Issue 8: August 2013
On Appeal
Welcome to the 8th issue of ‘On Appeal’ for 2013.
Issue 8 – August 2013 includes a summary of the July 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:
Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 ........................................................... 3
Claim for weekly compensation for periods before and after 1 January 2013; claim made
before 1 October 2012; whether the entitlement periods for weekly compensation
commence to run from date weekly compensation paid or payable or from 1 January
2013; ss 32A, 36, 37 and 39 of the Workers Compensation Act 1987, as amended by the
Workers Compensation Legislation Amendment Act 2012; Pt 19H of Sch 6 to the Workers
Compensation Act 1987; Sch 8 to the Workers Compensation Regulation 2010 ............... 3
Inghams Enterprises Pty Ltd v Sok & anor [2013] NSWWCCPD 39................................. 7
Challenge to factual findings; no relevant error demonstrated; s 105 of the Workplace
Injury Management and Workers Compensation Act 1998; jurisdiction of the Commission
to make award of weekly compensation; consequences of passage of Workers
Compensation Legislation Amendment Act 2012 .............................................................. 7
Woolworths Ltd v Sisko [2013] NSWWCCPD 38 ............................................................. 12
Psychological injury; assessment of evidence; challenge to factual findings; alleged
improper use of evidence from treating specialist; substantial contributing factor ............ 12
Bishop v Camden District Hospital [2013] NSWWCCPD 40 ........................................... 19
Injury; causation; consequential loss; duty to state sufficient reasons for decision; factual
error ................................................................................................................................ 19
2
Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37
Claim for weekly compensation for periods before and after 1 January 2013; claim made
before 1 October 2012; whether the entitlement periods for weekly compensation commence
to run from date weekly compensation paid or payable or from 1 January 2013; ss 32A, 36,
37 and 39 of the 1987 Act, as amended by the Workers Compensation Legislation
Amendment Act 2012; Pt 19H of Sch 6 to the 1987 Act; Sch 8 to the 2010 Regulations
Roche DP
3 July 2013
Facts:
This appeal concerned the application of the amendments to the 1987 Act, introduced by the
Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), to a
claim for weekly compensation made before 1 October 2012.
The principal issue was when the entitlement periods introduced in the 2012 amending Act
commenced to run. If they ran from the date on which weekly compensation was first paid or
payable to the worker, as the Arbitrator found, the worker’s entitlement to weekly
compensation under the amended s 37 expired on 26 July 2013. If they ran from 1 January
2013, as argued by the appellant worker, the worker’s entitlement to weekly compensation
under the amended s 37 expired on 2 July 2015.
The Commission Arbitrator made an award that the employer pay the worker weekly
compensation for a period up to 31 December 2012 under s 40 of the 1987 Act, as it was
prior to the amendments introduced by the 2012 amending Act. The Arbitrator also
determined that the worker’s entitlements from 1 January 2013 fell to be determined under
the second entitlement period set out in s 32A of the 1987 Act. The quantum of weekly
compensation payable was determined by applying the formula in s 37 appropriate for a
worker with a current work capacity and it was found that the worker’s entitlement to
compensation under that section would expire on 26 July 2013, 130 weeks after weekly
compensation was first paid or payable to her.
It was not disputed that the worker claimed compensation before 1 October 2012, was not
an “existing recipient of weekly payments” immediately before 1 October 2012, and was not
a seriously injured worker.
The issue on appeal was whether the Arbitrator erred in determining when the entitlement
period in s 32A commenced to run and in finding that the second entitlement period will
expire on 26 July 2013. The worker had not challenged the quantum of the award from 1
January 2013 or the Commission’s jurisdiction to make an award for the payment of weekly
compensation from 1 January 2013.
Held: The Arbitrator’s determination was confirmed.
Categories of Claimant/Worker
1.
There are three categories of claimant/worker with different dates for the
commencement of the weekly payments amendments depending on the category the
worker comes within:
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(a) in the case of a claim made on or after 1 October 2012, the weekly payments
amendments apply from the date on which the claim is made (note to cl 3(1)
of Sch 8);
(b) for existing recipients of weekly compensation immediately before 1 October
2012, the weekly payments amendments apply on a date three months after
the insurer makes a work capacity decision (cl 6 of Pt 19H and cl 22 of Sch
8). A work capacity decision arises from a work capacity assessment, which
assessment must be done within 18 months of 1 October 2012 (cl 17 of Sch
8), and
(c) for claims made before 1 October 2012, but where the worker is not an
existing recipient of weekly compensation, the weekly payments amendments
and the relevant transitional arrangements do not apply to the “compensation
payable” in respect of the injury until 1 January 2013 (cl 3(1) of Sch 8) [10].
2.
Before the quantum of weekly compensation payable to a worker can be determined
under the weekly payments amendments, it is necessary to determine, among other
things, into which entitlement period the claim falls [12].
Submissions
3.
The appellant submitted that the provisions in the 2012 amending Act did not apply to
compensation paid or payable in respect of any period before the commencement of
the amendment, except as otherwise provided by Pt 19H (cl 3(2) of Pt 19H). As the
worker was paid weekly compensation from early 2011, that is, for a period before the
weekly payments amendments commenced, the new ss 36 and 37 (which deal with
the calculation of weekly compensation payable in the first and second entitlement
periods respectively) “[do] not apply” in this matter [21].
4.
To determine that either entitlement period can run in the period from the date of the
worker’s first incapacity on 28 January 2011 (which, it was assumed, was also the first
date on which she received compensation) is to “apply” ss 36 and 37 to that period,
which ignores the effect of cl 3(2) of Pt 19H, which states that the new provisions “[do]
not apply”. The same situation arises from compensation that is “payable in respect of
any period” before 1 October 2012 (cl 3(1) of Sch 8) [22].
5.
If ss 36 and 37 do not apply until 1 January 2013, the entitlement periods they create
cannot apply and commence to run until that date [24].
6.
The appellant submitted that cl 9(4) of Sch 6 does not apply to the worker because she
was not an existing recipient of weekly compensation immediately before 1 October
2012 and cl 9 only applies to existing recipients. This submission was based on the
following: cl 9 comes after cl 8 of Sch 6, which deals with work capacity assessments
of existing recipients of weekly payments, the heading to cl 9 states “[w]eekly
payments amendments to apply after work capacity assessment”, and cl 9(1)
expressly refers to existing recipients [25].
7.
It was submitted that the words of cl 9(4) provide for the entitlement periods for
existing recipients of weekly benefits to start to run on 1 October 2012 [34]. It was
further asserted that interpreting cl 9 in this way prevents conflict with other provisions
and common law principles [35].
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Discussion and findings
8.
