Issue 2: April 2017

State of New South Wales v Stockwell [2017] NSWCA 30

1. An extension of time to file the notice of appeal should be granted as the failure to comply with the UCPR was due to an oversight, the delay was short and Mr Stockwell did not point to any practical prejudice ([5], [64]).

2. Determining whether, on the facts as found, and the proper construction of the 2006 Award and, hence cl 25, Mr Stockwell held the status of paramedic at the relevant time, involved a point of law ([66]).

3. The meaning of “paramedic” within cl 25 turns on whether a person employed by the Ambulance Service held the designation or status of “paramedic” at the date of his or her injury ([66]).

4. State of New South Wales v Chapman-Davis [2016] NSWCA 237 followed.

On its proper construction the 2006 Award did not indicate that failure to comply with the proviso meant Mr Stockwell did not have the status of a paramedic at the deemed date of injury ([65]–[86]).

State of New South Wales v Chapman-Davis [2016] NSWCA 237; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426; George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 applied.

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury  [2014] NSWIRComm 23; 87 NSWLR 41; Saggers v Sydney Market Authority (1988) 66 LGRA 42; Kucks v CSR Ltd [1996] IRCA 166; 66 IR 182; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83; The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446 considered.

Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees’ Union [2008] NSWIRComm 158; 180 IR 170; Jobson v The Owners – Strata Plan No 66870 [2015] NSWSC 776; Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365; 156 LGERA 186; Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; 77 ALJR 1806; Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 referred to.

5. The President did not err in point of law in deciding that at the deemed date of his injury, Mr Stockwell was a “paramedic” and, hence, exempt from the application of the 2012 amendments to the 1987 Act ([87]).

Any treatment or service provided to an injured worker where liability has been initially declined but where the Workers Compensation Commission or subsequently finds for the worker on liability and it is agreed or determined that the treatment or service provided was reasonably necessary.

The issues on appeal concerned whether the Arbitrator erred in law in finding that the worker:

(a) first became aware of the cause of his hearing loss within the meaning of s 261(6) of the 1998 Act in October 2014, and

(b) was entitled to the costs of his binaural hearing aids purchased on 22 October 2015 pursuant to s 60 of the 1987 Act.

Held: The Arbitrator’s determination was confirmed.     

Awareness of injury

1. It is trite law that parties are normally bound by the conduct of their case at first instance (University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68, at [7]). The appellant argued before the Arbitrator that there was sufficient evidence to support a finding of ‘awareness’ as at October 2014. In those circumstances it was not open to the appellant to argue on appeal that there was insufficient evidence to establish when the worker first became aware of his injury and its causative relationship to his employment ([72]).

2. The test to determine if and when a worker is aware of a hearing impairment related to his employment is objective, based on the individual worker’s knowledge. The worker must be actually aware, not constructively aware. Because of the insidious nature of boilermaker’s deafness, and lack of general knowledge in the community of its cause, awareness that a worker has received a s 17 injury will usually require specialised knowledge that will normally come from an appropriate expert in the field (Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams Enterprises) applied) ([89]).

3. In a claim for compensation for boilermaker’s deafness, a worker is aware that he has received an injury to which s 17 applies when he is aware of two things. First, that he has sensorineural hearing loss (boilermaker’s deafness and any deafness of a similar origin (s 17(2))). It is not sufficient that the worker is merely aware of a gradual loss of hearing. Second, the worker must be aware that his hearing loss has been contributed to by his employment ([90]).

4. There was objective evidence supporting the Arbitrator’s conclusion including: evidence that the worker had discussions with his general practitioner about his poor hearing on 22 October 2014; evidence that the worker had submitted to an audiometric assessment on or about 22 October 2014; evidence that the worker was aware that his hearing problem was ‘occasioned or caused by his work with Qantas’ in October 2014, and the fact that the general medical practitioner, armed with the results of the audiometric testing, was able to provide sufficient expert advice to the worker to satisfy the test of awareness as discussed in Inghams Enterprises and Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 85 NSWLR 677 ([77]).

5. Workers may become aware on receipt of one and only one piece of information or alternatively a worker may first become aware that he or she has received an injury after receiving several pieces of information gathered over time. The objective evidence was accepted by the Arbitrator as pieces of information sufficient to prove the worker’s awareness at a particular point in time. The Arbitrator’s findings were consistent with relevant authority and did not demonstrate error ([78]).

6. It followed that there was a solid evidentiary foundation for the Arbitrator’s conclusion that the worker first became aware that he had sustained industrial deafness and became aware of the cause of his hearing loss in October 2014. This ground failed ([80]-[81]).

The operation of s 60(2A)

7. Contrary to the appellant’s submissions, his Honour did not accept that the decision in Chris Waller Racing Pty Ltd v Muscutt [2016] NSWWCCPD 57 (Muscutt), which concerned the application of s 60(2A) and the exemptions in the guidelines, was wrongly decided ([135]).

8. In Muscutt, Acting Deputy President King commenced his analysis of statutory construction issues by satisfying himself of the purpose of the introduction of s 60(2A). He concluded that the practical utility of s 60(2A) was to provide the insurer with a voice in decisions concerning medical treatment undertaken. It gave an insurer the opportunity to discourage treatment not endorsed by a reputable body of medical practitioners or to encourage treatment that may in a given case result in a change of the proposed treatment to the benefit of the worker. His Honour agreed with that analysis ([139]).

9. The appellant submitted that the Acting Deputy President wrongly identified the purpose of the enactment of s 60(2A) and in turn wrongly construed its operation. It further submitted that the provision was introduced so as to limit an employer’s liability to make payments with respect to reasonably necessary medical treatment ([140]).

10. His Honour rejected the appellant’s submission. To read the whole of the provision in that light ignored the exemptions from the operation of the provision provided for in s 60(2A)(a). That being, treatment of an urgent nature provided for in the first 48 hours and treatment or services exempt from the operation of the provision by guidelines made for that purpose ([142]).

11. The context and general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed (Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 applied). His Honour observed the unfairness of the outcome for which the appellant contended, in the case of a worker who has suffered an accepted back injury which rendered the spine susceptible to a disc prolapse. If such a prolapse subsequently occurred and required urgent surgical intervention before an application can be made to the insurer for the cost of the treatment, on the construction for which the appellant contended, the worker could not recover the cost of the treatment even if it was found to be reasonably necessary as a result of the original injury. His Honour disagreed with the appellant’s submission that such an outcome whilst “harsh” was not anomalous. Not only was such an outcome anomalous it would, as Deputy President King observed, “border on the irrational.” ([143])

12. His Honour rejected the appellant’s argument that the use of the past tense “provided” for the provision of treatment when combined with the imperfect past tense “where liability has been initially declined” supported a construction that has an element of “timing”, namely that liability being declined was continuing at the point in time when the treatment or service was provided ([145]).

13. The appellant’s approach to the construction of the guidelines sought to place emphasis on individual words and phrases to give the provision a meaning that was not evident on a plain reading of the text and context of the guidelines ([146]).

