State of New South Wales v Stokes [2014] NSWWCCPD 78

Psychological injury; reasonable action with respect to discipline; whether employer discharged onus of proof; s 11A of the 1987 Act; failure to comply with Practice Direction No 6

Roche DP

26 November 2014

Facts:

The respondent worker started work for the employer, as a nurse, at Royal Prince Alfred Hospital (the Hospital) in June 1991. The appellant was sued as Sydney Local Health District. As that entity is identified in Schedule 1 of the Health Services Act 1997, its correct legal identity is State of New South Wales and the pleadings were amended accordingly (State of New South Wales v Bishop [2014] NSWCA 354 at [26]–[28]).

From 2008, the worker experienced difficulties at work for which she was prescribed anti-depressant medication and obtained counseling. Following allegations of unprofessional conduct in 2009, the appellant developed a performance management plan.

On 13 July 2010, the worker was found collapsed in the Hospital after having injected herself with four ampules of intravenous Tramadol, which she had obtained from the Hospital (without authorisation). On 19 July 2010, the operational nurse manager wrote to the worker about the 13 July 2010 incident and issued a “first and final warning” due to breaches of the NSW Health Code of Conduct and failure to complete aspects of the performance management plan. The letter said further misdemeanors would result in immediate termination. The worker returned to work and continued her performance management plan. On 22 July 2010, the operational nurse manager wrote to her imposing additional requirements, including compliance with a random drug screening program for three months.

On 2 November 2010, it was alleged that, while working as a scrub nurse, the worker refused to check her instrument tray list with her scout nurse. The formal allegation arising from this incident was that she had not complied with NSW Health Policy PD2005_571 Operating Suite & Other Procedural Areas (the PD 571 incident). Following correspondence about the PD 571 incident, on 11 November 2010, as part of the additional requirements outlined in the letter of 22 July 2010, the worker provided a urine sample to be tested for the presence of drugs.

On 22 November 2010, without prior notice of the purpose of the meeting, the worker attended a meeting with the operational nurse manager, and another manager where she was advised that her urine test had come back positive for methadone. Despite requests to speak with the doctor involved and her continual denial that she had taken methadone, the operational nurse manager advised that she would be referred to the Nurses Registration Board. The worker said that she was devastated. She was put on long service leave. At a later date, she was told there was a mistake and it was a false positive reading for methadone.

On 2 March 2011, the operational nurse manager wrote to the worker about the PD 571 incident saying that the results of the investigation proved that the allegation could be substantiated and that she had been found to be in breach of NSW Health Policy. The letter referred to the “first and final warning” given in July 2010 regarding unprofessional behaviour in the workplace and failure to complete aspects of the performance management plan. On 30 November 2011, she was advised her employment would be terminated in five weeks.

On 25 January 2012, the worker commenced proceedings in the Industrial Relations Commission of New South Wales alleging that she was unfairly dismissed. Those proceedings were resolved by a Deed of Release which provided that the Hospital would convert her termination into a resignation and provide her with a statement of service.

On 1 November 2012, she filed a workers compensation claim in which she alleged that she suffered a “mental state” due to “ongoing episodes of intimidation harassment misrepresentation and bullying at the workplace…[c]ulminating in a false positive urine test for methadone…”. This claim was supported by evidence from Dr Jungfer, consultant psychiatrist, that the drug testing and its aftermath was one of the important factors that caused the worker’s psychological symptomatology. The employer disputed liability in a s 74 notice on the ground that her psychological injury was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline and/or transfer under s 11A of the 1987 Act.

The Arbitrator concluded that on and prior to 21 November 2010, the worker suffered psychological injury arising out of and in the course of her employment to which her employment was a substantial contributing factor. The Hospital did not establish the section 11A defence. The Hospital appealed. The issues in dispute were whether the Arbitrator erred in:

• finding that the appellant had not adduced evidence to establish that its action with respect to the drug test in November 2010 and its consequent actions were reasonable;
• failing to find that the appellant’s actions in respect of the drug test and the consequent actions were reasonable, and
• finding that the worker’s injury resulted from harassment, threats, bullying and intimidation by staff.

Held: The Arbitrator’s determination was confirmed.

Discussion and findings

1. Contrary to the appellant’s submission on appeal, the Arbitrator’s decision did not proceed on the assumption that the false positive was prima facie evidence of unreasonable action by the appellant. His decision proceeded on the (correct) basis that the appellant carried the onus of proof to establish its defence under s 11A. The Arbitrator’s reasoning was that to rely on the results of the drug test, in circumstances where the appellant did the testing (that is, the urine analysis), the appellant had to prove that its actions (with regard to the urine analysis and the meeting on 22 November 2010) were reasonable. It failed to do so [73].

2. The appellant carried the onus of proving that the testing (the urine analysis) was done reasonably and with proper safe guards to reduce or eliminate the risk of a false result. The appellant also carried the onus of proving that it was reasonable for it to act on the test results, despite those results later being shown to be false. The appellant did not take the Arbitrator to any evidence, and made no submissions about, these issues [75].

3. The reasonableness of an employer’s action is to be determined by the facts known to the employer at the time “or that could have been ascertained by reasonably diligent inquires” (Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255).Sackville AJA added, that, ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, “taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care” (emphasis added) [79].

4. The emphasised words in the preceding paragraph were particularly relevant in the present case because, first, a reasonable inquiry would have revealed that the test result was false, and, second, the appellant called no evidence that it made any inquiries about the accuracy of the drug analysis prior to the meeting on 22 November 2010 or that it exercised reasonable care in its handling of the test. The Arbitrator’s reference to the absence of evidence from the appellant was appropriate and disclosed no error [80].

5. The Arbitrator merely observed that the false positive “may” have resulted from gross negligence by the Hospital or been an unavoidable oversight. He did not know and he did not express a conclusion on the reasonableness of the appellant’s actions, other than to say that the appellant had not established its defence under s 11A. On the evidence, that approach was open and disclosed no error [83].

6. The Arbitrator accepted that the worker should have been told of the result (subsequently a false positive). However, whether the operational nurse manager’s comments to the worker were, at the time they were made, reasonable, depended on a “whole number of factors”. It was in this context that the Arbitrator raised a number of questions including, whether the appellant had previous false positives; whether it was best to wait for the second reading (before telling the worker the matter would be reported to the Nurses Registration Board); what the protocol was for dealing with this situation and whether the appellant follow that protocol. The Arbitrator correctly noted that the appellant tendered no evidence on these matters. It was appropriate, in the circumstances of this case, that the evidence address these matters. The fact that it did not was a proper matter that led the Arbitrator to conclude that the appellant had not established its defence. That disclosed no error [95]–[96].

