Issue 2: February 2020

On Appeal Issue 2 - February 2020 includes a summary of the January 2020 decisions

This issue includes a summary of the January 2020 decisions.

These summaries are prepared by the Presidential Unit and are designed to provide an overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.

This issue, and previous issues, of On Appeal is available on the WCC website: http://www.wcc.nsw.gov.au/

Decisions are published on AustLII, JADE and LexisNexis at the following websites:

http://www.austlii.edu.au/au/cases/nsw/NSWWCCPD/

http://www.jade.barnet.com.au/

http://www.lexisnexis.com.au

Please note that the following abbreviations are used throughout these summaries:

ADPActing Deputy President
AMSApproved Medical Specialist
CommissionWorkers Compensation Commission
DPDeputy President
MACMedical Assessment Certificate
ReplyReply to Application to Resolve a Dispute
WPIWhole person impairment
1987 ActWorkers Compensation Act 1987
1998 ActWorkplace Injury Management and Workers Compensation Act 1998
2003 RegulationWorkers Compensation Regulation 2003
2010 RegulationWorkers Compensation Regulation 2010
2010 RulesWorkers Compensation Rules 2010
2011 RulesWorkers Compensation Rules 2011
2012 amending ActWorkers Compensation Legislation Amendment Act 2012
2015 amending ActWorkers Compensation Amendment Act 2015
2018 amending ActWorkers Compensation Legislation Amendment Act 2018

PRESIDENTIAL DECISIONS

State of NSW (HealthShare NSW) v Morrison [2020] NSWWCCPD 1 
Alleged error in fact-finding 

Parsons v Dell Australia Pty Ltd [2020] NSWWCCPD 2 
Section 350(3) of the 1998 Act – the exercise of discretion to reconsider a Certificate of Determination – factors to consider Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 applied; whether error of discretion – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied 

Australia and New Zealand Banking Group Limited v Khullar [2020] NSWWCCPD 3
Section 10(3)(c) of the 1987 Act; satisfaction of section 10(3A) of the 1987 Act; causation where there are two injuries; Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 – matters raised on appeal but not at first instance 

Sydney Trains v Ali-Ahmad [2020] NSWWCCPD 4
Alleged factual error, application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, duty to give reasons

DECISION SUMMARIES

State of NSW (HealthShare NSW) v Morrison [2020] NSWWCCPD 1

Alleged error in fact-finding

Snell AP

9 January 2020

Facts

The respondent worked at the Nepean District Hospital from about April 2014 as a kitchenhand and hospital assistant. She developed symptoms involving her hands and wrists. She underwent surgery involving right carpal tunnel release on 25 August 2016, and on 13 April 2018 left carpal tunnel release, left trigger thumb release and right middle finger release. The appellant’s insurer made payment of some medical expenses voluntarily. At an arbitration hearing held on 16 May 2019, it was accepted by the parties that the appellant disputed the alleged injuries involving bilateral carpal tunnel syndrome and triggering of the left thumb. It appeared the appellant had not disputed the injury involving triggering of the respondent’s right middle finger.

The Arbitrator found injury to the left upper extremity (left carpal tunnel syndrome and left trigger thumb) and right upper extremity (right trigger middle finger) on 2 November 2017. He found the employment was a substantial contributing factor to injury. He made an award for weekly compensation during the short closed period at issue, together with a general order for the payment of medical expenses pursuant to s 60 of the 1987 Act. At the conclusion of the Arbitrator’s oral reasons, the appellant’s solicitor said “Didn’t the [respondent] plead nature and conditions or disease injury? Wasn’t that the basis of their claim? You found a traumatic injury.”

The Arbitrator issued a further Certificate of Determination amending his decision, finding the respondent’s employment with the appellant was the main contributing factor to injury. The employer appealed.

The issues on appeal were whether the Arbitrator erred in finding that:

(a) the respondent suffered personal injury in the form of left carpal tunnel syndrome and left thumb trigger condition, and there should be a finding that this was not established on the probabilities (Ground No 1);

(b) employment with the appellant was the main contributing factor to the injury, and there should be a finding this was not established on the probabilities (Ground No 2), and

(c) the date of injury of the respondent’s left carpal tunnel syndrome, left trigger thumb and right trigger middle finger was 2 November 2019 (sic, 2017). The appellant submitted the deemed date of injury should be 7 August 2017 (left carpal tunnel and left thumb) and 2 November 2017 (left thumb [sic]) (Ground No 3).

Held: The Arbitrator’s decision dated 27 and 28 May 2019 was revoked, and the matter was remitted pursuant to s 352(7) of the 1998 Act for re-determination by a different Arbitrator.