14. Read as a whole, the purpose of the exemptions to s 60(2A) identified in the guidelines is to ameliorate the above anomaly in respect of the hypothetical worker with the disc prolapse. Had the legislature intended that the exemptions to s 60(2A) would be limited only to the cost of treatment provided after prior approval was sought it could easily have so provided, but it did not ([147]-[148]).

15. His Honour rejected the appellant’s submission that the construction for which the respondent contended would leave s 60(2A)(a) with no work to do. The provision provides a mechanism whereby in accepted claims the insurer has the opportunity to approve treatment prior to it being undertaken and thereby assists in proactively managing the worker’s claim and promoting the objects of the Act ([150]).

16. The question which remained was whether cl 3.2.1.1 should be construed as meaning that the requirement for treatment is exempt when liability has been declined at any point prior to a Commission decision, or only available when liability has been declined after the treatment has been provided and before a Commission decision ([157]).

17. Adopting the construction of the words “when liability has been initially declined” as meaning declined prior to a Commission determination gives those words a liberal construction but not one that it is unreasonable or unnatural (IW v City of Perth [1997] HCA 30; 191 CLR 1 applied) ([159]-[160]).

18. Although in Muscutt the Commission’s determination focused attention on cl 3.2.1.2 (reasonably necessary treatment) and the present appeal concerns cl 3.2.1.1 (dealing with a dispute as to liability) the appellant conceded that if Muscutt was correctly decided, the second ground of appeal must fail. As his Honour found that the decision in Muscutt was correctly decided it followed that ground two failed ([163]).

(a) reconsider his earlier decision;

(b) apply s 43(1)(d) of the 1987 Act, and

(c) apply s 44BB(1) and (2) of the 1987 Act in applying the principles outlined in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589.

Ground (a) – Did the Arbitrator err in law in failing to reconsider his earlier decision?

1. The letter was before the Arbitrator on the reconsideration. He did not exclude it from the evidence and proceeded to weigh the merits of the reconsideration application taking into account the evidence disclosed in the letter and the circumstances in which it first came to light ([78]).

2. His Honour observed that s 43(1)(d) clearly identifies that a decision about the amount of an injured worker’s pre-injury average weekly earnings is taken to be a work capacity decision. Pursuant to s 43(1) such a decision is final and binding ([82]).

3. The Commission had previously held that it has no jurisdiction to determine a dispute over an insurer’s work capacity decision: Rawson v Coastal Management Group Pty Ltd [2015] NSWWCCPD 3 (Rawson) at [67]–[72] and Lee v Bunnings Group Ltd [2013] NSWWCCPD 54 (Lee) ([83]).

4. Contrary to the Arbitrator’s finding, it was more than “arguable” that the letter constituted a work capacity decision. His Honour found that it clearly was a work capacity decision. The letter described that the worker’s weekly entitlements were calculated in part upon his “pre-injury average weekly earnings (PIAWE)”. Those earnings were described as the actual earnings paid or payable to the worker calculated in the sum of $1,027.77. The author of the letter stated that the decision about the amount of the pre-injury average weekly earnings “is a work capacity decision”. The worker was invited to contact the author in the event that he disagreed with that sum ([85]).

5. The worker was informed that in the event that he disagreed with the decision he was entitled to request a review. To do this he was informed it was necessary to complete a “WorkCover form ‘Work Capacity - Application for Internal Review by Insurer’”. He was provided with a copy of the relevant form and was invited to forward it with any further information he wished the insurer to consider ([86]).

6. The making of the work capacity decision and the manner in which it was communicated to the worker was broadly consistent with the insurer’s obligations under the WorkCover Guidelines for work capacity issued on 4 October 2013 (the guidelines in force as at 9 March 2015) ([87]).

7. The Arbitrator approached the reconsideration application on the basis of the exercise of the discretion taking into account factors such as those described in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482. However, once it was accepted that the letter is a work capacity decision it qualified the Arbitrator’s jurisdiction to deal with the assessment of the worker’s PIAWE. The Commission does not have jurisdiction to determine any dispute about the PIAWE (being a work capacity decision of an insurer) nor does it have jurisdiction to make a decision in respect of the PIAWE inconsistent with the work capacity decision of the insurer (s 43(3)) ([88]).

8. The Arbitrator erred in finding that his assessment of the PIAWE was a more reliable assessment of the worker’s pre-injury average weekly earnings. He had no jurisdiction to determine the dispute in relation to PIAWE other than to accept that the PIAWE was as stated in the work capacity decision. His finding that the worker’s PIAWE was in excess of the statutory maximum provided by s 34 of the 1987 Act was a finding that was inconsistent with the work capacity decision and was prohibited by s 43(3) of the 1987 Act. These findings are consistent with accepted authority in Rawson and Lee ([89]).

9. Having admitted the letter into evidence it was apparent that a work capacity decision had been made which affected the Commission’s jurisdiction. When that was drawn to the Arbitrator’s attention through the reconsideration application it should have been apparent that the terms of s 43 had not been applied correctly. In those circumstances the Arbitrator should have reconsidered his decision and corrected the error ([90]).

10. It followed that the letter was a work capacity decision and the insurer’s assessment of the worker’s PIAWE was binding on the Commission. In view of this finding, it was unnecessary to deal with the remaining grounds of appeal ([94]-[95]).

(a) whether the Senior Arbitrator erred in her determination in respect of the injury to the thoracic spine;

(b) whether the Senior Arbitrator erred in determining the weekly payments entitlement under the previous s 40, instead of following the approach in Sabanayagam;

(c) whether the Senior Arbitrator gave proper weight to the medical evidence,

(d) whether there was bias or apprehended bias.

Fresh evidence – documents in the possession of the appellant’s solicitor

1. The appellant sought to rely on copies of emails that were previously held by his solicitor. Possession of a document by a party’s agent or solicitor amounts to possession by the party (Domb & Anor v Isoz [1980] 1 Ch 548 at 557, applied in Peel Valley Mushrooms Limited v Corporate Investment Australia Funds Management Limited [2000] NSWSC 958 at [25]). On the face of it, the emails were available to the appellant, to be used at the arbitration hearing. The first limb of the test in CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 (Strickland) was not satisfied ([100]-[106]).

2. The second limb of the test in Strickland was whether the absence of the evidence “would cause substantial injustice”. The second limb requires a careful consideration of what the result ‘would’ be with or without the evidence (Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10). Use of the emails would not change the result, so the second limb was not satisfied. The application for admission of fresh evidence was refused ([98]-[99]; [107]-[121]).

3. The emails went to the orders for referral of the lump sum claim. That claim could be withdrawn at any time. Given the discretionary nature of the power, this militated against the granting of leave ([122]-[123]).

The Role of the Approved Medical Specialist and Associated Matters

The Referral to an Approved Medical Specialist 

4. The appellant submitted that the matter was before the Senior Arbitrator only to deal with weekly payments, and the issue of thoracic spine injury did not require determination. Acting President Snell rejected this, concluding that the lump sum claim remained in issue, on the pleadings. The nature of the injury was an issue for the Commission to determine. An AMS’s opinion on the nature and aetiology of a worker’s condition does not bind the Commission (Roche DP in Jaffarie No 1 at [251]-[252] and [257]) ([133]-[137]).