7. The Arbitrator said that if the worker had had to prove she was the subject of harassment, threats, bullying and intimidation by staff, she would, on the evidence, not have succeeded. As she did not have to prove those matters, the Hospital’s submission that the events of 22 November 2010 were not, and could not, be characterised as “harassment, threats, bullying and intimidation” was irrelevant. Despite the worker not having to establish that they were, this did not relieve the appellant of the obligation of establishing its defence under s 11A (Department of Education and Training v Sinclair [2005] NSWCA 465; Commissioner of Police v Minahan [2003] NSWCA 239). The appellant had to prove that its actions were reasonable, which it failed to do, but also that those reasonable actions were the whole or predominant cause of the injury (the causation issue). The Arbitrator did not consider the “determining issue” to be the question of whether or not the appellant’s action on 22 November 2010 was reasonable. He also considered, consistent with the way the parties presented the case at arbitration, the causation issue [107]–[108].

8. In considering the drug testing (the urine analysis and its aftermath), the Arbitrator determined that the appellant had not established that its actions with respect to it were reasonable. He said it was fairly clear, even discounting the worker’s evidence to some extent, that the drug testing contributed to her psychological injury, which had been admitted by the appellant. The Arbitrator’s reference to the appellant’s admission was to an admission of injury, not to an admission as to the cause of the injury. He also noted that the worker was “devastated” when told of the positive test and he referred to Dr Jungfer’s evidence that the drug testing was one of the important factors that caused her psychological symptomatology. Those statements were open on the evidence [115].

9. In these circumstances, the Arbitrator was unable to accept that the parts of the appellant’s disciplinary procedures that were reasonable were the whole or predominant cause of the psychological injury. In other words, the appellant had failed to discharge the onus of proof on the causation issue in s 11A. That approach and conclusion was consistent with the evidence and disclosed no error [118].

Diab v NRMA Ltd [2014] NSWWCCPD 72

Hospital and medical expenses under s 60 of the 1987 Act; whether knee surgery was reasonably necessary as a result of accepted work injuries; causation; meaning of “reasonably necessary”; Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 discussed and explained in light of Clampett v WorkCover Authority (NSW) [2003] NSWCA 52; 25 NSWCCR 99; failure to draw compelling inferences; requirement for an expert to explain his or her opinion

Roche DP

10 November 2014

Facts:

The appellant worked for the respondent employer as a road service patrol officer. It was not disputed that he injured his left knee in the course of his employment with the respondent on several occasions, but the nature of the injury and the need for surgery as a result of injury was disputed.

The first injury was on 3 January 2005 when the worker twisted his left knee while getting out of a low vehicle and he felt “acute and debilitating pain” in his knee. He saw his general practitioner who referred him for physiotherapy. Though he remained at work, on light duties and then on full duties, he experienced intermittent symptoms in his knee.

In or about April 2012, he again twisted his left knee while getting out of his vehicle to assist an NRMA member. He felt pain and clicking in his knee and reported it to the respondent. His general practitioner referred him to Dr B Fritsch, orthopaedic surgeon, who referred the worker for an MRI scan. Dr Fritsch reported that the meniscus tear could occur acutely, with a simple twisting motion and it was not possible to determine when the tear occurred.

On 25 August 2012, the worker slipped on a patch of oil. He landed on his right shoulder and aggravated the pain in his left knee. On 13 September 2012, the worker saw Dr Fritsch again who advised the respondent that treatment for the meniscal tear would be an arthroscopic partial meniscectomy, the worker had been “struggling” since April 2012 and his knee was getting worse. He did not believe the knee would settle without surgery.

On 2 November 2012, the worker saw an orthopaedic surgeon, Dr Rimmer, qualified by the respondent’s insurer, who stated that (after the first injury) the worker’s symptoms had resolved, contrary to the worker stating that, between the first injury and April 2012, he had “recurrent similar episodes”. Dr Rimmer concluded that the tear of the lateral meniscus was not work related and did not consider the surgery to be “reasonably necessary or related to the 2005 injury”. Based on this report, the insurer disputed liability in a s 74 notice dated 23 November 2012.

On 6 December 2012, the worker saw Dr Leonard Kuo, orthopaedic surgeon, who took a history of the 2005 injury and of the worker’s continuing problems. Dr L Kuo said the worker required an arthroscopic assessment to assess the lateral meniscus.

In an Application filed in the Commission on 28 March 2013, later amended, the worker claimed weekly compensation from 11 December 2012 to 30 June 2013 (the period required to recover from the surgery and its complications), plus $2,977.50 (plus “Medicare notice of charge”) for the hospital and related expenses associated with his knee surgery and the subsequent complications. Relying on the opinion of Dr Rimmer in his report of 2 November 2012, the insurer disputed liability for the claim.

The parties agreed the only issue in dispute was whether the cost of medical treatment was reasonably necessary as a result of the accepted injuries to the worker’s left knee. If the worker succeeded on that issue it was agreed that he was entitled to weekly compensation, though the amount of that compensation and the exact period was not agreed. The Commission referred that question to an AMS, Dr Ian Meakin, who concluded that tear of the anterior horn of the worker’s lateral meniscus was a “constitutional matter” and that the surgery was not reasonably necessary by reason of the accepted work injuries.

On 23 May 2014, Dr Bodel, orthopaedic surgeon, examined and reported on the worker at his solicitors’ request. Dr Bodel felt there was a direct causal link between the episodes of injury at work and the worker’s “ongoing pathology in the left knee” and that the arthroscopic treatment was reasonable and necessary for the injury the worker suffered at work which was confirmed clinically by Dr L Kuo and on MRI scan.

The Arbitrator concluded that the evidence from the worker’s treating surgeons was “lacking” because neither Dr Fritsch nor Dr L Kuo opined that the surgery performed by the latter was reasonably necessary as a result of injury arising out of or in the course of the worker’s employment. She found the evidence from Dr Meakin and Dr Rimmer to be “persuasive”. The Arbitrator did not find Dr Bodel’s evidence persuasive because he provided no reason for his opinion, other than confirming the injury found clinically by Dr L Kuo and on MRI, and that the arthroscopy confirmed a surgically treatable tear of the lateral meniscus. In addition, Dr Bodel did not address the opinions of Dr Rimmer and Dr Meakin that the tear was constitutional and not related to the injury.

The Arbitrator concluded that the surgery was not reasonably necessary as a result of the pleaded injuries. It followed that, as the time off work was directly related to the surgery, the worker had no entitlement to weekly compensation. The worker appealed.

Issues in dispute

The issues in dispute in the appeal were identified to be whether the Arbitrator erred in:

• finding that the evidence from Dr Fritsch and Dr L Kuo was “lacking” (evidence from Dr Fritsch and Dr L Kuo);
• ignoring the materially relevant evidence that the worker benefitted from the surgery, and
• preferring the opinion of Dr Rimmer when his conclusion was based on an opinion that was against the weight of the evidence.

Held: The appeal was successful. The Arbitrator’s determination of 22 July 2014 was revoked and the matter was remitted to a different Arbitrator for determination of all outstanding issues.

Evidence from Dr Fritsch and Dr L Kuo

1. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock)) [41].

2. Though Dr Fritsch did not use the s 60 terminology, and did not expressly say the need for surgery was related to the injuries, the reasonable inference was that he held that view. The Arbitrator erred in failing to draw that inference. While it was unfortunate that Dr Fritsch did not express himself in the terms of the legislation, it was not fatal. Contrary to the Arbitrator’s conclusion, his evidence was not “lacking” [48].