The appellant’s submission regarding cl 3(2) of Pt 19H only had substance if cl 9(4) of
Sch 6 did not apply to the worker, and where the appellant’s interpretation of cl 3 of
Sch 8 was accepted. The Arbitrator was correct to find that cl 9(4) did not apply in the
circumstances and that cl 3 of Sch 8 did not operate in the manner suggested by the
appellant [37].
9.
The wording of cl 8 of Sch 6 provides no assistance in determining the application and
meaning of cl 9(4). Each clause performs a separate and independent function. Clause
8 deals with work capacity assessments for existing recipients of weekly payments of
compensation. Clause 9(1) deals with when the weekly payments amendments apply
to existing recipients of weekly compensation immediately before 1 October 2012.
Sub-clause (2) of cl 9 is linked to sub-cl (1) of cl 9 by use of the conjunction
“[h]owever”. Sub-clause (3) of cl 9 relates to the transitional amount [38].
10.
The worker in this matter fell within the third category of worker/claimant. Though it
had been conceded that such workers were not existing recipients, there was no valid
reason why sub-cl (4) of cl 9 would not apply to them [44].
11.
As sub-cl (4) of cl 9 does not refer to a specific date, but only uses the general
expression “the commencement of [the] amendments”, the logical conclusion was that
it is of general application to workers in categories two and three. It arguably applies to
existing recipients of weekly compensation (workers in category two) in the manner
suggested by the appellant [45].
12.
However, sub-cl (4) also applies to workers in category three, such as the worker, for
whom the weekly compensation amendments apply from 1 January 2013. This was
reinforced by the use of the definite article “the” in the phrase “the worker” in cl 9(1),
which, by its terms, applies only to existing recipients. This is to be contrasted with the
use of the indefinite article “a” in the phrase “a worker” in cl 9(4), which applies to
workers generally [46].
13.
It followed that, applying cl 9(4), for the purpose of the application of the weekly
payments amendments to weekly compensation payable to the worker after 1 January
2013, a reference in Div 2 of Pt 3 of the 1987 Act to “a period in respect of which a
weekly payment has been paid or is payable” includes such a period that occurred
before 1 January 2013. The reference in cl 9(4) to the period “in respect of which a
weekly payment has been paid or is payable” is a reference to the words used in s 32A
in defining the first and second entitlement periods [47].
14.
While it is correct that the amendments include the new provisions in ss 36 and 37,
those provisions do not create the entitlement periods but merely prescribe the
methods to be used to calculate the quantum of compensation payable. The
entitlement periods are defined in s 32A by reference to the words used in cl 9(4),
namely, to a period “in respect of which a weekly payment has been paid or is payable
to the worker” [49].
15.
Consistent with cl 3(1) of Sch 8, the Arbitrator calculated the worker’s entitlements up
to 31 December 2012 under the legislation that applied up to that date and applied the
weekly payments amendments to calculate the “compensation payable” from 1
January 2013. Once the weekly payments amendments apply, it is not possible to
determine the quantum of weekly compensation payable until it is decided which
entitlement period the worker comes within. That requires consideration of s 32A,
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which applies from 1 January 2013 and refers to weekly payments paid or payable
[50].
16.
If the appellant was correct in her submission that the entitlement periods do not
commence to run until 1 January 2013, then the worker’s weekly compensation from
that date would be calculated under s 36, that is, under the first entitlement period, not
under s 37, which applies to the second entitlement period [52].
17.
Clause 3(1) of Sch 8 states that the transitional arrangements also apply from 1
January 2013. Clause 9(4) is part of the transitional arrangements. Clause 9(4) is in
clear terms and applies in the present matter. The combined effect of s 32A and cl 9(4)
is that the entitlement periods commence at the time when weekly compensation has
been paid or is payable and includes periods before the commencement of the
amendments, that is, in this case, before 1 January 2013 [53].
18.
If the conclusion that cl 9(4) of Sch 6 applies to the worker was wrong, and the correct
view was that it only applies to existing recipients, that made no difference to the
outcome. That is because there is a distinction between the calculation of the quantum
of weekly “compensation payable” (which is dealt with, in this case, in ss 36 and 37)
and the calculation of when the entitlement periods commence to run [54].
19.
The appellant submitted that cl 3(1) of Sch 8 does for ss 36 and 37 the same as cl 4 of
Sch 8 does for s 39. That submission was not accepted. Clause 3(1) of Sch 8 merely
states that the weekly payments amendments do not apply to the “compensation
payable”. It does not deal with the commencement of the entitlement periods. It is
directed to ensuring that, for claims made before 1 October 2012, the weekly
payments amendments and the transitional arrangements do not apply to the
“compensation payable” in respect of the injury until 1 January 2013. The Arbitrator did
not apply ss 36 or 37 to calculate the “compensation payable”, until 1 January 2013
[61].
20.
Similarly, the Arbitrator did not apply s 32A until 1 January 2013. However, without a
clause like cl 4 of Sch 8 to deal with the commencement of the first and second
entitlement periods in ss 36 and 37, once s 32A applied, it applied according to its
terms. Therefore, for claimants in the worker’s circumstances, the first entitlement
period will start from the date on which weekly compensation is paid or payable [62].
Conclusion
21.
The weekly payments amendments apply to workers in the worker’s circumstances
from 1 January 2013. That is what the Arbitrator did and that approach disclosed no
error. The worker’s “accrued rights” were not affected. She received weekly
compensation under the 1987 Act, unamended, up to 31 December 2012 and under
the weekly payments amendments after that date.
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Inghams Enterprises Pty Ltd v Sok & anor [2013] NSWWCCPD 39
Challenge to factual findings; no relevant error demonstrated; s 105 of the 1998 Act;
jurisdiction of the Commission to make award of weekly compensation; consequences of
passage of Workers Compensation Legislation Amendment Act 2012
O’Grady DP
17 July 2013
Facts:
Ms Chan Tha Sok alleged that she had received injury to her lumbar spine in the course of
her employment with Integrated Parramatta Services Pty Limited (Integrated) and,
subsequently, with Inghams Enterprises Pty Limited (Inghams). Ms Sok had been employed
by Integrated, a labour hire company, to perform work at the premises of Inghams between
mid-2001 and November 2002. On 18 November, 2002 Ms Sok commenced employment at
the same premises with Inghams. In June 2004, her employment with Inghams was
terminated.
The injuries alleged against Integrated were that a frank injury had occurred on 21 October
2002 as Ms Sok was lifting crates of chicken parts. It was also alleged against Integrated
that further injury had been occasioned by reason of the arduous duties performed by her
between 21 October 2002 and 17 November 2002. The allegation of injury made as against
Inghams was that, as a result of the nature and conditions of her employment between 18
November 2002 and 15 June 2004, Ms Sok had received injury to her lumbar spine.