Grounds of Appeal

  1. Each of the three grounds simply referred to a finding of the Arbitrator and alleged that the finding was affected by “an error of fact and/or law and/or discretion”. Each of the grounds then stated that the relevant finding should be revoked and replaced with a contrary finding. The profession was reminded of the need to comply with Practice Direction No 6 in preparing Applications to Appeal. The grounds did not appropriately comply with the Practice Direction, which requires that the grounds clearly and succinctly identify “the respects in which error of law, fact or discretion is alleged to have occurred” (emphasis added). In Kowalski v Repatriation Commission [2011] FCAFC 43, at [21], the Full Federal Court said:

    “A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be ...”. ([28])

    Ground No 1

  2. The respondent took the point that the appellant did not, at first instance, raise an argument that the opinion of Dr Lai (a hand and plastic surgeon qualified in the respondent’s case) was deprived of weight because of inconsistency between Dr Lai’s history and the July 2014 nerve conduction studies. The Acting President held the appellant should not be allowed to raise this argument on appeal. ([40])

    (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, at [7]; Coulton v Holcombe[1986] HCA 33; 162 CLR 1, at [15] applied)

  3. If the Acting President was wrong in this regard, it was in any event an argument that involved a misreading of the opinion of Dr Lai. The appellant sought to argue that the two “factors” relied on by the doctor were both, due to the July 2014 nerve conduction studies of which Dr Lai was unaware, “completely absent”. Dr Lai’s report should be read as a whole. The way in which Dr Lai’s opinion was quoted by the appellant involved ignoring the discussion about the respondent’s duties, which was central to Dr Lai’s opinion. The reference in the passage to the duties was omitted. The description in the passage, of duties that involved forceful gripping, repetitive movements and vibratory movements, was immediately followed by the doctor’s opinion: “Therefore, it is my opinion that her work was a substantial factor in the cause of her carpal tunnel syndrome.” The other two factors in the passage, to which the appellant’s submissions refer, were also part of the doctor’s reasoning. However, it was misleading to suggest those two factors to which the appellant referred were the only ones relied on by the doctor in concluding there was a causal relationship. ([41])
  4. The suggestion that the existence of the July 2014 nerve conduction studies removed the planks on which Dr Lai’s opinion on causation rested was wrong. The appellant submitted on appeal that the evidence of those studies was inconsistent with two factors in the history relied on by Dr Lai. This could be relevant to the weight to be given to Dr Lai’s opinion. However, this argument was not raised at first instance and it is not an error that the Arbitrator failed to deal with it. It followed that the appellant’s attack on the weight to be given to Dr Lai’s report, based on the July 2014 nerve conduction studies of which Dr Lai was unaware, could not succeed on its merits. ([43])

(Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, at [19] and [30]; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, at [83] applied)

  1. That left an issue regarding the weight given to the opinion of Dr Masson (a hand and plastic surgeon qualified by the appellant), in light of the 2014 nerve conduction studies. The existence of the July 2014 nerve conduction studies plainly lessened the weight of Dr Masson’s rejection of the respondent’s case on causation. The timing of the carpal tunnel symptoms and the initial diagnosis, if one accepted Dr Masson’s reasoning on this point, became supportive of the respondent’s case on causation, rather than undermining it. It was open to the Arbitrator (and compelling) to regard this evidence from 2014 as, on that point, answering what Dr Masson said. This did not disclose error by the Arbitrator. The Arbitrator clearly accepted that there were other bases, beyond the commencement of the respondent’s relevant symptoms, that led Dr Masson to his view that the causal linkage was not made out. ([44], [49]–[50])
  2. Dr Lai recorded a detailed description of the work duties. The Arbitrator was clearly entitled to reject Dr Masson’s attempted interpretation of the opinion of Dr Yee (the treating surgeon), which was inconsistent with what Dr Yee actually said. The Arbitrator’s assessment of the medical evidence, and his preference for the opinion of Dr Lai regarding the work duties and their connection with the symptoms, was available and did not involve error. This was sufficient to dispose of those arguments by the appellant in Ground No 1, that sought to attack the Arbitrator’s findings on the causal link between the respondent’s work duties and the alleged injuries. ([53])

Ground No 2

  1. This ground asserted the Arbitrator’s finding, that employment was the main contributing factor to the pleaded injuries, was in error. ([55])
  2. One factor raised by the appellant was that the findings of injury originally made were inconsistent with the pleadings. This was the point taken by the appellant’s solicitor when the Arbitrator made his original findings based on injury simpliciter on 27 May 2019. The ultimate findings of injury made by the Arbitrator, following the issue of the second Certificate of Determination dated 28 May 2019, were based on the ‘disease’ provisions. There was no impediment to a ‘disease’ finding in the pleadings, which specifically referred to a “Disease injury” and to a deemed date of injury, or in how the case was conducted. ([59])

(Far West Area Health Service v Radford [2003] NSWWCCPD 10, at [25] referred to)