3. It was no answer to Dr Fritsch’s evidence to say, as the Arbitrator did, that it would have been a simple matter for the worker to have sought an opinion from Dr Fritsch on whether the meniscal tear occurred as a result of the work injuries. The doctor’s evidence had to be assessed on the reports presented. When that evidence was properly considered and assessed, the one conclusion open was that Dr Fritsch supported the connection between the injuries and need for surgery. If there were any doubt, he added that he did not think that the worker’s condition would settle without surgical intervention [49].

4. The Arbitrator acknowledged that Dr Fritsch said a meniscus tear could occur acutely, with a simple twisting motion. However, she failed to acknowledge the significance of the evidence that the worker felt something “snap” inside his knee in 2005, the evidence of continuing symptoms and evidence of further twisting incidents in the course of his employment. This evidence, considered with the MRI scan, supported the conclusion the worker suffered a meniscus tear in one of his work injuries [50].

5. The same conclusion applied to Dr L Kuo’s evidence. He also took a generally accurate history of the 2005 injury and that the knee did not return to “normality” after that injury. Though he did not have a specific history of 2012, he did have a history that the worker noticed a recurrence of symptoms in the 12 months up to December 2012 and had had three episodes of locking as he got out of his vehicle [51].

6. Like Dr Fritsch, Dr L Kuo found the worker to have a positive McMurray’s test. He noted that the MRI scan demonstrated a tear involving the anterior horn of the lateral meniscus. Dr L Kuo concluded that the worker “require[d] an arthroscopic assessment to assess the lateral meniscus” and, if the tear was confirmed, it should be “resected”. The surgery confirmed the presence of the tear, which he resected. The worker gave evidence that since the surgery his condition had improved [52].

7. Thus, based on Dr L Kuo’s history, his findings on examination, and the investigations, he said that surgery was “require[d]”. The only reasonable inference from Dr L Kuo’s evidence was that he believed the surgery to be necessary (though he used the word “require[d]”) to treat the worker’s condition, which had, on the history he took, been caused by the work injuries.  Whilst Dr L Kuo did not expressly say the surgery was reasonably necessary as a result of the injuries, that was the compelling and logical inference from his evidence. The Arbitrator erred in not drawing that inference [53]–[54].

8. The absence of any comment by Dr Fritsch or Dr L Kuo on Dr Meakin’s opinion did not justify the Arbitrator’s statement that their evidence was “lacking”. While their failure to comment on Dr Meakin’s opinion may have been a factor to consider when weighing the evidence overall, that is not what the Arbitrator did. She effectively, but erroneously, dismissed their evidence as having no weight [55].

9. It follows that the Arbitrator erred in stating that the evidence from the treating surgeons was “lacking”. It was clear that this error affected the outcome. This followed from the Arbitrator’s statement that “[i]n the absence of any definitive opinion from either treating specialist” she was left (only) with the opinions from the qualified specialists. As the Arbitrator also rejected the evidence from Dr Bodel, that only left the evidence from Dr Rimmer and Dr Meakin, which the Arbitrator accepted [56].

Dr Bodel’s evidence

10. The Arbitrator erred in saying Dr Bodel provided no reason for his opinion that surgery was “reasonable and necessary”. Consistent with Hancock, Dr Bodel set out the history from the worker, his findings on examination, and the findings in the MRI scan of a torn meniscus and the findings at arthroscopy before concluding that the diagnosis was a “tear of the lateral meniscus” and there was a “direct causal link” between the episodes of injury and pathology in the left knee [68]–[69].

11. Allowing for the fact that Dr Bodel applied an incorrect (but more demanding) test (“reasonable and necessary”) rather that the correct test of “reasonably necessary”, his evidence satisfied his obligation to explain the basis for his conclusion [70].

12. What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157). As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated” [71]–[72].

13. Applying the above authorities, Dr Bodel’s explanation for his opinion comfortably satisfied the requirement that he explain the basis for his conclusion and the Arbitrator erred in rejecting his evidence on the ground that he had not [73].

Conclusion on error

14. The error with respect to Dr Bodel’s evidence, along with the error in saying that the evidence from the treating specialists was “lacking”, affected the outcome because it meant that the Arbitrator wrongly assessed the dispute on the basis that the worker had no relevant evidence in support of his claim. The matter had to be re-determined. It followed that it was not necessary to consider the other grounds of appeal. In the event that relevant error was established, the parties consented to the Deputy President re-determining the matter [74]–[75].

15. In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged that, contrary to Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) and Pelama Pty Ltd v Blake [1988] NSWCC 6; 4 NSWCCR 264, Clampett v WorkCover Authority (NSW) [2003] NSWCA 52; 25 NSWCCR 99 (Clampett) the word “reasonably” was “effectively used as a diminutive and moderated the effects of the word ‘necessary’” [84].

16. Reasonably necessary does not mean “absolutely necessary” (Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445). If something is “necessary”, in the sense of indispensable, it will be “reasonably necessary”. That is because reasonably necessary is a lesser requirement than “necessary”. Depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is “reasonable and necessary”, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test [86].

17. Giles JA added (in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that “the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement”. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett [87].

18. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:

• the appropriateness of the particular treatment;
• the availability of alternative treatment, and its potential effectiveness;
• the cost of the treatment;
• the actual or potential effectiveness of the treatment, and
• the acceptance by medical experts of the treatment as being appropriate and likely to be effective [88].

19. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts [89].

20. While the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; 15 NSWCCR 204). Thus, it is not simply a matter of asking, as was suggested in Bartolo v Western Sydney Area Health Service[1997] NSWCC 1; 14 NSWCCR 233, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression “no reasonable prospect” should be understood, “[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content” [90].

Conclusion on the re-determination

21. The appeal was successful. Considering the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22) taken together with the expert evidence, the compelling conclusion was that the worker’s surgery was reasonably necessary as a result of his accepted work injuries. As the parties could not agree on the exact period of the claim, or the appropriate wage rates, it was appropriate that all outstanding matters be remitted to a different Arbitrator for determination [117]–[118].

Forestry Commission of New South Wales t/as Forests NSW v Graham [2014] NSWWCCPD 73

Section 4 of the 1987 Act; causation of injury; standard of proof; relevance of principles stated in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; 50 ALJR 720

O’Grady DP

11 November 2014

Facts:

The worker was employed by Forestry Commission of New South Wales t/as Forests NSW (the appellant) as an Information Officer between 1999 and 2011. She alleged that she received injury in the course of that employment following her transfer to premises known as building B at the appellant’s West Pennant Hills facility. That transfer occurred in March 2010 and the worker was provided with a work station on the ground floor of that building.

In May 2011, the worker completed an “Incident Recording” which concerned her alleged injury. That report essentially described the “incident cause” as long term exposure to electromagnetic fields (EMF) and long term exposure to noise over a 12 month period, including concern over the air conditioning unit so close to the worker.

