Issue 4: July 2017

Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25

(a) determining s 65A of the 1987 Act operated such that a dispute as to the degree of permanent impairment as a result of secondary psychological injury was incapable of referral to an AMS (Ground No 1), and

(b) his determination of the operation of s 319 and s 326 of the 1998 Act with respect to the definition of a medical dispute (Ground No 2).

Threshold matters

1. On the face of the appeal application, there was no compensation at issue. The only orders that the worker sought on the application for assessment was that the matter be referred to an AMS for “[a]ssessment as to whether the degree of permanent impairment is more than 30%”, or more than 20%. The Arbitrator did not deal with any application for the award of compensation. Deputy President Snell was of the view that if the appeal succeeded, no order for the payment of compensation would be made. ([14])

2. Deputy President Snell stated that it has been repeatedly held that Presidential appeals against decisions of Arbitrators, in Applications to Resolve Workplace Injury Management Disputes pursuant to Ch 3 of the 1998 Act do not satisfy the requirements of s 352(3) (NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63 referred to). ([19])

3. The Deputy President noted that the orders sought by the worker on the appeal involved referral to an AMS “to assess WPI attributable to his secondary psychological condition for the purposes of s 32A”. If that assessment exceeded 20 per cent or 30 per cent, this would potentially increase the worker’s entitlement to benefits under the Workers Compensation Acts, if the worker was otherwise entitled. There was no amount of compensation claimed before the Arbitrator, and there was no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation. In the Deputy President’s view, the threshold was not met. Deputy President Snell held that no appeal lay pursuant to s 352, due to the application of s 352(3) of the 1998 Act. ([20], [22])

4. The Deputy President then went on to address the substantive merits of the appeal as an alternative, should he be incorrect in relation to the threshold matter. ([23])

Discussion

5. Deputy President Snell observed that the worker did not, in the current proceedings, argue that his psychological injury was other than secondary. The Deputy President referred to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition, issued 1 April 2016 (the Guidelines) and noted that the Guidelines prohibit the making of a “permanent impairment assessment” of a secondary psychological impairment. Deputy President Snell held that if a secondary psychological injury was referred pursuant to Ch 7 Pt 7 for assessment, there was no provision in the Guidelines for such an assessment to occur. ([50], [59])

Section 32A and Part 3 Division 4 of the 1987 Act

6. Deputy President Snell outlined the interaction between s 32A and Part 3 Division 4 of the 1987 Act. He noted that the effect of s 32A, s 65(1) of the 1987 Act, s 322(1) of the 1998 Act, s 331 of the 1998 Act and cll 1.19, 1.21 and 1.22 of the Guidelines is that the definitions in s 32A, of a worker with high or highest needs, require assessment in accordance with the relevant Guidelines. ([63]–[65])

7. On the parties’ submissions, there were competing constructions going to the combined operation of the definitions in s 32A and Part 3 Division 4. After referring to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47], French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]–[26], and Miles v SAS Trustee Corporation [2017] NSWCA 86 at [53], the Deputy President outlined his construction. ([67]–[71])

8. In the Deputy President’s view, the preferable construction of the relevant definitions in s 32A was that assessment “for the purposes of Division 4” involves assessment consistent with the process of assessment of permanent impairment for the recovery of compensation for non-economic loss. Such a construction was consistent with the text of the legislation – the purposes of Div 4 were consistent with assessment for the recovery of non-economic loss compensation. ([72])

9. He added that the construction was consistent with the heading of Pt 3 Div 4, “Compensation for Non-Economic Loss”, which formed part of the text of the Act. Deputy President Snell did not regard the language of the relevant definitions in s 32A, and Pt 3 Div 4, as being “doubtful or ambiguous”. If it were, then such a construction was consistent with the heading of Pt 3 Div 4 (in accordance with the third rule in Ragless v Prospect District Council [1922] SAStRp 28; [1922] SASR 299 at 311 that if the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted). ([73])

10. Deputy President Snell said that the 1987 and 1998 Acts establish a scheme for the assessment of permanent impairment, which is incomplete in the absence of the relevant Workers Compensation Guidelines. It was legitimate to have regard to the Guidelines, “in order to understand the scheme” (see R v Tannous [2012] NSWCCA 243 at [22]–[23]). The scheme, viewed in this context, is one that makes no provision for the assessment of permanent impairment, in respect of a secondary psychological condition. If the order for referral sought by the worker were made, there would be no basis in the Guidelines for assessment of permanent impairment, in respect of the secondary psychological condition, to occur. Yet the scheme is one in which “the assessment of the degree of permanent impairment of an injured worker ... is to be made in accordance with the Workers Compensation Guidelines”: s 322(1) of the 1998 Act. Deputy President Snell held that the structure of the scheme is inconsistent with the proposition that permanent impairment can be assessed in respect of secondary psychological injury. ([74])