  1. The appellant submitted that the Arbitrator did not, in the reasons and findings substituted on 28 May 2019, make any finding that the respondent’s injury was a ‘disease’ within the meaning of s 4. The appellant submitted this was “not surprising” given the original specific finding that, consistent with the opinion of Dr Lai, such a finding would be inconsistent with the respondent’s medical case. The appellant submitted such a finding would be irreconcilable with the Arbitrator’s finding that the injury was not a disease. The appellant submitted the Arbitrator gave no reasons to support a finding that the left carpal tunnel syndrome and trigger thumb constituted ‘disease’ injuries. Acting President Snell found this submission was correct. The test of ‘main contributing factor’ is in s 4(b) of the 1987 Act and applies to findings of ‘injury’ based on the ‘disease’ provisions. It is different to the finding originally made, that the injury was one pursuant to s 4(a) of the 1987 Act. These difficulties were not solved by the finding, in the alternative, of ‘main contributing factor’. A finding remained in the original reasons, rejecting the proposition that the injury was appropriately characterised as one pursuant to the ‘disease’ provisions. No specific finding of ‘disease’ was made. No reasons were given to explain why the injury fell within s 4(b) of the 1987 Act, contrary to the original finding. ([66])
  2. The making of conflicting factual findings is “indicative of an erroneous reasoning process”. If it were accepted that a finding of a ‘disease’ injury was made by implication, although not articulated, the failure to give reasons for that finding would constitute an error of law. ([67])

(Brown v Harding [2008] NSWCA 51, at [31]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [57]–[66], and Soulemezis v Dudley (Holdings) Pty Limited(1987) 10 NSWLR 247, at 259B applied)

Conclusion

  1. It followed that Ground No 2 was upheld. Ground No 1 was upheld, in respect of:
  2.  

(a)     having concluded a ‘disease’ finding would be contrary to the respondent’s medical case, the Arbitrator could not simply state that employment was the main contributing factor, without explaining how the injuries amounted to a ‘disease’, and

(b)     the Arbitrator gave no reasons for making the ‘disease’ finding, which was incompatible with the opinion of Dr Lai, which he accepted.

It was necessary that the decision be set aside. The Acting President observed the fact-finding process had miscarried in the circumstances and the appropriate orders were for the rehearing of the matter. It was inappropriate to deal with Ground No 3 (which went to selection of a date of injury) on appeal. That would depend on whether the respondent succeeded, and if she did, whether this was based on the ‘disease’ provisions or injurysimpliciter. ([68])

Parsons v Dell Australia Pty Ltd [2020] NSWWCCPD 2

Section 350(3) of the 1998 Act – the exercise of discretion to reconsider a Certificate of Determination – factors to consider Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 applied; whether error of discretion – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied

Wood DP

15 January 2020

Facts

In 2014, the appellant worker brought proceedings in the Commission for weekly compensation, treatment expenses and a lump sum pursuant to s 66 of the 1987 Act in respect of a psychological injury.

The s 66 claim was referred for assessment by Professor Glozier, AMS. Professor Glozier assessed the worker’s whole person impairment (WPI) to be 15%. The respondent appealed against Professor Glozier’s assessment and the Medical Appeal Panel (MAP) revoked Professor Glozier’s MAC. It issued a new MAC dated 26 June 2015, assessing the worker’s WPI at 7%.

On 3 August 2015, the Deputy Registrar issued a Certificate of Determination (COD) determining that the worker had no entitlement to lump sum compensation, as the claim did not reach the threshold for lump sum compensation.

The worker brought the current proceedings by way of a Miscellaneous Application (application for reconsideration), seeking to have the COD issued by the Deputy Registrar on 3 August 2015 set aside. He also sought a reconsideration of the MAP’s Medical Assessment Certificate dated 26 June 2015.

The Senior Arbitrator, to whom the current proceedings were allocated, declined to reconsider the orders made in the COD dated 3 August 2015 and confirmed the COD. The worker appealed.

The issues on appeal essentially comprised of the following two grounds:

(a) Ground one: error of law in that the Senior Arbitrator declined to exercise his discretion because there had been unnecessary delay in bringing the proceedings, and

(b) Ground two: error of discretion in that the Senior Arbitrator failed to properly exercise his discretion in circumstances where a manifest injustice had occurred.

Held: The Certificate of Determination dated 14 June 2019 was confirmed.