The worker consulted Dr Poulos, a general practitioner, in May 2011 who issued a WorkCover NSW Medical Certificate which certified her unfit for work between 19 May 2011 and 26 May 2011. That certificate particularised the manner in which the injury occurred as “sitting near to capital equipment noisy vibrations”. The diagnosis was “tinnitus, cephalgia, vertigo, visual issues”. The management plan proposed by Dr Poulos suggested that the worker “move away from current work station to quiet setting”.

On 3 June 2011, the worker presented a Workers Compensation Claim Form to the appellant and its insurer. The “injury details” provided in that form were “sitting at my desk answering the phone”. That claim form particularised injury to “head, ears, heart, nose”.

Whilst the appellant’s insurer accepted provisional liability, following the worker’s acceptance of voluntary redundancy, liability was denied in a s 74 notice where it disputed that the worker suffered a workplace injury and that EMF caused adverse health effects.

The worker has not returned to employment since compensation payments ceased. A dispute arose concerning her entitlement to ongoing weekly payments and proceedings were commenced in the Commission. The worked alleged the injury was “tinnitus, vertigo, nausea, visual disturbance and headaches”, which had occurred by reason of “chronic exposure to electric and magnetic resonance”.

The matter was listed before an Arbitrator who made a finding that Ms Graham suffered an injury within the meaning of s 4 of the the 1987 Act and that her employment was a substantial contributing factor to that injury within the meaning of s 9A of the 1987 Act.

The issues in dispute on appeal concerned whether the Arbitrator erred in:

• finding the plaintiff suffered injury arising out of or in the course of employment;
• finding that the applicant’s treating general practitioner had diagnosed the plaintiff with an injury;
• finding that there was a temporal connection between the symptoms of tinnitus, vertigo, nausea and headaches and injury arising out of or in the course of employment;
• finding that exposure to ELF radiation and noise emitting from the air conditioning units was an exposure capable of causing injury;
• failing to have regard to expert evidence of Doctors Scoppa, Rosen and Williams to the effect that the plaintiff had not suffered any injury, and
• finding that Dr Poulos, general practitioner:
  • was of the view that the plaintiff’s employment caused injury to her, and
  • if he did so, held appropriate expertise to offer such opinion.

Held: Appeal allowed. The findings and orders made by the Arbitrator were revoked. The matter is remitted for hearing afresh by another Arbitrator.

The appellant’s challenge to the Arbitrator’s finding of injury

1. The appellant challenged the Arbitrator’s finding of injury. The Arbitrator misstated, to an extent, the argument advanced which placed reliance upon Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch). The Arbitrator’s description of the argument appeared not to reflect the issue in the present matter but rather that raised in Semlitch, that is, aggravation etc. of a disease occasioned by “some incident or state of affairs to which [the worker] was exposed in the performance of her duties, and to which she would not otherwise have been exposed” (Semlitch). The appellant correctly asserted that Semlitch is not authority which supports “the proposition that the presence of symptoms [at work] can in certain circumstances be sufficient to establish injury” [73]–[74].

2. Ultimately, the Arbitrator erred in two respects. Firstly, he misstated the argument advanced by treating the injury alleged as being an aggravation of a disease (s 4(b)(ii) of the 1987 Act). Secondly, having found merely a temporal nexus between the manifestation of symptoms and attendance at work, he had found injury caused by the exposure alleged, in circumstances where the issues, as stated by Mason J in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; 50 ALJR 720 (Fernandez) “stand outside the realm of common knowledge and experience” (at 724E) (see also observations by Herron CJ in EMI (Australia) Ltd v Bes [1970] WCR114 (Bes))  [78].

3. The technical or scientific issues raised by Ms Graham’s allegations concerning noise and EMF exposure required something more than mere proof of a temporal connection between attendance at work and the onset of symptoms to permit a finding of injury within the meaning of s 4 of the 1987 Act. It followed that the worker’s submissions on appeal that “this is the very type of case in which the existence of the injury is established by the symptoms as the possible causation of the injury and its pathology is not well understood” were rejected [79].

4. Having regard to the state of the evidence, the substantive issue before the Arbitrator was the question of the standard of proof as to causation. Such proof may or may not be made out by the evidence presently before the Commission. Regrettably that issue had little attention in submissions either before the Arbitrator or on appeal. That standard is conveniently to be found in the statements of Herron CJ in Bes (at 119) where the following appears:

...it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable.

5. Whilst the Arbitrator touched upon the subject of the standard of proof in the course of his Reasons, his reference to the decision of Fernandez was not accompanied by any analysis of the evidence leading to any relevant conclusion on the issue of causation. The Arbitrator noted that counsel appearing on behalf of the worker placed reliance upon the decision of Fernandez, however the Deputy President’s examination of the transcript did not reveal such reference. The only mention as recorded was made by the Arbitrator during exchanges with the appellant’s then counsel. The absence of any other reference to that decision may well be explained by the fact that the transcript is not complete, given the frequent notations found that the sound recording was “not transcribable” [81].

6. The matters raised required that the Arbitrator’s decision be revoked on this appeal. That circumstance had the consequence that there was no need to consider the other complaints raised by the appellant each of which addressed the issue of injury [82].

Rushbrook v Alan James Biggs t/as A J Biggs Used Cars [2014] NSWWCCPD 75

Claim for cost of hearing aids; meaning of “any treatment, service or assistance” in s 59A of the 1987 Act

Roche DP

17 November 2014

Facts:

The issue in this appeal was whether the cost of hearing aids came within the expression “any treatment, service or assistance” in s 59A. As the Arbitrator found they did, the worker was not entitled to recover the cost of those aids because he did not come within any of the exceptions in that section.

The appellant worker worked for most of his working life as a panel beater. As a result of that work, he developed industrial deafness, a loss of hearing of such a nature as to be caused by a gradual process (s 17 of the 1987 Act).

On 20 December 2013, an AMS certified that the worker suffered a 13.5 per cent binaural hearing loss. It was agreed that the respondent, Alan Biggs, was the last employer to employ the worker in employment to the nature of which his deafness was due and that the worker was entitled to permanent impairment compensation for his loss of hearing. In addition to claiming permanent impairment compensation, the worker also claimed compensation under s 60 of the 1987 Act for $4,376.15, being the cost of hearing aids. It was not disputed that the hearing aids were reasonably necessary as a result of his industrial deafness.

The respondent disputed liability on the ground that, as more than 12 months had passed since a claim for compensation was first made, the worker’s entitlement to compensation for medical treatment, and therefore for the cost of hearing aids, was extinguished by s 59A.

The parties agreed that, by operation of various transitional and savings provisions, the claim for compensation was deemed to have been made immediately before 1 January 2013. On appeal, the parties also agreed that the amendments introduced by the Workers Compensation Amendment (Existing Claims) Regulation 2014 did not apply.

The worker’s counsel argued that s 59A did not apply because hearing aids are an “artificial aid” or “curative apparatus” (see s 59(d) and (e)) and are not “treatment, service or assistance” within s 59A(1).

