grips with the need to identify
a decision which was erroneous in point of law [2].
2. It was submitted that the President misdirected himself by substituting for the test of
"substantial injustice" the question whether the admission of the proffered medical
notes would have led to a different result. Whether such a paraphrase of s 352 will
demonstrate error in point of law will depend upon the circumstances [6].
3. The President expressly analysed the proffered evidence and its possible effect if
taken into account. The President was satisfied that the medical notes which had not
been before the arbitrator “add nothing to the evidence already before the arbitrator.
That was a finding of fact that was open to him. Once that assessment had been
made, the paraphrase of the statutory test revealed no error of law [7].
Barrett JA (Macfarlan JA agreeing)
4. There was no dispute that Dr Hedge’s notes were available and could reasonably
have been obtained by the appellant. It was for that reason that the President
concentrated on the second threshold question (s 352(6)), that is, whether failure to
grant leave to introduce the notes into evidence "would cause substantial injustice in
the case". That question was approached according to what the President obviously
regarded as a paraphrase:
“That is, would the admission of the notes at the arbitration have led to a
different result?” [28]
5. The part of s 352(6) concerning “substantial injustice” does not direct attention to
possibilities or potential outcomes. The task is to decide whether absence of the
evidence “would cause” substantial injustice in the case. There must therefore be a
decision as to the result that “would” emerge if the evidence were taken into account
and the result that “would” emerge if it were not. If the result would be the same on
each hypothesis, the ends of justice cannot be said to have been defeated by
exclusion [31].
6. The power of the appellate tribunal upon such an appeal is a narrow power to correct
operative error of fact, law or discretion. The power of the Presidential member to
admit further evidence (subject to satisfaction of one of the statutory pre-conditions)
was therefore concerned with evidence which, if accepted, would have been likely to
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demonstrate that the decision appealed against was affected by such error: Northern
NSW Local Health Network v Heggie [2013] NSWCA 255 [34].
7. Admission of Dr Hedge’s notes into evidence would have strengthened the case on
which Ms Strickland succeeded and not advanced Chep’s unsuccessful case (based
on the opposite hypothesis) [43].
Conclusion
8. The President decided that no substantial injustice would be occasioned by
continued exclusion of Dr Hedge’s notes. His Honour also decided that neither of the
s 352(6) pre-conditions to a grant of leave was satisfied and that the discretion made
available by that section did not become exercisable. The President did not err in law
by so deciding or by declining to admit Dr Hedge’s notes into evidence [44].
9. The threshold question under s 352(6), whether failure to grant leave to introduce
fresh evidence on appeal "would cause substantial injustice in the case", necessarily
involves consideration of the “hypothetical” result. That is, the result that “would”
emerge in the alternate events that the evidence is or is not taken into account.
Where the hypothetical result is the same in both events, it cannot be said that
exclusion of the evidence would cause a substantial injustice in the case.
Ground 2
Basten JA
10. The second challenge involved an attempt by the appellant to demonstrate that Dr
McKechnie’s opinion, upon which the arbitrator had relied, lacked probative value.
The President was satisfied that Dr McKechnie based his opinion upon his “review of
the documentation that was forwarded to him”. That finding was not open to
challenge [8].
Barrett JA (Macfarlan JA agreeing)
11. The appellant also sought to establish that Dr McKechnie's opinion was devoid of
probative value and that the President therefore erred in law by taking it into account
in reaching his decision [50].
12. That submission was evaluated against the statutory background concerning
proceedings in the Commission: s 354 of the 1998 Act [51].
13. In State Transit Authority of New South Wales v Chemler [2007] NSWCA 249,
Basten JA said:
“The precise scope of a provision such as s 354 of [the 1998 Act] will depend
upon the circumstances in which its operation arises. No doubt the Commission
is required to apply substantive rules of law applicable to its jurisdiction and to
comply with rules of procedural fairness, although the content of the latter may
be affected by the terms of the provision.” [52]
14. Because the rules of evidence do not apply, medical opinions tendered in
proceedings in the Commission do not fall to be assessed according to any direct
application of provisions in Part 3.3 of the Evidence Act 1995 or “the basis rule” [53].
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15. In Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [82], Basten JA said
that nothing in the 1998 Act or the law relating to procedural fairness (which
undoubtedly applies) imports into the legally mandated procedures of the
Commission limitations on the material that can be considered, derived from the rules
of evidence. If the appellant is to succeed on this ground it must show that such
reliance entailed failure “to act according to equity, good conscience and the
substantial merits of the case” as required by s 354(3) [54].
16. Dr McKechnie’s reports were consistent with Dr Hedge’s notes that supported Ms
Strickland’s case. Therefore it could not be postulated that the availability to him of Dr
Hedge’s notes would have altered his view [56].
Conclusion
17. In relation to whether the President erred in law by taking into account the opinion of
Dr McKechnie, for error to be established on the basis that the evidence relied upon
in making a finding lacked probative value, it must be shown that such reliance
entailed a failure to “to act according to equity, good conscience and the substantial
merits of the case” (s 354(3)). Such an assessment has to be made in in the context
of s 352 and in light of the individual circumstances of the case.
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Lee v Bunnings Group Limited [2013] NSWWCCPD 54
Jurisdiction of the Commission to determine entitlements under s 38 of the Workers
Compensation Act 1987 (as amended by the Workers Compensation Legislation
Amendment Act 2012); s 105 of the Workplace Injury Management and Workers
Compensation Act 1998
Keating P
14 October 2013
Facts:
This appeal concerns the jurisdiction of the Commission to make an award for the
respondent employer in respect of a claim for compensation under s 38 of the 1987 Act, as
amended by the Workers Compensation Legislation Amendment Act 2012.