11. The Deputy President was fortified in this view as the relevant Workers Compensation Guidelines were consistent with his view going to the construction of the definitions in s 32A (see Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881; 75 NSWLR 482 at [83]). ([76])

12. Deputy President Snell held that on the construction he reached, if the worker’s permanent impairment is assessed “for the purposes of Div 4”, such an assessment includes application of s 65A(1), which is part of that Division. To have regard to any permanent impairment resulting from the secondary psychological injury, similarly, was precluded by s 65A(2) of the 1987 Act. It followed that an assessment of permanent impairment in respect of the secondary psychological condition was precluded by s 65A of the 1987 Act. ([77])

13. The Deputy President then referred to the worker’s argument for a purposive construction, which referred to two second reading speeches. The Deputy President referred to s 34(2)(f) of the Interpretation Act 1987, Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [12], Amaca Pty Ltd v Novek [2009] NSWCA 50 at [78] and Preston v Commissioner for Fair Trading [2011] NSWCA 40 at [169]–[175]. Deputy President Snell held that the matter was not one where the passages from the second reading speeches (relied upon by the worker) would assist. ([80]–[84])

14. Deputy President Snell finally noted that the above was sufficient to deal with the appeal and that it was not necessary to deal with Ground No 2. ([86])

1. The President observed that the Arbitrator identified the following matters in support of the conclusion that s 9A was satisfied:

(a) the injury occurred during the worker’s normal working hours and at a time that had been governed by an appointment with a potential customer;

(b) the incident occurred on the direct pedestrian route between the place where the worker parked his work van and the customer’s home;

(c) the worker was at the precise location, pursuant to a direction by his employer, to inspect the customer’s property for the purpose of providing a quote for the cost of carpet cleaning;

(d) the worker was rushing at the time of the incident because he was late for the appointment;

(e) it was raining and the road gutter contained a substantial quantity of water;

(f) the worker lunged over the gutter in order to straddle water gushing along the kerb in an attempt to keep his shoes dry and free from debris prior to entering the customer’s home;

(g) the worker had been instructed not to remove his shoes before entering a customer’s home and would be wary of entering the house with wet shoes;

(h) the action of lunging across the gutter placed force on the worker’s right knee resulting in the immediate rupture of his anterior cruciate ligament reconstruction;

(i) although the worker suffered from a congenital abnormality of the knee, it had not prevented him from engaging in regular sporting activities and full time employment prior to the injury;

(j) the absence of any medical evidence to suggest that the right knee condition caused the rupture of the graft which constituted the subject injury, and

(k) the absence of any lifestyle activities that played a causative role.

The President found that the Arbitrator’s findings in this regard did not reveal any error. ([115]-[116])

2. The President observed that satisfaction of s 9A does not require the worker to establish that the employment is the substantial contributing factor to the injury (Department of Education & Training v Sinclair [2005] NSWCA 465 and Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 (Badawi)). ([117])

3. The President further observed that the Arbitrator identified the following matters in support of the conclusion that s 9A(2)(d) could not be satisfied:

(a) The opinion of the insurer’s orthopaedic surgeon that the injury “could” have happened at any time in the worker’s life irrespective of whether or not he was at work was based upon an incorrect history. Namely, that the worker was walking as he crossed the road which was found not to be the case.

(b) The insurer’s orthopaedic surgeon incorrectly regarded the worker’s knee as essentially “normal” before the subject injury. The worker suffered from a congenital abnormality of the knees but this had not prevented him from engaging in active sporting activities and full-time employment.

(c) The steps taken by the worker after leaving the kerb were consistent with a running action so that “substantially greater force was applied to the right knee as he took the next step following landing on the left leg”.

(d) The worker was running late for an appointment with a customer.

(e) The worker had to cross a gutter containing a quantity of flowing rain water.

(f) The worker initially lunged across the gutter as he began to run across Ocean Street towards the customer’s home.

(g) The worker was conscious of keeping his shoes dry as he was not permitted to remove them when entering a customer’s home. ([120])

4. The President found that the above findings were open on the evidence and did not reveal error. The Arbitrator was required to base his conclusion on whether s 9A was satisfied on the whole of the evidence noting that nothing in s 9A makes a finding on any one of the examples in s 9A(2) determinative. Even if a consideration of s 9A(2)(d) militated against a finding that the employment was a substantial contributing factor to the injury, it was still open to conclude that the section had been satisfied if the evidence, as a whole, including the remaining matters in s 9A(2), supported that conclusion (per Mason P in Mercer, cited by the plurality in Badawi at [36]). ([121]-[122])

5. The President was not satisfied that the Arbitrator erred in the conclusion reached under s 9A(2)(d) for the following reasons:

(a) The Arbitrator’s factual findings were soundly based on evidence presented at the hearing.

