Appeal Case Summaries

Jafarian v WildFire Interiors Pty Ltd [2021] NSWPICPD 24

WORKERS COMPENSATION – worker; whether applicant carried on his own business or whether he was a worker; Malivanek v Ring Group Pty Limited [2014] NSWWCCPD 4 and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)  [2011] FCA 366 discussed and applied; s 352 of the 1998 Act; requirement to show error on appeal

Parker SC ADP

4 August 2021

Facts

The appellant claimant alleged that on 15 February 2018 in the course of employment with the respondent he fell from a ladder and sustained injury to the cervical and lumbar spine. He claimed medical expenses relating to an L5/S1 anterior lumbar interbody fusion.

The insurer declined liability on the basis that the appellant was not a “worker” within the meaning of s 4 of the 1998 Act. It was alleged that the appellant was engaged in his own business as a painter and was not a worker of the respondent.

The Senior Arbitrator concluded the respondent contracted with the appellant’s business Efficient Handyman Services Pty Ltd (EHS). The Senior Arbitrator held the appellant was not a ‘worker’ in the employ of the respondent within the meaning of s 4 of the 1998 Act as at 15 February 2018.

The issues on appeal were whether the Senior Arbitrator erred in fact and law in:

(a) failing to find that the appellant was a worker within the meaning of s 4 of the 1998 Act having regard to the evidence before him and the principles set out in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (Ground 1);

(b) treating one formal aspect of the relationship between the appellant and the respondent, the presentation of invoices issued in the name of the appellant’s company, as decisive and failing to recognise that the work that was being performed by the appellant at the time of his injury was as a subordinate worker performing duties under the control of and in the business of the respondent, and as a representative of that business, not as an independent entrepreneur performing work for his own business, and as a representative of that business (Ground 2), and

(c) treating the fact that the appellant had a business as decisive of the question as to whether the appellant was a worker without examining whether notwithstanding that the appellant had a business he was at the material time performing work for the respondent (Ground 3).

Held: The Certificate of Determination dated 8 January 2021 was confirmed.

Ground 1

1. The jurisdiction provided by s 352(5) of the 1998 Act permits correction of the decision at first instance to the extent that it “was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.” ([73]–[76])

   (Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140 ; 140 ALR 227; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, and Australian Air Express Pty Limited v Langford [2005] NSWCA 96 applied)

2. The Acting Deputy President was of the view that the approach adopted by the appellant in relation to Ground 1 did not identify error of fact, law or discretion on the part of the Senior Arbitrator, much less did it advance submissions demonstrating such an error. The formulation of Ground 1 on its terms did nothing more than indicate the appellant’s dissatisfaction with the outcome achieved in the hearing before the Senior Arbitrator. ([78])
3. The assertion of a contrary view with respect to any piece of evidence did not establish that the Senior Arbitrator was incorrect to take the view that he took. It is to be expected in an appeal such as the present that the appellant will identify specific conclusions or propositions or findings of the Senior Arbitrator in relation to fact, legal principle or discretion that cannot be supported by reference to specific evidence, legal principle or the consideration of relevant matters. ([79]–[80])
4. The appellant’s engagement by the respondent involved elements that could reasonably be relied upon in support of the proposition that the relationship was one of employment. The statement evidence as to Mr Rujnic’s need for another worker, the evidence of the appellant that he needed work, as it were to tide him over between jobs, and the integration of the appellant into the “team” of painters point towards the relationship being one of employment. But there were matters against such a conclusion as outlined by the Senior Arbitrator in his decision at paragraphs [220]–[226]. ([81])
5. The appellant asserted that the Senior Arbitrator was wrong in relation to the findings and inferences that he drew from this material. But the appellant did not identify in Ground 1 any factual conclusion that could be disputed. The appellant was left with an argument that the facts as found by the Senior Arbitrator, which were essentially unchallenged, did not support the conclusion that he drew that the appellant was not a worker. The appellant was required to displace the Senior Arbitrator’s conclusion. It was not enough to show that a different inferential conclusion was available on the same factual findings. ([82])
6. Acting Deputy President Parker SC was not persuaded that the appellant had identified or established error of fact, law or discretion such as to enliven the appellate jurisdiction. Furthermore, he was not persuaded that the Senior Arbitrator did not address adequately the relevant legal principles in his determination adverse to the appellant. In the Acting Deputy President’s view, none of the matters complained of under Ground 1 in the submissions could be advanced any higher than matters in which minds could differ as to the conclusion. Ground 1 was rejected. ([83]–[84])