5. The issue about injury to the thoracic spine was relevant to the nature and extent of any incapacity that resulted from the injury (s 33 of the 1987 Act), and whether medical treatment was reasonably necessary. It was a matter to be determined by the Senior Arbitrator, regardless of the status of the lump sum compensation claim ([138]).

6. Chapter 4, Pt 2, Div 7 of the 1998 Act, including s 121, applies to ‘existing’ or ‘related’ claims. They do not apply to the appellant’s claim, which is a ‘new claim’ under s 250 of the 1998 Act. The appellant’s reliance on Div 7, s 121, and the Explanatory Note to the 1998 Bill, was misplaced ([139]-[144]).

7. The appellant referred to Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19 (Hassan) as authority that the Commission had no power to deal with “WID threshold”. Hassan did not involve a threshold dispute, and was of no direct relevance. The appellant also referred to Junsay v The Uncle Toby's Company Ltd [2009] NSWWCCPD 71; 11 DDCR 76 where it was held that an Arbitrator or Presidential Member lacked power to deal with a ‘threshold dispute’. The referral to an AMS made by the Senior Arbitrator did not involve a ‘threshold dispute’. Neither of these decisions could assist the appellant ([145]-[151]).

The Weekly Claim

8. The award for weekly compensation was for a closed period, up to 31 December 2012. The appellant argued that there should have been a continuing award. The appellant was not an ‘existing recipient’ of weekly payments for the purpose of Sch 6, Pt 19H, cl 1 of the 1987 Act. His counsel conceded at the arbitration that the weekly claim should close as at 31 December 2012. That concession was appropriately made, and was consistent with the transitional provisions and the decisions in Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37; 15 DDCR 1 (Kilic) and Lee v Bunnings Group Limited [2013] NSWWCCPD 54; 15 DDCR 82 (Lee). The appellant’s entitlement for weekly benefits after 31 December 2012 was a matter for the insurer, not the Commission (Lee). The Senior Arbitrator’s decision was consistent with the concession ([152]-[158]).

9. The appellant was bound by his counsel’s concession (Smits v Roach [2006] HCA 36; 228 ALR 262; 80 ALJR 1309 (Smits); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) at [130]- [131]). Smits was applied in XCI Pty Ltd (in liq) v Thompson [2016] NSWWCCPD 58, at [169]. In the same decision, his Honour at [170] of his reasons, applied Delaney v Winn [2015] NSWCA 124 at [69]. Parties are bound by forensic decisions made by their counsel in the conduct of the hearing. A concession by the appellant’s counsel that the former s 40 governed the appellant’s weekly entitlement up to 31 December 2012 was appropriately made, and consistent with Kilic ([159]-[164]).

The Court of Appeal Decision in Sabanayagam

10. The weekly payments claim in the current case was closed as at 31 December 2012. Sabanayagam v St George Bank Limited [2016] NSWCA 145 (Sabanayagam) was not relevant to assessment of the appellant’s weekly entitlement during the period claimed. The Senior Arbitrator was correct in this regard ([165]-[167]).

The Arbitrator’s Assessment of the Medical Evidence

11. As regards the appellant’s injury to the thoracic spine, the Senior Arbitrator not only had jurisdiction to deal with the appellant’s medical case, but was obliged to make relevant findings and explain why (Hume v Walton [2005] NSWCA 148). There was no “jurisdictional error of monumental proportion” in her doing so ([168]-[171]).

12. Snell AP referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock) at [85]), and Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844 at 846. The extent of the correlation between the assumed history on which a report is based, and the facts as found, affects the weight, not the admissibility, of expert evidence (Hancock at [83]; BiLo Pty Ltd v Brown [2013] NSWWCCPD 66 at [93]-[96], [97]) ([172]-[177]).

13. Snell AP referred to the Senior Arbitrator’s discussion of the appellant’s medical evidence, and her reasons for not accepting the opinions of some of the doctors. The approach which she took was open on the evidence, and consistent with the authorities of Edmonds, Hancock and Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington)) ([180]-[186]).

14. The appellant refered to the decisions in State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365, and the significance of lack of contemporaneous complaint of injury. Unlike those decisions, the appellant’s case involved a frank injury, not a disease injury ([187]).

15. The appellant referred to the absence of cross-examination. There is no right to cross-examine in the Commission (Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 at [37]). An Arbitrator can, depending on the circumstances, form a view about a party’s credit in the absence of cross-examination (JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 at [122]) ([188]-[189]).

Bias

16. The appellant referred to multiple matters which were asserted to constitute evidence of ‘bias’. Snell AP considered the various alleged examples of this, and said that no coherent argument was made out, going to apprehended or actual bias. The appellant was represented by experienced counsel during the arbitration hearing, and no recusal application was made ([190]-[197]).

Costs

17. The Commission has power to award costs for proceedings commenced before 2 April 2013. The Senior Arbitrator made no error in awarding costs in the matter. These were governed by Sch 6 of the Workers Compensation Regulation. The appellant gave no reason why the complexity uplift made, of 20 per cent, was not an appropriate exercise of discretion ([198]-[202]).

The General Submissions

18. The appellant made submissions dealing with assorted topics, including the Australian Constitution, Commonwealth race and disability legislation, the role of WorkCover, work injury damages, the facility for discovery and the costs regime in workers compensation matters. Many of the submissions were general in nature, and did not relate to the matter the subject of the appeal. The grounds lacked “clarity” and failed to identify error (an appeal is limited to the identification and correction of error: s 352(5) of the 1998 Act) (see also Norbis v Norbis [1986] HCA 17; 161 CLR 513; 65 ALR 12; 60 ALJR 335; Alfaro v Brokesova (No 2) [2013] WASCA 189; Gamester Pty Ltd v Lockhart [1993] HCA 79; 112 ALR 623; 67 ALJR 547) ([205]-[209])

19. These general submissions raised new issues not argued before the Senior Arbitrator, the appellant should not be allowed to rely on them on the appeal (Metwally at [7], Australia and New Zealand Banking Group Limited v Haq [2016] NSWCA 93 (Haq) at [100]-[101]). These submissions failed to identify and address error in any meaningful way. The appellant cannot raise these matters on appeal.

The Appeal No A4-10956/12 – against the Decision dated 5 August 2016

Representation

20. The appellant submitted that, as a self-represented litigant, he was entitled to the protections of Dietrich v R [1992] HCA 57; 177 CLR 292 and Cachia v Hanes [1994] HCA 14; 179 CLR 403; 120 ALR 385; 68 ALJR 374. Dietrich v R concerned the right of a Court to stay or adjourn criminal proceedings where the accused was unrepresented. Cachia v Hanes was relevant to the payments of costs to an unrepresented litigant. The appellant was represented at the arbitration hearing before the Senior Arbitrator. There was no request to adjourn or stay the proceedings on the basis of the lack of legal representation. No errors were identified on the Senior Arbitrator’s part. Neither case could assist the appellant ([232]-[233]).