  1. The appellant’s application to appeal the decision of the Senior Arbitrator was not compliant with the requirements as set out in Practice Direction No 6. The Practice Direction requires that each ground of appeal must be clearly and succinctly stated, and that all submissions must clearly and succinctly address each ground of appeal separately. It is not satisfactory to present an appeal in a format where the Presidential unit is required to comb through the documentation and submissions in order to identify the grounds of appeal relied upon. A failure to comply with the Practice Direction can result in an appeal being rejected. ([108])

    Discussion

  2. It is well accepted that s 350(3) of the 1998 Act provides the Commission, as constituted by an arbitrator or Presidential member, with a wide discretion to reconsider its decisions. ([136])

    (Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137 applied)

  3. The Senior Arbitrator correctly identified that his role was confined to the power pursuant to s 350(3) to reconsider the COD, and any application for a reconsideration of the MAP decision was a matter for the Registrar or the MAP. ([137])
  4. Deputy President Wood held it was abundantly clear from the written submissions presented by both parties that in his consideration of whether to exercise the discretion conferred upon him, the Senior Arbitrator was required to take into account the factors set out in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482. The delay in bringing the proceedings for reconsideration was one of those factors. In those circumstances, the complaint of  procedural unfairness in not affording the appellant the opportunity to make submissions and adduce evidence to explain any delay was profoundly misplaced. It was a matter for the appellant, who was clearly cognisant of the matters to be addressed, to adduce sufficient evidence and make appropriate submissions to establish his case. The Senior Arbitrator could not be said to be in error in following the path of reasoning which was said by both parties to be the correct reasoning process, and which was correct. ([138])
  5. The appellant asserted that in any event, the Senior Arbitrator erred because there was no undue delay. The Deputy President noted, as the Senior Arbitrator identified, there was a significant delay of three years following the receipt of Dr Bertucen’s (psychiatrist) second report dated 16 March 2016 and the first application for reconsideration, which was in fact these proceedings brought in 2019. Putting that delay aside, there was a further delay of over twelve months from when the appellant received the report of Dr Teoh (psychiatrist, qualified by the respondent) in January 2018 and when he initiated these proceedings. The appellant could not say that he acted with expedition to bring his application for reconsideration to the attention of the Commission. ([139])
  6. The appellant pointed to no evidence that the Senior Arbitrator failed to consider, or that the Senior Arbitrator failed to afford sufficient weight. The Senior Arbitrator carefully considered each of the medical opinions and gave reasons as to why the evidence was in his view not sufficiently probative. The appellant failed to establish that the Senior Arbitrator made an error in the application of a legal principle, made a material error of fact or took into account an irrelevant consideration. ([140])
  7. The Senior Arbitrator’s conclusion that there was an unacceptable delay in bringing the application for reconsideration was based on an accurate review of the time frame from the issue of the MAP decision and COD in 2015 and the commencement of these proceedings in the Commission. That conclusion was not affected by any error of fact or law, and the appellant failed to demonstrate that any of the factors identified in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 have occurred which would indicate an error in the exercise of the Senior Arbitrator’s reasoning that led to an error of discretion. It followed that the grounds of appeal were not made out and they failed. ([141]–[143])
  8. Deputy President Wood held the appeal must fail in any event. The appellant referred to the Senior Arbitrator’s determination that there was undue delay in bringing the application for reconsideration as the primary decision. This was patently incorrect. The Senior Arbitrator firstly and primarily determined that because of the operation of s 66(1A) of the 1987 Act and s 322A of the 1998 Act, the appellant was prevented from bringing a further claim for lump sum entitlements and prevented from further assessment of his WPI. On that basis, he declined to reconsider the COD, as it would be of no effect. The Senior Arbitrator proceeded in the alternative to consider the factors of delay, the absence of an appeal having been brought against the MAP, the weight of the new evidence before him and the interests of the parties. That process was entered into by the Senior Arbitrator on the express condition that his primary decision not to exercise his discretion because the further claim was precluded was wrong. ([144]–[146])
  9. There was no appeal before the Deputy President that challenged the Senior Arbitrator’s primary decision not to exercise his discretion because there could be no further lump sum claim. It followed that the Senior Arbitrator’s decision must stand, regardless of the outcome of the grounds of appeal brought by the appellant. ([147])

Australia and New Zealand Banking Group Limited v Khullar [2020] NSWWCCPD 3

Section 10(3)(c) of the 1987 Act; satisfaction of section 10(3A) of the 1987 Act; causation where there are two injuries; Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 – matters raised on appeal but not at first instance

Snell DP

20 January 2020

Facts

The respondent worker was employed as a personal banker at the appellant employer’s Sydney Airport branch. On 21 May 2018, the worker was operating a note counting machine when a rubber band broke and flicked into her right eye. She also stated that she injured her neck and right shoulder due to hyperextending her neck as a reaction to the rubber band flicking into her eye. On 7 June 2018 at about 7 am, the worker attended the rooms of Dr Ogane, an ophthalmologist, for treatment of her right eye injury. At about 7.20 am she was driving home following that appointment when her car was struck in the rear at a roundabout, injuring her neck and right shoulder.