(b) The finding that the worker changed from a normal walking gait to an action to project himself across the flow of water in the gutter and to carry him rapidly across the road was consistent with the worker’s evidence that he was concerned about getting his shoes wet or muddy prior to entering the customer’s home and therefore needed to lunge over the gutter to avoid that happening.

(c) The finding that the worker lunged across the gutter in a manner that was consistent with commencing to run, conscious of the matters at [3] above. This was consistent with the evidence of the worker’s orthopaedic surgeon.

(d) The inference that, by commencing to run, the worker placed a greater strain on his right knee than would have been the case had he continued walking, was reasonably available in the absence of contemporaneous medical evidence in support (G v H [1994] HCA 48; 181 CLR 387; Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465; Marshall v Prescott [2015] NSWCA 110; Holloway v McFeeters [1956] HCA 25; 94 CLR 470; Martin v Osborne [1936] HCA 23; 55 CLR 367).

(e) The only possible competing hypothesis was that the injury could have occurred spontaneously, such as occurred in 2013 leading to knee surgery that same year. The Arbitrator excluded that hypothesis because notwithstanding the congenital abnormality in the worker’s knee it had not prevented him from engaging in active sporting activities and full-time employment.

(f) The President was satisfied that the inference drawn by the Arbitrator was soundly based on the fact as found and it could not be shown that the Arbitrator was wrong (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir)). ([123]-[133])

6. The President did not accept the submission that the Arbitrator erred in the weight given to the insurer’s orthopaedic surgeon. The doctor recorded that the injury occurred when the worker was walking in a straight line without any twist, pivot or turn, nor was he on any unstable or uneven ground. That history was incorrect and inconsistent with the worker’s statement and oral evidence. ([134]-[138])

7. The President observed that s 9A(2)(d) refers to the “probability” that the injury or a similar injury would have happened anyway. It followed that even if the doctor’s opinion (that it was “conceivable” that such an injury could have happened at any time in the worker’s life whether or not he had been at work) was given full weight it would have fallen well short of proving the probability of the worker’s injury occurring in any event. ([139]-[140])

8. As the employer conceded that the worker sustained an injury to his knee in the course of his employment, it was not necessary that the worker introduce expert medical evidence to support the causal connection between the incident on 21 March 2016 and his injury. That causal connection was admitted, at least for the purpose of satisfying s 4 of the 1998 Act. ([144])

9. Whether the employment is a substantial contributing factor to the injury is a question of fact and a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348) to be decided on all of the evidence including the matters referred to in s 9A(2). It is not purely a medical question (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222). The Arbitrator was required to consider the employment concerned and the circumstances surrounding the occurrence of the injury and that is precisely what he did (Badawi). ([145])

10. The Arbitrator took considerable care to consider each of the examples referred to in s 9A(2) and applied them to the facts as found. The evidence overwhelmingly supported the finding that the worker was not merely walking. Based on the worker’s statement, his evidence in the Commission, and the history recorded by his treating orthopaedic surgeon, the Arbitrator was correct to find that the worker was lunging across the gutter at the time of the injury. The President was not satisfied that an error of the kind described in Whiteley Muir occurred. ([150]-[162])

(a) sustained an injury on 13 December 2014;

(b) was usually based for the purposes of his employment with the appellant in New South Wales, and

(c) was totally incapacitated from 23 April 2015.

Ground one – that the Arbitrator erred in finding that the worker sustained an injury on 13 December 2014

1. Whether the worker sustained an injury was a question of fact. To determine whether factual errors occurred, the President discussed and followed the principles in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir), Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227, and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19]–[20]. ([108]-[109])

2. The Arbitrator’s finding that medical evidence was consistent with the worker suffering from a degenerative condition in his lumbar spine around October 2014 did not reveal any error. That was so even though, as the Arbitrator observed, the worker continued working without complaint and without seeking medical treatment until the incident on 13 December 2014. ([110]-[112])

3. The Arbitrator weighed the radiological evidence, which supported a conclusion that the worker had been suffering from a degenerate back, with the other evidence to find that the most plausible explanation for the worker’s injury was the loading of the delivery van and attendant lifting on 13 December 2014. That finding was open on the evidence and did not involve error. ([113])

4. The worker’s complaints of back pain to his general practitioner on 16 December 2014 were inconsistent with the worker failing to make any reference to back pain in an email to the employer the following day. The email was responsive to an allegation that $3,500 worth of stock was unaccounted for following the collection of the van and its contents from the worker’s former residence in Casino. Within half an hour the worker responded with a terse email exchange firstly, denying that he had stolen any goods, and, secondly, threatening an unlawful dismissal action. In that context, the President observed that, it was perhaps unsurprising that the worker did not enter into a discussion regarding his back condition. The submission that the Arbitrator gave inappropriate weight to that evidence was not made out. ([114]-[115])

