Issue 7: December 2018

1. The Arbitrator did not err in finding that the respondent’s total knee replacement was an “artificial aid” within the meaning of s 59A(6)(a) of the 1987 Act. ([27]–[31], [37]–[41], [44], [45])

2. Deputy President Snell did not err in having regard to Thomas: first, the Deputy President did not rely solely on Thomas, rather he stated that Thomas was in his view consistent with the words of the statute; secondly, Thomas remains a relevant authority, notwithstanding that the present legislation is, to some extent, in a different form to that considered in that case; and, thirdly, even if, as the appellant contended, Thomas did not support the decision below, it was clear that it did not contradict it. ([32]–[36], [44], [45])

(Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 discussed)

3. The appellant’s fallback argument was rejected. The “provision of” the artificial aid in the form of a total knee replacement requires surgery. That surgery was therefore within s 59A(6)(a). This Court stated that it was not to be regarded as adopting a general rule that the cost of surgery is always a cost of “[t]he provision of … artificial aids”, rather each case must be decided on its own facts. ([42], [44], [45])

This appeal concerned the interpretation and application of s 38A of the 1987 Act. Section 38A(1) provides:

“38A Special provision for workers with highest needs

(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.”

The worker sustained an accepted injury to his right wrist in the course of his employment. The employer paid weekly compensation and medical expenses. The worker later claimed that his weekly payments be adjusted to the prescribed rate pursuant to s 38A of the 1987 Act.

The employer denied the worker’s claim under s 38A of the 1987 Act. It disputed that s 38A could be read as to allow the worker an entitlement to receive weekly compensation in excess of 80% of his pre-injury average weekly earnings (PIAWE), as assessed under ss 36, 37 or 38 of the 1987 Act.

The matter was referred to a Senior Arbitrator who found that, pursuant to s 38A of the 1987 Act, the worker was entitled to $788.32 (as adjusted) in weekly payments of compensation, in addition to his actual earnings. The employer appealed.

The question on appeal was whether on its proper construction the word “amount”, where it is used for the second and third time in s 38A(1) of the 1987 Act, is a reference to the amount of weekly compensation payments only or to a combined total of weekly compensation payments, earnings or deemed earnings and the value of any non-pecuniary benefits received.

On appeal, it was not disputed that the worker was a worker with highest needs as defined in s 32A of the 1987 Act. Nor was it disputed that the worker was entitled to compensation pursuant to s 38A of the 1987 Act (Hee v State Transit Authority of NSW [2018] NSWWCCPD 6). The quantification of the worker’s entitlement pursuant to s 38A of the 1987 Act was in dispute.

Held: The Senior Arbitrator’s Certificate of Determination was confirmed. 

Consideration

1. The approach to statutory construction “begins, as it ends, with the statutory text.” His Honour accepted the employer’s submission that the modern approach to statutory construction insists that context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. His Honour also accepted the employer’s submission that a court will prefer an interpretation which avoids consequences that are “anomalous, unlikely or unreasonable”. However, to depart from the plain words of s 38A of the 1987 Act, his Honour observed that he must be satisfied, among other things, that any modified meaning is consistent with the statutory scheme and consistent with the language in fact used by the legislature. ([94])

(SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936; Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 considered)

2. The employer conceded that the literal meaning of the words of s 38A of the 1987 Act are plain. It means that the amount of weekly compensation is to be treated as $788.32, without having regard to any income earned or capable of being earned, by the worker. However, it argued that that interpretation was inconsistent with the Minister’s second reading speech to the Workers Compensation Amendment Bill 2015 which introduced s 38A, which stated that the Bill will ensure that workers with highest needs will receive a minimum amount of $788 each week which will comprise the benefit paid for by their insurer and any post-injury earnings. The employer argued that to adopt the literal meaning would result in workers earning compensation in excess of their PIAWE, which it submitted was an arbitrary or capricious result which does not reflect the legislature’s purpose. The employer sought to construe s 38A(1) of the 1987 Act as if it contained the additional words in bold below:

If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this subdivision results in an amount that is less than $788.32, the amount [of a worker’s combined weekly compensation payments, non-pecuniary benefits and earnings or deemed earnings] is to be treated as $788.32. ([96])