The worker was employed by the respondent as a sales assistant. On 2 June 2010, in the
course of her duties, she suffered an injury to her respiratory system when she inhaled
fumes from airborne particles from a spillage of a lawn care product she was handling. On
22 June 2010, the worker suffered another episode of respiratory distress, and did not work
again.
The respondent’s insurer initially accepted liability for weekly compensation benefits, in
respect of the injuries sustained on 2 June 2010. However, on 30 April 2012, the insurer
issued a s 54 notice informing the worker that weekly compensation payments would cease
from 12 June 2012.
The matter went before the Commission and the Arbitrator entered an award for the worker,
finding that she was effectively totally incapacitated for employment within the labour market
reasonably available to her by reasons of the injury sustained on 2 June 2012. He ordered
the payment of weekly compensation from 12 June 2012 to 31 December 2012.
After receiving and considering further submissions on the issue of weekly compensation
from 1 January 2013, the Arbitrator entered a further award finding that, as the worker was
not an existing recipient of weekly compensation immediately before 1 October 2012, she
had no entitlement to weekly compensation beyond 31 December 2012. As there was no
dispute that the worker had exhausted her entitlement to compensation under ss 36 and 37
of the 1987 Act, the Arbitrator entered an award for the respondent in respect of the claim for
weekly payments from 1 January 2013.
The issue in dispute on appeal was whether the Arbitrator:
(a) had jurisdiction to make an award for the respondent on the worker’s claim for weekly
compensation from 1 January 2013, and whether the Arbitrator erred in making an
award for the respondent from that date.
Held: The Arbitrator’s determination was revoked in part.
1.
The complaint in this case was that the assessment of the entitlement under s 38 was
effectively undertaken by the Arbitrator when he concluded that the worker had no
entitlement under s 38 and thus entered an award for the respondent [58].
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2.
The issue for determination on appeal was not argued before the Arbitrator. The issue
of the application of s 38, and the Commission’s jurisdiction was one of general
importance and it was therefore in the interests of justice that it be argued and
determined on appeal. In addition, given that the issue was not one on which the
respondent needed to call evidence, and there was no prejudice to the respondent, it
was appropriate that it be argued and determined on appeal notwithstanding that it
was not argued before the Arbitrator. [48]-[50] (Metwally v University of Wollongong
[1985] HCA 28; 60 ALR 68; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418;
Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Board v Moustakas [1988] HCA 12;
180 CLR 491)
3.
The Commission has been vested with very broad powers to hear and determine all
matters arising under both the 1987 and 1998 Acts [51]. The “exclusive jurisdiction”
granted to the Commission pursuant to s 105(1) is qualified by express statutory
provisions in s 43(3) and s 44(5) of the 1998 Act. These provisions remove the
Commission’s jurisdiction to determine any dispute about a work capacity decision of
an insurer and prevent the Commission making a decision in respect of a dispute
before it that is inconsistent with a work capacity decision of an insurer (s 43(3)) [52].
4.
Section 44(5) prohibits the Commission from making a decision in proceedings
concerning a dispute about weekly payments of compensation payable to a worker
while a work capacity decision by an insurer is the subject of a review under that
section [53].
5.
It is clear from the unambiguous terms of s 38 that an entitlement to compensation
under that section must be assessed by the insurer, not by the Commission [57].
6.
The insurer had not undertaken a work capacity assessment of the worker’s residual
capacity for work following the expiration of the second entitlement period (s 32A). In
those circumstances, the Arbitrator erred by concluding that the worker had no
ongoing entitlement to weekly compensation in the absence of such an assessment.
Those rights had not yet been determined. In the circumstances, the Arbitrator should
have declined to make any order in respect of the period from 1 January 2013. It
followed that this award entered in favour of the respondent had to be revoked [59][60].
7.
In the absence of jurisdiction to determine the worker’s entitlement under s 38 the
appropriate approach is to decline to make any order with respect to the worker’s
entitlements from 1 January 2013. Thus, it is open, in the present case, for the worker
to pursue her rights, if any, under s 38 in the manner provided in that section [61].
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Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55
Section 4(a) of the Workers Compensation Act 1987; arising out of employment; s 9A of the
Workers Compensation Act 1987; substantial contributing factor to injury; s 10(3A) of the
Workers Compensation Act 1987; real and substantial connection between the employment
and the accident or incident out of which the injury arose; procedural fairness; obligation
upon Arbitrator to afford a reasonable opportunity to present or meet a case
O’Grady DP
22 October 2013
Facts:
The worker was employed by the respondent as a business loans processing officer at the
respondent’s office premises in Newcastle. Her usual working hours were between 8.30 am
and 5.00 pm.
On 20 June 2012, the worker, at the request of her employer, remained at work after normal
working hours to conduct what was described as “a clean desk inspection”. That additional
work was completed and the worker left the premises shortly after 5.50 pm. It was her
intention to walk from the work premises, at the corner of King and Union Streets, to her car,
which she had earlier parked in Bull Street, to drive home. As she walked to the car, in the
darkness, she tripped on the exposed roots of one of a number of fig trees located to the
side of the roadway near the corner of Bull and Corlette Streets, causing her to fall.