Bias

21. The appellant referred to multiple aspects of the Senior Arbitrator’s decision on the reconsideration application, which were said to support an allegation of bias.

The Nature of the Reconsideration Power

22. The Commission’s reconsideration power is contained in s 350(3) of the 1998 Act. Section 36(2) of the Workers Compensation Act 1926, and s 17(4) of the Compensation Court Act 1984, were relevantly in the same terms. The section requires the balancing of the need for finality of litigation with the obligation to rectify any injustice (Hardaker v Wright & Bruce Ltd (1960) 62 SR (NSW) 244 at [108], Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642 at 645; Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482) ([236]-[239]).

23. The appellant referred to Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300; 67 ALJR 270. That decision was not directly relevant to the reconsideration power under s 350(3); it referred to the importance of finality to litigation, as a factor requiring consideration. The decision did not assist the appellant’s case ([234]-[235], [239]).

The Decision in Cameron 

24. The appellant referred to the decision in Cameron v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWSC 704 (Cameron). He submitted (correctly) that it was relevant to the reconsideration power under s 378 of the 1998 Act, it had no application to s 350(3). There may have been a wrong description of the effect of Cameron, on the desirability of allocating reconsideration applications pursuant to s 350(3) to the original decision maker. The allocation of the reconsideration to the Senior Arbitrator was taken by the Registrar, as an administrative action (s 375(4) of the 1998 Act), it was not part of the Senior Arbitrator’s decision. Thus, the Senior Arbitrator’s reference to Cameron did not involve appealable error. It was not relevant to an allegation of bias on the Senior Arbitrator’s part ([240]-[244]).

The Recusal Application

25. Snell AP reviewed a number of decisions dealing with recusal. The standard of impartiality, expected of an Arbitrator, is the higher standard that is applicable to judicial officers and tribunal members. It is generally higher than the standard expected of an administrative or political decision maker. The expectation is affected by an Arbitrator’s statutory role. An Arbitrator is expected to have formed a view upon consideration of the materials (Edmonds at [103] and [105]), and to take account of the view so formed, in his or her endeavours to settle a matter: s 355(1) of the 1998 Act, Edmonds at [106]. An Arbitrator’s role as a member of an expert tribunal also may be relevant (Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679 at [187]) ([254]).

The Reference to Ferreira

26. There was no error in the Senior Arbitrator’s reference to Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, in dealing with a submission made by the respondent on credit. There was no bias, either actual or apprehended, in the Senior Arbitrator’s decision on the reconsideration in that regard ([257]-[258]).

The References to Goudappel and Sabanayagam

27. The Senior Arbitrator was accused of misquoting and misapplying these decisions. There was no precision to the allegation, which was without foundation ([259]-[263]).

The Weekly Claim

28. The appellant referred to Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine), arguing that a “purported concession” by his counsel, on the weekly payments claim, could not be used as an estoppel. The concession in respect of the last date of the appellant’s weekly entitlement did not give rise to an issue estoppel, but the appellant was bound by it. The appellant referred to a typographical error in a date in the Senior Arbitrator’s decision. The appellant referred to the preclusion against contracting out of the Act (s 234 of the 1998 Act). The Senior Arbitrator’s acceptance of a properly made concession did not involve contracting out of the Act ([264]-[273]).

Bindah and Associated Decisions

29. Contrary to the appellant’s submission, Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 is not authority that a disease-related aggravation must be referred to an AMS. There is a distinction between ‘medical disputes’ in which a medical assessment certificate is “conclusively presumed to be correct”, and medical disputes where such a certificate is simply “evidence (but not conclusive evidence)”: s 326 of the 1998 Act, Hine at [53] ([274]-[278]).

Further Matters

30. A Presidential appeal should be regarded as the primary mode of challenge to alleged errors of fact, law or discretion by an arbitrator (Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412 and s 352 of the 1998 Act). The availability of a right of appeal is a factor weighing against exercise of the discretion to reconsider pursuant to s 350(3) ([282]-[284])

31. The appellant’s attempted use of the reconsideration power in the circumstances was inappropriate. The conduct of a reconsideration application, and two appeals, involving largely similar submissions was confusing, and wasteful of legal costs and the Commission’s resources ([280]-[288]).

1. The meaning of ‘exceptional circumstances’ was considered in Economidis, Bryce, and Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 2 (in the context of the Uniform Civil Procedural Rules). Applying those authorities, Snell DP was not satisfied that there were ‘exceptional circumstances’ within the meaning of r 16.12(2), but said that that was only one factor that the Commission was required to consider in the exercise of its discretion to extend time (Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 at [2]) ([23]-[28]).

2. Deputy President Snell noted the delay was short, an extension would not cause prejudice, and the appeal was strongly arguable and should succeed. In spite of the lack of adequate explanation for the delay in bringing the appeal, and the absence of ‘exceptional circumstances’, he concluded that the interests of justice favoured granting an extension ([29]-[31]).

Ground 2 – The construction issue

3. The 1996 Amending Act commenced on 12 January 1997. By virtue of the transitional provision in Sch 6, Pt 6, cl 18 of the 1987 Act, the 1996 Amending Act limited the maximum amount of lump sum compensation to $100,000. Previously, the maximum amount of compensation under s 66, as at the appellant’s date of injury, was $130,400 ([34]-[36]).

4. The provision in Sch 6, Pt 6, cl 18 was dealt with in Osbourne, O’Connor and AUSGRID v Butler [2012] NSWWCCPD 19 (Butler). In those decisions the rate as reduced by the 1996 Amending Act applied ([37]-[40]). All three decisions were distinguished by the Deputy President.

5. Deputy President Snell observed that the task of statutory construction must begin with a consideration of the ‘ordinary and grammatical’ meaning of the text (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; 260 ALR 1; 83 ALJR 1152 and Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503; 293 ALR 257 ; 87 ALJR 98) ([54]-[56]).

6. The decision in O’Connor involved proceedings that were held to be pending before the Compensation Court. Bishop CCJ concluded that the compensation payable was subject to the 1996 Amending Act, due to the operation of cl 18(2). That sub-clause had no application in the current matter, as clearly it did not involve proceedings pending in the Compensation Court ([58]-[60]).

7. In Osbourne, both parties accepted that, where a claim for further lump sum compensation had been made after commencement of the 1996 Amending Act, the figure under the 1996 Amending Act applied. Construction of the transitional provision was not an issue in dispute in that case ([61]).

8. The decision in Butler did not expose the reasoning which led to the conclusion that the reduced rate had effect, in the circumstances of that case ([62]).

9. Deputy President Snell made the following observations, dealing with the respondent’s submissions:

(a) The operation of Sch 6, Pt 6, cl 18 was not subject to discretion by the Arbitrator, the principles in House v The King did not apply ([63]);

(b) The ‘Workers compensation benefits guide’ does not have statutory force. It could not be used as an aid in the construction of cl 18 ([64]-[65]);

(c) The heading of cl 18 constituted ‘extrinsic material’ and was not taken to be part of the Act, although it was material to which consideration may be given: ss 34 and 35 of the Interpretation Act 1987 ([66]-[67], [76]);

(d) The purpose of cl 18(3) was not to generally reduce the quantum of compensation to all claimants, but to prevent a certain class of worker from receiving greater compensation based on the 1996 Amending Act, than was payable based on the date of injury. The preservation of higher amounts in some circumstances, as in the current case, is part of the specific purpose of cl 18(1) ([70]-[73], [76]).