3. Contrary to the employer’s submissions, there is a general presumption that where a word is used consistently in legislation it should be given the same meaning consistently. This presumption is even more powerful when the words are used in the same section. ([97]-[98])

(Craig Williamson Pty Ltd V Barrowcliff [1915] VicLawRp 66; [1915] VLR 450; McMillan v Pryce [1997] NTSC 83; (1997) 115 NTR 19 considered)

4. His Honour observed that, to depart from the unambiguous language used by the legislation, more is required than a construction which is merely open. As the High Court confirmed in Taylor, Lord Diplock’s three conditions identified in Wentworth Securities must be met. Even if those three conditions are met, a court may be inhibited from interpreting the provision in accordance with what it considers was the underlying intention of the legislature if the alteration to the language of the provision is “too far reaching”.[Field] ([99])

(Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531; Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 applied)

5. As to the first of Lord Diplock’s conditions, the mischief the Workers Compensation Amendment Act 2015 was intended to address by introducing s 38A of the 1987 Act was to provide a minimum amount of compensation for workers with highest needs. ([111])

6. As to the second condition, his Honour observed that it may be arguable that the legislature overlooked an eventuality which must be dealt with if the purpose of s 38A of the 1987 Act is to be achieved. However, his Honour held that there is nothing in s 38A to indicate that the special benefits available are to be capped in the manner the employer contends. The plain words of the section are to the contrary. It does not follow contextually that, because some of the benefits available in the provisions of Subdiv 2 limit the compensation to a proportion of a worker’s PIAWE that all of its provisions must be so limited. That is particularly so when one considers that s 38A is a special provision clearly intended to provide additional benefits to workers of highest needs. ([114]-[118])

7. His Honour observed that, the employer’s suggested modification to s 38A of the 1987 Act would not avoid the anomalies for which the employer contends. Even on the construction favoured by the employer, entitlements to compensation under s 38A may result in compensation in excess of the worker’s PIAWE. ([120])

8. The language of s 38A of the 1987 Act is clear and unambiguous, the express words are capable of only one construction. It is intended to provide a minimum amount of compensation, if the terms of s 38A(1) are met. His Honour was not satisfied that any other provision casts doubt on that construction. ([125])

9. It followed that the provision must be given its ordinary and grammatical meaning, even if it results in an outcome that may be anomalous or result in a “bonus”, as the employer submits. It followed that the second of Lord Diplock’s conditions was not met. ([127])

10. As to the third condition, it was not possible to state with certainty what words the legislature would have included to overcome the alleged omission in s 38A of the 1987 Act if its attention had been drawn to it before its enactment. ([128])

11. Even if the three conditions were satisfied, his Honour observed that he would be disinclined to accept the employer’s preferred construction because it would be “too far-reaching”. The construction for which the employer contends would give s 38A of the 1987 Act a meaning which is too far at odds with the words the legislature has used. It would give s 38A a meaning that is vastly different to the provision enacted. To give s 38A such a construction would stray from the task of statutory construction into the realm of “judicial legislation”.

(Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 considered)

12. The appeal failed. ([130])

1. The Arbitrator found that the worker’s injury to the right hand and right wrist was an aggravation of a disease injury under s 4(b)(ii) of the 1987 Act, caused by the repetitive work she undertook as a bank teller for the respondent. The President observed that, in such cases, s 16 of the 1987 Act applies to determine when such an injury is deemed to have happened. ([67])

2. The authorities establish that there may be more than one deemed date of injury.[Field] In this case, applying s 16(1)(a)(i) of the 1987 Act, the deemed date of injury for the purposes of the claim for weekly compensation would be 4 July 2010. However, as the only relevant claim before the Arbitrator was the claim for permanent impairment compensation, s 16(1)(a)(ii) fixes the deemed date of injury to be the date of the claim for permanent impairment compensation. It followed that the Arbitrator’s findings were correct. ([71)

(Ford Pty Limited v Antaw [1999] NSWCA 234 and Stone v Stannard Brothers Launch Services Pty Limited [2004] NSWCA 277 applied)