5. The Arbitrator’s finding that there was no evidence to support the proposition that somehow sleeping in the car, overnight during the journey from Casino to Victoria, had caused or contributed or given rise to the worker’s symptoms was correct. In addition, although the worker complained that driving the work van aggravated his symptoms, there was no evidence that driving his own car did so or that driving the vehicle between Casino and Victoria caused or aggravated the condition. ([117]-[118])

6. The President was not persuaded that an error of the kind described in Whiteley Muir had been established. It followed that this ground failed. ([119]-[120])

Ground two – that the Arbitrator erred in finding that the worker was usually based for the purposes of his employment with the appellant in New South Wales

7. The challenge under this ground was limited to the Arbitrator’s finding of fact to the application of s 9AA(3)(b). The Arbitrator’s conclusions were based on the following factors:

(a) that the worker relocated to Casino from his home in Victoria strongly supported the conclusion that he was based in New South Wales rather than Victoria;

(b) the worker not only lived in Casino but used his residence to store work stock;

(c) his sales journeys commenced and ended from his residence in Casino;

(d) the employer’s evidence that smaller goods were sent to the worker’s residence and larger goods were sent to a retailer in Ballina “who we are good friends with and [the worker] would pick up when needed”, and

(e) the fact that goods were forwarded to the worker in two New South Wales locations reinforced the Arbitrator’s conclusions that New South Wales was his usual base. ([131])

8. There are several factors that may be considered when determining the state in which a worker is “usually based” for the purposes of employment. Those factors include, but are not limited to, the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, and the location from where the worker’s wages are paid (Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 at [80]- [84]; Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83; 8 DDCR 535 at [60]). ([132])

9. The fact that the worker’s remuneration was processed from Victoria and that he reported to his supervisor in Victoria were relevant factors that weighed in favour of a conclusion that Victoria was the state of connection under the usually based test. However, those factors were not decisive and had to be weighed with the whole of the evidence. ([141])

10. The fact that the worker relocated to Casino after commencing employment with the appellant, that Casino was not just the worker’s place of residence, but a place where he received and stored stock, the place where he left from and returned to when travelling on sales trips, and the place where he received instructions, overwhelmingly supported the Arbitrator’s conclusion that the worker was usually based in New South Wales. ([133]-[142])

11. The place where the appellant’s office is located and where its financial controller is located are factors more relevant to a determination of the principal place of business. As the Arbitrator correctly concluded, based on the evidence presented, s 9AA(3)(b) provided a satisfactory answer to identify the worker’s employment as connected to the state of New South Wales. Therefore, it was unnecessary for the Arbitrator to consider the application of s 9AA(3)(c) and the principal place of employment test. ([143])

12. It followed that this ground failed. ([145])

Ground three – that the Arbitrator erred in finding that the worker was totally incapacitated from 23 April 2015

13. Whether the worker was incapacitated in the relevant period was a question of fact. The Arbitrator’s ultimate conclusion was based on the weight of evidence in favour of a finding that the worker remained incapacitated for work. The Arbitrator took into account the worker’s unreliability and his exaggerated presentation to the consultant orthopaedic surgeon. The Arbitrator found that whilst the worker’s credit had been impugned, she was not obliged to reject the whole of his evidence. However, as the Arbitrator identified, she was required to carefully consider his evidence. She concluded that an assessment of the evidence as a whole favoured a finding of continuing incapacity. That finding was open based on the medical evidence. The President was not persuaded that an error of the kind described in Whiteley Muir had been established. It followed that this ground failed. ([154]-[160]).

(a) determining that Manildra contracted with Mr Almer rather than with the company (Ground 1);

(b) concluding that the fact that Manildra always dealt with the claimant “was contraindicative of the existence of a contract between [Manildra] and [the company]” (Ground 2);

(c) concluding that the fact that the claimant performed the work “was contraindicative of the existence of a contract between [Manildra] and [the company]” (Ground 3);

(d) concluding that if Manildra contracted with the company, Manildra “could not have control over the person who provided the services” (Ground 4);

(e) instructing himself as to the nature of a contract for services (Ground 5);

(f) concluding that the company had no ‘status’ (Ground 6), and

(g) failing to address the evidence of Ms Loveday (Manildra’s warehouse manager) (Ground 7).

Held: The Certificate of Determination was revoked and the matter was remitted for re-determination by another Arbitrator.