Ground 2

7. The Acting Deputy President held it was not correct to assert, as this ground sought to assert, that the Senior Arbitrator focused on one formal aspect of the arrangement concerning the presentation of invoices in the company name. Parker SC ADP noted the appellant did not challenge any of the factual conclusions reached by the Senior Arbitrator. The appellant challenged the inference(s) drawn by the Senior Arbitrator from now uncontested factual findings. But it was in fact the case that it was the appellant’s company that invoiced the respondent’s company for the appellant’s services. ([101]–[102])
8. Acting Deputy President Parker SC did not see in the Senior Arbitrator’s consideration of the evidence and his conclusions a failure to address the issue of whether the appellant was working in his own business or working in the business of the respondent. In the Acting Deputy President’s view, the conclusion reached by the Senior Arbitrator was in essence that the appellant conducted a painting business and that when he was engaged by the respondent in July 2017 that was a manifestation of the painting business. It was not correct that the Senior Arbitrator treated any particular matter as decisive. ([103]–[105])
9. The appellant did not engage with the Senior Arbitrator’s rejection of the submission at the hearing that the documentary evidence was not relevant and that the focus should be on the substance of the arrangement between the appellant and the respondent. Consideration of the substance of the relationship necessarily included consideration of the documentary evidence. The Senior Arbitrator was correct at [224] of the reasons when he observed that if he failed to take the documentary evidence into account he would be in error. ([106])
10. Acting Deputy President Parker SC held that the appellant had not shown error or that the Senior Arbitrator allowed any particular factor to be decisive in his determination that the appellant was conducting his own business when he provided his services to the respondent on 15 February 2018. Much less had it been demonstrated that he treated the presentation of invoices issued in the name of the appellant’s company, as decisive. ([109])
11. Furthermore, the Acting Deputy President did not agree that the Senior Arbitrator failed to recognise that the work that was being performed by the appellant at the time of his injury, was as a subordinate worker performing duties under the control of and in the business of the respondent. It was open to the Senior Arbitrator on the evidence to conclude as he did that the appellant’s services were provided to the respondent as a representative of the appellant’s business, EHS. The appellant had not made out this ground of appeal which was rejected. ([110]–[112])

Ground 3

12. For the reasons given in relation to Ground 2, Parker SC ADP was of the view the Senior Arbitrator did not treat as decisive the fact that the appellant had his own painting business. On several occasions he made the point that the arrangement between the appellant and others apart from the respondent was irrelevant to the matter. ([115]–[117])
13. The Senior Arbitrator was aware of the distinction between the appellant’s business and the proposition that the appellant sought to establish in the proceedings, namely that he was on this occasion on 15 February 2018 a worker employed by the respondent. Contrary to the appellant’s submissions at trial and on the appeal, the totality of the evidence, including the documentary evidence adumbrated at [222] of the reasons and the unproven matters mentioned at [221] of the reasons concerning the nature of the work, led the Senior Arbitrator to the conclusion on the balance of probabilities that the appellant was not a worker on 15 February 2018. The Acting Deputy President was not persuaded that the Senior Arbitrator was in error so to conclude. Ground 3 of the appeal was dismissed. ([118]–[119])

Notice of contention

14. The respondent had filed a Notice of Contention in which it contended that the appellant failed to establish the formation or existence of a contract between himself and the respondent. It was unnecessary for the disposition of the appeal that the Acting Deputy President determine the notice of contention. ([120]–[121])

Secretary, Department of Education v Sadler [2021] NSWPICPD 25

WORKERS COMPENSATION – weight of evidence in the Commission – application of Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; failure to examine all of the material relevant to the particular issue – application of Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816

Snell DP

10 August 2021

Facts

The respondent worker was employed by the appellant as a Deputy Principal. In 2015, he was seconded to a position in the appellant’s School Safety and Response Unit, later known as the Incident Support Unit (ISU). Incidents of “a criminal/serious nature” that occurred in primary and high schools were reported to the Unit, which offered guidance on their handling.