3. It is immaterial that the symptoms and pathology resulting in the worker’s claim for continuing incapacity are indistinguishable from the symptoms and pathology on which the claim for permanent impairment compensation is founded. That is because the authorities clearly establish that if the only relevant claim to be determined is a claim for permanent impairment lump sum compensation any earlier compensation in respect of incapacity is irrelevant. ([72])

4. To the extent the appellant raised issue with the Arbitrator’s reasons, the President was satisfied that the Arbitrator discharged the statutory obligation to provide a “brief statement” setting out reasons for his decision. ([75]-[79])

(NSW Police Force v Newby [2009] NSWWCCPD 75 applied)

(a) There being a lack of procedural fairness or bias, in either case resulting in a miscarriage of justice. (Ground No 1)

(b) Failing to consider relevant facts and taking into account irrelevant facts, regarding the medical evidence, and failing to apply relevant legislation and case law correctly. (Ground No 2)

(c) Admitting the respondent’s evidence of its defective s 74 notices, and additional medicolegal report, and failing to distinguish between the different claims before the Commission. (Ground No 3)

(d) Failing to identify and adjudicate on late evidence and submissions, and to give reasons for findings. (Ground No 4)

(e) Taking into account irrelevant considerations and failing to take into account relevant considerations, regarding the evidence and submissions generally. (Ground No 5)

(f) Failing to apply Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel). (Ground No 6)

1. The worker sought an adjournment, which the arbitrator refused. The worker submitted that the refusal to grant his adjournment application was unfair. The worker’s situation was not typical of that of an unrepresented litigant, given his legal training. The Arbitrator had previously adjourned the matter to give the worker an opportunity to seek legal aid and instruct solicitors. The worker then terminated the retainer of the solicitors a few days before the arbitration hearing. The Arbitrator took account of various factors, which were properly relevant to the exercise of his discretion. The appellant had not identified injustice that flowed from the Arbitrator’s refusal of the adjournment application. He had not demonstrated an appropriate basis to interfere with such a decision on appeal. ([33], [36]–[42])

(Fire and Rescue NSW v S [2015] NSWWCCPD 50; House v The King [1936] HCA 40; 55 CLR 499 (House v The King) and Bauskis v Liew [2013] NSWCA 297 applied)

The balance of the issues in Ground 1

2. The applications regarding evidence-in-chief, cross-examination and the Arbitrator’s rulings regarding the appellant’s reluctance to comply with the evidentiary process, raised issues going to the discretionary power to admit oral evidence, and to obtain compliance with procedural rulings. They were dealt with together. The worker had not established error in how the discretion in permitting cross-examination was exercised. Nor was there appealable error in the Arbitrator’s exercise of discretion in relation to the worker’s applications to give oral evidence or the breadth of the cross-examination. ([43], [56], [60], [62], [65])

(Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358; House v The King applied)

3. The worker’s submission regarding the Commission’s jurisdiction to award weekly compensation pursuant to s 38 was contrary to Presidential and Court of Appeal authority and was rejected. ([91])

4. In relation to the appellant’s complaint that the Arbitrator indicated that the proceedings may be struck out, the appellant was not being co-operative. There is authority that an arbitrator’s power to strike out proceedings “is not contingent on an application being made by either party”. The Arbitrator, in the Deputy President’s view, treated the appellant patiently, and gave him considerable latitude. He gave the appellant repeated warnings, rather than simply dealing with the issue of whether the proceedings should be struck out. ([96], [107]–[108])

(Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSWWCCPD 83, [33] applied)

5. In relation to the worker’s bias allegations, no recusal application was made at the arbitration hearing. In normal circumstances, this would be fatal to an allegation of bias being made after the matter was decided. Given that the appellant was not legally represented at the arbitration, the allegation was dealt with on the merits. Deputy President Snell concluded that there was no actual or apprehended bias. Ground 1 failed. ([117]–[124])

(Vakauta v Kelly [1989] HCA 44; 167 CLR 568, [5]; Smits v Roach [2006] HCA 36; 227 CLR 423; 228 ALR 262; 80 ALJR 1309, [43]; Brown Brothers v Pittwater Council [2015] NSWCA 215, [143] and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 applied)

Ground No 2: Failing to consider relevant facts and taking into account irrelevant facts, regarding the medical evidence, and failing to apply relevant legislation and case law correctly.