There was no dispute that Ms Sok received injury in the course of employment with
Integrated on 21 October 2002. It seemed that compensation benefits and medical expenses
were then paid by Integrated. During the period of employment with Inghams, Ms Sok
continued to experience painful symptoms. Light duties were provided. Ms Sok’s
employment was terminated on 15 June 2004.
Ms Sok remained unemployed until she commenced work at Dick Smith Enterprises,
performing light duties in September 2004. Up until the commencement of that employment
she had been paid weekly compensation by Integrated. Employment at Dick Smith
Enterprises came to an end in February 2005 following which Ms Sok did not receive any
further weekly payments from Integrated or its insurer. In June 2005 a claim brought by Ms
Sok against Integrated with respect to lump sum compensation was the subject of
agreement, and payment was made pursuant to s 66 of the 1987 Act.
Ms Sok remained unemployed until 2007 at which time her husband purchased a takeaway
food business. Ms Sok assisted with order taking and serving at the business premises for a
period of four or five hours per day, five days per week. Following sale of the business in
2010 Ms Sok remained unemployed. Ms Sok continued to experience pain and disability in
her lower back and her left leg.
In May 2011, Ms Sok was examined by Dr Charles H New, orthopaedic and spinal surgeon,
following referral by Dr Chau, her general practitioner. In February 2012, Dr New
recommended that Ms Sok undergo surgical treatment. Liability in respect of the cost of such
treatment was declined by Integrated and Inghams.
The matter came before an Arbitrator in October 2012 at which time the parties agreed that
the dispute, concerning liability for medical expenses, be remitted to the Registrar for referral
7
to an AMS. The AMS, Dr Holman, found that the surgery contemplated by Dr New was
reasonably necessary treatment for Ms Sok’s then current condition. The proceedings were
then relisted before the Commission for hearing following which a Certificate of
Determination was issued finding in favour of Ms Sok. Liability was apportioned between the
two employers. Both employers appealed against the Arbitrator’s determination.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a)
making an award in respect of weekly payments beyond 31 December 2012,
under the 1987 Act, as it stood prior to the passage of the Workers
Compensation Legislation Amendment Act 2012 (the amending Act);
(b)
failing to consider the operation of the amending Act upon the facts found;
(c)
failing to seek submissions from the parties concerning “[Ms Sok’s] entitlement to
weekly payments after 31 December 2012”;
(d)
finding that Ms Sok received relevant injury arising out of or in the course of her
employment with Inghams;
(e)
finding that Ms Sok was totally incapacitated as a result of relevant injury;
(f)
finding as to apportionment of liability as between Integrated and Inghams, and
(g)
failing to find that Ms Sok received injury “by way of a disease pursuant to
s 4(b)(i) and (ii) and in failing to find that the appellant was not the last employer
who employed the first respondent, in employment that was a substantial
contributing factor to the aggravation, acceleration, exacerbation or deterioration
of such disease, pursuant to s 16(1)(b)”.
Held: The Arbitrator’s determination was revoked in part and an order was made
concerning weekly payments from 1 January 2013.
Submissions, discussion and findings
1.
The Arbitrator’s finding that the worker received injury arising out of or in the course of
employment with Inghams was challenged [46].The Arbitrator’s Reasons
demonstrated that her conclusion concerning the disputed finding of injury was
founded upon the opinions as expressed by Dr Holman, Dr Chau, Dr Houston and Dr
New. Those expert medical witnesses each provided sufficient evidence to permit the
conclusion reached by the Arbitrator, and the reasons for her conclusion had been
plainly stated. No factual error had been established [50].
2.
Having regard to the Arbitrator’s finding concerning repeated traumata, which
constituted a finding of injury in terms of s 4(a), Inghams’ submission that the Arbitrator
failed to address the question of injury, was erroneous and was rejected [51].
3.
The criticism made of the medical evidence relied upon by the Arbitrator was rejected.
That criticism went to the weight of that evidence and, whilst such argument may be
relevant to a review of the Arbitrator’s determination of factual matters, such argument
had little or no force in circumstances where the present task on appeal was to
determine the commission or otherwise of relevant factual error [52].
4.
The Arbitrator’s finding of total incapacity was challenged. It was suggested that it was
“not open to the Arbitrator to find that [Ms Sok] became incapacitated some seven
years after leaving the employ of [Inghams]” [53].
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5.
Inghams challenged the finding made by the Arbitrator that there was a causal nexus,
in part, between the incapacity as found and the work performed at Inghams. Nothing
raised by the appellant addressed the question of causal nexus between each of the
injuries, as found, and the total incapacity determined by the Arbitrator [55].
6.
The Arbitrator’s finding that incapacity suffered by Ms Sok was the result of injury both
with Integrated and Inghams was open to her and the reasons stated by her for that
conclusion had been plainly and sufficiently expressed. That reasoning related to both
the question of causal nexus between injury received whilst employed by Inghams and
incapacity, and the question of apportionment. For the reasons expressed, Inghams’
argument that there should be no apportionment against it or that there should be “only
de minimis apportionment of liability” was rejected [56].
7.
It was submitted that the Arbitrator erred in failing to find that “any [injury whilst in the
employ of Inghams] was a temporary aggravation of injury suffered with [Integrated]”.
No argument was advanced other than a statement that reliance was placed upon
earlier submissions. Those submissions were rejected and therefore this ground was
also rejected [57].
8.
The Arbitrator’s finding that injury whilst employed by Inghams had resulted in “further
pathology in [Ms Sok’s] lumbar spine” and that operative treatment was reasonably
necessary as a result of that injury was challenged. The Arbitrator addressed the
totality of the evidence. She sufficiently expressed her reasons for the acceptance of
Ms Sok’s evidence concerning the history of symptoms experienced whilst working
with Inghams, and that of the expert medical witnesses whose opinions inculpate that
work as being, in part, causative of the need for the surgery in question. This ground
was rejected [58].
9.
It was also submitted that the Arbitrator erred in failing to find that Ms Sok suffered
injury by way of a disease (s 4(b)(i)(ii)) and further in failing to find that Inghams was
not the last employer who employed Ms Sok in relevant employment [59]. Following
consideration of relevant authority and the expert medical evidence, the Arbitrator
found that Ms Sok had not contracted a disease, expressed by her as being one of
“gradual onset”, within the meaning of s 4(b)(i). The Arbitrator also found that Ms Sok’s
injury did not consist in the aggravation, acceleration, exacerbation or deterioration of
a disease: s 4(b)(ii) [60].
10.
The Arbitrator’s conclusion that the disease provisions had no relevance on the
present facts was supported by the evidence; her reasons for that conclusion were
plainly stated and no relevant error was made out. It was thus unnecessary to address
argument that Inghams was not the last relevant employer [61].