The employer accepted liability for the eye injury on 21 May 2018. It disputed injury to the cervical spine and shoulders in that incident on the basis that employment was not a substantial contributing factor and that ongoing incapacity did not result. It also disputed liability in respect of the motor vehicle accident on 7 June 2018.

The Arbitrator made an award in the worker’s favour on a continuing basis for weekly compensation from 30 October 2018 and an award for expenses pursuant to s 60 of the 1987 Act. The employer appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) deciding that “injuries sustained in the motor vehicle accident of 7 June 2018 materially contributed to the need for weekly compensation and s 60 expenses caused by the injuries of 21 May 2018 as it does not address or determine the dispute before the Commission” (Ground No 1);

(b) finding that s 10(3)(c) of the 1987 Act applied to the motor vehicle accident of 7 June 2019 (sic, 2018) and that the claim was not precluded by s 10(3A) of the 1987 Act (Ground No 2), and

(c) entering the award for weekly payments as the period compensated “was not in the first entitlement period” (Ground No 3).

Held: The Arbitrator’s decision dated 1 July 2019 was confirmed.

Ground No 1

  1. The nature of the employer’s challenge in Ground No 1 was not clearly articulated. The list of matters said to have required determination by the Arbitrator, set out in the appellant’s submissions, involved an assumption that the Arbitrator was required to separately determine what part of the incapacity and need for medical treatment resulted from each of the two pleaded incidents. ([27]–[31])

    (ACQ Pty Limited v Cook [2009] HCA 28; 237 CLR 656; Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91; 73 ALJR 1609; Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157; Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd [1994] HCA 68; 121 ALR 417; 68 ALJR 525; Australian Eagle Insurance Co. Ltd v Federation Insurance Ltd (1976) 15 SASR 282;  Cluff v Dorahy Bros (Wholesdale) Pty Ltd (1979) 53 WCR 167; Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87, and Secretary, New South Wales Department of Education v Johnson[2019] NSWCA 321 discussed)

  2. In his supplementary report dated 9 October 2018, Dr Powell (qualified on the employer’s behalf) responded to a question regarding “whether the ongoing need for treatment as [sic, is] a result of the May 2018 incident or the June 2018 incident”. The question did not allow for the possibility that it resulted from both. ([32])
  3. The Arbitrator correctly noted that neck and shoulder symptoms from the incident on 21 May 2018 continued to be present up to the time of the motor vehicle accident. The Arbitrator rejected the opinion of Dr Powell on causation contained in his supplementary report. He gave reasons for doing so. He preferred the opinion of Dr Bodel (qualified on the worker’s behalf). The worker correctly submitted that this preference for the opinion of Dr Bodel over that of Dr Powell was not the subject of specific challenge on appeal. The Arbitrator’s factual finding, based on an acceptance of Dr Bodel, was inconsistent with the proposition that there had been a novus actus interveniens that broke the chain of causation. Dr Bodel’s accepted view was that the injuries resulted from both  pleaded incidents. ([34]–[35])
  4. The employer submitted the Arbitrator’s reasons did not explain why the incapacity due to the motor vehicle accident was causally connected to the incident on 21 May 2018. It is necessary that the reasons be read as a whole. When the Arbitrator’s reasons were read as a whole, it was open to him to accept, as he did, Dr Bodel’s opinion that the worker’s “injuries arose as a consequence of both incidents”. The consequence of this finding was that the relevant incapacity and need for treatment resulted from each of the pleaded incidents. Relevant compensation could be recovered in respect of either or both of the incidents, if they occurred in compensable circumstances. Contrary to the employer’s submission, the Arbitrator did determine that the relevant incapacity and need for medical treatment resulted from each of the pleaded incidents. Ground No 1 failed. ([36]–[37])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 444 applied)

Ground No 2

  1. It was common ground that the journey on which the worker was injured was one that fell within s 10(3)(c) of the 1987 Act, the issue was whether the journey satisfied s 10(3A). There have been a number of Presidential decisions dealing with s 10(3A), but none in the context of a journey on the basis of s 10(3)(c). ([44]–[54])

    (Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55; Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina); Singh and Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden); Field v Department of Education and Communities [2014] NSWWCCPD 16; Alexander and Alexander as legal personal representatives of the Estate of Hugh Alexander v Secretary, Department of Education and Communities [2015] NSWWCCPD 41, and State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26 discussed)

  2. At [79] of his reasons, the Arbitrator assumed that the worker’s appointment with Dr Ogane was at 7 am because she was still at work and needed an early appointment to facilitate her attendance at work. Deputy President Snell said this point did not form part of the worker’s submissions to the Arbitrator. The employer challenged it as being inconsistent with the evidence, as the medical certificates indicated the worker was still certified as being unfit for work at the time of the motor vehicle accident. Deputy President Snell accepted this submission, although noted that this did not necessarily amount to appealable error. ([56]–[57])