The worker received injuries to her left wrist, back, neck and left shoulder in that fall. The
injury had been received whilst the worker was on a journey between her place of
employment and place of abode in terms of s 10(3) of the 1987 Act and reliance had been
placed upon the provisions of that section as founding an entitlement to compensation. It
was also argued that the injury had arisen out of the worker’s employment (s 4) and that
employment was a substantial contributing factor to the injury (s 9A). A claim made by the
worker for compensation benefits was declined by the respondent’s insurer. The matter went
before the Commission and an Arbitrator entered an award for the respondent.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) determining that there was no evidence concerning relevant distances nor as to the
time taken to walk from the respondent’s premises to the point at which the worker
tripped and fell, in circumstances where no submission as to the relevance of such
matters had been put by either party and that the subject matters of distance and
time had not been raised by the Arbitrator with counsel during the hearing;
(b) failing to inform himself in respect of certain factual matters concerning distance, in
accordance with s 354(2) of the 1998 Act;
(c) failing to meet the requirements of s 354(3) of the 1998 Act;
(d) finding that there was no evidence concerning “how luminous or dark Bull Street
would have been [at the time the appellant] would have travelled to her car [on the
date of injury] if she had not been required to work back”;
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(e) failing to find that the worker would have reached the scene of the fall, had she
ceased work at 5.00 pm, “most probably during the first half of twilight and at a time
where her vision [of] the tree roots would not have been obscured by darkness”;
(f) failing to determine that the appellant’s injury arose out of her employment;
(g) finding that the appellant’s employment was not a substantial contributing factor to
the injuries;
(h) finding that, given the absence of a real and substantial connection between the
employment and the accident or incident out of which the personal injury arose, the
journey was not one to which s 10(1) of the 1987 Act applies, and
(i) failing to find that attendance by the appellant at the respondent’s work premises was
an essential element of the appellant’s employment.
Held: The Arbitrator’s determination was confirmed.
Submissions, Discussion and Findings
1.
The worker’s case was that she had been exposed to the risk of tripping in darkness,
and that it was dark because she had finished work later than normal. It was argued
that her usual finishing time would have been during twilight, not in darkness [40].
2.
The worker’s complaint concerned a suggested denial of procedural fairness in that
she had been denied an opportunity “to address any asserted deficiency” in the
evidence [44]. The Arbitrator’s finding that the evidence did not establish that the
worker was exposed to an increased risk by working until 5.50 pm, defeated the very
foundation of the worker’s argument, without there being an opportunity afforded to her
to deal with the state of the evidence as to time and distance [33], [46]. While this was
an error, it was concluded that the appropriate course was to examine the evidence
and arguments raised with a view to determining whether the Arbitrator’s conclusions
concerning the worker’s entitlement to compensation as claimed had been affected by
error (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR
141) [46]-[47].
Did the Arbitrator err in concluding that the injury did not arise out of employment
(s 4(a))?
3.
It was not disputed that the worker was required to carry out her duties at the
respondent’s premises in Newcastle. That fact, considered with the employer’s
requirement that the worker work 50 minutes overtime did not render the necessary
journey to her home after work something that was relevantly “incidental” to her
employment [49], [52].
4.
The risk, and the fact, of tripping by reason of darkness was not a consequence of
“special exposure”. The fall and consequent injury may not be taken as having arisen
out of the worker’s employment, merely because the fall happened after leaving work
50 minutes later than the usual hour. Such a proposition involves the “but for” test.
What was asserted in submissions was that but for working late and leaving in the
dark, the fall would not have happened. The “but for” test is not the correct test as to
causation: Qantas Airways v Watson (No 2) [2010] NSWWCCPD 38 [53].
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5.
It could not be said that the subject injury occurred when the worker’s employment
brought her to a particular locality where the danger arose: Telstra Corporation Limited
v Bowden [2012] FCA 576 [54].
6.
The question of causation could not be resolved by contrasting prevailing conditions at
normal knock off time and those 50 minutes later. The common sense evaluation of
the facts required consideration of other matters [55]. The Arbitrator was correct to
conclude that such causal relationship as may be argued was “tenuous” and not
sufficient a circumstance to establish that the injury arose out of the employment [56].
Section 9A of the 1987 Act
7.
Given the above findings, it was unnecessary to consider questions raised by s 9A of
the 1987 Act. However, the following matters were noted [57].
8.
The legislature’s intent when enacting s 9A was to remedy “the lack of causal
connection with employment”. That was accomplished by the requirement found in s
9A that “the connection of the employment with the injury under either limb [of
s 4(a)] was ‘substantial’”: Badawi v Nexon Asia Pacific Pty Ltd t/as Commander
Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 [60].
9.
The requirements of s 4(a) were not satisfied on the present facts and it followed that
the submissions raised in support of suggested error concerning the application of s
9A were rejected [61].
Did the Arbitrator err in his application of s 10(3A)?
10.
The Arbitrator’s finding that the requirements of s 10(3A) had not been met was
challenged. The reasoning which led the Arbitrator to that conclusion followed his
consideration of the proper construction of s 10(3A). He noted that the term “real and
substantial connection” was not defined in the 1987 and 1998 Acts. He had regard to
relevant authority and determined that the terms “employment” and “substantial” are to
have the same meaning “throughout the legislation”. The term “employment”, it was
found, should bear the same meaning as when used in ss 4 and 9A [63].
11.
The Arbitrator, relying upon dictionary entries, determined that “real”, in the context of
s 10(3A), should be taken to mean “actual” and that the word “connection” should be
taken to mean “association” or “relationship” or “link” [64].
12.
The Arbitrator was correct in his above findings (Commissioner of Police v Industrial
Relations Commission of NSW [2012] NSWCA 439) [68]-[69]. The Arbitrator was also
correct to place some reliance upon a dictionary to determine the meaning of words
that are not defined in the relevant Act (R v Peters (1886) 16 QBD 636) [70].
13.