The Arbitrator held that the “treatment, service and assistance” an employer is liable to pay under ss 60 and 60AA is the same treatment, service and assistance referred to in s 59A. He said that the words “any treatment, service or assistance” encompass all the medical treatment for which an employer may be liable under Div 3 of Pt 2 of the 1987 Act and that the treatment for which an employer is liable includes “medical and related treatment”. The Arbitrator therefore concluded that s 59A applied and, as more than 12 months had passed since the date on which the claim for compensation was made, Mr Rushbrook was not entitled to compensation for the cost of hearing aids.

The worker appealed the Arbitrator’s finding and determination. The issues in dispute in the appeal were whether the Arbitrator erred in:

• finding that s 59A applies to the provision of hearing aids, and
• finding that the reference to “treatment, service or assistance” in s 59A has the same meaning as “that treatment or service” in s 60(1).

Held: The Arbitrator’s determination was confirmed.

Discussion and findings

1. Considering the words in s 59A, without regard to the context in which they appear, the submission that hearing aids do not fall within the usual meaning of “any treatment, service or assistance” was not accepted. Leaving aside “treatment”, which does not seem to cover the provision of hearing aids, the Macquarie Dictionary, 2^nd ed, defines “service” as, among other things, “the supplying or supplier of any articles, commodities, activities, etc, required or demanded” and “assistance” as “the act of assisting; help; aid” [44].

2. Thus, considering the text of the legislation, without regard to the context in which the words appear, or the definitions in s 59, s 59A prevented the worker from recovering compensation for hearing aids. Applying the normal meaning of the words used in s 59A, hearing aids are obviously a “service” to or “assistance” for a person with impaired hearing. In other words, hearing aids comfortably fall within the normal grammatical meaning of “any treatment, service or assistance” [45].

3. Acknowledging the limitations on the use of dictionary definitions to determine the meaning of legislation (Films and Casting Temple v Malla [2013] NSWCA 377), the better approach was to consider the words in context. This approach lead to the same conclusion, but for different reasons [46].

4. Section 59A expressly applies to compensation “under this Division” (Div 3). The compensation payable under Div 3 is identified in ss 59, 60 and 60AA. As the Arbitrator noted, compensation in Div 3 falls into three broad categories: treatment, service and assistance. Section 60(1) provides that an employer is liable to pay for the cost of “that treatment or service” and s 60AA provides that, in the circumstances identified, the employer is liable to pay for the cost of “domestic assistance” [47].

5. The submission that the reference to “that treatment or service” in s 60 must be a reference back to “medical or related treatment”, which term is defined in s 59, did not assist the worker’s position. The submission was wrongly based on the assumption that the term “medical or related treatment” in s 59 must, because it is defined, have a different meaning to “any treatment” (emphasis added) in s 59A. Given the context in which the words in s 59A appear in the legislation, and the purpose of Div 3 overall, namely, the provision of compensation for “medical, hospital and rehabilitation expenses etc”, there is no logical reason why that should be so [48]–[49].

6. The words “any treatment, service or assistance” in s 59A clearly “relate back” to the defined terms. The whole of Div 3 is directed to the payment of compensation for treatment, service or assistance. Therefore, when read in context, the phrase “any treatment” must relate to “medical or related treatment” as defined in s 59 and it does not matter that the words “medical or related” do not appear in s 59A. As medical or related treatment includes “artificial aids”, s 59A applies to the worker [51].

7. The duty of a court is to give the words of s 59A the meaning that the legislature “is taken to have intended” them to have. The legislature’s intention is a reference to the intention manifested by the words used in the legislation (Saeed v Minister for Immigration and Citizenship [2010] HCA 232). The intention of s 59A, manifested by the words used, is clear. It is to restrict the recovery of compensation under Div 3. “Any treatment” in s 59A includes “medical or related treatment” as defined in s 59 [52].

8. Reading s 59A in context, and having regard to the purpose of the section, as gleaned from the legislation, the clear meaning of “any treatment” includes medical or related treatment. This construction provides “coherence in the law” (Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34). It construes the provisions so they are “consistent with the language and purpose of all the provisions of the statute” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28). It followed that the Arbitrator did not err in his conclusion. His decision was confirmed. [57].

Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76

Jurisdiction of the Commission to make award where liability conceded at the arbitration; alleged denial of procedural fairness; alleged failure to give reasons; incorrect wage rate; application of the slip rule; power to correct an “obvious error” in Certificate of Determination or statement of reasons; ss 105, 288, 289, 289A and 294(3) of the 1998 Act

Roche DP

18 November 2014

Facts:

The respondent worker alleged that he injured his back while driving a straddle crane in the course of his employment with Patrick Stevedores on two separate occasions at work, on 17 December 2012 and 31 May 2013.

The injuries were reported and the insurer accepted liability and commenced payments of weekly compensation. A CT scan on 4 June 2013 showed a small central protrusion at L4/5; an MRI on 23 July 2013 revealed an annular tear at L4/5, and a discogram on 3 December 2013 showed an abnormality at L4/5 with pain reproduction at that level.

Spinal surgery (a lumbar fusion) was recommended and approval was sought for the surgery from the appellant’s insurer.

On 28 January 2014, the worker saw Dr Vidyasagar Casikar, neurosurgeon, at the request of the insurer. In a report dated 29 January 2014, Dr Casikar said that as there had been “no specific work related injury”, the recommended treatment was not “directly related to his employment” and was therefore not compensable. Dr Casikar diagnosed the worker to have non-verifiable symptoms that could have developed irrespective of his employment. Dr Casikar said that he did not believe the worker’s employment was the main contributing factor to his presentation. (This is not the test in the legislation as it applied to this injury.)

Relying on Dr Casikar’s report, Allianz denied liability for the claim in a s 74 notice dated 19 February 2014 and advised weekly compensation payments would stop from 5 March 2014, as the worker had not sustained a workplace injury for which compensation was payable.

On 8 April 2014, the worker’s solicitors filed an Application in the Commission claiming weekly compensation of $1,507 from 6 March 2014 to date and continuing, together with a general order for hospital and medical expenses plus a specific order for the cost of the proposed disc replacement surgery. On 22 April 2014, the employer’s solicitors filed a Reply that relied on the grounds identified in the s 74 notice.

On 16 June 2014, the Senior Arbitrator remitted the matter to the Registrar for referral to an AMS for a non-binding opinion on whether the proposed spinal surgery was reasonably necessary as a result of the injury, and listed the matter before herself for conciliation and arbitration on 21 August 2014.

On 30 July 2014, the AMS, Dr Robert Breit, issued a MAC. After taking a history, reviewing the radiology, and examining the worker, Dr Breit diagnosed an L4/5 disc lesion – annular tear. Dr Breit correctly noted that despite Dr Casikar’s history, there were two clearly documented events. He felt the proposed surgery was “both reasonable and necessary as a result of the injury”. The question in s 60 is whether the treatment is “reasonably necessary” because of the injury, not the more demanding test of “reasonable and necessary”.