1. It was common ground that Manildra contracted with either the claimant or the company, the issue was which. ([61])

Ground No 1

2. The claimant relied on the decision in Compton. Deputy President Snell distinguished Compton, and held that this decision did not support the claimant’s position. The Deputy President said that the decision in Sarac v Itxcel Pty Ltd [2015] NSWWCCPD 32 (Sarac) was relevant. That decision demonstrated that, if the relevant contract was between Manildra and the company (rather than the claimant individually), the first limb of the test in Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri) was not satisfied, and the allegation of ‘deemed worker’ could not succeed (Sarac at [54]–[55]). The Deputy President said that there were difficulties with the evidence of the claimant, and of Ms Loveday in Manildra’s case, both of which dealt with those persons’ personal beliefs about the identity of the contracting parties. ([75])

3. After noting that this ground went to an ultimate finding of fact, the Deputy President stated that Manildra had succeeded in establishing error on other specific grounds, which demonstrated error in the reasoning which led to the Arbitrator’s finding that Manildra contracted with the claimant. ([76])

Ground No 2

4. It is uncontroversial that a company acts through its servants and agents. The claimant was the only company officer. The Deputy President held that the fact that Manildra always dealt with the claimant was not more supportive of one possibility than the other, regarding whether Manildra contracted with the claimant personally, or the company. This aspect of the evidence did not support the proposition that the contract was with the claimant personally. The Arbitrator’s reliance on the evidence in this regard affected the result, and was an error. ([79]–[80])

Grounds Nos 3, 4 and 5

5. The Deputy President dealt with these three grounds together as they dealt with similar subject matter; the extent to which Manildra required that the claimant be personally responsible for performance of the duties under the contract, and whether this was inconsistent with the contract being one between Manildra and the company, as opposed to the claimant. ([81])

6. The Arbitrator’s reasons at [57] described the contract as one ‘for services’, and as an ‘employment’ contract, which required the personal undertaking of the claimant to perform the services. This is not a necessary part of a contract for services. The claimant did not argue that he was a ‘worker’ within the meaning of s 4 of the 1998 Act; he did not submit that the relationship was one of master and servant. Deputy President Snell held that whoever Manildra contracted with, the contract was one for services, not a contract of service. The Deputy President concluded that the error, in describing the nature of a contract for services, affected the result, and constituted error. ([83], [85], [89])

Ground No 6

7. Manildra contended that the Arbitrator’s reference to “the non-status” of the company was probably a typographical error. The claimant conceded that at the relevant time, the company was an existing entity. Deputy President Snell accepted that it was probably a typographical error and held that this misstatement of the company’s status did not affect the result. ([91]–[92])

Ground No 7

8. Deputy President Snell stated that the Arbitrator did not err in failing to address the evidence of Ms Loveday, a Manildra employee, going to her belief of the identity of the party with which Manildra contracted. A contract is construed by reference to the intention of the contracting parties, objectively ascertained, not the parties’ actual beliefs or intentions. Ms Loveday’s view of whether Manildra contracted with the claimant personally, or the company, did not assist. ([93])

Disposition of the appeal

9. Deputy President Snell revoked the Arbitrator’s determination, and remitted the matter to another Arbitrator for determination, to determine whether the claimant was a ‘deemed worker’ pursuant to Sch1, cl 2 of the 1998 Act. ([94]–[95])

1. Deputy President Snell held that there was an issue regarding whether the appeal could be brought, having regard to s 352(3) of the 1998 Act. ([18])

2. The Deputy President stated that no compensation was awarded by way of weekly payments. He added that the claim in respect of the cost of future surgery was discontinued. Deputy President Snell held that the only “compensation at issue on the appeal” was the ‘general order’ for expenses pursuant to s 60 of the 1987 Act. The appellant argued that other sums might become payable, by way of the cost of future surgery and/or a future claim for lump sum compensation. The Deputy President was of the view that these other sums were not at issue on this appeal. ([23])

3. After quoting from Coles Supermarkets Australia Pty Limited v Conway [2015] NSWWCCPD 42 at [31] and Peter J Davis (Newcastle) Pty Ltd v McLeod [2009] NSWWCCPD 122 at [19], Deputy President Snell held that the “amount of compensation at issue on the appeal” cannot be ascertained by reference to other sums, which are not claimed or at issue in the current proceedings, and that may or may not be claimed at some future time. ([24]–[26])

4. Deputy President Snell then discussed the meaning of a general order. Following Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 at [55] and NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76 at [84], the Deputy President stated that to make a ‘general order’, an Arbitrator had to be satisfied on the issues of ‘worker’ and ‘injury’. Such an order does not involve a finding that any particular treatment is ‘reasonably necessary’ as a result of the found injury. ([28])

5. The Deputy President stated that there must be at least $5,000 at issue on the appeal, before it can be brought. The only order in the worker’s favour was a general order for payment of s 60 expenses. That did not determine the entitlement of the worker to the recovery of specific expenses. Potentially, if there was a proper evidentiary basis to do so, the appellant could dispute issues such as causation, and whether specific treatment was ‘reasonably necessary’. There was no agreement or schedule as regards the amount of the relevant expenses. There were no specific expenses the subject of the order. The evidence did not support the conclusion that “compensation at issue on the appeal”, pursuant to the general order for s 60 expenses, was at least $5,000. It followed that the monetary thresholds in s 352(3) of the 1998 Act were not satisfied, and there was no right of appeal. ([30]–[31])