The complaint of sexual dysfunction

6. The worker submitted that clinical notes regarding sexual dysfunction corroborated that he had received a psychological injury. The various arguments raised going to this complaint and related matters failed. ([133]–[144])

Dr George’s reports

7. The worker submitted Dr George’s reports (relied on by the employer) did not satisfy the required standards for expert evidence. On a fair reading of his two reports as a whole, Dr George’s reports comfortably complied with the requirements of expert evidence, as described in State of New South Wales v Rattenbury [2015] NSWWCCPD 46 and Practice Direction No 3. ([145], [164])

Dr Smith’s reports

8. The worker submitted the Arbitrator failed to consider Dr Smith’s opinion in relation to diagnosis. The Arbitrator rejected the worker’s argument that Dr George’s reasoning regarding the presence of a delusional disorder was circular. This did not involve error. The Arbitrator clearly took the evidence of Dr Smith (and Ms Hidalgo, a psychologist) into account. He gave full and clear reasons for not accepting the views of Dr Smith and Ms Hidalgo. The Arbitrator did not err in his consideration of the evidence of Dr Smith. Ground 2 failed. ([166]–[182], [190])

(Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 applied)

Ground No 3: Error in admitting the respondent’s evidence of its defective s 74 notices, and additional medicolegal report, and failing to distinguish between the different claims before the Commission.

9. The worker’s submission that the Arbitrator “failed to adjudicate” on some of his submissions was wrong. ([197]–[204])

(Far West Area Health Service v Radford [2003] NSWWCCPD 10; Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490, 517, and Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 applied)

10. The arguments made by the worker, about the basis of the s 11A defence, could have no bearing on the result in the matter, the worker having been unsuccessful on the more fundamental issue of ‘injury’. Ground 3 failed. ([206], [215])

Ground No 4: Failing to identify and adjudicate on late evidence and submissions, and to give reasons for findings.

11. The first matter raised under this ground were the submissions previously made on the worker’s behalf by his counsel. The worker had not identified any aspect of the Arbitrator’s reasoning that depended on the submissions by his previous counsel, or any way in which the consideration of those earlier submissions affected, or could have affected, the result. It was not appealable error. ([222])

12. The remainder of the submissions under this ground dealt with an alleged failure by the Arbitrator to deal with submissions, applications and fresh evidence lodged by the appellant subsequent to the arbitration hearing of 15 December 2017. The appellant filed numerous sets of submissions and evidence following the hearing, which he submitted were not considered by the Arbitrator. The Arbitrator did not, in his reasons, deal with one of the documents, an affidavit sworn/affirmed on 29 January 2018. The error, in failing to consider the relevant affidavit, had not resulted in a miscarriage of justice and could not have affected the result. The Deputy President accepted the employer’s submission that “the additional material had no bearing on the basis upon which the matter was determined”. Ground 4 failed. ([230], [246], [254], [259])

(Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828; Conway v The Queen [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358; Walshe v Prest [2005] NSWCA 333, and Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290 referred to)

Ground No 5: Taking into account irrelevant considerations and failing to take into account relevant considerations, regarding the evidence and submissions generally.

13. The employer’s submission, regarding the basis on which the worker’s case on ‘injury’ was not accepted, was correct. The appellant carried the onus, on the probabilities, of establishing ‘injury’ within the meaning of s 4 of the 1987 Act. The expert opinion evidence in the worker’s medical case consisted of Dr Smith and Ms Hidalgo. The Arbitrator did not accept the opinion evidence of Dr Smith and Ms Hidalgo. This left a situation where, whatever view one took of the evidence about events at work and the worker’s perception of them, the worker could not prove that they caused a psychological injury. The effect of this was that the worker’s claim failed as he could not prove ‘injury’. The employer’s submission was correct, the worker’s submissions in support of this ground were immaterial to the result. It followed that the errors allegedly identified in this ground, if established, would not give rise to a substantial wrong or miscarriage of justice, they would not represent appealable error. Ground 5 failed. ([277], [279]–[280])

Ground No 6: Failing to apply Jones v Dunkel.