In about February 2017, the functions of the ISU were to be transferred from the appellant’s Safety and Security Directorate to its Health and Safety Directorate. It was to relocate from Blacktown to Bankstown. The Unit was to report to Ms O’Brien, the Executive Director, Health and Safety. She described the Unit as unhappy about the relocation and there were rumours about restructuring their roles. Ms O’Brien engaged a consultant, Mr York, to understand the unit’s “work practices, systems and culture”.

The respondent gave a history of “bullying or undermining or harassment”, which “started before they moved to Bankstown”.

There was an incident on 16 May 2017, the circumstances of which were in contest between the parties. The respondent was to be attending in-house training that day. The recently appointed manager of the unit’s team was Ms Gordon. The respondent stated that when he arrived at work that day “other members” of the unit were “concerned about a comment Ms Gordon had made about our team”. It was said that a team member, Mr Lauric, had earlier overheard Ms Gordon say to the consultant, Mr York, “that we were difficult and that we would not share information”. The respondent said that “[e]veryone in the team was concerned that we were portrayed as problematic to the consultant who was there to assess us”. The respondent said that at the commencement of the day Ms Gordon “got our attention and briefly advised us of the consultant’s role” and then asked if there were any questions. The respondent said he asked about the above comment, saying the ISU team were “all concerned about its ramifications”. He stated the question was asked “in a normal professional tone”. He denied he behaved confrontationally.

Later that day, in the afternoon, Ms O’Brien came to the room where the training was being carried out and had the respondent accompany her to her office. She showed him a document from Mr York which she told him to read. Ms Gerardis, who was “one of two Directors within the Directorate” was also present. Evidence regarding what occurred and was said at this meeting diverged. The ultimate outcome was that the respondent’s employment in the unit came to an end that afternoon. He took some time off on leave and then performed some teaching on a casual basis. The respondent developed psychological symptoms and ultimately made a claim for workers compensation. The claim was denied and a defence pursuant to s 11A of the 1987 Act was relied upon by the appellant on the basis that the injury resulted wholly or predominantly from reasonable action on the appellant’s part in respect of dismissal.

The Arbitrator found the respondent had suffered a psychological injury deemed to have occurred on 16 May 2017, to which the relevant employment was the main contributing factor. He found the Department’s s 11A(1) defence was not made out. He referred the claim for permanent impairment to an AMS for assessment. The Department appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) law by failing to consider all the evidence before him when deciding what occurred in the ‘morning meeting’ (Ground 1);

(b) fact and law by determining the evidence of Ms O’Brien and Ms Gerardis lacked credit (Ground 2);

(c) fact as to what occurred at the ‘Office Meeting’ on 16 May 2017 (Ground 3);

(d) fact finding that the respondent’s conditions of employment prior to 16 May 2017 contributed towards his psychological injury (Ground 4);

(e) fact and law by determining that the respondent’s psychiatric condition was a disease (Ground 5);

(f) fact and law in failing to have regard to critical evidence relevant to his determination of the respondent’s credit (Ground 6), and

(g) fact and law in finding that the appellant’s policies or guidelines were not in evidence, and/or in failing to have regard to those policies and guidelines (which were in evidence), in circumstances where those policies and guidelines were relevant to each party’s case and regarded as important by the Arbitrator (Ground 7).

Held: The Certificate of Determination dated 18 December 2020 was revoked and the matter was remitted for re-determination by another member.

The additional grounds of appeal

1. The appellant originally relied on five grounds of appeal and sought leave to add a further two grounds of appeal when it lodged its submissions following receipt of the transcript. The practice of seeking to add additional grounds of appeal following receipt of transcript has been the subject of criticism. In NSW Police v Gurnhill [2014] NSWWCCPD 12 Roche DP referred to the practice as “unsatisfactory and unacceptable”. The Deputy President said the provision of transcript after the time the appeal was lodged was “no excuse for not including all relevant grounds of appeal in the Application – Appeal Against Decision of Arbitrator”. He noted the comments of Allsop P in Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 that practitioners are required to keep notes of the essentials of what occurs in court. ([21])