1. The worker submitted that the Senior Arbitrator erred by giving any weight to the fact that the worker’s employment prior to employment with the respondent employer, was likely to have exposed him to noise such as to give rise to a real risk of industrial deafness. ([59])

2. The President found that the Senior Arbitrator only noted the worker’s concession that his antecedent employment was likely to have exposed him to noise levels well above 90 dBA. Given that concession, it was appropriate for the Senior Arbitrator to record the antecedent employment. In any event, it did not affect her ultimate finding. ([62]-[64])

3. It followed that the Senior Arbitrator did not err. ([65]).

The Senior Arbitrator erred in failing to consider the effect of exposure to 85 dBA over an eight hour period

4. The President did not accept the worker’s submission that the Senior Arbitrator failed to give proper weight to Dr Scoppa’s evidence that a sound level of 85 dBA over an eight hour period is prima facie evidence of a work environment that is potentially hazardous to hearing. It is not sufficient for a worker to say that their work environment was noisy and they have industrial deafness. It is essential that they present detailed evidence of the nature and extent of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of industrial deafness (Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35). ([68]-[70])

5. The President found that the evidence presented by the worker fell well short of those requirements for an accurate assessment of the level of noise exposure to be undertaken. Apart from the evidence of exposure in the control room, which Dr Scoppa, at least impliedly, accepted was unlikely to give rise to hearing loss, the worker’s evidence was in the most general terms certainly inadequate for an expert to conclude reliably that exposure to noise outside the control room was of a sufficient level and frequency to give rise to industrial deafness. ([75]-[76])

6. It followed that this ground of appeal failed. ([77])

Did the Senior Arbitrator fail to have regard to attendance on external alarms?

7. The President accepted the respondent’s submission that, the worker was required to satisfy a more rigorous test than to simply assert that he was attending to noisy alarms.  His Honour also accepted the respondent’s submission that the worker failed to introduce evidence of the kind discussed in Dawson. It was open to the Senior Arbitrator to find that the evidence presented was insufficient and that the worker did not discharge his onus of proof. It followed that this alleged error was not made out. ([78]-[80])

Did the Senior Arbitrator err by inferring that exposure to noise of 112 dBA for 15 minutes was the test to be applied?

8. This ground was rejected for the reasons discussed above. There was no evidence that the worker was ever exposed to noise levels exceeding 112 dBA. It followed that this ground failed. ([86]-[87])

Was the history Dr Scoppa relied on correct?

9. Dr Scoppa relied on a history that the worker was exposed on average to 40-60 alarms per day. On average the exposure lasted between one and two minutes before the alarms were switched off. The daily occupational noise exposure from alarm noise varied from day to day but could last as long as two hours per day. That history did not differentiate between noise exposure to off-site alarms and the exposure to the signal alarms within the control room. It followed that the Senior Arbitrator’s factual finding that the doctor’s opinion was not based on a correct history was accurate. No error was established. ([88]-[91])

Did the Senior Arbitrator fail to properly consider or give proper weight to Dr Scoppa’s evidence?

10. The Senior Arbitrator found that Dr Scoppa’s opinion was based on a worst case exposure of alarms outside the security office of up to two hours a day. The worker’s evidence in his second statement was that he may be exposed to the noise of alarms in the security office for up to two hours per day. He did not, however, provide evidence as to the amount of time spent attending to alarms outside of the control room. Nor was there any evidence as to the frequency or intensity of such exposure. The Senior Arbitrator accepted the evidence of the employer’s leading hand established, contrary to the worker’s evidence, that the exposure outside of the control room was limited to 10–15 alarms lasting for up to 20 seconds each per shift. Given his more detailed evidence concerning the extent of exposure to alarms outside the control room, it was open to the Senior Arbitrator to prefer the leading hand’s evidence as to the extent of exposure to noise outside the control room. ([94]; [112])

11. As there was little or no correlation between the facts proven and the assumptions upon which Dr Scoppa’s opinion was based, the Senior Arbitrator was correct to conclude (at [45]) that it did not provide a satisfactory basis for the acceptance of his opinion (Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 at [19], Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 at [82]-[83], Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509B-510B). ([95]-[96])

12. It followed that this ground of appeal failed.

The evidence of ringing in the ears

13. The President rejected the worker’s submission that liability for compensation arising under s 17 is established where there is evidence of a worker suffering a sensation of ringing in the ears irrespective of evidence of the exposure period or level of noise. The submission was directly contrary to accepted authority: Dawson and Blayney Shire Council v Lobley (1995) 12 NSWCCR 52. Ringing in the ear may be a relevant factor to consider, however, it is not determinative of whether the employment has the tendencies, incidents or characteristics to give rise to a real risk of industrial deafness. ([81]-[84]; ([98]-[101])