10. Applying the principle of construction in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, Snell DP accepted the appellant’s submission: where a claim for lump sum compensation had been made before the commencement of the 1996 Amending Act, the 1996 Amending Act did not apply to the calculation of further lump sum compensation ([74]-[75]).

11. In the current case, a claim for lump sum compensation had been made prior to the commencement of 1996 Amending Act. The quantum of the further entitlement should be calculated according to the date of injury. The appeal on Ground No 2 was successful ([77]-[78]).

12. It was unnecessary to deal with Ground No 1 ([79]).

1. The reconsideration power is contained in s 350(3) of the 1998 Act. The principles are summarised in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).

The Applications dated 26 May 2016 and 2 September 2016

2. A reconsideration application of 26 May 2016 sought reconsideration of the decisions of Arbitrator Harris and Arbitrator Wynyard. Pursuant to s 375 of the 1998 Act, a Presidential member does not have jurisdiction to reconsider an arbitral decision. It followed that Snell DP had no jurisdiction to reconsider Arbitrators’ decisions. Reconsideration of Kirunda No 2 to that extent was declined ([29]-[31]).

3. In any event, it would be futile to re-consider the decisions of 29 May 2015 and 25 November 2015. The decision of Arbitrator Harris on 29 May 2015 was in the appellant’s favour. The decision of Arbitrator Wynyard on 25 November 2015 was revoked in Kirunda No 1 ([32]).

‘Arbitrator Bias’

4. Acting President Snell, did not have jurisdiction to deal with an application to reconsider the arbitral decisions in relation to allegations of bias ([33]).

5. The order of remitter directed that the matter be assigned to a new Arbitrator. Arbitrator Capel recused himself on the basis of an application of apprehended bias. There was no further issue of procedural fairness or bias requiring adjudication by Acting President Snell ([34]-[35]). However, the appellant then argues that the prevalence of ‘Arbitrator bias’ would militate against the order for remitter.

6. The test dealing with an allegation of actual bias, involving a Commission Arbitrator, is laid down in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds): “the critical question is whether he had so prejudged the matter as to be incapable of altering his view, whatever evidence or arguments may be presented” ([40]).

7. It is obligatory that an Arbitrator forms a view about the issues, applies rules of law, remains impartial in decision-making and affords parties procedural fairness ([40]-[41]). The appellant sought to rely on Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 (Nguyen). However, Nguyen did not involve the Commission or the specific statutory duties of an Arbitrator ([41]).

8. Expressions of tentative views by Judges, during “dialogues” in exchanges with counsel, are not on that account alone to be taken to indicate prejudgment: Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380 (Johnson) ([42]-[43]).

9. The appellant’s submissions in relation to Arbitrator Harris essentially related to “dialogues”, as that term is used in Johnson. Arbitrator Harris made a finding that was favourable to the appellant. Without expressing a concluded view on whether a recusal application may have been available in respect of Arbitrator Harris, Acting President Snell said that any such application could be dealt with on its merits, if made at some point in the future. He said in passing that there was no evidence to support the appellant’s speculative “belief” regarding why Arbitrator Harris withdrew from the matter ([44]-[46]).

10. Arbitrator Wynyard’s remarks during the hearing before him were made with a view to encouraging settlement of the matter. Those remarks were consistent with a level of scepticism regarding the appellant’s prospect of success. The Arbitrator was expected to form a view and it “would probably amount to a failure to discharge his functions, if he had not” (Edmonds) ([51]).

11. Snell AP concluded that the matter would not be listed before Arbitrators Wynyard or Capel; the appellant’s assertions of bias against them were not relevant to the order to remit. There was no “evidentiary or logical basis” for the assertion of actual or apprehended bias, against any Arbitrator to whom the matter may be allocated ([52]-[54]).

The Application of Samuel

12. The appellant misstated the operation of Samuel. An application to reconsider an Arbitrator’s decision is made to the Arbitrator; a Presidential member lacks jurisdiction to deal with it: s 375 of the 1998 Act. A Presidential member has jurisdiction to reconsider a Presidential decision: Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 60 (Rachmaninoff No 2) at [56].

13. Orders for the disposition of an appeal must be made, as part of the appeal process as provided by s 352(7) of the 1998 Act. Remitting a matter to an Arbitrator is one of the discretionary options, consistent with s 352(7) of the 1998 Act: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 (Trevarrow) at [57]-[59].

14. The conclusion in Kirunda No 2 was not, as submitted by the appellant, based on an absence of jurisdiction. It was because the Presidential member was not persuaded that there was an appropriate basis, consistent with authority, to exercise the discretionary power in s 350(3) ([60]).

Submissions on the Nature of “Review”

15. The current form of s 352(5) took effect on 1 February 2011. It does not provide for a “review”. Authorities such as Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54 (Sapina) and State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 deal with the nature of the previous “review” provision. They do not apply s 352(5) in its current form. Sapina is not an authority on the nature of the reconsideration power under s 350(3) ([63]).

The Appellant as an Unrepresented Litigant

16. A court (and a tribunal) has an obligation to diminish the disadvantage of an unrepresented litigant so as to ensure a fair and just hearing; however, it must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Smith v New South Wales Police Service [2004] NSWWCCPD 77 at [30]) ([66]).

17. The appellant was legally qualified, he had a Masters Degree in Laws and had been admitted as a solicitor in NSW. Additionally, he had legal representation during the original arbitral hearing and on the remitter. He said that he had access to “partial legal representation” when lodging a number of re-consideration applications. He did not appear to be disadvantaged because of his lack of legal skill ([67]).

The Appropriateness of the Order for Remitter

18. Prior to the decision in Kirunda No 1, the parties had originally requested that the matter be re-determined by the Presidential member, if the appeal succeeded ([68]-[69]). The appellant, at that point, also requested an oral hearing, and the matter was listed for hearing over two days, to accommodate this request. The appellant then withdrew this request, and asked that the matter be determined on the papers, which it was.

19. The appellant’s claim was pleaded as a psychological injury. In submissions lodged during the appeal process, the appellant raised allegations of spinal symptoms, which were alleged to be secondary to the psychological injury. The appellant then made submissions that he wished to submit further evidence, going to the psychological injury and the spinal injury, before determination of the appeal. Any extension of the allegations, to include a consequential spinal injury, would require a process of giving formal notice, an opportunity to investigate the allegations, and an opportunity to put on evidence. This would be outside the procedural basis on which appeals are conducted ([70]-[72]).

20. The appeal is not a review or a new hearing (s 352(5)). The arbitral decision did not involve allegations of spinal injury. Orders going to such a further issue could not be appropriately made pursuant to s 352(5) ([73]).