Ground 1

2. The appellant relied on evidence from Mr Hoole, who worked in a different Unit to the respondent but in relatively close proximity to where the conversation involving the respondent and Ms Gordon occurred. Mr Hoole had placed his version of what happened, which he overheard, in an email addressed to himself and dated on the day following the meeting. The appellant did not rely on a formal statement from Mr Hoole and he did not give oral evidence. The appellant submitted that Mr Hoole was a witness with “no axe to grind”. The respondent submitted that this could only be determined “if he provided a statement and was tested in cross examination”. The weight to be ascribed to the evidence from Mr Hoole was a matter for the Commission, the Arbitrator who determined the matter at first instance. In the Commission cross-examination is discretionary. It depends on the interests of justice and the facts and circumstances of the individual case. As a general proposition, the above submission by the respondent was inconsistent with JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17. ([60])
3. Mr Hoole’s description of what occurred was not reduced to a formal statement. He did, in composing the email to himself dated 17 May 2017, set out his contemporaneous recollection of events. He adopted this account in a later email dated 11 December 2017 to Ms Van Berlo, who was investigating the incident on instructions from the appellant. Ms Van Berlo’s report referred to “phone contact” with Mr Hoole and “information on interview (phone)”. The summary of Mr Hoole’s version included a note that the “other staff were unsure of who the consultants were” and that Ms Gordon “approached staff to speak with them and was attacked”. It said that Mr Hoole “[c]ouldn’t hear detail of conversation”. The summary of Mr Hoole’s account was generally consistent with the email dated 17 May 2017. The respondent correctly submitted that the reference to Ms Gordon being “attacked” did not appear in the email dated 17 May 2017. ([64])
4. The appellant specifically addressed the Arbitrator on Mr Hoole’s email dated 17 May 2017. The appellant’s counsel described Mr Hoole as a person who did not “have an axe to grind”. The transcript was consistent with the longer email setting out Mr Hoole’s version having been read out in its entirety when the appellant addressed the Arbitrator. The appellant relied on these emails before the Arbitrator. ([66])
5. The respondent’s submissions raised the issue of what weight should have been given to the emails, which were not in the form of a statement and were unsigned. The principles previously set out in r 15.2 of the Workers Compensation Rules 2010 are now found in r 73 of the 2021 Rules. ([67]–[69])
   
   (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 applied)

6. The material referable to Mr Hoole included the three emails, together with those passages from Ms Van Berlo’s report that summarised Mr Hoole’s version following telephone contact with him. The summary in Ms Van Berlo’s report had aspects that were not in the emails, being the references to Ms Gordon being “attacked” and to staff being unsure of who the consultants were. This may well suggest that the material obtained by telephone supplemented the material in the emails. On its face the material from Mr Hoole was entitled to weight. It was a relatively contemporaneous description of what Mr Hoole said he heard on the morning of 16 May 2017, and in what circumstances. Mr Hoole adopted it for the purposes of Ms Van Berlo’s investigation. It was relevant to the issues between the parties. The weight to be given to this material was a matter for the Commission, at first instance the Arbitrator hearing the matter. ([70])
7. With respect to the resolution of the conflicting evidence regarding what happened at the ‘morning meeting’, the Arbitrator regarded the weight to be given to the statement of Mr York as affected by its lack of contemporaneity. He referred also to Mr York’s “personal involvement in the question”. He did not accept Ms O’Brien’s evidence of the respondent being verbally abusive and physically intimidating towards Ms Gordon, noting correctly that Ms O’Brien was not present at the morning meeting. The evidence from Mr Hoole, regarding what happened at the morning meeting, was in significant part contemporaneous, described what Mr Hoole heard, came from a person who was not obviously partisan and who was submitted to be disinterested. ([72])
8. The evidence about what happened at the morning meeting included an email from Mr York to Ms O’Brien dated 16 May 2017 at 1:54 pm. That email spoke of Ms Gordon being ‘grandstanded’ by the respondent and referred to the “condescending voice” employed by the respondent. Mr York’s undated statement described the respondent speaking in a “loud voice” to Ms Gordon at the morning meeting and referred to the respondent’s “demeanour and condescending nature” when he spoke. The evidence from Mr Hoole had the capacity to tend to corroborate that of Mr York. It was relevant to an assessment of the evidence as a whole, in dealing with the competing evidence. The Arbitrator was not obliged to accept it, but it was clearly relevant. It had the capacity to affect the result. ([73])
   