The challenge to the worker’s evidence

14. he worker’s evidence failed to identify the extent of the exposure that would be required in order to satisfy the evidentiary onus in terms of exposure to noise outside the control room. Amongst other things, the worker’s evidence merely established that he was exposed to alarms that were known to emit a noise level of 100 dBA but failed to establish how frequently he attended such alarms or the duration of exposure. It followed that this ground of appeal failed. ([115]-[119])

Conclusion 

15. Whilst it was accepted that the worker suffered a hearing impairment which was partly induced by exposure to industrial noise, he failed to satisfy the onus of proof that his employment with the respondent had the tendencies, incidents or characteristics such as to give rise to a real risk of industrial deafness.

(1) by limiting the worker’s claim for weekly compensation for a closed period, in circumstances where the period of the claim was from 19 July 2014 to 27 August 2016.

(2) in fact and discretion by finding that the worker had a capacity to work 30 hours per week as a librarian. In particular, it is alleged that the Arbitrator erred:

(a) by finding that the work as a librarian was work that was reasonably accessible to the worker in the labour market;

(b) by finding that part-time study, which the worker had undertaken “online”, should be seen as “in addition” to her capacity to work, and

(c) by failing to give any, or any adequate, consideration to the report of the worker’s treating psychologist and the certificates of capacity issued by the worker’s treating general practitioner, in making her findings.

Held: The Arbitrator’s determination was part-revoked. The respondent was ordered to pay an additional sum of money per week for the closed period of weekly payments awarded. 

Discussion

1. The respondent correctly conceded that the Arbitrator erred in respect of the period of the award entered in the worker’s favour. It was agreed that the period of the award should have been from 19 July 2014 to 27 August 2016. The award was amended. [47]

2. Ground (2)(a) was misconceived, as it was based upon the law that stood prior to the passage of the Workers Compensation Legislation Amendment Act 2012 (the amending Act). As the pleaded date of injury was 9 January 2014, s 37 as amended by the amending Act applied. The employment for which the worker was suited was to be determined “regardless of” whether the work or employment is “available” and whether the work or employment is “of a type or nature that is generally available in the employment market” (s 32A). ([48]; [53]-[54])

3. The substance of the worker’s complaint was that the Arbitrator failed to place any or any adequate weight on evidence which would have limited the worker’s capacity to work eight hours per week, namely four hours on two days per week. The President did not accept this submission. ([58])

4. The Arbitrator weighed all of the evidence as to the worker’s capacity to work. The evidence varied between an assessment that the worker was fit to work without limitation to an opinion that her capacity was limited to eight hours per week. Given that the evidence of the nature and extent of the severity of the symptoms was so varied, it was open to the Arbitrator to find the contemporaneous history recorded by the medico-legal psychiatrist was a more reliable guide to the worker’s ongoing symptoms than those recorded in her statement made one year later. ([59], [62])

5. However, the Arbitrator erred by finding that the worker’s capacity to work as a librarian included a capacity for work equivalent to the average hours she spent studying. It was apparent from the Arbitrator’s calculation of the award that she found the worker to have a capacity for work of 30 hours per week. The President inferred that the calculation comprised of 15 hours as assessed by the medico-legal psychiatrist, plus an additional 15 hours per week. The additional hours appeared to be based on an inference that the time spent studying at home was notionally equivalent to an ability to return to the workforce working in a library. There was no evidence to support that inference and the Arbitrator erred in so finding. ([63], [64])

6. The President observed that time spent studying in the privacy of one’s home when the hour of study may be spread out or punctuated with “many breaks” is quite a different proposition to undertaking permanent employment for the equivalent number of hours. ([65])

7. The President found that the worker was fit to resume work, during the relevant period, working in a suitable low stress environment, such as a library, for 15 hours per week. ([66])

8. The worker sought to introduce fresh evidence on appeal, regarding the hourly rate of pay for a library assistant. That evidence was in support of a submission that as the worker was unqualified to work as a librarian that any current capacity for work should be assessed by reference to the earnings of a library assistant. ([67])

9. The evidence sought to be introduced was readily available in the form of a published industrial instrument and was undoubtedly available in advance of the hearing. The President was not satisfied that a different result would emerge if the evidence were taken into account. The quantification of the worker’s current capacity for work is a discretionary matter. If the evidence sought to be tendered was taken into consideration, it may influence the final assessment, however it could not be said with certainty that it would. Therefore, continued unavailability of the evidence would unlikely cause a substantial injustice in the case. It followed that leave to introduce fresh evidence on appeal was refused (s 352(6) of the 1998 Act; CHEP Australia Ltd v Strickland [2013] NSWCA 351; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 considered and applied). ([68]-[74])

10. The President observed that, in any event, the worker was bound by its counsel’s concession before the Arbitrator that the appropriate hourly rate under the industrial award for a librarian amounted to $30 per hour (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 applied). ([75]-[76])

(a) his analysis of the medical evidence in determining that no incident occurred on 21 August 2014;

(b) his analysis of the factual evidence in determining that no incident occurred on 21 August 2014, and

(c) ascribing any weight to the worker’s subjective assessment of the cause of her condition.