The appellants’ challenge to the Arbitrator’s award of weekly compensation
11.
Both Integrated and Inghams challenged the Arbitrator’s order made in respect of
weekly payments, from 1 January 2013. It was put that the Arbitrator had erred in law
in purporting to make such award pursuant to s 37 of the 1987 Act in its terms before
its repeal effected by the amending Act. Counsel for Ms Sok conceded at the hearing
of the appeal that such error had been made [62].
12.
It was the appellants’ fundamental contention that the amendments to the provisions of
the 1987 Act that regulate entitlement to weekly compensation and the manner of its
calculation had the consequence that the Commission no longer has jurisdiction to
examine, hear and determine matters concerning entitlement to and quantification of
weekly compensation [65].
9
Was the decision of the Arbitrator affected by relevant error?
13.
It was clear that the continuing award entered by the Arbitrator made provision for
weekly payments calculated upon the basis of her findings of total incapacity and that
the quantum of such payments were determined by her by reference to the provisions
of Div 2 of Pt 3 of the 1987 Act as it stood before the amendments. On the relevant
facts, in particular the fact as agreed, that Ms Sok was not at relevant times an existing
recipient of payments, her entitlement from 1 January 2013 required determination in
accordance with the new scheme established by the amending Act. The Arbitrator’s
entry of an award beyond 31 December 2012 pursuant to the repealed provisions was
made in error and her decision, plainly, had been relevantly affected. The outcome of
this appeal, in particular the nature of appropriate orders to be made following
determination of such error, required determination of the correctness, or otherwise, of
the appellants’ submissions suggesting an absence of jurisdiction in the Commission
to make any order concerning payment of weekly benefits beyond 31 December 2012
[67].
14.
It was asserted that s 33 had the effect that it is “mandatory” that employers pay
compensation in circumstances where the worker is totally or partially incapacitated as
a result of injury. Once a worker’s incapacity has been “established”, there is “no
question as to whether” an employer should or should not pay compensation [69].
15.
It followed, it was argued, that the only question before the Commission under s 33
was the existence and extent (total or partial) of Ms Sok’s incapacity. The
“amendments by express words, have stripped [the Commission] of its former
jurisdiction to determine this [sic, these] question [sic, questions]”. It was put that “there
is nothing remaining for [the Commission] to determine under s 33 post 1 October
2012” [70].
16.
In conclusion, the appellants argued that, whilst the relevant transitional provisions
“may provide for the extension of weekly compensation until 1 January 2013”, there
was “no transitional provision providing for the extension of the finding of incapacity
beyond 30 September 2012. The question of incapacity post 1 October 2012 is solely
for the insurer, to be assessed pursuant to the new ss 37 and 38 of the 1987 Act”.
During argument it was put that such assessment was to be made by an insurer in
accordance with the amended scheme and that only an insurer may make a work
capacity decision: s 43. The Commission, it was put, had no jurisdiction to make such
a decision [71].
Discussion
17.
It may be seen that the legislature, when prescribing the nature and extent of the
Commission’s jurisdiction, adopted the broadest of terms. Subject to the Act (which
must be read as including both the 1987 Act and 1998 Act (the Acts): s 2A(2) of the
1987 Act), the Commission has exclusive jurisdiction to examine, hear and determine
all matters arising under the Acts: s 105(1) [75].
18.
The jurisdiction granted may be curtailed by statutory provision and such curtailment is
found in the terms of s 105 itself, as well as in numerous provisions of the Acts (viz
s 65(3) of the 1987 Act and ss 43(3) and 44(5) of the 1998 Act). Such curtailment of, or
limitation to, the Commission’s jurisdiction has thus been effected by express statutory
provision [76].
19.
Ms Sok was at the time of the Arbitrator’s determination claiming weekly
compensation, from 1 January 2013 under s 37 in its amended form [78]. The
10
appellants’ submissions that the Commission had, by reason of the passage of the
amending Act and relevant transitional provisions, been deprived of its jurisdiction to
determine the dispute which Ms Sok has brought before it was rejected [79].
20.
The appellants’ challenge was founded upon suggested “express” provision, or
“inference”, that Parliament has curtailed the Commission’s former jurisdiction to
determine the dispute concerning the rate of payments beyond 31 December 2012.
Such meaning or inference was not found to be drawn from the terms of the amending
Act. It cannot be said that such withdrawal of jurisdiction appears “clearly and
unmistakably” from the terms of the amendment. It cannot be said that such “repeal,
alteration or derogation” of jurisdiction appears from the terms of the amending Act
“expressly or by necessary intendment” (see discussion in Shergold v Tanner [2002]
HCA 19; 209 CLR 126 at 136-137) [80].
21.
Notwithstanding the profound changes introduced by the amending Act to the methods
of determining entitlement to, and the rate of weekly payments, and the role of insurers
in determining such matters free of any challenge before the Commission, the scheme
relevant to the assessment of such rate to which Ms Sok is entitled post 31 December
2012 does not have the effect, either expressly as was suggested in argument, nor
impliedly, that the Commission has no jurisdiction to determine such rate. That is so, in
part, given the continuation of the relevance of the statutory concept of pre-injury
“average weekly earnings” as found in ss 35 and 37 [84].
22.
It may be seen that, in the absence of a work capacity assessment having been
conducted, and given that no work capacity decision had been made, there was no
obstacle presented by the terms of s 43(3) or s 44(5) to the Commission determining
Ms Sok’s entitlement to weekly payments and the rate of such payments [82]. It
followed that the rate of weekly payments to which Ms Sok was entitled must be
determined by reference to s 37 [86].
23.
Having regard to the Arbitrator’s finding concerning total incapacity, the fact that Dr
New had advised the need for spinal surgery and having regard to the evidence
generally, it was concluded that Ms Sok was not able to return to her pre-injury
employment nor was she able to return to work in suitable employment and thus had
no current work capacity. In so concluding, the definition of “suitable employment”
which appears in s 32A was considered. It may be seen that, having regard to the
terms of that definition, the concepts of “no current work capacity” and “total
incapacity”, as that latter term is understood in the light of relevant authority, may not
in all circumstances be equivalent in meaning [88].
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Woolworths Ltd v Sisko [2013] NSWWCCPD 38
Psychological injury; assessment of evidence; challenge to factual findings; alleged improper
use of evidence from treating specialist; substantial contributing factor
Roche DP
16 July 2013
Facts:
The respondent worker, Marijan Sisko, worked for the appellant employer, Woolworths Ltd,
for a total of about 16 years over two different periods. He last worked for Woolworths as a
store services manager from about 2001 until he stopped work on 21 May 2009 after a
meeting at work about his work performance. After returning home that evening, Mr Sisko
attempted suicide resulting in him being admitted (as an involuntary patient) to Shellharbour
Hospital.