The term “real” may be used in either a qualitative sense or a quantitative sense
(Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75;
(1993) 112 ALR 198 (Batey). The Court, in Batey, there identified that “real” may
convey “the notion of existence as an actuality”, which construes the term in its
qualitative sense. It is in this sense that the term “real” should be construed in the
context of s 10(3A). The Arbitrator’s adoption of the dictionary meaning, being “actual”,
was correct [70].
14.
When considering the term “connection” it was noted that the most apt meaning would
involve the concept of “link” [72].
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15.
Whilst there is a clear distinction between the statutory terms “substantial contributing
factor to injury” (s 9A) and “real and substantial connection between employment and
the incident etc” (s 10(3A)), both involve a causal element. In the case of s 10(3A) the
causal nexus is the connection between the employment and the incident. The term
“connection” as appears in s 10(3A) may also encompass some other association with
the employment. That issue had not been argued and, given the parties’ approach to
the particular facts, it was not necessary to determine that question. Whilst the
requirement is that the connection must be “real and substantial” that concept may
imply a lesser threshold than “substantial contributing factor” as appears in s 9A. That
question had not been fully agitated on this appeal, and therefore no findings regarding
that question were made. However, it was noted that, as with s 9A, the requirement of
there being a “real and substantial connection” involves a test that goes to causation at
least as stringent as that found in s 4(a) (arising out of employment) [73].
16.
Any “link” that may arguably exist between employment and the incident was far too
tenuous to meet the causal requirement that the subsection requires [74].
17.
The legislative intent of Parliament was to abolish entitlement in respect of journey
injuries except in those circumstances addressed by s 10(3A) and, so far as may be
relevant, s 10(5A) [79]. A proper reading of s 10 demonstrates that there is entitlement
in cases of injury received on relevant journeys if, and only if, the requirements of s
10(3A) are met or if s 10(5A) has application [80].
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Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50
Meaning and effect of a complying agreement made under s 66A of the 1987 Act; distinction
between increase in impairment and dispute concerning deductible amount; s 323 of the
1998 Act
Keating P
1 October 2013
Facts:
Ms Lee was employed by the respondent as an office supervisor. On 24 June 2003, she
injured her back while moving boxes of financial records. Liability was accepted by the
insurer and weekly payments of compensation and medical expenses were paid.
On 25 September 2006, Ms Lee made a claim for lump sum compensation in respect of 24
per cent whole person impairment (WPI) pursuant to s 66 of the 1987 Act. The claim was
based on a report of Dr Weisz in which he assessed that Ms Lee suffered a 27 per cent WPI,
reduced by 10 per cent to take account of a pre-existing condition under s 323 of the 1998
Act to produce a final result of 24 per cent WPI.
The insurer arranged for Ms Lee to be examined by Dr Machart, who assessed her at 27 per
cent WPI, however, that assessment was reduced to 18 per cent WPI to take account of a
pre-existing condition pursuant to s 323 of the 1998 Act.
On 18 January 2007, the parties entered into a complying agreement under s 66A of the
1987 Act, pursuant to which it was agreed that Ms Lee would be paid in respect of 18 per
cent WPI as a result of the injuries sustained on 24 June 2003. The agreement noted that
the reports of Dr Weisz and Dr Machart were relied upon to assess the degree of WPI.
On 1 August 2012, Ms Lee made a further claim for lump sum compensation pursuant to
s 66 in respect of the injuries sustained on 24 June 2003. She claimed a further eight per
cent WPI based on a report of Dr Bodel. Dr Bodel assessed that Ms Lee’s impairment
remained at 27 per cent, however he concluded that the deductible proportion was 10 per
cent to take account of a pre-existing condition under s 323 to produce a final WPI of 24 per
cent. Whilst the difference in the amount previously agreed and the current claim amounted
to six (not eight) per cent, the pleadings were not formally amended.
The insurer denied liability for the additional compensation claimed, on the basis that the
claim was not maintainable following the amendments introduced by the Workers
Compensation Legislation Amendment Act 2012. Relevantly the amendments limit claims
under s 66 to one claim only (s 66(1A) of the 1987 Act) and s 67 was repealed in respect of
claims made on or after 19 June 2012.
The matter went before the Commission and the Arbitrator entered an award for Ms Lee,
finding that there had been an increase in the degree of WPI and ordered that the matter be
remitted to an AMS for assessment of the permanent impairment.
The issues on appeal largely concerned whether:
 the matter was merely a medical dispute relating to the extent of Ms Lee’s whole
person impairment;
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 the meaning and effect of the s 66A complying agreement entered into and whether it
prohibited Ms Lee from re-arguing the extent of the s 323 deductible proportion, and
 the referral to an AMS was appropriate.
Section 66A(3) was applied to the circumstances of the matter. That provision provides the
Commission with jurisdiction to award additional compensation to that agreed to in a
complying agreement in the following circumstances where:

the agreed degree of permanent impairment is manifestly too low (s 66A(3)(a));

the worker has been induced to enter into a complying agreement by fraud or
misrepresentation (s 66A(3)(b)), or

since the complying agreement was entered into, there has been an increase in the
degree of permanent impairment beyond that so agreed (s 66A(3)(c)).
Held: The Arbitrator’s determination was revoked.
Was the dispute a medical dispute only?
1.
The question was whether the Arbitrator failed to appreciate that one of the “other
things” encompassed by the general and undefined concept of “liability” is an issue
relating to whether, by operation of a s 66A agreement, a party may be prevented from
bringing a claim for further lump sum compensation when the claim now sought to be
made was incorporated in or subsumed by a s 66A complying agreement [50].
2.
