Issue 4: April 2016

JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17

Nature and extent of conceded head injury; assessment of expert evidence; acceptance of evidence of psychiatrists over neurosurgeons; whether psychological injury a primary psychological injury or a secondary psychological injury; whether claimant discharged the onus of proof; relevance of principles in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; whether incapacity resulted from accepted injury; causation; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; attempt to conduct appeal as a rehearing; s 352 of the 1998 Act; s 65A of the 1987 Act

Roche DP

3 March 2016

Facts:

The appellant challenged the Arbitrator’s findings that the worker suffered a significant head injury when he fell at work on 10 May 2004, that that injury resulted in a primary psychological injury in the form of a cerebellar dysfunction and in the form of a post concussive syndrome, and the Arbitrator’s approach to the issues of onus of proof, injury, causation and incapacity.

The worker claimed weekly compensation from 15 August 2006 to 31 December 2012, compensation for hospital and medical expenses, and compensation for permanent impairment.

The Arbitrator accepted the evidence from the worker’s treating psychiatrist, Dr Sokolovic, that as a result of the head injury received in the fall, the worker suffered a cerebellar dysfunction. This conclusion was said to be supported by the evidence from the worker’s qualified psychiatrist, Dr Stephenson, who diagnosed (among other conditions) a post concussive syndrome. The Arbitrator found the worker to be totally unfit for work since 15 August 2006 and awarded weekly compensation up to 31 December 2012. The employer appealed.

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

(a) finding (at [90]) that the worker “had undergone a significant injury to his head” (significant head injury);

(b) finding that “cerebellar dysfunction in the form of a post concussive syndrome” was a primary psychological injury (primary psychological injury);

(c) his approach to the worker’s onus of proof (onus of proof), and

(d) the application of his “discretion in the manner in which [he] approached and distinguished evidence as to injury, causation and incapacity” (injury, causation and incapacity).

Held: The Arbitrator’s determination was confirmed, save for the finding that the worker suffered a primary psychological injury, which was revoked.  

Significant head injury

1. The use of the word “significant” to describe the worker’s head injury was appropriate, and consistent with the evidence. It was a qualitative expression that covered a range of conditions [29].

2. The evidence well justified the Arbitrator’s observation that the ambulance report demonstrated that, immediately after the fall, the worker had been “significantly affected by the blow he sustained to the back of his head”. That evidence included evidence in the ambulance report that the worker was “not oriented to time, place or person initially” and that the worker’s Glasgow Coma Scale was initially 14, which was “not normal”, and that it improved to 15 and, in the hospital notes, that the worker was “initially very confused and disorientated”, that he “felt nauseous”, had “blured [sic] vision” and complained of an “occipital headache” [30].

3. The Arbitrator was also justified in stating that the ambulance report “lends support” to the theory advanced by Dr Sokolovic and Dr Stephenson that the worker had “undergone a significant injury to his head”. His statements were open on the evidence and disclosed no error [30].

Primary psychological injury

4. This ground alleged that the Arbitrator erred in finding that “cerebellar dysfunction in the form of post concussive syndrome” was a primary psychological injury. This raised two issues: first, whether there is any evidence of a primary psychological injury and, second, whether the Arbitrator erred in accepting Dr Sokolovic’s evidence over the evidence of Professor Kiernan, a neurologist qualified by the employer [55].

Acceptance of Dr Sokolovic’s evidence and rejection of Professor Kiernan’s evidence

5. The Arbitrator gave cogent and logical reasons, which were open on the evidence and involved no error, for accepting Dr Sokolovic’s evidence and for rejecting Professor Kiernan’s evidence [56].

6. The Arbitrator’s acceptance of Dr Sokolovic’s evidence, which strongly supported the worker’s case, involved no error. It was based on the apparent logic of events (comparing the worker’s pre and post-injury behaviour), contemporary materials (the ambulance report and the hospital records), which established that the worker suffered concussion when he struck his head in the fall, and the objectively established facts (the worker’s consistent complaints of headaches and other symptoms recorded by his general practitioners and others) (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]) [65].