    (Walshe v Prest [2005] NSWCA 333 referred to)

  3. It is necessary to have regard to whether the result was affected by the error. Deputy President Snell found that the same result followed if no regard was had to the erroneous finding regarding whether the early appointment was to accommodate the worker attending work after the consultation. ([58])
  4. The reference to ‘employment’ in s 10(3A) is to “not just the particular tasks performed, but also the nature, conditions, obligations or incidents of the employment”. Having sustained a work-related injury on 21 May 2018, the worker’s participation and co-operation with the employer, in the management and treatment of the injury, is properly regarded as part of the incidents of her employment. ([60])

(Wickenden applied)

  1. The mere act of driving on one of the journeys falling within s 10(3)(c) does not of itself provide the necessary connection. Consideration of whether s 10(3A) is satisfied depends on whether there was a real and substantial connection between the worker’s employment and the motor vehicle accident on 7 June 2018. There was no issue that the attendance on Dr Ogane on that morning was reasonably necessary treatment for the employment injury suffered on 21 May 2018. Although the attendance was for the purpose of treatment, it also by its very nature would be relevant to management of the worker’s time off and return to work. The appointment put the worker on the road at a time and place where she would not otherwise have been. This included driving in peak hour traffic at about 7.20 am. There were similarities, as the worker submitted on appeal, between this factual situation and that in Wickenden. In that matter Roche DP described Ms Wickenden “confronting cattle on a country road in the dark” as “a circumstance to which Ms Wickenden was exposed because of her employment”. ([65])
  2. Whether the test in s 10(3A) is satisfied involves “a question of fact, applying the words of the provision, in a commonsense and practical manner in each case”. Satisfaction of the test does not necessarily involve proof that the accident was caused by the employment. The test in s 10(3A) was satisfied, there was a real and substantial connection between the employment and the accident. Ground No 2 failed. ([66]–[67])

(Bina, at [101] and [120] applied)

Ground No 3

  1. The employer’s submissions before the Arbitrator did not deal with the quantum of any weekly entitlement the worker may have. They did not deal with the extent to which the worker may be entitled to a period of weekly payments pursuant to s 36 of the 1987 Act, on the basis that compensation in respect of the first entitlement period had not been exhausted in respect of the motor vehicle accident. The worker did make submissions dealing with the quantum of any weekly entitlement, referring to the evidence of Dr Bodel and Dr Powell, and what employment the worker may be fit for post-injury. The worker’s submissions did not deal with the extent to which payments pursuant to s 36 may be available on the basis that the first entitlement period had not expired in respect of the motor vehicle accident. ([73])
  2. Against that background the Arbitrator made an award for weekly compensation that was calculated, in part, on the basis the first entitlement period had not expired in respect of the motor vehicle accident. The Arbitrator could not err in failing to deal with an argument from the employer that the first entitlement period had expired in respect of the motor vehicle accident, that argument not having been made before him. The Arbitrator did not err in failing to address an argument about the first entitlement period, that was raised by the appellant for the first time on appeal. Ground No 3 failed. ([74]–[78])

(Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 applied)

Sydney Trains v Ali-Ahmad [2020] NSWWCCPD 4

Alleged factual error, application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, duty to give reasons

Snell DP

29 January 2020

Facts

The respondent worker was employed by the appellant employer in various positions from 1977. The respondent said that his supervisor belittled him and made unsubstantiated allegations, and from early 2014 he became increasingly anxious. The respondent identified various specific allegations. The respondent suffered from renal problems and underwent surgery for kidney stones on a number of occasions. He was off work certified medically unfit from 2 July 2015 to 30 November 2015. He accepted a voluntary redundancy on 30 October 2015 and had not worked since.

The respondent sought weekly payments, medical expenses and lump sum compensation. The occurrence of a psychological injury was ultimately conceded by the employer. After undergoing a medical assessment for the purposes of the lump sum claim, Dr Hong, an AMS, assessed the worker as having 8 percent permanent impairment. This did not exceed 10% impairment and effectively concluded the worker’s lump sum claim.

The balance of the claim for weekly compensation and medical expenses was determined by the Arbitrator on 9 July 2019. The Arbitrator awarded weekly payments at the rate of $1,262.93 from 16 November 2015 to 15 February 2016 (pursuant to s 36 of the 1987 Act) and at $1,063.52 from 16 February 2016 to 16 November 2016 (pursuant to s 37 of the 1987 Act). There was also a general order for the payment of medical and related expenses pursuant to s 60 of the 1987 Act. The employer appealed against the quantum of the weekly award.