14. This ground had the same difficulty as Ground No 5. The evidence from those potential witnesses, who did not provide statements, could only be relevant to the events that the worker alleged occurred at work. Regardless of what view was taken of the events at work, the appellant could not prove that the events caused psychological injury, given the Arbitrator’s non-acceptance of the opinions of Dr Smith and Ms Hidalgo. Again, it flowed that any error on the Arbitrator’s part, regarding the drawing of inferences pursuant to Jones v Dunkel, could not have affected the result, and would not be appealable error. For this reason, Ground No 6 could not succeed. ([287])

(a) in finding that the worker had discharged the burden of proving that the need for hearing aids was as a result of the injury (Ground 1);

(b) by basing her determination on an assessment of 7.1% binaural hearing loss, when the binding opinion of the Medical Panel certified the loss to be 1.9% (Ground 2);

(c) in finding that Dr Tamhane attributed the entirety of the hearing loss to industrial deafness (Ground 3);

(d) in failing to address and apply binding authority with respect to the meaning of the phrase “as a result of injury” (Ground 4), and

(e) in failing to exercise jurisdiction by not addressing Bluescope’s submissions (Ground 5).

Held: The Certificate of Determination dated 6 June 2018 was confirmed.

Discussion

1. It was convenient for Deputy President Wood to deal firstly with Grounds 4 and 5. The thrust of Bluescope’s allegations of error was that the Senior Arbitrator failed to apply binding authority (by implication, the Presidential decision of Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy)) and failed to address Bluescope’s submissions. Bluescope’s primary case was that the worker’s noise induced deafness was such a minor component of the worker’s total hearing loss that it did not make a “material contribution” to the need for hearing aids. ([102])

2. Bluescope was critical of the Senior Arbitrator for considering the arbitral decisions in Delaqueze v Drum Reconditioners Pty Ltd [2014] NSWWCC 364 (Delaqueze) and Mathews v State Rail Authority of New South Wales [2015] NSWWCC 243 (Mathews). Having made a submission to the Senior Arbitrator that, to its knowledge, there were no cases with very low assessments of noise induced deafness where hearing aids were found to be compensable, it was open to the Senior Arbitrator to identify and discuss the decisions in Delaqueze and Mathews. It was inappropriate for Bluescope (on the appeal) to criticise the Senior Arbitrator for doing so. In any event, the Senior Arbitrator did not consider herself bound by those decisions, which of course, she was not. She identified that they were each determined on their own facts and she did not take them into consideration when ultimately reaching her decision in this matter. ([103]–[104])

3. Bluescope referred to the decision by Deputy President Roche in Murphy and asserted that the Senior Arbitrator did not turn her mind to the application of that authority, despite Bluescope having raised that authority in its submissions. There was no mention of that authority in Bluescope’s written submissions to the Senior Arbitrator. The Senior Arbitrator could not have erred in respect of failing to deal with a submission that was never put to her. ([105])

(Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34, [15] applied)

4. Both Murphy and Diab v NRMA Limited [2014] NSWWCCPD 72 are relevant and binding authorities. While the Senior Arbitrator proceeded to determine the matter by assessing whether the hearing aids were reasonably necessary, it was not apparent from her reasons as to whether she turned her mind to the question of whether the noise induced hearing loss materially contributed to the need for the treatment in the manner set out in Murphy. Further, the Senior Arbitrator did not give consideration to Bluescope’s assertions that the worker suffered from a significant hearing loss which was attributable to other, non-work-related, causes. ([110])

5. In so far as Grounds 4 and 5 identified error by the Senior Arbitrator in failing to apply the “material contribution” test and in giving no consideration to Bluescope’s submission in relation to the significance of alleged other causes of the hearing loss, the grounds were upheld. The Arbitrator’s reasons were revoked. It was not necessary, therefore to consider the remaining grounds of appeal. The Deputy President proceeded to re-determine the matter as discussed below. ([111]–[112])

(Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 applied)