7. It was accepted that, as a suitably qualified expert, Professor Kiernan was entitled to express an opinion on an alleged neurological condition without reference to any authority beyond himself. 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 at [631]) [69].

8. 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 at [89]) (see also Australian Securities and Investments Commission v Rich [2005] NSWCA 152 at [170]). Experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports. None of these authorities assisted the appellant [69].

9. In the Arbitrator’s assessment of the weight he gave to the competing medical opinions, he was entitled to consider the scientific explanations offered by the various experts. In doing so, he (correctly) noted that Dr Sokolovic referred to a number of scientific articles and based his opinion on the worker’s “distorted psychosocial functioning, his deteriorating use of both English and Macedonian languages, and [the worker’s] difficulties in learning and adjusting to situations that were never a problem to him before the injury”. (These matters were of particular significance, given the evidence from the worker’s wife of her husband’s normal functioning before the fall.) His rejection of Professor Kiernan’s evidence and acceptance of Dr Sokolovic’s evidence involved no error [70], [72].

Whether the worker suffered a primary psychological injury

10. The Arbitrator found that the worker suffered a primary psychological injury because Dr Sokolovic and Dr Stephenson both assessed him to have a psychiatric impairment as a result of the incident. The Arbitrator’s reasoning and conclusion on this point was erroneous [73].

11. The phrase “primary psychological injury” is defined in s 65A(5) of the 1987 Act to mean “a psychological injury that is not a secondary psychological injury”. A secondary psychological injury is defined in s 65A(5) as “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury” [74].

12. The conditions diagnosed by Dr Sokolovic and Dr Stephenson were a consequence of, or secondary to, the worker’s physical injuries (or the sequelae to those injuries) and therefore were not primary psychological injuries. The Arbitrator failed to acknowledge that fact. While the Arbitrator erred on this point, it was of no consequence to the outcome of the appeal, because, regardless of whether the worker’s injury was classified as a primary psychological injury or a secondary psychological injury, the Arbitrator found that his incapacity and need for treatment resulted from the work injury. That finding was open on the evidence and was upheld. The finding that the worker suffered a secondary psychological injury, and not a primary psychological injury, merely meant that he had no entitlement to compensation for permanent impairment in respect of his psychological injury (s 65A(1) of the 1987 Act), which was never claimed [75]–[80].

Onus of proof

13. The issue identified in this ground was whether the Arbitrator erred in his approach to the onus of proof and his reliance on EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Bes). He did not. It was open to the Arbitrator to accept the worker’s medical case without resort to Bes. Dr Sokolovic’s evidence went much further than suggesting a “possible” connection between the fall and the worker’s symptoms. Dr Stephenson also provided direct evidence on causation that went beyond suggesting a mere “possible” connection between the worker’s symptoms and the fall [89]–[91].

14. Bes only becomes relevant where medical science says that there is a “possible” connection between the incident and the relevant condition for which compensation is claimed. In that situation, if medical science does not say that there is “no possible connection”, a judge after examining the evidence may decide that it is “probable”. This statement is consistent with the decision of Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [93], where his Honour explained that, in some cases, medical science cannot determine the existence of a causal relationship. As his Honour explained, such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility. The commonsense approach to causation at common law (which applies in workers’ compensation cases) is quite different from a scientist’s approach to causation [93].

15. The histories recorded by Dr Sokolovic and Dr Stephenson were consistent with the worker suffering from cerebellar dysfunction and/or post-concussion syndrome as a result of the head injury received in the fall. The evidence from the family members relating to the worker’s pre and post accident condition, did not (on its own) discharge the onus of proof, but formed an important part of the history upon which Dr Sokolovic and Dr Stephenson relied in reaching their conclusions on diagnosis and causation. The appellant’s doctors did not have that history. The Arbitrator was entitled to consider, and did consider, these matters in his assessment of the evidence [96].

Injury, causation and incapacity

16. This ground was based on a fundamentally false premise, namely, that the assessment of evidence by an Arbitrator is a discretionary matter. It is an error to regard the weight to be given to medical evidence “as a discretionary matter” (Giles JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) at [3]). The question of whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact (McColl JA in Edmonds at [137], citing Fox v Percy) [114].