AbouHaidar was distinguished on the basis that that matter concerned a dispute about
the increase in the degree of permanent impairment since an assessment by an AMS,
which is a medical dispute that fell within the sole jurisdiction of an AMS. In the instant
matter, the issue concerned whether Ms Lee was precluded from bringing a further
claim by reason of having entered into a s 66A agreement. In other words, the dispute
concerned the meaning and effect of the s 66A agreement and was therefore not
merely a medical dispute. It was a legal or liability issue falling within the jurisdiction of
an arbitrator. It required the Commission to interpret the terms of the s 66A agreement
by applying the usual rules of construction of contracts, in the context of the applicable
legislation [51].
Did the Arbitrator determine the effect of the s 66A complying agreement?
3.
The Arbitrator’s Reasons focussed only on whether Ms Lee was claiming an increase
in the degree of permanent impairment beyond the amount previously agreed. She did
not consider the effect of the s 66A agreement or whether the current claim could
proceed notwithstanding that agreement. That was an error [57].
What was the effect of the s 66A complying agreement?
4.
To determine the effect of a complying agreement, it must be interpreted according to
the usual principles of contract law [72]-[74] (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52; 219 CLR 165; WDS (Mining) Pty Ltd v Piper [2013] NSWWCCPD 19;
Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184).
5.
Construing the agreement by what a reasonable person would understand by the
terms of the agreement and having regard to the purpose and object of the transaction
14
and taking into account the nature of the dispute, it was concluded that the objective
intention of the parties was to record the resolution of the only matter remaining in
issue at the time the agreement was entered into, namely, the extent of any deductible
proportion under s 323 [74], [76].
6.
There may be circumstances where a complying agreement prevents a later claim for
further lump sum compensation, as discussed in CSR Limited v Gonzales [2010]
NSWWCCPD 181 and Di Paolo v Cazac Constructions (NSW) Pty Limited [2013]
NSWWCCPD 8. Those cases were decided on their own facts and it is clear that the
Commission has jurisdiction to award further lump sum compensation following a
s 66A complying agreement if it can be established that, since the agreement was
entered into, there has been an increase in the degree of permanent impairment
beyond that so agreed (s 66A(3)(c)), or if any of the other circumstances in s 66A(3)
are satisfied [78].
7.
On the facts of the case, Ms Lee could not satisfy the requirements of s 66A(3)(c), or
any of the other exceptions under s 66A(3). The current claim was supported by
exactly the same assessment Ms Lee had in 2007. It did not support a claim that,
since the agreement was entered into, Ms Lee had suffered an increase in the degree
of permanent impairment beyond that agreed to on 18 January 2007. Ms Lee was
therefore bound by the terms of the complying agreement and was precluded by such
agreement (and s 66A) from bringing the current claim, which was based on the same
assessment in her possession in 2007 [79], [81]-[82].
8.
As the only issue in dispute had been resolved by the complying agreement, there was
no dispute to be referred to an AMS [80].
Was the Arbitrator required to determine if the compensation agreed to was
manifestly too low?
9.
Accepting that the Commission is not bound by strict pleadings, the President was not
satisfied that the application of s 66A(3)(a) was properly before the Arbitrator or that it
was understood to be a matter requiring determination [90].
10.
It was not accepted that it should be inferred that the Arbitrator did not deal with the
issue because of her findings on the application of s 66A(3)(c). If that was the way the
Arbitrator approached the issue she would have stated so. She did not [91].
11.
The President stated that even if he was wrong on that point, he would not have been
in a position to re-determine the issue on appeal in any event. The submissions on the
issue had not been fully developed. Indeed, no submissions had been made as to the
meaning of “manifestly too low” in this statutory context [92].
15
Backo v Adairs Retail Group Pty Ltd [2013] NSWWCCPD 53
Psychological injury; reasonable conduct with respect to discipline; s 11A Workers
Compensation Act 1987; factual findings; credit findings; assessment of conflicting evidence;
non-compliance with Practice Direction No 6
Roche DP
8 October 2013
Facts:
This appeal concerned a claim for compensation for a psychological condition said to have
been caused by “bullying and harassment” of the applicant worker by the employer’s
management.
In April 2009, the worker commenced work for the respondent employer (Adairs), as an area
manager. Her duties required her to oversee the management of several of Adairs’ retail
stores. Between October 2009 and January 2010, issues arose with the worker not meeting
deadlines and not doing the basic role of an area manager. In November 2009, the worker
was given verbal reminders that it was important to meet deadlines, however, no formal
warning was issued. Due to a lack of improvement, those issues carried forward to March
2010.
On 24 March 2010, the worker injured her back moving furniture at work. On 12 April 2010,
the worker received a written “first and final” warning due to “breach of company policy” for
not reporting her back injury within 24 hours.
On Thursday, 10 June 2010, the worker was performance counselled and issued with two
warnings. The first was for failing to conduct OHS checks in any of her assigned stores
between August 2009 and May 2010. The second, described as a “first and final written
warning”, was for breach of company policy with regard to signing off on incentive payment
spreadsheets for store managers “without checking if monthly compliance to lay-bys had
been adhered to”. The worker stated that the second breach was described by the
employer’s management as “fraud”. Adairs’ managers disputed that the worker had even
been accused of fraud or that that word had been used.
In response to the first warning, the worker did not disagree that she had not conducted the
relevant checks. In response to the second warning, the worker said that she had not wilfully
or deliberately breached company policy but made no excuse for her behaviour.
As the worker had not been advantaged by the breach of policy with regard to the incentive
spreadsheets, it was determined that a written warning was sufficient rather than termination
of employment.