Consideration

6. Bluescope conceded that the worker required hearing aids. The only issue in dispute was whether the need for the hearing aids resulted from the noise induced hearing loss. As observed by the Senior Arbitrator, while the MAC is binding to the extent of the hearing loss in accordance with s 326(1) of the 1998 Act, it did not deal with the question of whether the need for hearing aids resulted from the injury. In any event, an assessment by an AMS concerning proposed treatment or service is not conclusively presumed to be correct. It is ‘evidence (but not conclusive evidence)’ in the proceedings. ([113], [115])

(Section 326(2) of the 1998 Act and Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 applied)

7. Consistent with the authority in Murphy, the work-related component of the worker’s hearing loss (which on the available evidence was the whole of the hearing loss) materially contributed to the need for the treatment. Deputy President Wood was satisfied that the hearing aids were reasonably necessary as a result of the worker’s noise induced hearing loss pursuant to s 60 of the 1987 Act. Bluescope was ordered to pay the worker’s expenses in respect of the supply and fitting of the digital hearing aids. ([137]–[139])

(a) finding that the worker had not identified the relevant employer;

(b) failing to find the respondent was the last employer of the worker in such employment, and

(c) failing to “provide appropriate weight to the uncontested further statement” by the worker, which clarified the last date she worked for the respondent.

Held: The appellant’s application to extend the time for making an appeal, pursuant to r 16.2(12) of the 2011 Rules was refused.

Consideration

1. The appellant filed an appeal application that did not comply with Practice Direction No 6 and was rejected by the Registrar. The appellant subsequently filed a fresh appeal out of time, which required leave to be granted under r 16.2(12) of the 2011 Rules. ([37]–[39])

(Gallo v Dawson [1990] HCA 30; 64 ALJR 458; Allen v Roads and Maritime Services [2015] NSWWCCPD 39; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 applied)

2. The extent of the delay was relatively modest, a period of one to two weeks. The respondent did not raise prejudice. The worker’s legal representative set out an explanation of the delay in an affidavit. The explanation did not adequately explain what happened during the initial 27 days after the Arbitrator issued the Certificate of Determination, other than that the initial attempt to lodge the appeal was unsuccessful due to procedural deficiencies. The explanation of the delay was inadequate. ([40]–[42])

3. The appellant’s submissions did not address the presence of ‘exceptional circumstances’. To the extent that the reason the matter came to be out of time was its rejection for procedural defects, when the appellant initially sought to lodge it, this is a circumstance “regularly, routinely or normally encountered”. Deputy President Snell could not see that there was any one thing, or any combination of factors, in the history of the matter that constituted ‘exceptional circumstances’. ([43]–[47])

(Bryce v Department of Corrective Services [2009] NSWCA 188 and Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 applied)

4. Assessing whether to lose the right to appeal would cause demonstrable and substantial injustice on the part of the appellant involves a consideration of the merits of the appeal. ([48])

Appellant’s further submissions

5. The appellant filed further submissions which were late, and no application was made to rely on them. The Deputy President said that they could not be appropriately described as submissions in reply. The statement of principle in Bale v Mills [2011] NSWCA 226 needs to be considered in the context of the Commission’s procedures, and s 354 of the 1998 Act. If a party seeks to put on additional submissions outside any timetable or leave that has been set, it is appropriate that the party seek leave from the Commission, also notifying all other parties. The Commission can then consider the application with as much formality as is required in the circumstances. ([60]–[62])

6. The further submissions in the current matter were put on outside the time provided in the timetable, and they raised various matters well outside anything that could be regarded as submissions in reply. The appropriate course was that the Deputy President ignore the further submissions dated 11 October 2018. They would not have affected the result in any event. ([63])

(Bale v Mills [2011] NSWCA 226 applied)

Section 18 of the 1987 Act

7. The appellant should not be permitted to rely on an argument based on s 18 on appeal, that argument not having been made before the Arbitrator. The appellant had not sought leave in this regard. ([67])

(Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 applied)

8. The appellant’s attempt to use the deeming provision in s 18, in support of an argument that the respondent was the last relevant employer of the appellant, for the purposes of the ‘disease’ provisions, was misconceived. ([68])