17. The Deputy President rejected the submission that the Arbitrator erred in accepting the evidence of two psychiatrists over the evidence of Dr Grant, a neurosurgeon qualified by the employer. The Arbitrator was not obliged to accept Dr Grant’s opinion and did not err in not doing so. He was obliged to consider and weigh the whole of the evidence, expert and lay, and apply the commonsense test of causation to determine if the worker’s incapacity and need for treatment resulted from his accepted injury  (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied). That was what he did [117].

Consistency and credit

18. The submission that having not heard oral evidence from the worker, the Arbitrator should not have drawn any inference concerning his credit or consistency was based on the false premise that that is what the Arbitrator did. The Arbitrator did not form a view as to the worker’s credit, favourable or unfavourable [122].

19. Even if it were accepted that the adverse observations about the worker’s presentation to the medical practitioners undermined the worker’s credit, and the Arbitrator (correctly) did not accept that to be so, that did not mean that his case had to be rejected. It would merely have meant that the balance of the testimony called for careful assessment to determine whether it could be properly accepted (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117) [124].

20. The submission that, in dismissing the opinion of Dr Burman (qualified consultant psychiatrist), the Arbitrator erred in the exercise of his discretion was rejected [125].

21. The submission that it was “open” to the Arbitrator to find that the worker’s alleged changing personality was a concerted effort by him to maximise his compensation entitlements, or was referrable to his alcohol intake, demonstrated a fundamental misunderstanding of the appeal process. Section 352 appeals are not a new hearing (s 352(5)). They are restricted to the identification and correction of error. It may well have been open to the Arbitrator to form a different view. The issue on appeal was whether, considering his reasons, he erred in forming the view he did. He did not [126].

22. The submission that the worker failed to adduce “any evidence” from his treating neurologist, Dr Presgrave, was not accurate. Dr Presgrave’s opinion was reproduced in Dr Sokolovic’s report. Therefore, nothing turned on the failure to tender Dr Presgrave’s report [127].

Incapacity and the ongoing effects of the injury

23. The submission that a “dutiful” consideration of all the evidence could have led to no other finding than that the worker no longer suffered from the effects of a minor head injury in 2004 was rejected. Claimants must prove their cases on the balance of probabilities. The evidence upon which the Arbitrator relied in support of his finding of total incapacity comfortably satisfied that standard. His acceptance of it involved no error [129]–[130], [137].

Causation

24. The submission that the Arbitrator failed to consider the evidence of the worker’s motor vehicle accident on 23 August 2003 attempted to raise an issue that was not argued at the arbitration. It could not be raised for the first time on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481). The Arbitrator did not err in not referring to a submission never made (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). In any event this submission was without merit [138]–[139].

Webb v Penrith Rugby Leagues Club Ltd [2016] NSWWCCPD 16

Extension of time to appeal; no prospect of success; no demonstrable or substantial injustice if time not extended; Pt 16 r 16.2(12) of the 2011 Rules; failure to comply with Practice Direction No 6; failure to identify grounds of appeal

Keating P

3 March 2016

Facts

The worker was employed by the respondent as a kitchen hand. He allegedly sustained an injury to his left knee when he was standing in an area within the respondent’s premises known as the “big pot wash”. He also allegedly suffered degenerative changes in his left knee, which he claimed was aggravated by heavy and repetitive standing, walking, bending and squatting in the course of his employment.

The worker underwent surgery to his left knee. He claimed weekly compensation for a closed period and reimbursement of his medical and related expenses. The employer denied the claim and the worker’s claim was unsuccessful before a Commission Arbitrator. The worker appealed.

The appeal concerned an application to extend time to appeal. If time to appeal were extended, the appellant sought to challenge the Arbitrator’s finding that the worker’s employment was not a substantial contributing factor to an alleged frank injury to the left knee. The appellant also sought to challenge the Arbitrator’s finding that the worker’s employment was not the main contributing factor to the alleged aggravation of a disease condition in the worker’s left knee.

Held: The application to extend time to appeal was refused.    