   (Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 applied)

9. In failing to consider a significant part of the evidence from Mr Hoole the Arbitrator overlooked material facts. This constituted appealable factual error. Ground 1 succeeded and the matter was remitted for re-determination by another member. ([75])
   
   (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

Maitland City Council v McInnes [2021] NSWPICPD 22

WORKERS COMPENSATION – application to rely on fresh or additional evidence pursuant to s 352(6) of the 1998 Act, failure to give notice of injury in compliance with s 254 of the 1998 Act – ‘special circumstances’, failure to claim compensation in compliance with s 261 of the 1998 Act – ‘ignorance, mistake, absence from the State or other reasonable cause’, findings of ‘injury’ pursuant to s 4 of the 1987 Act, weight of a medico-legal assessment carried out by audio-visual link, a member’s duty to give reasons

Snell DP

23 July 2021

Facts

The respondent worker was employed by the appellant on its maintenance team repairing potholes. His duties involved him taking asphalt on a shovel from the truck’s hopper, and walking up to 25 metres to a pothole which he would repair. On 1 July 2019, after working with his team repairing potholes, the respondent was disposing of left over asphalt, scraping it from the walls of the hopper. He was bent over closing the door of the hopper, which was slightly damaged, when he felt “pinching pain” in the lower back.

On the following day, the respondent had an interview with human resources about unrelated matters. He took leave for unrelated matters thereafter before resigning on 1 September 2019. He moved to Queensland on 1 October 2019.

The respondent undertook some short-term employment thereafter. He described a progressive escalation in back pain from 1 July 2019 to February 2020. He made a claim on 12 February 2020. The respondent did not, to that time, report the injury to the appellant or make a claim for compensation in respect of it. The appellant declined liability. It relied upon the failure to give notice and the failure to make a claim within time. It disputed the occurrence of injury and whether the requirement of ‘main contributing factor’ for the purposes of the ‘disease’ provisions was satisfied.

The Senior Arbitrator determined that the respondent’s failure to give notice of injury and to make a claim for compensation within time were excused pursuant to ss 254(3)(b) and 261(4)(a) respectively of the 1998 Act. There was a finding that the respondent had suffered injury to the back from 12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019. There was a finding that employment was a substantial contributing factor. There was an award for continuing weekly payments and the payment of medical expenses. The employer appealed.

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

(a) finding that the worker sustained injury to his lower back arising out of or in the course of his employment from 12 March 2012 to 1 July 2019, including a frank injury on 1 July 2019 (Ground 1);

(b) finding that employment was a substantial contributing factor to his injury (Ground 2);

(c) his finding that the worker’s failure to give notice of his injury was occasioned by the special circumstances identified in s 254(3)(b) of the 1998 Act (Ground 3);

(d) his finding that the worker’s failure to make a claim was occasioned by the special circumstances identified in s 261(4)(a) of the 1998 Act (Ground 4), and

(e) that he gave insufficient weight to the attack made to [sic] the worker’s credit and by doing so formed erroneous deliberations on the totality of the evidence (Ground 5).

Held: The Certificate of Determination dated 16 November 2020 was confirmed.

Grounds 3, 4 and 5

1. Much of the appellant’s attack under these grounds consisted of attempts to reargue factual issues that were decided adversely to the appellant by the Senior Arbitrator. The appeal was subject to s 352(5) of the 1998 Act and the principles that govern such appeals. It is insufficient on appeal to simply argue that a different factual conclusion is preferable. It is necessary to establish error. ([8]–[12], [83])

   (Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156; 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; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 ; 12 DDCR 95, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