(NSW Maritime Authority (in the interests of Allianz Australia Insurance Limited Treasury Managed Fund) v Louis Sweeney by his Executrix and Beneficiary Elaine Joan Sweeney [2010] NSWWCCPD 9, and StateCover Mutual Ltd v Cameron [2015] NSWCA 127; 13 DDCR 272 referred to)

9. For the appellant to succeed against the respondent, in the circumstances of this case, it was necessary that she establish ‘injury’ in the relevant sense pursuant to s 4(b)(ii) of the 1987 Act. It was then necessary that she establish that the respondent was “the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, or deterioration” that comprised the injury: s 16(1)(b) of the 1987 Act. The Arbitrator’s finding, that he was not satisfied the respondent was the last such employer, was well available on the evidence. The appellant’s grounds and submissions could not establish appealable error. ([76])

10. There is no right to cross-examine in the Commission. The Deputy President did not see that any significance could attach to the failure by the respondent to seek to cross-examine the worker. The Arbitrator considered the worker’s statement dated 30 May 2018 in his reasons. The other evidence which he accepted was not, on a literal reading, inconsistent with the statement dated 30 May 2018 at [3]. There was no error established in how the Arbitrator considered the statement. ([77]–[81])

(Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358; Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3, and Daw (NSW) v Toyworld Pty Ltd [2001] NSWCA 25; 21 NSWCCR 389 applied)

11. It followed that the appeal would not succeed on its merits. It did not have any prospects of success. In considering the factors as to whether an extension of time should be granted, the factors overall did not favour the extension of time. Of particular importance were the lack of prospects of success, and the consequential absence of demonstrable and substantial injustice if the extension was refused. ([85])

(a) finding that the worker suffered a significant amnesic event at the time of the accident which could have amounted to a loss of consciousness (Ground 1);

(b) finding that the worker suffered an injury to the central nervous system (Ground 2), and

(c) finding that the worker suffered an injury to her cervical spine (Ground 3).

Held: The Certificate of Determination was revoked in part and the outstanding issues were remitted for re-determination by a different Arbitrator.

Discussion

1. The Arbitrator’s decision involved findings of fact and the drawing of inferences from those facts. The Arbitrator accepted the opinion of Dr Teychenné. She found the existence of facts that formed the basis upon which Dr Teychenné expressed his opinion. She rejected the opinion of Professor Kiernan at least partly because the facts relied upon by him were inconsistent with the worker’s statement, the history taken by Dr Teychenné, and her own findings of fact. ([114])

2. In order for ReIn to succeed on appeal, it had to establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. It was necessary for Deputy President Wood to examine the evidence of the facts that pertained to each of the three findings in which ReIn alleged error. ([115]–[117])

(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20], and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, [72] applied)

Ground 3

3. ReIn contended that the Arbitrator erred in finding that the worker suffered injury to the cervical spine in the nature of a spinal cord lesion. The only evidence that supported the allegation of a cervical cord injury was that of Dr Teychenné, whose evidence the Arbitrator accepted. ([119]–[120])

4. While the Arbitrator made observations of the absence of any radiological evidence and the lack of any complaint of neck symptoms, or record of cervical injury, she failed to reconcile that body of evidence with the evidence of Dr Teychenné. Her assessment of the evidence was limited to a comparison of the views of Dr Teychenné and Professor Kiernan and as to why she preferred the opinion of Dr Teychenné. The substantial difference between the observations and examination findings of Dr Teychenné, compared with all of the other medical practitioners, especially Dr Rail, the worker’s treating neurologist, was of significance. The Arbitrator was required to consider that material evidence (not merely recite it). ([122]–[123])

5. Additionally, the Arbitrator failed to consider the inconsistency between the contemporaneous complaints made by the worker with the worker’s statement evidence made some five years after the accident. ([124])

6. Deputy President Wood was satisfied that in reaching her conclusion, the Arbitrator had failed to take into account material facts and had accorded no, or too little weight, to the body of evidence that was inconsistent with the evidence she accepted. The Deputy President was further satisfied that the Arbitrator had fallen into error by having failed to analyse that evidence and by failing to give reasons for rejecting that evidence. On that basis, Reln succeeded on this ground. The Arbitrator’s finding that the worker suffered injury to the cervical spine in the nature of a spinal cord lesion was set aside. ([126])