Time

1. An appeal under s 352 must be made within 28 days of the decision appealed against (s 352(4) of the 1998 Act). An Arbitrator’s decision is made when the Commission issues a Certificate as to the determination of the dispute as required by s 294(1) (Pt 16 r 16.2(2) of the 2011 Rules). In the present matter, the Arbitrator’s determination was made on 15 September 2015. The “given day” for the reckoning of time pursuant to s 352(4) is 15 September 2015 and the time to appeal is calculated “exclusive of that day” (s 36 of the Interpretation Act 1987) [15]–[16].

2. It followed that the last day for lodging the appeal within the 28 day period allowed by s 352(4) was 13 October 2015. Therefore the appeal was lodged 66 days after the Arbitrator’s Certificate of Determination was issued and 38 days after the appeal period expired [17].

3. In exceptional circumstances, a Presidential member may extend time for the making of an appeal if satisfied that to lose the right to appeal would work demonstrable and substantial injustice (Pt 16 r 16.2(12) of the 2011 Rules). In order to determine whether strict application of time limits would work an injustice it is necessary to have regard to the matters set out in Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480 [22]–[23].

4. The appellant submitted that counsel appearing before the Arbitrator was on leave at the time the Arbitrator’s decision was issued and did not see the decision until the time for appeal had expired. After seeing the decision counsel advised that the decision was open to appeal and following a grant of ILARS assistance the appeal was filed and served. The appellant also submitted that he acted “expeditiously” after having received counsel’s advice and ILARS funding [18]–[19].

5. The President noted that, on several occasions, the Commission has held that inadvertence or administrative errors by legal practitioners do not amount to exceptional circumstances that justify an extension of time to appeal (Department of Education and Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55) [24].

6. The President found that the appellant did not provide submissions on why his legal representatives failed to review the Arbitrator’s decision to determine whether there were any grounds of appeal and/or instruct alternative counsel to advise on the prospects of appeal within 28 days of the date of the Certificate of Determination [25].

7. Contrary to the appellant’s argument, the appellant did not act expeditiously in lodging the appeal and notifying the respondent. The President considered a delay of 38 days to be a significant delay and was certainly not expeditious. The explanation for the delay was unsatisfactory. However, to answer the question of whether failure to extend time in which to appeal would result in a demonstrable and substantial injustice the President considered the prospects of success of the proposed appeal [26]–[27].

8. Subject to leave being granted, the appeal essentially concerned the Arbitrator’s approach to the evidence of the employer’s qualified medical specialist, who found that the worker’s “lifestyle and his activities outside the workplace did not contribute to the condition of his knee injury at [sic] any extent”. The appellant submitted that if the medical specialist found that the worker’s lifestyle or activities outside of work did not contribute to the condition of his knee then the Commission must find in the worker’s favour [46]–[49].

9. The Arbitrator found that the medical specialist’s evidence, considered in context, suggested that the worker was suffering from a degenerative condition that was likely to become symptomatic irrespective of his employment. The Arbitrator’s decision to prefer that evidence to other medical evidence, as it was more contemporaneous and exhibited an attention to detail with respect to the worker’s history, was open on the evidence. Once that evidence was accepted it was open to the Arbitrator to conclude that the provisions of s 9A of the 1987 Act were not satisfied and to find that the worker had not established that his employment was the main contributing factor to the alleged injury [50]–[59].

10. For the above reasons, and because the appeal had no reasonable prospects of success, the President refused leave to extend time to appeal [61].

Kemp v Geoffrey L Steinmetz t/as Crescent Head Bottle Shop [2016] NSWWCCPD 18

Application to extend time to appeal; Pt 16 r 16.2(12) of the 2011 Rules; whether substantial injustice if time to appeal not extended where appeal has no prospect of success; claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the 1987 Act by the 2012 amending Act applies to pre-2002 injuries; cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act; cl 11 of Sch 8 to the 2010 Regulation; Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 applied and followed; BP Australia Ltd v Greene [2013] NSWWCCPD 60 discussed and distinguished

Roche DP

22 March 2016

Facts:

In 1999, the worker received injuries in the course of her employment. Her employer accepted liability. In 2003, the parties entered short minutes of order in the former Compensation Court, for payment of permanent impairment compensation for a 10 per cent permanent impairment of the back, 10 per cent permanent loss of use of the right leg below the knee and $7,000 compensation for pain and suffering under s 67 of the 1987 Act.