At the arbitration, in light of the MAC, the employer’s solicitor noted that the employer would pay for the future surgery. The solicitor further submitted that since the employer had agreed to pay the entirety of the claim, its intention was to withdraw the s 74 notice which meant there was no dispute before the Arbitrator and accordingly the Commission had no jurisdiction to make any orders.

The Senior Arbitrator said she found no authority to suggest that a party has “an entitlement” to withdraw a s 74 notice, nor an authority to say that a party does not (have that entitlement). She determined that she had jurisdiction and pursuant to s 37, awarded the worker $1,903.70 per week from 6 March 2014 to date and continuing and ordered the respondent pay for the costs of surgery in accordance with the MAC pursuant to s 60.

On 15 September 2014, the employer appealed .The issues in dispute in the appeal were whether the Senior Arbitrator erred in:

• failing to give any or any adequate reasons (reasons);
• the determination and calculation of the rate of weekly compensation (rate of weekly compensation);
• determining that the Commission had jurisdiction (jurisdiction), and
• denying Patrick Stevedores procedural fairness (procedural fairness).

Held: The appeal was unsuccessful. As requested by the worker’s solicitor and conceded by the employer’s solicitor, the correct rate of weekly compensation is $1,507 and the award was corrected under the slip rule.

Jurisdiction

1. The Commission does not have inherent jurisdiction but only such powers that are incidental and necessary to the exercise of its statutory jurisdiction (Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley [2006] NSWCA 235). However, under s 105(1) of the 1998 Act, the Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under” the 1998 Act and the 1987 Act [55].

2. That jurisdiction is not removed when one of the parties concedes that the matters previously disputed are no longer in dispute. If that were correct, the Commission would not have power to make consent orders after the parties have agreed to settle a claim. That would be because the parties having reached agreement, there would no longer be any dispute and no jurisdiction for the Commission to make orders. That is not correct [59].

3. Once the Commission has jurisdiction, by virtue of one or other of the avenues identified in s 289, it has power to determine that dispute by issuing a Certificate of Determination (s 294 of the 1998 Act). In the alternative, if the parties to proceedings in respect of a dispute agree as to the terms of an order to be made determining that dispute, and that order is an order that the Commission has power to make, the Commission may determine the dispute by making that order by consent (Pt 15 r 15.9 of the 2011 Rules) [60].

4. In the present case, the serving of the s 74 notice dated 19 February 2014 triggered a dispute between the parties. Thus, the Commission was properly seized of jurisdiction to hear and determine the worker's claim. The worker did not wish to discontinue his claim and accept voluntary payments of compensation, as the employer was attempting to force him to do. He asked for orders in his favour. The Commission had jurisdiction to make those orders [61].

Reasons

5. The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725). The obligation to give reasons is related to and dependent upon the submissions presented to the judicial officer. There is no need to give reasons for accepting concessions by counsel or to give reasons rejecting submissions never put (Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34 (Djuric)) [69].

6. In the present case, based on the MAC, the employer’s solicitors conceded liability for the proposed surgery and for weekly compensation and conceded that there was no longer any dispute. Specifically, he said, “we now agree to pay the entirety of the claim”. That concession carried with it clear admissions that the worker had received a compensable injury in the course of or arising out of his employment, that he was incapacitated as alleged and that the proposed surgery was reasonably necessary as a result of his accepted injury. As in Djuric, it was not necessary for the Senior Arbitrator to give detailed reasons for accepting those concessions. The worker did not make, or seek to make, any submissions on the “issues” in the s 74 notice and the Senior Arbitrator did not need to deal with those “issues”. On the no jurisdiction argument, the Senior Arbitrator exposed her reasoning and articulated the essential ground on which she based her decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) [70].

7. In the circumstances, these reasons were more than adequate to deal with an issue that was without merit and unsupported by authority or reference to the legislation [72].

Procedural fairness

8. Having regard to the legal context in which the Commission operates, the circumstances of the case, including the admissions by the employer’s solicitor, it was not open to suggest that the employer suffered any practical injustice in the way the matter proceeded. This ground of appeal was rejected [81].

9. If it was thought that the employer was denied the opportunity to make submissions, and that that amounted to an error, the error made “no possible difference to the result” (Stead v State Government Insurance Commission [1986] HCA 541). That is because, on any objective view of the evidence, the employer did not have a case to put. The evidence overwhelmingly supported the worker and the insurer should never have denied the claim [82].

Cypress Resort Management Pty Limited v Teasdale [2014] NSWWCCPD 77

Alleged error of law; suggested absence of evidence permitting finding of injury; alleged error of fact; weight of evidence; availability of inferences drawn from the evidence

O’Grady DP

25 November 2014

Facts:

The respondent worker was employed as a housekeeper with the appellant in 2005. On 19 October 2008, whilst in the course of her employment, she received injury when a heavy laundry bag was dropped from a height, which then struck her on the right arm and shoulder.

Due to pain, she was unable to complete her shift. She sought treatment at Cessnock Hospital, following which she was absent from work for five weeks. She consulted her general practitioner, Dr David McQueen, who referred her to a physiotherapist for treatment. She returned to work on light duties and received treatment thereafter. Due to persisting pain, she was referred to Dr Donald Osborne, orthopaedic surgeon. On 30 November 2009, she underwent arthroscopic acromioplasty decompression of her right shoulder. She was absent from work until 20 February 2010 when she returned, performing suitable duties and completing rehabilitation. The appellant was prepared to retain her, however, by reason of pain, she ceased that employment in August 2010.

On 27 September 2013 a claim was made on behalf of the worker by her solicitors against the appellant for lump sum compensation in respect of alleged permanent impairment resulting from injury to her cervical spine and right shoulder. The appellant did not dispute the injury to her right shoulder but disputed her allegation of injury to the cervical spine.

The dispute concerning the worker’s entitlement to lump sum compensation was the subject of an Application filed with the Commission in April 2014. That application, as amended, sought orders pursuant to s 66 of the 1987 Act.

The matter came before an Arbitrator on 14 August 2014 at which time the matter proceeded to hearing. The Arbitrator made findings that the worker had received an injury to her right shoulder and to her neck as a result of the incident which occurred on 19 October 2008.

The employer appealed. Despite a lack of precision in articulating the grounds, the appellant challenged the Arbitrator’s factual finding as to injury to the neck and asserted that an error of law was committed by the Arbitrator in failing to comply with the requirement that evidence relied upon in reaching factual conclusions should be “logical and probative” (Rule 15.2 of the 2011 Rules). The appellant also challenged the Arbitrator’s reasoning process when addressing the worker’s evidence upon the basis that the history, recorded by Dr Spittaler, consultant neurosurgeon, on which the worker relied, was “erroneous”. The submissions in support of the grounds relied upon represented a re-statement of argument as advanced before the Arbitrator.

Held: The appeal was unsuccessful and the Arbitrator’s findings were confirmed.