Held: The Arbitrator’s determination was confirmed. 

Ground one – that the Arbitrator erred in his analysis of the medical evidence in determining that no incident occurred on 21 August 2014

1. Notwithstanding the worker’s initial evidence implicating the general nature of her duties as a possible cause of the injury, she eschewed reliance on that evidence at the hearing, relying solely on the incident on 21 August 2014, as the cause of her injury. The Arbitrator expressed serious doubts about the worker’s credibility and ultimately did not accept her evidence on injury. His reasons for reaching that conclusion were clear and comprehensively dealt with in his reasons. Those reasons were:

(a) the worker had a history of low back pain and right sided sciatica;

(b) the worker did not seek medical treatment until 8 October 2014;

(c) she failed to provide any doctor with any history of a work related incident until 23 April 2015, eight months after the alleged incident;

(d) on 15 October 2014 the worker gave a history to her general practitioner of “recurring back pain”;

(e) the worker failed to report the alleged incident to her employer until 29 July 2015;

(f) the worker failed to provide any doctor with a history of bending over to pick up something at work until she told a medical specialist that on 4 September 2015. Although she had seen the specialist on three prior occasions, she made no mention of a work related injury;

(g) the worker failed to reveal to the qualified medical specialists a history of mechanical lower back pain and right sided sciatica until after clinical records revealing those complaints were obtained by the Commission;

(h) after the clinical records became available, the worker provided a further statement of evidence to the Commission that attempted to categorise the mechanical lower back pain as associated with kidney stones;

(i) she gave evidence to the respondent that she could not remember an exact incident and did not think there was anything in particular that caused her injury, and

(j) she gave inconsistent evidence in her own case that the general nature of her work was the cause of her lower back pain. ([101])

2. These findings, which were based in part on an adverse credit finding concerning the worker’s evidence, were open to the Arbitrator and did not reveal error (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472) ([102]-[104]).

3. Contrary to the worker’s submission, the Arbitrator did not reject the worker’s medical evidence. Rather, he did not accept the history and explanation of injury the worker provided to those doctors, namely, the incident of 21 August 2014. Given that the Arbitrator did not accept that that incident took place, the opinions of the worker’s medical experts could not stand. It followed that this ground failed ([111]-[112]).

Ground two – that the Arbitrator erred in his analysis of the factual evidence in determining that no incident occurred on 21 August 2014

4. The President found that the Arbitrator erred in finding that the first report of mechanism of injury relied upon by the worker appeared in the claim form dated 29 July 2015. The first documented report of the incident involving bending to pick up a pen was contained in the report of a general practitioner on 27 July 2015, two days earlier. Although the Arbitrator was mistaken in that finding, nothing turns on it. ([122])

5. Notwithstanding the fact the worker was not cross-examined, her credit was clearly in issue in the proceedings and there clearly was a credible body of substantial evidence that contradicted her evidence. As a question of fact, it was open to the Arbitrator to conclude that the objective evidence, which contradicted the worker’s evidence, was to be preferred. No error was revealed in that finding. ([128])

6. The President found there was no evidence to find that the Arbitrator “failed to use” or “palpably misused his advantage” or acted on evidence which was “inconsistent with facts incontrovertibly established” or “glaringly improbable” (Devries). Accordingly, this ground failed. ([131]-[132])

Ground three – that the Arbitrator erred in ascribing weight to the worker’s subjective assessment of the cause of her condition

7. The worker’s initial evidence as to the cause of her injury, that being, the injury was sustained as a result of the general nature and conditions of her employment, was a relevant matter for the Arbitrator to consider. As this case turned on issues of causation, any evidence proffering an alternative explanation for her injury was undoubtedly relevant. This was even though the worker withdrew her nature and conditions claim. ([140]-[141])

8. The President accepted the employer’s submission that, by maintaining that the cause of her injury was due to the conditions of her employment, until it became clear that there was no medical support for that contention, the worker undermined the persuasiveness of the case she ultimately ran, namely that the injury occurred as a result of one particular frank episode on 21 August 2014. ([142])

9. The worker’s submissions failed. It was not an error for the Arbitrator to weigh the worker’s initial evidence. Although not a decisive factor, it was a relevant factor the Arbitrator was required to weigh together with all the objective evidence, in order to determine whether the worker was to be accepted. It followed that this ground failed. ([142]-[143]).