After the commencement of the 2012 amending Act, the worker claimed additional compensation under ss 66 and 67 because of a deterioration in her condition. Following commencement of proceedings in the Commission, the parties settled the claim for further compensation under s 66. The only issue before the Commission was whether the worker was entitled to additional compensation under s 67 of the 1987 Act. The Arbitrator determined that the worker was not entitled. In an appeal filed out of time, the worker appealed.

The issue in dispute on appeal was whether the repeal of s 67 applied to injuries received before 1 January 2002. It was the same issue that the Commission determined in Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 (Frick).

Held: The application to extend time to appeal was refused and the Arbitrator’s determination was confirmed.  

Extension of time to appeal

1. The worker sought an extension of time in which to appeal under Pt 16 r 16.2(12) of the 2011 Rules. Justice McHugh set out the principles concerning the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459. His Honour observed that it is necessary to have regard to the history of the proceedings; the conduct of the parties; the nature of the litigation; the consequence for the parties of the grant or refusal of the application for the extension of time; the prospects of the applicant succeeding in the appeal, and upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted (see also Bryce v Department of Corrective Services [2009] NSWCA 188 at [10] and Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 at [9]) [22].

2. The Deputy President stated that although four factors (first, the extent of the delay was relatively short, second, the Christmas vacation fell in the middle of the 28-day period, third, delay was occasioned while the worker sought legal aid, and, last, there was no apparent prejudice to the respondent) pointed strongly towards granting an extension of time, regard must be had to the prospects of success. The appeal raised an issue that the Commission had recently determined in Frick, a decision that had not been appealed. There were no features that distinguished the present case from Frick and no reasons why the result would be any different. It followed that the appeal must fail. In those circumstances, there was no injustice (let alone substantial injustice) if time to appeal was not extended. Leave to appeal was refused [25]–[27].

Does the repeal of section 67 apply to pre-2002 injuries?

3. Should the Deputy President be wrong regarding the application to extend time, he dealt with the substance of the worker’s arguments. The worker relied on BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene), asserting that, like the preservation of s 66 in Greene, s 67 was preserved. Nothing supported the worker’s position, as Greene concerned the effect of the 2012 amendments on s 66 and only s 66. It did not consider s 67 [40].

4. There was no provision similar to cls 18 or 19 of Sch 8 of the 2010 Regulation, which only dealt with s 66 entitlements, that pointed to s 67 being saved for pre-2002 injuries. It was not necessary to include such a provision in circumstances where the Parliament did not amend s 67, but repealed it. Unlike s 66, which had merely been amended, s 67 had no continuing operation (save for that provided by the savings and transitional provisions and relevant exemptions), because it had been repealed [42].

5. Whether the repeal of s 67 applied to injuries received before 1 January 2002 depended on the operation of cl 11 of Sch 8. By operation of cl 11, the effect of which is to “override cl 15”, the amendments made by Sch 2 to the 2012 amending Act extend to “a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act” (Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1, at [25] and [42], applied) [42]–[43].

6. As the worker made “a claim for compensation” before 19 June 2012, the amendments introduced by Sch 2 of the 2012 amending Act applied to her claim for additional compensation under s 67, regardless of when she received her injury. The critical amendment was the repeal of s 67. She therefore had no entitlement to further compensation for pain and suffering because, at the time she made her claim for that further compensation, on 18 October 2012, the section had been repealed and she does not come within any of the applicable exemptions [44].

7. As to the operation of cl 11 of Sch 8 where a worker “specifically sought” compensation under s 66 or s 67 before 19 June 2012, see Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid). Any potential unfairness resulting from Cram Fluid has been addressed, to a limited extent, by cl 11A of Sch 8. The parties had not argued that cl 11A applied in the present matter [45].

8. There was nothing in the context or history of the legislation that pointed to a different conclusion. The question was not whether the 2012 amending Act left cl 3 of Pt 18C untouched, but whether, by operation of cl 11 of Sch 8, the repeal of s 67 applied to the worker. It clearly did [46].