The worker said that she did not eat or sleep after the meeting of 10 June 2010 and was so
sick that she vomited on Friday “from anxiety”. She did not return to work.
The Arbitrator entered an award for the respondent employer on the ground that the injury
had been caused by reasonable conduct with respect to discipline under s 11A.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that the employer’s conduct was reasonable;
16
(b) rejecting the evidence of the treating psychologist, Ms Wild;
(c) failing to find that a false or unfound allegation of misconduct caused the worker’s
psychological injury, and
(d) finding that the worker’s credit was not a factor.
Held: The Arbitrator’s determination was confirmed.
Reasonable conduct
1.
The Arbitrator dealt with the question of reasonable conduct by reference to the “entire
conduct” (Department of Education and Training v Sinclair [2005] NSWCA 465; 4
DDCR 206) [35]. In doing so, she correctly acknowledged that that question is one of
fact where the rights of the employee must be weighed against the objectives of the
employer (Irwin v Director General of Education (unreported, Workers Compensation
Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997)) [36].
2.
The Arbitrator was correct to find that the first warning was reasonable, and did not
amount to bullying as asserted [38]-[39].
3.
As the worker was aware of the policy of reporting work-related injuries, her failure to
report her back injury within the required time meant she was in breach of it. The
Arbitrator’s finding in this regard was not an error [40].
4.
The Arbitrator’s acceptance of the respondent employer’s evidence that the word
‘fraud’ was not used and the worker had not been accused of dishonesty, in respect of
the incentive payments, was open on the evidence [42], [49]. Viewing the history of the
matter as a whole, where two supervisors were concerned about the worker’s
performance, had instituted procedures to help her improve, had endeavoured to
support her, and had refrained (for reasons of fairness) from issuing formal warnings in
the past, the Arbitrator’s finding that the issuing of the warning on this issue was
reasonable was open on the evidence [44].
5.
It was never argued at the arbitration that the investigation was not reasonable, or that
it “cloaked the whole incident in [an] aura of some criminal misbehaviour”, as was
submitted on appeal. It was argued that the issuing of the warnings was not
reasonable and was heavy handed. The submission on appeal did not identify any
error by the Arbitrator and sought to raise an issue never argued at the arbitration and
therefore was rejected [46].
6.
The worker’s failure to complete OHS checks was “linked to not meeting company
deadlines”. This failure continued, despite reminders issued in the past requesting that
she adhere to the deadlines. The worker said she had no excuse and accepted the
warning [54]. It was open to the Arbitrator to find that the warning was reasonable [55].
7.
The two warnings issued on 10 June 2010 dealt with two separate and distinct
matters. That reason alone justified them being issued in separate documents [57]. It
was not accepted that the issuing of the two warnings on the same day was
unreasonable, or done deliberately to put pressure on the worker [61].
17
Ms Wild’s evidence
8.
The Arbitrator’s conclusion that the timeline of events did not support the conclusion
that other matters had caused the worker’s psychological condition was consistent with
the evidence and was open to her. It was a clear reference to the fact that the worker
demonstrated no signs of emotional difficulties until after she received the warnings on
10 June 2010 [70].
9.
The Arbitrator further stated that other medical evidence, which focused on the history
that the worker had been accused of fraud, did not support the worker’s case. In
circumstances where the Arbitrator found that the worker had not been accused of
fraud, or any dishonesty, her finding was open and disclosed no error [71].
10.
In addition, the Arbitrator said that Ms Wild’s opinion was flawed because she wrongly
said that the “other factors” that contributed to the injury occurred prior to any
reasonable action with respect to promotion, transfer, performance appraisal,
discipline, retrenchment or dismissal. The Arbitrator correctly observed that issues with
regard to “discipline” commenced with monthly training meetings in 2009 and this
finding had not been challenged [72].
11.
In the absence of any reasoned argument this ground of appeal failed [74].
False or unfounded allegations of misconduct
12.
While it was accepted that the worker did not sign off on the incentive spreadsheets for
January to March 2010, she provided the information used by the manager who did
sign off on those documents [76].
13.
By submitting the incentive spreadsheet she was indicating that she had “checked the
data” when in fact she had not. That was a breach of company policy that justified a
warning. The worker did not dispute that she had breached the policy, but said that
she had not done so “willingly or consciously” [78].
14.
It followed that the submission that the worker was “accused of false and unfounded
allegations of misconduct” was incorrect and rejected. The Arbitrator’s conclusion that
the warning was reasonable was open on the evidence and disclosed no error [79].
Credit
15.
While the Arbitrator referred to the submission that the worker was “loose with the
truth” in relation to the toll records (relevant to work related expenses), she did not
base her decision on those records. Though she would have been entitled to rely on
this matter as a ground for finding that the worker was not a reliable witness, the
Arbitrator made no comment about the worker’s failure to bring documents to the
arbitration and made no finding about the worker’s credit “in relation to the
reimbursement of her phone bill and toll account” [94].
16.
The Arbitrator did not accept that, even if the word “fraud” had not been used, what the
worker’s supervisor said could only be interpreted as (an allegation of) fraud. That
finding was open on the evidence [98].
17.
Having considered the evidence, and having seen and heard the worker give oral
evidence, it was open to the Arbitrator to form a view about the worker’s credit and to
take that view into account in reaching her conclusion. Her view was that the worker’s
“failure to disclose [her previous psychological difficulties] adversely impact[ed] on the
18
credit of [the worker]”. This was a matter that went to the reliability of the worker’s
evidence and was a matter (though not the only matter) the Arbitrator was entitled to
take into account in assessing the claim [103].