21. The limitation on ‘fresh evidence’ in s 352(6) of the 1998 Act is “essential to ensure that the limited review by a Presidential member under s 352 does not expand into a full blown de novo hearing, quite beyond the legislative intention” (Trevarrow). That concern applied to the current matter. The amendment to s 351(6) on 1 February 2011 places specific restrictions on the circumstances in which the Commission may grant leave for fresh evidence on appeal. The amended s 352(5) supports the proposition that an appeal should not “expand into a full blown de novo hearing” ([76]-[77]).

22. As noted in Kirunda No 1, there were credit issues that required careful consideration of whether leave to cross-examine would be appropriate. Conduct of a hearing on a re-determination by the Presidential member, potentially involving oral evidence and cross-examination of the appellant and four lay witnesses, would involve the appeal expanding into “a full blown de novo hearing” ([78]-[84]).

23. An application to cross-examine is procedural and interlocutory in nature. A decision refusing an interlocutory order is not final and not res judicata (Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423). The principle applied to Arbitrator Wynyard’s decision to decline leave to cross-examine ([85]-[87]).

24. An appeal pursuant to s 352 of the 1998 Act no longer involves “a merits review process”. There is no presumption in favour of remitter to the first instance decision maker ([88]).

25. The appellant sought that all of his applications and evidence be admitted. The refusal to admit late evidence in Kirunda No 1 was based on s 352(6) of the 1998 Act, the decision in CHEP Australia Limited v Strickland [2013] NSWCA 351, and the relevance of the fresh evidence concerned. Whether the interests of justice would favour dispensing with the Rules was considered in Kirunda No 1. The appellant has made no discernible submission regarding why these decisions, on the admission of evidence pursuant to s 352(6), should be reconsidered. Pt 1 r 1.6 of the Rules did not assist the appellant’s case ([89]-[90]).

26. The matter had an “unfortunate” history. Determination at Presidential level did not necessarily render a more timely determination. If not for Arbitrators Capel’s recusal, the matter should have been able to be heard by the end of 2016. It should not be assumed that a further Presidential appeal is then a part of the process; in the majority of matters it is not. Redetermination by a different Arbitrator, if it is allowed to follow its normal course, is a timely means of redetermination ([91]-[94]).

Conclusion

27. It is important to keep well in mind the distinction between the existence of the power to reconsider and the occasion of its exercise (Hardaker v Wright & Bruce Pty Limited [1962] 62 SR (NSW) 244 (Hardaker)) ([95]).

28. Exercise of the power has generally been restricted to circumstances where fresh evidence has become available and is found to be admissible on such an application (Rachmaninoff No 2; see also Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642 at 645D) ([96]).

29. The current matter is a good example of “the need to keep well in mind... the occasion of [the power’s] exercise” (Hardaker). The order for remitter in Kirunda No 1 was the appropriate discretionary order pursuant to s 352(7) of the 1998 Act. There was no appropriate basis for exercise of the reconsideration power. The application for reconsideration of the decision in Kirunda No 2 was refused. It followed that, to the extent to which the application extended to the decision in Kirunda No 1, that application too was refused. Acting President Snell had no jurisdiction to reconsider the decisions of the Arbitrators involved ([97]-[102]).

(a) The Arbitrator made a factual error in finding that assignment of the duties packing meal boxes occurred after the disciplinary meeting on 20 February 2015 (Ground 1).

(b) The Arbitrator erred in fact and/or law in finding that the injury was ‘wholly or predominantly’ caused by disciplinary action, when there was no such medical evidence (Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1; 14 DDCR 157 (Shore)) (Ground 2).

(c) The Arbitrator erred in fact, in finding that the respondent’s conduct was reasonable, in that he took into account irrelevant considerations and/or failed to take into account relevant considerations (Ground 3).

Ground No 2 – Legal test: wholly or predominantly

1. The causal test in s 11A(1) is whether the injury was “wholly or predominantly caused” by the relevant action. It is to be proved on the balance of probabilities, subject to a different statutory test to those in ss 4 and 9A. The onus falls on the employer, rather than the worker (Shore [42], [52]). ‘Predominant’ in s 11A(1) means “mainly or principally caused” (Ponnan v George Weston Foods Ltd (2007) NSWWCCPD 92 (Ponnan); applied in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov)). The test on causation is that described in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Temelkov at [79]) ([45]-[46]).

2. The determination of causation involves a consideration of all of the evidence, both lay and medical (EMI (Australia) Ltd v Bes [1970] WCR 114; Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]). The Arbitrator was entitled to make common-sense findings (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271), subject to the limitation that these be “within the realm of common knowledge and experience” (Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190; Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramasamy); Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223; 85 ALJR 1130 (Jackson)) ([47]-[49]).

3. The decision in Roger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48 was based on the Commission’s status as a specialist tribunal. Snell DP referred to a number of case authorities referring to the Commission’s status as a specialist tribunal. He concluded that the Commission’s status as a specialist tribunal was not the basis of the Arbitrator’s reasons in the current matter ([51]).

4. The Deputy President noted that, in the current case, the evidence of the appellant was the only medical evidence; the respondent did not adduce any medical evidence ([52]-[61]).

5. The respondent carried the onus, on the balance of probabilities, of proving the causation issue raised by s 11A(1) of the 1987 Act. The appellant raised five other specific matters not falling within the category of ‘discipline’, which arguably contributed to the appellant’s injury, and which the Arbitrator rejected as being causative, due to lack of evidence. The appellant’s argument that the Arbitrator had inverted the onus of proof was rejected, on reading the Arbitrator’s reasons as a whole (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444) ([62]-[70]).

6. The appellant carried no onus to prove the competing causal roles of the various work matters. A series of events may cause a psychiatric condition which is not manifest until a later time. That did not mean that the earlier events in the series were not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63 at [33]- [45]). The available medical evidence on causation suggested there were potential causal factors, beyond the warning letter and disciplinary interview on 20 February 2015 ([85]-[87]).

7. The need for medical evidence, in the determination of the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of each individual case. In the current case, Snell DP observed that, there were a number of potential causative factors, beyond those characterised as ‘discipline’. Proof by the respondent, that it’s actions with respect to ‘discipline’ were the whole or predominant cause of the psychological injury, required medical evidence (Jackson at [66], Ramasamy at [72]). The causation issue was not one that could be proved on the basis of the Arbitrator’s common knowledge and experience ([88]).

8. In addition, Snell DP accepted that the Arbitrator made a factual error. The assignment of lower level duties, packing meal boxes, occurred prior to the disciplinary interview. The appellant’s perception of, and reaction to, these duties did not result from the disciplinary interview and receipt at it of a warning letter. The duties packing meal boxes were assigned prior to the disciplinary interview ([89]-[92]).

9. Ground 2 was upheld ([93]).

Ground No 1 – The level 1 duties

10. An error of fact constitutes appealable error, unless the error could not possibly have affected the result (Toll Pty Limited v Morrissey [2008] NSWCA 197; 6 DDCR 561, applying Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141) ([109]-110]).