The issues on appeal were whether the Arbitrator erred in:

(a) finding that the respondent had no current work capacity in accordance with s 32A of the 1987 Act (Ground No 1);

(b) failing to find that between 16 November 2015 and 16 November 2016 the respondent had current work capacity in accordance with s 32A of the 1987 Act (Ground No 2);

(c) accepting the opinion of Dr Rastogi when her opinion had been undermined by the surveillance evidence (Ground No 3);

(d) failing to accord appropriate weight to the surveillance evidence (Ground No 4), and

(e) law in not giving sufficient weight to the evidence about the renal problems and concluding that any psychological problems were the cause of the respondent having no current work capacity during the period claimed (Ground No 5).

Held: The Arbitrator’s decision dated 9 July 2019 was confirmed.

Grounds Nos 1 and 2

  1. These two grounds raised the same issue, whether there was appealable error in the Arbitrator’s finding that the respondent had no current work capacity during the closed period for which weekly compensation was awarded. The submissions on these grounds overlapped substantially with those dealing with Grounds Nos 3 and 4. The submissions on Grounds Nos 1 and 2 raised two separate issues. The first was the significance of the renal symptoms and treatment, and how the Arbitrator dealt with this issue. The second was the evidence going to incapacity, particularly in light of the surveillance material. ([34], [41])

    The renal symptoms and treatment

  2. Deputy President Snell observed there was no doubt the respondent suffered from renal problems involving kidney stones during the closed period at issue, which involved a need for considerable treatment. This was well chronicled, particularly in the reports of Dr Mitterdorfer who was treating him. The appellant, after referring to the evidence of renal complaints, submitted the Arbitrator “did not accord this evidence sufficient weight”. The appellant did not otherwise identify the error that was alleged or how it affected the decision. The weight to be afforded to evidence is ordinarily a matter for the trial judge (or arbitrator). ([42])

    (Shellharbour City Council v Rigby [2006] NSWCA 308, at [144] applied)

  3. The Deputy President held the Arbitrator clearly had regard to the evidence regarding renal problems, he referred to it at some length in his reasons. ‘Injury’ was not in issue. The issue was whether incapacity resulted from the conceded psychological injury, and if it did, whether the respondent had ‘current work capacity’, or ‘no current work capacity’. These questions were not dependent on whether the respondent also suffered from an unrelated incapacity as a result of his renal problems. The appellant did not identify any specific finding, relating to the renal problems, that was alleged to have been so against the weight of evidence that some error must have been involved. The appellant’s submissions failed to identify relevant error. ([43])
  4. Deputy President Snell noted that although it was not articulated as such, the appellant may have been adverting to a line of authority that permitted the reduction of a worker’s weekly entitlement on a discretionary basis, where incapacity was partial, if the worker’s ability to exercise his/her earning capacity would have been adversely affected in any event, by an unrelated incapacity or other factor (for example compulsory retirement, other illness, imprisonment). These authorities were based on a discretion in s 40 of the 1987 Act, as originally enacted, and before that in s 11(1) of the Workers’ Compensation Act 1926, to award an amount “as may appear proper in the circumstances of the case”. This discretion was removed by the 2012 amending Act. ([44])

(Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50, Singh v TAJ (Sydney) Pty Ltd [2006] NSWCA 330; 4 DDCR 557, Cant v Catholic Schools Office (2000) 20 NSWCCR 88, and cases cited therein)

  1. No relevant error was made out in relation to how the Arbitrator dealt with the evidence about the respondent’s renal problems. ([45])

    Incapacity and the surveillance material

  2. The balance of the appellant’s submissions on Grounds Nos 1 and 2 largely went to the issue of the weight of various pieces of medical evidence, particularly that of Dr Rastogi (a psychiatrist qualified in the respondent’s case), and whether the evidence should have been accepted by the Arbitrator. The scope of a Presidential appeal is no longer a ‘review’, it is restricted to the identification and correction of error of fact, law or discretion. ([30]–[33], [46])

    (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston); Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227; Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied)

  3. The basis of the appellant’s attack on the Arbitrator’s finding of incapacity was that it was based on the evidence of Dr Rastogi, whose evidence was “undermined by the surveillance material”. It relied on the Arbitrator’s comments about the surveillance in the reasons at [145]. A lay reaction to such material is impressionistic. The Arbitrator made a point of commenting on the need for caution. Whatever misgivings the Arbitrator may have had about the presentation in the surveillance, these did not persuade the Arbitrator that he should do other than deal with the issue of incapacity by reference to the medical evidence, particularly Dr Rastogi. ([53])
  4. Dr Hong, a psychiatrist, was the only doctor who commented on the surveillance material. He thought it consistent with the history the respondent had given to him.  Relying on that history, and with an awareness of the surveillance, Dr Hong gave an assessment of the respondent’s employability that described him as “severely dysfunctional”. Dr Hong’s view was framed in terms appropriate to a Psychiatric Impairment Rating Scale (‘PIRS’) assessment, rather than being in terms of whether there was ‘current work capacity’. This was consistent with the basis on which Dr Hong was conducting his assessment. Dr Hong’s assessment was consistent with a severe restriction on the respondent’s capacity for employment. It was consistent with Dr Rastogi’s earlier assessment, around the end of the closed period, that the respondent was not fit to work in any capacity. In the relevant PIRS category Dr Rastogi, in her assessment of 17 November 2016, rated the respondent at “3”, a lower figure than the rating of “4” given by Dr Hong on 5 February 2019. ([54])
  5. The Deputy President concluded it was open to the Arbitrator to accept the opinion of Dr Rastogi that the respondent was not fit to work in any capacity. He was not persuaded, applying the principles summarised in Raulston, that the Arbitrator’s decision, that there was no current work capacity during the closed period, involved appealable error. Grounds Nos 1 and 2 failed. ([55]–[56])