Ground 1

7. This ground alleged error on the part of the Arbitrator by finding that the worker suffered an amnesic event at the time of the accident, which could have resulted in a loss of consciousness. The Liverpool Hospital notes supported the Arbitrator’s finding that the worker suffered a period of amnesia in relation to the accident and there was no error in so deciding. ([127], [133])

8. Whether the worker suffered from post-traumatic amnesia as a result of a traumatic brain injury was a different question. Apart from the evidence of Dr Teychenné, there was no medical opinion that related the amnesic event to a traumatic brain injury. It was not clear whether the Arbitrator made a finding that the worker did in fact lose consciousness. The Arbitrator’s unqualified acceptance of the opinion of Dr Teychenné would indicate that she did make that finding. If that was the case, then that finding was made without a consideration of the contrary evidence, other than that of Professor Kiernan. ([134], [138])

9. The Arbitrator did not give consideration to that evidence, and gave no reasons for rejecting the evidence of: the absence of observation of loss of consciousness in the ambulance and hospital notes and in the discharge referral letter, and the histories taken by Dr Rimmer and Professor Kiernan that there was no loss of consciousness. The Arbitrator’s finding (if made) that the worker suffered loss of consciousness was arrived at without consideration of material evidence. Reln had established error on the part of the Arbitrator and the finding was set aside. ([138]–[140])

Ground 2

10. ReIn contended that the Arbitrator’s finding that the worker suffered injury to the central and peripheral nervous system was not supported by the evidence. The finding of injury to the central and peripheral nervous system was dependent upon an acceptance that the worker suffered an incomplete cervical cord lesion and/or a traumatic brain injury as a result of the accident. ([141], [143])

11. There may no doubt have been a suspicion that the worker suffered a traumatic brain injury, particularly in the light of the moderate sized parietal subcutaneous haematoma found on the CT scan of the brain taken on 18 April 2012. It was apparent that a head injury occurred. That, however, was not sufficient, without some other evidence such as radiological evidence disclosing some pathology, to find an injury to the brain occurred. ([147])

12. In relation to the seizures, the Arbitrator accepted the worker’s evidence that the seizures recommenced four months after the accident. The Arbitrator did not explain why that evidence was to be preferred over the history recorded by Professor Kiernan, other than to say the worker would be the best person to recall the time of onset and her evidence was consistent with the history provided to Dr Teychenné. ([150])

13. The acceptance by the Arbitrator that the worker’s seizures occurred in much closer proximity to the injury was against the body of evidence that she did not consider. Her finding that the onset of seizures occurred within four months was unsound and Deputy President Wood set aside that finding. ([153])

14. It was equally unclear as to whether the Arbitrator in fact made a finding that the worker suffered a traumatic brain injury, however her acceptance of the opinion of Dr Teychenné would indicate that she did. Such a finding was critical to the acceptance of Dr Teychenné’s opinion as to injury to the central and peripheral nervous system. The Arbitrator provided no reasons as to why she accepted the history to Dr Teychenné over the contrary factual evidence, other than that she preferred that history to the history recorded by Professor Kiernan. ([154]–[155])

15. Where there is evidence supporting a party’s position, and the party has made submissions on that evidence, the evidence and submissions must be considered in the Arbitrator’s reasons. It is not sufficient for the Arbitrator to set out the evidence adduced by each side, then find she prefers the evidence of one and not the other without giving proper consideration to that evidence. In failing to consider the material evidence before her, the Arbitrator had erred. The Arbitrator erred in her finding that the worker suffered injury to the central and peripheral nervous system and the finding was set aside. ([156]–[157])

(Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, [28] applied)

Conclusion

16. No issue was raised on appeal in respect of the Arbitrator’s finding that the worker did not suffer an injury to her lumbar spine, and no issue was raised in respect of the Arbitrator’s order to pay the worker weekly payments of compensation. The matter was remitted to a different Arbitrator for re-determination. ([158]–[160])