11. The Arbitrator approached the Level 5 work, that the appellant did after the disciplinary meeting, on the basis that it was “Level 1 work”, and regarded this as the basis of the appellant’s reaction. Factually, that misrepresented the appellant’s difficulty with the Level 5 work. The appellant perceived he was “specifically targeted” because there was Level 5 work available that day, yet he was required to carry out the lower level work packing meal boxes. Having considered the Arbitrator’s reasons and the facts, Snell DP said that the factual error was not one that “could not possibly have affected the result”; it was appealable error ([114]-[115]).

Conclusion 

12. Deputy President Snell concluded that, the respondent could not, on the available evidence, succeed in proving the necessary causation finding, for its defence under s 11A(1) of the 1987 Act to succeed. It was unnecessary to deal with Ground No 3 in respect of the reasonableness of the respondent’s actions: Pacific International Hotel v Doyle [1999] NSWCA 465; 19 NSWCCR 181 per Fitzgerald JA (Mason P agreeing) at [4]-[5]. The availability of a defence pursuant to s 11A(1) was the only ‘liability’ issue, and it was resolved in the appellant’s favour. The appellant was entitled to succeed ([116]-[117]).

(a) the Arbitrator erred in finding that the appellant did not suffer an injury to his left elbow or left forearm on 3 September 2014;

(b) the finding that the appellant did not suffer an injury to his left elbow or left forearm on 3 September 2014 was contrary to the weight of evidence, and

(c) the finding that the appellant did not suffer an injury to his left elbow or left forearm on 3 September 2014 was not supported by the evidence.

Held: The Arbitrator’s determination was confirmed.   

Discussion and findings 

1. The appellant’s submissions failed to identify any relevant error. The appellant sought to re-ventilate the merits of the dispute argued before the Arbitrator relying substantially on the same submissions. For that reason the appeal failed, however, his Honour made the following observations ([65]).

2. Whether the appellant suffered an injury to his left elbow on 3 September 2014 was a question of fact. His Honour considered and applied the principles in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir), in determining whether the Arbitrator erred in the fact finding process ([66]-[67]).

3. Contrary to the appellant’s submissions there was no evidence to suggest that the appellant complained of left forearm pain at the Lithgow Physiotherapy Centre between 24 September 2014 and 23 December 2014. Whether or not complaints were made in respect of the forearm pain was immaterial, as the injury pleaded was in respect of the left elbow. In any event, there was no evidence of any complaint in respect of the left elbow until March 2015 ([69]-[71]).

4. The appellant submitted that the Arbitrator should have accepted the opinion of his medical specialist, Dr O’Keefe. The history recorded by Dr O’Keefe was inconsistent with the appellant’s evidence. It also incorrectly recorded that the appellant was initially referred for physiotherapy to his shoulders and elbows. In addition Dr O’Keefe’s opinion on causation was inconsistent with the way the case was pleaded and run. Having regard to these matters, his Honour found the Arbitrator’s assessment of the weight to be attached to Dr O’Keefe was open on the available evidence and disclosed no error ([72]-[74]).

5. Reference to evidence of forearm pain did not advance the appellant’s appeal, as the injury pleaded was an injury to the left elbow. Even if the appellant complained in late 2014 and early 2015 of forearm pain, such complaints did not support a finding of injury to the left elbow at that time ([75]).

6. The Arbitrator’s findings that there was no initial complaint of left elbow pain following the injury on 3 September 2014 and that no specific complaints of elbow pain were made until March 2015 were clearly correct ([77]).

7. The general practitioner’s comment that the shoulder “could” have been the main focus overshadowing complaints of pain in the left elbow lacked conviction that that was in fact what occurred. In the circumstances, and in the absence of any contemporaneous records of complaints of symptoms in the left elbow, it was open to the Arbitrator to conclude that the doctor’s opinion lacked probative force. That conclusion was open to the Arbitrator and did not speak of error ([78]).

8. No error of the kind identified in Whiteley Muir was established. The appeal failed and the Arbitrator’s decision was confirmed (Whiteley Muir; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 considered and applied) ([80]).

1. The last day for appeal was Friday 21 October 2016 (s 352(4) of the 1998 Act; Pt 16 r 16.2(2) of the 2011 rules; s 294(1) of the 1998 Act; Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 at [23]) ([16]-[18]).

2. As the appeal was filed by email after 5 pm, pursuant to r 8.1(6) of the 2011 Rules, the appeal was taken to have been lodged on Monday 24 October 2016, and was out of time ([19]-[20]).

3. The appellant did not concede that the appeal was filed out of time, but submitted that the lateness in lodging the appeal was caused by delay in the grant of funding by ILARS in respect of the appeal proceedings. The appellant submitted that the appeal was late by only a matter of minutes; there was no prejudice to the respondent, and that the appeal was strongly arguable ([21]-[23]).

4. The respondent opposed the extension of time, arguing that there were no ‘exceptional circumstances’ and that the appeal lacked prospects of success ([24]-25]).

5. Rule 16.2(12) of the 2011 Rules allows a Presidential member to extend the time for appeal in ‘exceptional circumstances’. What constitutes ‘exceptional circumstances’ is considered in Bryce v Department of Corrective Services [2009] NSWCA 188 and Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310. The test in Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 was applied to the application to extend time ([26]-[30]).

6. Deputy President Snell was satisfied that it was reasonable to defer lodgment of the appeal until a grant of legal funding was made. The grant was made two hours and forty minutes prior to the last time at which the appeal could be lodged within time. This constituted ‘exceptional circumstances’. The only factor militating against extending time was the issue of whether the appeal had reasonable prospects of success. After a full consideration of the appeal on its merits, Snell DP was not satisfied that rejecting the appeal application would work any injustice on the appellant, as the appeal could not succeed. It followed that the application to extend time to appeal was refused ([31]-[34]).

Ground No 1 – Evidence of Encouragement 

7. The appellant relied on “the ratio” in Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377, a case that involved the liability of an employer and a ‘host employer’, in contract and tort. It submitted that the conduct of Newcrest should be attributed to the respondent. The Deputy President noted that the appellant failed to make specific reference to “the ratio” in that case. This argument was not raised in the proceedings before the Arbitrator, and it could not be raised on the appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481) ([52]–[54]).

8. The only person from the respondent employer that attended shift boss meetings with managers of Newcrest was its project manager. There was no evidence that he said anything about the game at the time the appellant enrolled himself to play. The Arbitrator found that the there was no evidence that the respondent expressly or impliedly induced or encouraged the appellant to participate in the game. The respondent’s failure to oppose the game did not amount to “implied encouragement, authorisation or inducement” ([55]-[59]).

9. Having examined the evidence and the Arbitrator’s reasons, the Deputy President found that the appellant was ‘re-ventilating the merits of the dispute argued before the Arbitrator relying on substantially the same submissions’ (Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5 cited and applied). The Arbitrator was correct in saying that the appellant’s subjective feeling was not the test as to whether the project manager’s silence amounted to evidence of encouragement (Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324) (Hills No 1). The Arbitrator had not overlooked the evidence or failed to give it proper weight ([60]-64]).