Challenge to the finding of injury to the neck

1. The appellant’s arguments concerning the Arbitrator’s finding as to injury raised the following questions:

• had the Arbitrator erred in law in accepting the evidence of Dr Spittaler?
• had the Arbitrator erred in law in failing to abide by the principles that evidence should be logical and probative? [54]

2. The two questions raised immediately above were necessarily inter-related. Having regard to the reasoning of McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421 (Edmonds), there was a need to determine whether Dr Spittaler’s evidence was “logical and probative” and whether his opinion as to the aggravation of spondylosis was a mere “ipse dixit”, in the sense that expression was used by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705. A consideration of these matters would permit a conclusion as to whether or not Dr Spittaler’s opinion, adopting the words of McColl JA in Edmonds, “offered no evidentiary support for the Arbitrator’s conclusion [as to injury]” [55].

3. The criticism of Dr Spittaler’s evidence was founded upon the assertion that he had recorded and relied upon an incorrect history. That error consisted of a notation made by Dr Spittaler that the worker, at the time of the work incident, “experienced immediate right shoulder pain which radiated into the neck” [56].

4. Upon an acceptance that the history as recorded is incorrect, the Arbitrator was required to determine whether any weight should be ascribed to the opinion expressed. The Arbitrator did not err in failing to reject the evidence of Dr Spittaler. The erroneous history, having regard to the evidence before the Arbitrator as a whole, did not have the consequence, as seems to be argued, that the evidence of Dr Spittaler was of no evidentiary value at all [57].

5. Dr Spittaler’s opinion was founded upon matters other than the history, including correct detail concerning the significant shoulder injury, and the history of its treatment, his physical examination of the worker which revealed restriction of movement of the neck to the right and the recorded increase in neck pain, as well as the findings of the MRI conducted in November 2010 [58].

6. Whilst the Arbitrator’s reasons were somewhat terse, it was clear that the inference drawn by him, from the evidence as a whole, was that the worker having received significant injury to her shoulder, failed, reasonably in the Arbitrator’s view, to recognise the separate and distinct injury to the neck until a time after the shoulder surgery conducted by Dr Osborne. Such inference was open to be drawn by the Arbitrator, and the appellant’s assertion that the “absence of symptoms” was fatal to the claim was rejected. No factual error as to the occurrence of injury was made out [64].

Challenge to the Arbitrator’s finding concerning s 9A of the 1987 Act

7. The Arbitrator accepted that the worker “was asymptomatic prior to [the work incident]”. Her work involved the physical demands of house-keeping, which she performed until that incident. Having accepted that the evidence established that the worker suffered an exacerbation of a degenerative condition in her cervical spine as a result of the blow to her shoulder and arm and those symptoms continued thereafter, it was open to the Arbitrator to conclude that employment was a substantial contributing factor to the exacerbation. No error was demonstrated [65].

Ross v State of New South Wales [2014] NSWWCCPD 74

Claim for compensation for a consequential condition; whether failure to consider evidence affected the outcome; alleged failure to give reasons; alleged failure to engage with medical evidence; failure to make orders for payment of compensation not claimed

Roche DP

11 November 2014

Facts:

The worker worked for the respondent, wrongly sued as Mid North Coast Area Health Service, as a part-time medical records clerk. The correct legal identity of the respondent is the State of New South Wales (see Schedule 1 of the Health Services Act 1997 and State of New South Wales v Bishop [2014] NSWCA 354 (at [26]–[28]).

The worker injured her right knee in the course of her employment in 2000 and 2001. She underwent a meniscectomy and chondroplasty in 2001. The respondent accepted liability and paid compensation accordingly. The worker settled a claim for lump sum compensation in the former Compensation Court of NSW in the sum of $11,500 in respect of a 15 per cent permanent loss of use of the right leg at or above the knee plus $10,000 for pain and suffering under s 67 of the 1987 Act.

In February 2005, the worker injured her left Achilles tendon/ankle when she fell as a result of her right knee giving way. She was diagnosed with Achilles tendinitis. The worker fell again in October 2006 when her right knee gave way and she again injured her left ankle and left knee.

On 6 March 2006, she filed an application in the Commission seeking weekly compensation from 23 March 2005 to date and continuing together with hospital and medical expenses particularised in a schedule. The claim alleged injuries to the right knee but made no claim in respect of the left ankle. Arbitrator Hertzberg made an award in her favour, based on the knee injury on 25 May 2000, for $111.32 per week from 23 March 2005 to date and continuing plus a general award for s 60 expenses.

On 17 July 2012, the worker underwent a triple arthrodesis and bone graft to her left ankle with Dr Pepper, surgeon. On 9 May 2013, the insurer issued a s 74 notice disputing liability for the effects of the knee injury.

On 17 February 2014, the worker filed an Application with the Commission for weekly compensation at the maximum statutory rate from 17 July 2012 to date and continuing, incurred hospital and medical expenses of $19,237.69 (starting on 26 August 2011), and future hospital and medical expenses for a proposed knee replacement operation due to the deterioration as a result of the original injury. The first part of the claim was a review of Arbitrator Hertzberg’s award for weekly compensation. The second part related to past and future s 60 expenses for the right knee injury. The third part was for s 60 expenses and weekly compensation, but related solely to the consequential condition of the left ankle/foot. It followed that the claim for total incapacity for the period from 17 July 2012 to 7 November 2012 turned on whether the surgery to the left ankle on 17 July 2012 was reasonably necessary medical treatment as a result of the right knee injury.

The respondent disputed liability for the claim but also sought a review of Arbitrator Hertzberg’s award. The Arbitrator allowed the respondent to seek a s 55 review because the worker’s Application had opened up the question of her entitlement to weekly compensation. While she was entitled to seek an increase in those payments, that did not mean that the Commission may not decrease such payments if the evidence otherwise permits. This statement was based on s 55(2), which states that on any review the weekly payment may be “ended, reduced or increased”.

Because of a deterioration in the worker’s knee, Arbitrator Hertzberg’s award for weekly compensation was increased by $102.10 from 8 November 2012. Dealing with the claims arising from the condition of the worker’s left ankle/foot, the Arbitrator accepted that the falls in February 2005 and October 2006 occurred due to her right knee giving way, and that the giving way was a result of the earlier work injury to the right knee. However, the Arbitrator said that there did not appear to be any complaints to the worker’s treating doctors from late 2006 until the left foot symptoms manifested themselves again in 2011. The Arbitrator was not persuaded that the worker discharged the onus of establishing “the persisting connection [between the knee injury and the need for surgery to the ankle] through to the period the subject of this claim, namely from July 2012 onwards”. The worker therefore failed with her claim for s 60 expenses in respect of treatment of her left foot/ankle and with her claim for weekly compensation based on total incapacity from 17 July 2012 to 7 November 2012.