19
Taylor v PJM Building Management Pty Limited [2013] NSWWCCPD 52
Section 9A Workers Compensation Act 1987; employment a substantial contributing factor to
injury
O’Grady DP
8 October 2013
Facts:
The worker was employed as a site manager by the respondent at a large residential
complex. It was not disputed that, on 17 May 2011, the worker received injury to his right
knee in the course of that employment.
The worker, while undertaking an inspection of a site on foot, and while walking on flat
ground, heard a “pop” sound and immediately felt intense pain in his right knee. He later
underwent right knee surgery.
The dispute concerning the worker’s entitlement to compensation was the subject of an
Application filed with the Commission. The claim was in respect of lump sums and medical
expenses. The only issue raised for determination was whether the worker’s employment
was, in terms of s 9A of the 1987 Act, a substantial contributing factor to the subject injury.
The Arbitrator entered an award for the respondent employer.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that there was a real probability that the injury or a similar injury would have
happened anyway, at about the same time or at the same stage of the worker’s life, if
he had not been at work on 17 May 2011 or had not been working in that
employment, and
(b) determining that employment was not a substantial contributing factor to the injury on
17 May 2011.
Held: The Arbitrator’s determination was confirmed.
1.
The submissions that there was no evidence which would permit the Arbitrator to
conclude as he did, and that his conclusion expressed, that the injury would happen in
any event, was based upon speculation was rejected [43].
2.
While the evidence of a specialist doctor did not expressly associate the presence of
degeneration in the knee joint with the occurrence of injury, it was open to inference,
having regard to the observation that “tearing of the medial meniscus…would not be
classified purely as being degenerative”, that the presence of degeneration was in
some manner relevant to the occurrence of the tear [44].
3.
Notwithstanding the form of the question put to the specialist doctor, by the insurer,
regarding s 9A(2)(d) – the probability that the injury or a similar injury would have
happened anyway – his response constituted evidence upon which a conclusion as to
such probability could be founded. Such evidence was sufficient to meet the
evidentiary burden upon the respondent concerning matters raised by the subsubsection (Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965]
HCA 34; 114 CLR 165; Nominal Defendant v Clancy [2007] NSWCA 349) [47].
20
4.
While the respondent accepted that the subject injury arose in the course of
employment (temporal connection), there was no evidence to suggest, as asserted by
the worker, that there was a concession by the respondent that the injury arose out of
the employment (causal connection) [50]. It was noted that the worker carried the onus
to establish that the requirements of s 9A had been met [51].
5.
The authorities establish that the test imposed by s 9A is intended to be more stringent
than the test or standard created by reference to the concept of the injury arising “out
of” employment (s 4) (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia
Pty Ltd [2009] NSWCA 324; 7 DDCR 75; Da Ros v Qantas Airways Ltd [2010]
NSWCA 89; 8 DDCR 103) [53]-[54].
6.
It appeared that the worker suggested that the Arbitrator should have drawn an
inference that the injury occurred as explained by the specialist doctor, that is, sudden
weight bearing of an unprepared joint. It was then argued that s 9A would be satisfied,
given that walking was a requirement of the worker’s employment [56]-[57]. The task
before the Arbitrator required evaluation by him of the linkage between employment
and injury. The fact that walking was required by the terms of employment, in the
Arbitrator’s view, was not sufficient to establish that the worker’s employment had
made a contribution to injury that was real and of substance. That conclusion was
open to the Arbitrator [58]-[59].
21
Sydney West Area Health Service v Hope [2013] NSWWCCPD 51
Procedural fairness; wages schedules; non-compliance with Pt 15 r 15.5 of the Workers
Compensation Commission Rules 2011
Roche DP
3 October 2013
Facts:
The applicant worker filed a wages schedule in compliance with the rules (Pt 15 r 15.5 of the
2011 Rules), but the employer did not. However, actual and probable earnings were
disputed and both sides called evidence on, and made submissions about, that issue.
Notwithstanding the way the case was conducted, the Arbitrator determined the case by
applying the deeming provision in Pt 15 r 15.5(3).
The wages schedules filed by the worker demonstrated a significant weekly loss, which
varied from $176.39 to $402.58 per week, for different periods, between 1 July 2006 to date
and continuing. The wages schedule was said to have been based on the wage records for
the worker and two comparable employees, which had been provide by the appellant.
Essentially, the claim came down to an allegation that, because of his injuries, the worker
had lost money because he was no longer offered overtime.
The appellant, at arbitration, tendered evidence that disputed the worker’s claim he had not
been offered overtime because of his injuries. The appellant conceded that the worker may
have lost a total of $649.49 between May 2005 and November 2012.
The matter proceeded with submissions, neither side seeking leave to call oral evidence.
The appellant submitted that the worker suffered either no loss or only the loss conceded.
That loss was ultimately reduced to writing in a hand written document called “Respondent
[appellant’s] Wages Schedule”, that was sought to be tendered during submissions in reply.
This document set out the loss as $96.22 for each of the financial years from 30 June 2006
up to 30 June 2012. Though it was not stated in the document, this amount averaged $1.90
per week, rounding up. It allowed the same amount ($96.22) for the period from 1 July 2012
to 16 November 2012.
The respondent objected to the appellant’s wages schedule being tendered, and as a result,
it was admitted into evidence as an aide memoire.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) her application of Pt 15 r 15.5 in finding that the appellant’s failure to file a wages
schedule was an admission of the wages schedule filed by the worker;
(b) relying solely on the worker’s wages schedule in determining the award, and
(c) failing to consider or adequately consider the nature and content of the appellant’s
evidence on wages.