He claimed compensation for a psychological injury (Major Depression) alleged to have
been caused by the failure of Woolworths to provide sufficient support to complete his work
and by harassment and bullying within the worksite.
Relying on a report from Dr Snowdon, consultant psychiatrist, Woolworths disputed liability
on the ground that Mr Sisko suffered from narcotic and benzodiazepine dependence. It also
alleged, in the alternative, that any aggravation of his condition caused by his employment
on 21 May 2009 was a result of reasonable action taken in relation to performance appraisal
and discipline under s 11A of the 1987 Act.
At the arbitration, the parties agreed the following issues remained in dispute:
(a)
whether Mr Sisko had suffered a psychological injury arising out of or in the
course of his employment;
(b)
if Mr Sisko suffered a psychological injury, was his employment a substantial
contributing factor to that injury;
(c)
if Mr Sisko suffered a psychological injury, was the injury wholly or predominantly
caused by reasonable action taken or proposed to be taken by it with respect to
performance appraisal and discipline, and
(d)
the extent of any dependency of Mr Sisko’s wife.
It was not disputed that Mr Sisko had been, and remained, at the date of the arbitration,
totally unfit for work.
The Commission issued a Certificate of Determination finding in favour of Mr Sisko on all
issues.
The issues in dispute on appeal were whether the Arbitrator erred:
(a)
in “finding an absence of drug-dependence prior to 21 May 2009”;
(b)
in “improper use of Dr Pai opinion evidence”;
(c)
in “regard to the proposition that Dr Snowdon was in agreement with other
psychiatrists”, and
12
(d)
“[u]nder Sec 9A”.
Held: The Arbitrator’s determination was confirmed, subject to amendment of the
weekly compensation figures.
Drug dependence
1.
The appellant submitted that the evidence that Mr Sisko suffered from a narcotic and
benzodiazepine dependence prior to 21 May 2009 was overwhelming. It was said that
the Arbitrator erred in regarding the Shellharbour Hospital records as “other than
persuasive” [82].
2.
The appellant submitted that the Arbitrator “did not deal with the record which Dr
Snowdon regarded as indicating what the worker was at the relevant time, ‘a chronic
user’” [84].
3.
In dealing with the question of whether there was a pre-existing use of Oxycontin, the
Arbitrator allegedly ignored the “concession” made by Mr Sisko to Dr Pai, his treating
psychiatrist, and recorded by the doctor in his report of 5 November 2010. Dr Pai
seemed to have no difficulty in accepting that, during the time of Mr Sisko’s admission
to Shellharbour Hospital, “he had features of opioid withdrawal in the context of
Oxycontin” and went on to note that Mr Sisko had “been using them in the context of
‘self medicating’ them to relieve [his] ‘pain’ of psychological nature in order to find relief
from his job related stress” [85].
4.
This was alleged to be entirely consistent with Mr Sisko’s account to Dr Sinclair on 25
May 2009 (at Shellharbour Hospital) that over the three years prior to his admission
“when I was under a lot of morphine, I was normal, I coped with the yapping, yapping,
yapping” [86].
5.
These submissions were not accepted.
6.
The Arbitrator made several additional findings relevant to her conclusion that Mr
Sisko had received an injury in the course of his employment with Woolworths [97].
First, she noted that, though Mr Sisko had performance issues at the Riverwood store,
when he was trying to assist his wife after her injury, there was no history of a
psychological injury or symptoms prior to his commencement at the Shellharbour
store. To the extent that the Arbitrator was referring to psychological symptoms
immediately before the commencement at the Shellharbour store, this finding was
correct and had not been challenged. It had not been argued that Mr Sisko’s
symptoms of depression in 2001 or 2007 were of any particular importance in the
current claim [98].
7.
Second, the Arbitrator said that there was no evidence that Mr Sisko received
psychological treatment for some years prior to 21 May 2009. His medical case
indicated that he developed symptoms in response to issues that arose at the
Shellharbour store, being a heavy workload, lack of assistance and support, and
treatment by management, which was aggressive and involved abusive language. This
finding was open on the evidence and disclosed no error [99].
8.
Third, the Arbitrator observed that Mr Sisko’s treating practitioners had diagnosed him
as suffering from Major Depression with melancholic features. She said that Dr
Snowdon agreed with that diagnosis, though he added a further diagnosis of anxiety
relating to his diagnosis of narcotic and benzodiazepine dependence. She said that Dr
Snowdon based his diagnosis on the notes at Shellharbour Hospital taken on 22 May
13
2009 and there was ample evidence that, at that time, Mr Sisko was still under the
influence of the medication on which he had attempted to overdose. These
observations were correct [100].
9.
Fourth, the Arbitrator said that Dr Snowdon gave no reasons or explanation for why
the medication on which Mr Sisko overdosed would behave as a truth drug, as he
asserted. She said that the opinion of Dr Gillies, Mr Sisko’s treating psychologist, was
that the medication would cause a loss of cogent thought process, making his story (in
hospital) unreliable. She added that the evidence of Mr Sisko and his wife (which she
accepted) was that he was heavily medicated (in hospital) and unable to communicate
or recall the events of the first few days following the overdose [101].
10.
The Arbitrator said that Dr Snowdon noted that the drugs on which Mr Sisko
overdosed can cause amnesia, and that was consistent with the evidence from Mr and
Mrs Sisko about Mr Sisko’s condition in the days following the overdose. Taking these
factors into account, the Arbitrator said that the opinion of Dr Gillies was more
plausible than that of Dr Snowdon and she did not accept Dr Snowdon’s comments
concerning the “truth drug” effect. These findings were open on the evidence and
disclosed no error [102].
11.
Noting the history recorded in the hospital notes by T Koning and Dr Sinclair, namely,
that Mr Sisko used his wife’s drugs for three years and that he was bullied and
harassed at Riverwood and Shellharbour stores, the Arbitrator found the opinions of
the treating psychologist (Dr Gillies), treating psychiatrist (Dr Pai) and the treating
general practitioner (Dr Daya) more persuasive than that of Dr Snowdon and the
contents of the hospital records [103]. Her reasons for that finding were that those
doctors had the benefit of long-term treatment and observation of Mr Sisko and were
adamant that they saw no signs of long-term drug use or later withdrawal. These
reasons were sound and were open on the evidence [104].
12.
Finally, the Arbitrator concluded that Mr Sisko did not suffer from narcotic and
benzodiazepine dependence and she did not accept Dr Snowdon’s diagnosis of an
anxiety condition caused by such a dependency. That conclusion was open and
disclosed no error [105].