The Certificate of Determination did not make any orders about her claim for her left ankle/foot. However, in the body of his reasons, the Arbitrator made a “determination” that the worker had not made out her case in respect of that part of the claim, which she challenged. The issues in dispute in the appeal were whether the Arbitrator erred in:

• not entering a general s 60 award for the worker in respect of the left ankle and foot condition for treatment expenses incurred for that condition between 2005 and 2007 (section 60 expenses);
• determining that there did not appear to be any complaints to Ms Ross’s treating doctors from late 2006 until the left foot symptoms manifested themselves in 2011, when there was such evidence before him (evidence of complaints of left foot and ankle symptoms);
• determining that there had not been a level of consistency of complaint in the ensuing years after the initial onset of symptoms caused in 2005 and 2006, when there was such evidence before him (evidence of complaints of left foot and ankle symptoms);
• failing to consider all the relevant medical and other evidence that was before him of ongoing symptoms in, and treatment for, the worker’s left ankle and foot condition leading up to the surgery on 17 July 2012 (evidence of complaints of left foot and ankle symptoms);
• failing to determine whether the worker had favoured her left leg as a result of the weakness in her right knee and whether that favouring caused her left ankle and foot to become symptomatic (favouring of the left leg);
• failing to provide any or any adequate reasons for not accepting the opinion of Dr Miller, general surgeon qualified by Ms Ross, in his report of 11 January 2013 (Dr Miller’s evidence), and
• failing to provide any or any adequate reasons for not accepting the opinion of Dr Knight, the worker’s general practitioner, in his report of 19 September 2005 (Dr Knight’s evidence).

Held: The appeal was unsuccessful.

Section 60 expenses

1. The complaint that the Arbitrator erred in failing to make a general order for the payment of s 60 expenses incurred between 2005 and 2007 was unsustainable. The worker made no such claim in her Application, did not refer to any correspondence where such a claim was particularised nor any submission before the Arbitrator where this matter was raised [41].

2. The s 60 expenses claimed at the arbitration were particularised in a schedule attached to an Application to Admit Late Documents filed on 16 July 2014. The first item claimed was dated 26 August 2011. Nowhere in that document was there any suggestion that any claim was made for s 60 expenses incurred between 2005 and 2007. Consistent with this, the letter of 27 November 2013 (which particularised the claim) expressly claimed s 60 expenses “relating to surgery to her left ankle and foot and rehabilitation costs” [42].

3. It is not an error for an Arbitrator not to deal with an issue never raised (Brambles Industries Ltd v Bell [2010] NSWCA 162) or a claim never made. This ground of appeal was rejected [43].

Evidence of complaints of left foot and ankle symptoms

4. The Arbitrator’s statement that there was an absence of further complaints regarding the left ankle or foot for a period of about four or five years after 2006 was incorrect. There was evidence the worker received treatment for her left ankle (and other parts of her body that were not the subject of this claim, including her right ankle) from late 2006 until 2012 [62].

5. One of the reasons for the Arbitrator finding against the worker, namely, that her evidence of continuing symptoms in her left ankle/foot since the falls in 2005 and 2006 was not supported by any “contemporaneous evidence”, was not correct. However, this was not the only reason the Arbitrator gave for not accepting her claim. The most important reason was the lack of medical evidence linking the 2005 injury to the Achilles tendon with the need for surgery in 2012. The Arbitrator noted that it was not immediately apparent how an injury to the left Achilles tendon lead to a triple arthrodesis in the ankle joint or the left foot and he was not assisted by any reports from Dr Pepper explaining the connection [67].

6. The Arbitrator’s observations were critical to the resolution of the claim. On the evidence tendered, it was not established how the left Achilles tendinitis, diagnosed as being due to the 2005 fall, or the left ankle strain, diagnosed as being due to the 2006 fall, resulted in the need for the triple arthrodesis and bone graft in July 2012 [68].

7. Though the Deputy President accepted, given the way the case was argued, that the Arbitrator erred in stating that there was no contemporaneous evidence of complaints of left ankle or foot symptoms between 2006 and 2011, that was not the end of the analysis. The worker had to establish that that error affected the outcome [79].

8. Whether the error affected the result depended on a close analysis of the other grounds of appeal and the expert and lay evidence said to support the claim. In this context, however, it was relevant to note that nothing in either the notes from the hospital where the worker had surgery or any of the material from Dr Knight suggested a causal link between the 2005 and 2006 falls and the need for surgery in 2012 [80].

Favouring of the left leg (sic, right)

9. The Arbitrator addressed favouring of the right leg. He noted it was not clear if Dr Miller based his opinion on the “favouring” referred to by the worker or the right knee giving way. Further, the Arbitrator said that no treating doctor referred to favouring as an historical matter, or to extra stress being placed on the left ankle because of any “favouring”. The Arbitrator’s observations were correct. As no submissions were made on “favouring”, and as there was no medical evidence supporting this aspect, the Arbitrator was not required to deal with the matter further [84].

Dr Miller’s evidence

10. When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). On the issue of whether to accept Dr Miller’s evidence, the Arbitrator exposed his reasoning and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The Arbitrator clearly engaged with the issue in dispute and, for reasons stated, determined that issue against Ms Ross [107].

11. Apart from the incorrect reference to an absence of complaint for over four years, the Arbitrator’s observations and findings were open on the evidence and disclosed no error [109].

12. The Arbitrator was perfectly correct to observe that it was not immediately apparent how an injury to the left Achilles tendon leads to a triple arthrodesis in the ankle joint or foot. The Arbitrator expressly drew counsel’s attention to the fall in 2005, which “was specific regarding the Achilles”, and pointed out that “[t]he rest of it is not specific, or unless you can bring me to something. Seems to be not specific in terms of its contribution to the requirement for the surgery?”. After Mr Inglis again referred to Dr Miller’s evidence, but made no reference to the notes from Baringa Private Hospital or the material from Dr Knight, which did not link the Achilles tendinitis and the 2012 surgery in any event, Mr Inglis agreed that he was inviting the Arbitrator to infer that Dr Miller “gave the reason – the ... surgery occurred”.

13. Dr Miller did not give any reason linking the 2012 surgery to Achilles tendinitis diagnosed in 2005. He merely said that the problems caused by the right knee injury were directly responsible for the aggravation of previously asymptomatic degenerative changes in the left ankle and foot. That did not come close to explaining the connection between the Achilles tendinitis diagnosed in 2005 and the triple arthrodesis in 2012. It simply did not address the issue at all [111].

Dr Knight’s evidence

14. It is patently obvious, on a fair reading of the Arbitrator’s reasons overall, that he did not accept that the evidence from Dr Knight, expressed in a report several years out of date, was sufficient to discharge the onus of proof the worker carried. In the circumstances, no further reasons were required. It is not an error to omit to state expressly a finding that is clear on a fair reading of the whole decision (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347, applied in Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667) [132].

15. The issue was not the worker’s entitlement to the cost of physiotherapy and other expenses incurred in and shortly after 2006, which Dr Knight’s report addressed, but which (as explained above) she did not claim. The issue was her entitlement to recover the cost of the triple arthrodesis performed in July 2012, and weekly compensation for the consequential incapacity flowing from that surgery, almost six years after Dr Knight wrote his report. As Dr Knight’s report was of no direct probative value to the issue in dispute, it was not necessary for the Arbitrator to deal with it in any more detail than he did [133].