Held: The Arbitrator’s determination was revoked in part. The figures for weekly
compensation under s 40 were substituted with new figures agreed on by both
parties, and in respect of the claim for weekly compensation from 1 July 2006 to 30
June 2009 an award was made for the respondent employer.
22
1.
It is a denial of procedural fairness to decide a case on a basis not argued (Seltsam
Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]; 3 DDCR1; Workers Compensation
Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75]). While it was submitted that
the worker’s wages schedule was deemed to be admitted, the general conduct of the
arbitration clearly indicated that the case would be determined on the evidence and not
on the deeming provision [26].
2.
Whether overtime was available to the worker, and whether his wages schedule was
correct, was the central focus of the evidence and the parties’ submissions. If the
Arbitrator intended to determine the case by reference to the deeming provision, she
was required to bring that to the parties’ attention and to give them the opportunity to
be heard [27].
3.
Having conducted a hearing on the merits, having admitted evidence on the wages
issue, and having admitted the appellant’s wages schedule, albeit as an “aid” to
understanding the appellant’s evidence, it was not open to then rely on the deeming
provision [29].
4.
As the appellant did not comply with Pt 15 r 15.5, it was necessary that the
Commission “otherwise orders” before the matter could be determined on its merits.
As the worker did not object to this course it was determined that the deeming
provision did not apply and that the quantum of weekly compensation payable be
determined by reference to the evidence tendered [31].
5.
Though the parties made submissions about the general effect of the evidence, the
case ultimately came down to an analysis of the wage records attached to the worker’s
Application, which were also tendered by the appellant in an Application to Admit Late
Documents. Those records set out, in fortnightly periods, the earnings for the worker
and two co-workers for the period from 2005 until June 2010. There was no dispute
that the co-workers were comparable to the worker [32].
6.
An analysis of the wage records revealed the difference between the worker’s
earnings and the comparable employees up to June 2010. Figures for the periods after
June 2010 were arrived at, with the consent of the parties, by allowing a three per cent
adjustment for each financial year after that date. Both parties agreed with the figures
produced, thus eliminating the need for any further analysis of the evidence. Neither
side submitted there was any ground for exercising the discretion in s 40(1) of the
1987 Act [33]-[34].
23
Price v Solutions Personnel Pty Ltd [2013] NSWWCCPD 56
Challenge on appeal to factual findings founded upon finding of credibility of witness; duty to
provide sufficient reasons for decision
O’Grady DP
30 October 2013
Facts:
The worker had been employed by the respondent employer, a labour hire company, to work
as a casual chef at the business premises of Gate Gourmet Services Pty Ltd at Mascot
between 6 April 2010 and 27 June 2010.
The worker alleged that she had received an injury to her cervical spine and right upper
extremity in the course of that employment on 5 May 2010. The worker was paid provisional
weekly compensation for eight weeks from 28 June 2010. The insurer later declined liability
in respect of the worker’s claim on 4 August 2011.
The matter went before the Commission and the Arbitrator entered an award for the
respondent.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that the worker had “not discharged the onus of proving that she received an
injury to her neck and right shoulder in the course of her employment on 5 May
2010”, and
(b) failing to provide reasons for his decision.
Held: The Arbitrator’s determination was confirmed.
Submissions, discussion and findings
1.
The Arbitrator’s finding that the worker had failed to discharge the onus upon her
concerning proof of injury as alleged was plainly founded upon an assessment of the
credibility of her evidence [43].
2.
It was argued, by the worker’s counsel on appeal, that the relevant error concerned the
Arbitrator’s rejection of the worker’s evidence concerning the occurrence of injury
without addressing the entirety of the evidence. It was further argued that the Arbitrator
had reached his conclusion in the absence of a statement by him of sufficient reasons
for so finding [44]. In addition, it was submitted that the Arbitrator had failed to address
credible medical evidence that was said to support the worker’s stated occurrence of
injury [45]-[46].
3.
It was correct, as complained by the worker, that the Arbitrator had not, in the course
of his Reasons, addressed that evidence which the worker submitted required
evaluation when a determination as to the credibility of her evidence was made. The
Arbitrator, when dealing with the medical evidence, addressed an apparent
contradiction or deficiency concerning the circumstances of injury not the question of
causation of the injury [47].
24
4.
The worker’s submission that the Arbitrator had erred by failing to address the medical
evidence was rejected. The fundamental dispute between the parties concerned the
occurrence or otherwise of injury as alleged on 5 May 2010. In the course of his
Reasons the Arbitrator enumerated a number of evidentiary matters which, in
combination, led him to conclude that the fact of injury had not been established. His
findings necessarily involved an evaluation of the worker’s credibility as a witness [49].
5.
The Arbitrator’s approach to the examination of evidence as to the probability of the
occurrence of injury as alleged was appropriate. The matters taken into account in
reaching his conclusion were each relevant and his conclusion was open on that
evidence. Whilst it might be that minds differ as to the relevance of the description of
pushing rather than pulling the trolley (the event that gave rise to the stated injury),
such apparent contradiction was a matter for the Arbitrator to take into account when
assessing the weight to be ascribed to the worker’s evidence [50]-[51] (Fox v Percy
[2003] HCA 22; 214 CLR 118).
6.
No argument had been advanced that the worker’s evidence was wrongly discounted
given the inconsistent accounts or absence of history recorded by the medical
witnesses. Having considered the medical evidence, the absence of any work related
history of injury found in clinical notes of a general practitioner, the delay between
stated date of injury and notation made by another general practitioner, and apparent
conflict of relevant history as recorded by medical practitioners, such an argument
would have failed [52] (Mason v Demasi [2009] NSWCA 227).
25