13.
The Arbitrator did not err in finding the Shellharbour Hospital records as “other than
persuasive” [106]. The Arbitrator was not “obliged” to find that the assessment of Mr
Sisko’s cognition and intellectual functioning made on 22 May 2009 was “flawed”. She
was obliged to consider and deal with the issues presented by the parties. Counsel for
Woolworths at the arbitration made no submission about the hospital entry relied on by
the appellant on appeal (relating to Mr Sisko’s cognition) and it is not an error for an
Arbitrator not to deal with an issue never put (Brambles Industries Ltd v Bell [2010]
NSWCA 162; 8 DDCR 111) [107].
14.
It was open to the Arbitrator to accept the evidence from Mr and Mrs Sisko, that they
denied that Mr Sisko had used his wife’s medication, noting that it was kept in a locked
safe, and denied that he had ever abused narcotics. That was especially so in light of
an absence of a reference to dependence on narcotics or benzodiazepines in Dr
Daya’s extensive clinical notes, something to which the Arbitrator made express
reference [110].
15.
The evidence from Dr Gillies, which the Arbitrator found particularly persuasive,
together with the other evidence noted above, provided a sound basis for the
Arbitrator’s conclusion that, contrary to Dr Snowdon’s opinion, Mr Sisko did not suffer
from narcotic and benzodiazepine dependence. In other words, having regard to all the
14
evidence, it was open to the Arbitrator to prefer the opinion of Dr Gillies to that of Dr
Snowdon [122].
16.
The submission that the Arbitrator erred in not dealing with the “record” that Dr
Snowdon regarded as indicating that Mr Sisko was “a chronic user” was based on the
false assumption that the Arbitrator had to accept the evidence in the hospital records
as accurate. The accuracy of those records was disputed [123].
17.
The Arbitrator dealt with that dispute, namely, by indicating, for reasons given, a
preference for the evidence from Mr and Mrs Sisko, supported by the evidence from Dr
Daya of an absence of drug dependence and by the evidence from Dr Gillies. Mr Sisko
was a regular user of Tramal, which had been prescribed by Dr Daya. That use did not
justify the conclusion that he had been abusing narcotics. Other than the hospital
notes, and the use of benzodiazepines on 21 May 2009, there was no evidence of
benzodiazepine abuse [124].
18.
The submission that the Arbitrator ignored the “concession” made by Mr Sisko to Dr
Pai was rejected. Leaving aside that this submission was not made at the arbitration,
and cannot be used to support a finding of error by the Arbitrator, the submission was
based on the false assumption that Mr Sisko made the “concession” alleged. He did
not. It ignored Dr Pai’s conclusion on the drug use issue [125].
19.
When Dr Pai referred to Mr Sisko using opioids “in the context of ‘self medicating’ them
to relieve his ‘pain’ of psychological nature”, he was referring to the entry in the
hospital records to that effect. To suggest that the doctor was recording a “concession”
by Mr Sisko was an extraordinary misrepresentation of the evidence. Mr Sisko
consistently maintained that he did not self-medicate with his wife’s medication and her
evidence corroborated that assertion. It was patently obvious that he made no
“concession” and the submission that he did was incorrect and misleading [127].
20.
In summary, as the Arbitrator recorded, Dr Pai’s evidence was that the diagnosis of
“substance use disorder” was unlikely. This evidence was consistent with the evidence
from Dr Gillies and supported Mr Sisko’s denial of any substance abuse prior to 21
May 2009. It was evidence the Arbitrator was entitled to accept [131].
21.
A consideration of the relevant evidence, and the submissions put by the appellant on
appeal, did not establish that the Arbitrator’s conclusion that Mr Sisko did not suffer
from a narcotic and benzodiazepine dependence was “glaringly improbable” or
“contrary to the compelling inferences”. The Arbitrator’s conclusion was open on the
evidence and the appellant had not supported its challenge to it with any reasoned
argument or analysis of the relevant evidence. On the contrary, the appellant
misrepresented Dr Pai’s evidence and completely ignored the evidence from Dr Gillies,
both of whom provided strong support for the Arbitrator’s conclusion [135].
22.
If that conclusion was wrong, and Mr Sisko was dependent on narcotics and
benzodiazepines in the period up to May 2009, the same conclusion reached by the
Arbitrator followed and Mr Sisko was entitled to succeed with his claim. In other words,
it made no difference to the outcome [136].
Dr Pai’s evidence
23.
The appellant referred to Pt 15 r 15.2 of the 2011 Rules and submitted that Dr Pai
“expressly disavowed the provision of opinion evidence”. This was based on Dr Pai’s
statement that he had:
15
“established a therapeutic alliance over time with [Mr Sisko] and I acknowledge the
resultant bias, in spite of my neutrality, in compiling this report. Hence I would like to
treat this as a comprehensive treating doctors [sic] report and by no means an
alternative to a comprehensive independent medico legal report.” (emphasis added)
[137]
It was submitted that the Arbitrator fell into error in accepting Dr Pai’s evidence [140].
24.
This ground suggested that the Arbitrator erred in making any use of the doctor’s
evidence. Such a submission was untenable and was rejected. Once evidence is
admitted in proceedings before the Commission, it may be considered in the
determination of the issues in dispute (Onesteel Reinforcing Pty Ltd v Sutton [2012]
NSWCA 282 (Sutton)) [142]. The Arbitrator did not err in accepting Dr Pai’s evidence.
25.
Dr Pai set out the history he took, his findings on examination, and, after referring to
the Shellharbour Hospital records, the statements from Mr and Mrs Sisko, and the
evidence from Dr Snowdon, he set out his opinion. That opinion was based on his
knowledge and experience as a consultant psychiatrist and a Fellow of the Royal
Australian and New Zealand College of Psychiatrists. It was logical and probative and
the Arbitrator was entitled to accept it [145].
26.
Dr Pai’s statement that there may have been a bias as a result of having established a
therapeutic alliance with Mr Sisko was no more than an acknowledgment that, in spite
of his neutrality, he was Mr Sisko’s treating specialist and, as such, had developed a
therapeutic association with Mr Sisko. That did not mean that acceptance of his
evidence was “improper” (or erroneous), but it was a factor to be taken into account
when assessing the evidence, depending on the submissions made about it [146].
27.
The reference to Dr Pai’s non-compliance with the Expert Witness Code of Conduct
was specious. That code applies (subject to exceptions) to proceedings in the courts
listed in Sch 1 of the Uniform Civil Procedures Rules 2005 (NSW). As the Commission
is not a court, and is not listed in Sch 1, the code does not apply to its proceedings
[148]. Dr Pai’s reports complied with the requirements of Practice Direction No 3 and
the contrary was never suggested at the arbitration [149].