Grounds Nos 3 and 4

  1. Ground No 3 was that the Arbitrator erred in accepting the opinion of Dr Rastogi when her opinion had been undermined by the surveillance evidence. Ground No 4 was that the Arbitrator erred in failing to accord appropriate weight to the surveillance evidence. These grounds had essentially been dealt with under Grounds Nos 1 and 2. ([57])
  2. On the evidence before the Arbitrator, no doctor reviewed the surveillance material except Dr Hong, the AMS. He had access to the surveillance and to Dr Rastogi’s reports. He commented on both. He specifically stated the surveillance was consistent with the history he had recorded. He did not suggest that the surveillance was inconsistent with the histories recorded by Dr Rastogi on her assessments. He did not suggest the surveillance was consistent with dissembling, exaggeration or anything of that nature. There was no medical evidence before the Arbitrator to support a submission that either of Dr Rastogi’s reports were deprived of weight by the surveillance material. For these reasons, together with those given in respect of Grounds Nos 1 and 2, Ground No 3 failed. ([59]–[60])

(Hancock v East Coast Timber Products Pty Limited[2011] NSWCA 11; 8 DDCR 399, at [82]–[83] applied)

  1. The appellant’s additional submissions dealing with Ground No 4 again recited a description of part of the surveillance material. The appellant submitted that if the Arbitrator had given “appropriate weight” to the surveillance material he would not have accepted the opinion of Dr Rastogi that there was no current work capacity. Again, the respondent relied on its submissions relating to Grounds Nos 1 and 2. Deputy President Snell held Ground No 4 raised arguments already made in the earlier grounds and for the reasons given in respect of Grounds Nos 1 to 3, Ground No 4 failed. ([61]–[62])

    Ground No 5

  2. This ground stated that the Arbitrator failed to give the evidence of the respondent’s renal problems sufficient weight. Deputy President Snell noted the point was made above, in the reasons dealing with Grounds Nos 1 and 2, that the appellant failed to identify a specific error in how the Arbitrator dealt with the material about renal symptoms, other than to say that such evidence was not given sufficient weight. The occurrence of the psychological injury in the course of employment was conceded. There was no issue regarding whether the psychological injury resulted from the alleged employment matters. ([63]–[64])
  3. The parties, on the appeal, did not argue that the Arbitrator misstated the issues tendered for determination at the arbitration hearing, being:

(a) Did Mr Ali-Ahmad have any current work capacity?

(b) If so, to what suitable employment was Mr Ali-Ahmad suited. ([65]–[66])

  1. Whether there was incapacity resulting from unrelated renal problems was not the issue the Arbitrator was required to decide. ([43], [67])
  2. Reading the reasons as a whole, the Deputy President observed the Arbitrator’s reasons noted the relatively limited scope of the dispute requiring determination. The reasons summarised the factual background and the reports of Dr Rastogi (including the report dated 17 November 2016) in detail, which immediately followed the conclusion of the closed period. The Arbitrator summarised the treating reports of Mr Albassit, Mr Metry and Dr Assaad, including entries in Dr Assaad’s clinical notes relevant to psychological complaints. He summarised the reports of Dr Mitterdorfer, the specialist who treated the respondent for his renal problems. The Arbitrator summarised the report of Dr Hong, the AMS. He summarised the surveillance material at some length. He summarised the submissions of both parties. ([71])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 444 applied)

  1. Deputy President Snell concluded it was open to the Arbitrator to accept the evidence of Dr Rastogi. As the Arbitrator correctly noted, there was no other evidence dealing with that primary issue in the case. The Arbitrator’s acceptance of Dr Rastogi in this regard did not involve error, having regard to the principles set out in Raulston. It was apparent that the Arbitrator took account of the evidence overall in the case, which he set out at length. The Arbitrator’s reasons were, in the circumstances of the case, adequate. Ground No 5 failed. ([73]–[75])
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