10. Ground No 1 failed ([65]).

Ground No 2 – No Evidence an Employee of the Respondent Organised the Game 

11. The appellant stated that he heard an employee of Newcrest saying that the respondent was involved in organising the game. The appellant submitted that the Arbitrator failed to take proper account of this statement in finding that there was no suggestion that any employee of the respondent was organising the game ([66]-[67]).

12. Snell DP noted that all the other evidence was to the contrary. This evidence was probably erroneous, and was not raised by the appellant at the arbitration hearing. An argument that the game was organised by the respondent company was not pursued at the arbitration hearing. There was no error of law in failing to deal with a matter that was not raised (Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 at [30], Watson v Qantas Airways Limited [2009] NSWCA 322; 7 DDCR 113 at [13]) ([68]-[70]).

13. Ground No 2 failed ([71]).

Ground No 3 – evidence of bonding and ‘esprit de corps’

14. The third ground concerned whether the Arbitrator erred in finding that there was no evidence that the appellant wished to participate in the game “as part of a bonding experience that would promote an ‘esprit de corps’”. The appellant referred to NSW Police Force v Faccin [2015] NSWWCCPD 8 (Faccin) and WorkCover Authority (NSW) v Walling [1998] NSWSC 315; 16 NSWCCR 527 (Walling) ([72]), submitting that the Arbitrator had failed to take the approach required by these authorities.

15. The Arbitrator correctly said that there was no evidence from the appellant that he played in the rugby league game on the basis that it would be a bonding experience, or promote esprit de corps ([77]).

16. Faccin involved a worker who was injured in a game organised by the NSW Police Rugby League Association. Multiple factors in that case supported the proposition that the employer authorised, encouraged or permitted the worker’s participation in the relevant game. Deputy President Snell said that the facts in Faccin were quite different to those in the current matter ([78]-[80]).

17. The Deputy President noted Walling was “even more removed, factually and legally, from the current matter”. It involved a worker who was injured while riding a trail bike on an isolated farm owned by the employer. The Court found that the injury was incurred in the course of his employment, although the activity was not induced or encouraged by the employer. It was not relevant to the current appeal. The Arbitrator did not err in his application of these authorities ([81]).

18. Ground No 3 failed ([83]).

Ground No 4 – The Evidence of the Project Manager

19. The fourth ground concerned whether the silence and absence of objection from the respondent’s project manager on site, regarding the appellant’s participation in the game, amounted to authorisation, encouragement or inducement ([84]-[87]).

20. Deputy President Snell referred to authorities that laid down the principles on whether an inference can properly be drawn: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 19; 85 CLR 352; Jones v Dunkel [1959] HCA 8; 101 CLR 298; Flounders v Millar [2007] NSWCA 238 (Flounders); Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 ([89]-([92]).

21. The appellant submitted it should be inferred that he played in the game “because he saw it as a bonding experience with his work colleagues”, and that participation in the game was commercially beneficial to the respondent as an ‘esprit de corps’ ([93]).

22. Deputy President Snell observed that the submission was not supported by evidence. The appellant’s subjective beliefs were not decisive (Hills No 1). The appellant did not nominate these factors as underlying his motivation for playing in the game. The Arbitrator gave reasons for his findings and did not err in not drawing such an inference ([94]-[100]).

23. The appellant additionally submitted that there should be an inference that the respondent’s project manager, by saying nothing, induced or encouraged the appellant to play in the game. It was unclear whether the project manager was present at a number of the relevant site meetings. The Arbitrator had observed that saying nothing could equally amount to a lack of authorisation, encouragement or inducement. For an inference to be drawn, there must be more than a choice between conflicting inferences which is a matter of conjecture: Flounders at [91]. The evidence overall did not support drawing the inference for which the appellant argued. It followed that Ground No 4 must fail ([101]-[107]).

(a) failed to give proper reasons;

(b) failed to take into account relevant evidence;

(c) took into account irrelevant evidence;

(d) failed to draw a Jones v Dunkel inference;

(e) failed to offer the appellant procedural fairness, and

(f) improperly placed weight on the surveillance evidence and investigation report.

Held: appeal allowed; the Arbitrator’s finding that the appellant worker ceased to be entitled to weekly payments of compensation on 15 June 2016 was set aside; the matter was remitted to another Arbitrator for re-determination. 

Considerations

1. The appellant carried the onus of showing error in the Arbitrator’s factual finding as to whether incapacity was made out. The test was: was the Arbitrator’s decision fairly open to him upon the evidence, or did it display any error by reference to the evidence? (Roche DP in Raulston v Toll [2011] NSWWCCPD 25, paras [19]-[21]) ([65]).

2. The surrounding evidence supported the appellant’s case. The appellant continued to work until the second injury. None of the doctors qualified by the respondent had commented on the issue of causation. The Arbitrator discounted the lack of medical evidence in relation to the causation issue, noting the lack of contemporaneous medical records ([66]-[67]).

3. The evidence in this matter created a strong initial impression that the injuries caused some sort of incapacity. The Arbitrator disregarded Dr Bodel’s report, but placed more weight on the investigator’s report following the surveillance video film, and Dr Thomson’s report that commented on the appellant’s presentation. Neither was sufficient to displace the initial impression created by the evidence ([68]-[69]).

4. The appellant’s presentation to Dr Thomson, that is, whether her complaints were entirely psychological, was of no real significance. It is not uncommon to see one doctor record a different presentation from that recorded by another or others. The respondent’s failure to adduce evidence from Dr Maloney or Dr Harrison (to a higher degree) grounded a Jones v Dunkel inference. The Arbitrator was not obliged to draw a Jones v Dunkel inference and it did not matter that in the circumstances such an inference was not drawn as the failure to draw such an inference would not change the outcome of the case. However, the respondent’s failure to adduce evidence from Dr Maloney or Dr Harrison diminished the weight of Dr Thomson’s report and enabled the Arbitrator to give more weight to the appellant’s medical evidence ([70]).

5. The Arbitrator’s discount of Dr Bodel’s report on the basis of Makita (Australia) Pty Ltd v Sprowles [2011] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita) constituted an error. The medical evidence in the present case did not invoke the application of Makita. The medical opinions from the two parties differed over the level of incapacity, not whether there was incapacity ([71]).

6. The description of the appellant’s activities in the surveillance and the investigator’s report did not necessarily contradict the appellant’s presentation to the doctors. Neither party produced more evidence in respect of the surveillance report. Once it was accepted that the relevant evidence to be considered was the content of the investigator’s report, it was “extreme and erroneous” to say that the investigator’s report negatived any incapacity ([72]).

7. It followed that the Arbitrator’s decision that the appellant’s entitlement to weekly payments ceased on 15 June 2016 was set aside ([73]).

8. The question for determination was the level of the appellant’s capacity for the period beyond 15 June 2016 and continuing: in particular, whether the appellant had a “current work capacity” or “no current work capacity” and whether she remained unfit for pre-injury employment as defined in s 32A of the 1987 Act ([74]-[75]).

9. The appeal was allowed. The matter was remitted to another Arbitrator for determination on the issue of the appellant’s entitlement to weekly compensation from 16 June 2016 and continuing ([77]-[80]).