28.
Though the Commission is not bound by the rules of evidence (s 354(2) of the 1998
Act), it “is required to draw its conclusions from material that is satisfactory, in the
probative sense, in order that it act lawfully and in order that conclusions reached by it
are not seen to be capricious, arbitrary or without foundational material” (Sutton at [2]).
As the treating psychiatrist, Dr Pai’s evidence was satisfactory, in a probative sense,
and the Arbitrator was entitled to prefer it to Dr Snowdon’s evidence [150].
Dr Westmore’s evidence
29.
The appellant submitted that, at least by implication, the Arbitrator accepted the
evidence of Dr Westmore on causation. It submitted that, unlike Dr Snowdon, Dr
Westmore based his opinion on what was clearly “serious misinformation stemming
from [Mr Sisko]”. It was clear, the appellant submitted, that Mr Sisko did not reveal to
Dr Westmore “that which is demonstrated by the chronology to be a sustained
ingestion at high level of medication over ten years prior to [Mr Sisko’s] suicide
attempt” [152].
30.
In addition, it was argued that, had the Arbitrator not committed the error of concluding
that Mr Sisko did not suffer the addiction Mr Sisko is recorded to have reported in the
16
hospital records, there was a competing cause of Mr Sisko’s condition of which Dr
Westmore had no indication [153].
31.
The appellant relied on Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA
11; 8 DDCR 399 (Hancock) at [82] in support of its submissions [154].
32.
Exactly what weight (if any) the Arbitrator placed on Dr Westmore’s evidence was
unclear. While the Arbitrator summarised that doctor’s evidence, the only reference to
it in her “discussion and findings” was where she merely recorded that Dr Westmore
said that all three psychiatrists who examined Mr Sisko, including Dr Snowdon,
concurred that Mr Sisko suffered a significant depressive disorder with Major
Depression caused by his employment [157]. It was difficult to see that Dr Westmore’s
report played any part in her decision on injury and causation [158].
33.
If Dr Westmore’s evidence played a role in the Arbitrator’s conclusion, having found
that Mr Sisko did not suffer from narcotic and benzodiazepine dependence, and having
rejected Dr Snowdon’s diagnosis of an anxiety condition caused by such dependence,
the acceptance of Dr Westmore’s evidence involved no breach of the principles
discussed in Hancock [159].
34.
Dr Westmore acknowledged that there was a dispute about the accuracy of the
hospital records, which was not for him to resolve. The Arbitrator resolved that dispute
in favour of Mr Sisko and the challenge to that finding had failed. It was therefore not
necessary for the Arbitrator to refer to the allegedly “blighted” history. It followed that
Dr Westmore’s history provided a “fair climate” (Paric v John Holland (Constructions)
Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) for the
acceptance of his opinion and that it would have been open to the Arbitrator to accept
his evidence, which was strongly supportive of Mr Sisko’s claim, had she chosen to do
so [160].
Dr Snowdon’s evidence
35.
The appellant submitted that the proposition that Dr Snowdon agreed with the other
psychiatrists was inaccurate [163]. It was clear the factor that “grossly increased” in Mr
Sisko’s “emotionality” was a non-work factor [164]. It was submitted that the Arbitrator
ought to have made an assessment of Mr Sisko’s credibility [167].
36.
There was no dispute that Dr Westmore and Dr Pai agreed that Mr Sisko suffered from
Major Depression caused by his employment. The submission on appeal appeared to
be that Dr Snowdon did not agree with that conclusion [171].
37.
Dr Snowdon’s evidence was clear that he agreed Mr Sisko suffered from Major
Depression [174]. He also agreed that Major Depression had been caused by Mr
Sisko’s employment [176].
38.
The submission by the appellant that the factor which “grossly increased” in Mr Sisko’s
“emotionality” was a non-work factor was not developed with any reasoned analysis of
the evidence and was rejected. To the extent that the “non-work factor” was narcotic
and benzodiazepine dependence, the Arbitrator did not accept that Mr Sisko was so
dependent and that finding was confirmed on appeal [179]. Dr Snowdon accepted Mr
Sisko’s account that his depression was caused by his employment with Woolworths
[180].
39.
Even if, as Dr Snowdon suggested, Mr Sisko had a predisposition to depression and
had an increase in “emotionality”, because of narcotic and benzodiazepine
17
dependence, that did not assist Woolworths, who must take their employees as they
find them (State Transit Authority of New South Wales v Chemler [2007] NSWCA 249;
5 DDCR 286) [184].
Section 9A
40.
The appellant submitted the Arbitrator “deprived herself of the opportunity to weigh the
contribution of employment with the contribution of [Mr Sisko’s] opiate dependence,
because she found against the proposition that there was any such dependence,
falling into error in reaching that conclusion”. (Badawi v Nexon Asia Pacific Pty Ltd t/as
Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75) [186].
41.
It was alleged that the Arbitrator erroneously rejected the submission made at the
arbitration that “Dr Snowdon’s views on causation should be taken into account as he
is the only medical expert to have taken into account and accepted the history taken at
Shellharbour Hospital”. Had she not made that error then, “it would clearly follow from
the observations of Dr Snowdon cited above that any contribution by employment was
minor” [187].
42.
In breach of Practice Direction No 6, no error had been identified under this heading.
The submissions involved an assumption that the Arbitrator erred in her finding that Mr
Sisko did not suffer from narcotic and benzodiazepine dependence. No such error was
made and this ground of appeal was without substance [188].
43.
In any event, if the Arbitrator erred on the issue of narcotic and benzodiazepine
dependence, that made no difference to the outcome. Even accepting the account
recorded at Shellharbour Hospital, it was clear beyond doubt that Mr Sisko’s
employment was not only a substantial contributing factor to his injury (Major
Depression), it was the substantial contributing factor. Regardless of his “reservations”,
Dr Snowdon conceded as much. On any objective view, Dr Snowdon supported Mr
Sisko’s claim that his work with Woolworths caused his injury, namely, Major
Depression [189].
44.
It was only Mr Sisko’s anxiety symptoms that Dr Snowdon felt were not work related.
To the extent that those symptoms resulted from the Major Depression, and Dr
Westmore stated that “anxiety symptoms are very common in patients who are
depressed”, they are compensable. In the alternative, to the extent that the anxiety
symptoms resulted from narcotic and benzodiazepine dependence, and not from the
Major Depression, if the hospital records are accepted as being accurate, that
dependence resulted from stressful events at work [190].
45.
Even if it were found that Mr Sisko was dependent on narcotics and benzodiazepines
prior to 21 May 2009 that would not have prevented a finding in his favour [194].
Other matters
46.
The award was amended by consent to correct the errors in the determination with
respect to the award for weekly compensation from 19 November 2009 to 31
December 2012 (s 352) [195].
47.
As the appeal was determined in favour of Mr Sisko, the quantum of his entitlement to
weekly compensation from 1 January 2013 remained outstanding and was remitted for
determination [197].
18
Bishop v Camden District Hospital [2013] NSWWCCPD 40
Injury; causation; consequential loss; duty to state sufficient reasons for decision; factual
error
O’Grady DP
25 July 2013
Facts:
Ms Karen Bishop commenced employment with Camden District Hospital as a cleaner in
1994. It was not disputed that Ms Bishop received an injury to her lower back as a result of
her arduous duties on 6 May 2004. Sometime after, she returned to normal duties but
continued to experience disabling pain. From time to time she worked reduced hours or was
absent from work by reason of her continuing symptoms.
Ms Bishop’s back pain had increased since her injury in 2004 and her left leg would, from
time to time, “collapse”. She had settled a lump sum claim in May 2007 “on the basis of five
per cent whole person impairment” of her lumbar spine.
On 25 June 2011, Ms Bishop was walking on a concrete path to the clothes line at her home
when her left leg “gave way” causing her to fall. She injured her left foot and ankle. She did
not work since that fall by reason of ongoing incapacity.
Weekly compensation was paid by the employer’s insurer until 5 December 2011. It was
unclear why those payments ceased. Ms Bishop then made a claim for lump sum
compensation for permanent impairment in respect of the alleged consequences of the
lumbar spine injury and injury to the left lower extremity. That claim was declined.
An Application to Resolve a Dispute was filed with the Commission by Ms Bishop in July
2012, that sought orders with respect to payment of medical, hospital and rehabilitation
expenses and lump sums as earlier claimed. The respondent employer had admitted the
occurrence of the lumbar spine injury and the only matter in dispute was whether the injury
to the left lower extremity was “compensable”.
An award was entered for the respondent in relation to the claim for a consequential injury to
Ms Bishop’s left lower extremity. Ms Bishop was referred to the Registrar to have an AMS
assess additional WPI of her lumbar spine as a result of the injury of 6 May 2004.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a)
determining that there was no “causal link” between the injury received on 6 May
2004 and “the consequential left leg injury” received on 25 June 2011, and
(b)
failing to give “proper reasons” for his determination of the dispute.
Held: The Arbitrator’s determination was revoked in part.
Threshold matters
1.
The requirement as to time for making an appeal pursuant to s 352(4) was not met
[10]. No submissions opposing the appellant’s application for an order extending the
time for making the appeal were made by the respondent. It was inferred that a grant
19
of an extension would not give rise to relevant prejudice. It was noted that the delay
was in respect of one day only [15].
2.
The matters raised in the appeal had force and thus the interests of justice required,
that, notwithstanding the absence of proof of exceptional circumstances, an extension
of time for making the appeal was granted [16]. It was noted that absence of proof of
exceptional circumstances is not fatal to an application of this nature (Bryce v
Department of Corrective Services (NSW) [2009] NSWCA 188) [14].
Submissions, Discussion and findings
3.
When addressing the question of causation, the Arbitrator placed reliance upon that
stated by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35
NSWLR 452, in particular the statement by his Honour (at 463–464) that: “what is
required is a common sense evaluation of the causal chain” [58].
4.
The Arbitrator’s conclusion with respect to the issue of causation, as summarised by
the appellant in submission on appeal, was based on:
“(1) the length of time between the [back injury in 2004] and the event of 2011;
(2) the lack of recording of complaints of left leg giving way, and
(3) the medical evidence did not provide the necessary link in the causal chain.” [59]
5.
The appellant argued that the seven year interval “is an irrelevant consideration”. That
submission would not be made out if the Arbitrator’s conclusion as to proof of
causation after such an interval was reached following a proper evaluation of the
evidence and argument as advanced [61].
6.
Secondly, it was argued that prior to the fall in 2011, Ms Bishop reported the “giving
way” to two of her treating doctors. It was undisputed that such complaints had not
been recorded by those practitioners. It was argued that caution should be exercised
when regard was had to the content of records compiled by busy practitioners when
consideration is given to whether particular inferences should be drawn [66].
7.
The evidence did not establish when the “giving way” first allegedly occurred, however
it was clear by inference, upon acceptance of Ms Bishop’s evidence on this point, that
it had occurred “on several occasions” a number of years after the back injury [68].
8.
The real questions before the Arbitrator were whether the evidence of “giving way” on
the day of the fall should be accepted and, if so, whether, or not, the expert medical
evidence supported the existence of a causal nexus between the back injury and the
giving way of the leg [69].
9.
Thirdly, the appellant argued that the Arbitrator failed to give sufficient reasons for the
conclusion that the state, and force, of the expert evidence did “not provide the
necessary link in the causal chain” [70].
10.
The nature of the obligation upon an Arbitrator to provide sufficient reasons for
determination of a dispute is clear having regard to the provisions of s 294 of the 1998
Act and Pt 15 r 15.6 of the 2011 Rules. The nature of the obligation upon a judge to
provide reasons is also found in Beale v GIO of (NSW) (1997) 48 NSWLR 430 (at 442444) where Meagher JA there stated “reasons need not necessarily be lengthy or
elaborate” but “relate to the function to be served by the giving of reasons”, and that
20
such reasons should demonstrate that all the evidence had been considered and why
the relevant “findings of fact (and conclusions)” were made (at 443) [72].
11.
The Arbitrator recorded the competing submissions concerning the expert evidence.
Some detail of that evidence was noted in the course of that summary. However, there
was no deliberation concerning the arguments advanced, nor any evaluation made by
the Arbitrator of the expert evidence before reaching his conclusion. Such reasons
were not sufficient to discharge the obligation upon him concerning provision of
reasons. That failure to provide reasons constituted error, and for that reason alone
the decision had to be revoked on this appeal [73].
12.
Ms Bishop’s case was founded upon the proposition that the back injury of 2004 had
caused disc damage; with time that condition worsened and she developed radicular
symptoms. Those symptoms manifested as left sided sciatica which in turn caused
weakness and instability in that leg [80].
13.
Having considered the medical evidence, some of which had been overlooked or given
undue or too little weight by the Arbitrator in deciding the question as to whether
causation had been established, the Arbitrator was wrong to conclude that proof of
such had not been made out. The progressive nature of Ms Bishop’s discal damage as
demonstrated by the radiological studies, considered with the expert medical evidence
established that the Arbitrator had erred in drawing those inferences which led him to
his conclusion on this issue. [91]
14.
The fall suffered by Ms Bishop on 21 June 2011, and its consequences, resulted from
the injury received by her on 6 May 2004. [92]
21