2. The appellant was critical of the Senior Arbitrator’s reliance on the respondent’s fearfulness of losing his job if he reported the injury, a factor described by the Senior Arbitrator as “credible”. The appellant’s submission failed to take account of the fragile nature of the respondent’s employment as at 1 July 2019. The respondent had “an interview with HR” on 2 July 2019 at which he signed legal documents, wanted a week off due to issues raised at the meeting and was unable to reveal what was discussed. He ultimately resigned on 1 September 2019 because of conditions imposed as a result of the HR meeting. The Senior Arbitrator found that the respondent feared the loss of his job and his evidence in this regard was “credible”. This factual finding was open in the circumstances and did not involve error. ([84]–[85])
3. The appellant was critical of the Senior Arbitrator’s acceptance of the respondent’s evidence that he thought he had suffered a minor strain. It submitted the respondent’s statement, that he thought the injury involved a muscle strain, could not be accepted as ‘credible evidence’. Snell DP held it was difficult to see why, from a lay perspective, the respondent’s stated belief that he thought he had suffered a muscle strain inherently lacked credibility. The history did not suggest the respondent sought any medical assistance around this time. Although the Senior Arbitrator did not rely on this, it was noteworthy that Dr Bodel’s history also indicated that the doctor found the history “a little difficult to understand around this stage”. The appellant’s submissions did not advance any persuasive argument for why the respondent’s evidence on this point was not credible. They did not advance a basis for a conclusion that the Senior Arbitrator erred in accepting the respondent’s evidence on the issue. ([86]–[89])
4. The appellant had not identified error on the Senior Arbitrator’s part in dealing with the respondent’s psychological and emotional difficulties. Further, the Senior Arbitrator’s view that the claim form was of little weight was open. ([92], [96])
5. A number of criticisms were made by the appellant of the respondent’s credibility. In respect of a number of these, the Senior Arbitrator did not accept the criticisms made by the appellant. Snell DP concluded that the Senior Arbitrator’s approach was open to him on the evidence and did not involve appealable error within the meaning of s 352(5) of the 1998 Act. ([99])
6. There were aspects of the respondent’s evidence that the Senior Arbitrator found to be unreliable. He did not make a finding that the respondent was deliberately untruthful. The circumstances did not raise the principles in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117. It was open to the Senior Arbitrator, on the evidence as a whole, to determine which aspects of the respondent’s evidence he accepted and which he did not. He carried out this task by reference to whether the respondent’s evidence was corroborated, whether there was evidence inconsistent with it, whether it was challenged and its inherent credibility. The appellant had not made out its challenges in Grounds 3, 4 and 5. Those grounds failed. ([106])

Ground 1

7. Ground 1 made an allegation that the Senior Arbitrator’s finding of injury was erroneous. The ground did not identify the error on which it relied. The submissions covered multiple topics. The matters raised dealt with the following:
   

   (a) Whether allegations of injury pursuant to subss 4(a) and 4(b) of the 1987 Act were mutually exclusive?

   Snell DP accepted the appellant’s submission that the finding of injury made by the Senior Arbitrator was one pursuant to s 4(a) of the 1987 Act. The Senior Arbitrator specifically rejected the proposition that a finding of ‘disease’ should be made. If the condition present constituted a ‘disease’ it would still be possible (if the evidence warranted it) to make a finding of injury pursuant to s 4(a). This was not inconsistent with Rail Services Australia v Dimovski [2004] NSWCA 267 . ([126]–[132])

   (b) Whether the opinion evidence of Dr Bodel was sufficient to support a finding of injury on 1 July 2019 pursuant to s 4(a)?

   Snell DP found that on the medical evidence, it was open to the Senior Arbitrator to make a finding that the event on 1 July 2019 satisfied the legal requirements to constitute an ‘injury’ pursuant to s 4(a) of the 1987 Act. Whether the doctor regarded the injury as being governed by s 4(b) of the 1987 Act (assuming that to be true) was not to the point. Although Dr Bodel described a number of matters as causal contributors to the back condition, he considered the external disc rupture occurred when the respondent rose from a bent position while cleaning out the hopper. Dr Bodel’s medical description of what occurred on 1 July 2019 satisfied the test to find an ‘injury simpliciter’ consistent with Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 and Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298. ([133]–[144])

   (c) Whether there were other factors that militated against a finding of injury on 1 July 2019 pursuant to s 4(a)?

   Snell DP did not accept the submission that the Senior Arbitrator, in the circumstances, was precluded from making a finding of injury pursuant to s 4(a) of the 1987 Act. ([145]–[148])

   (d) Whether it was open to the Senior Arbitrator to make a finding of injury pursuant to s 4(a) as a result of the “heavy and repetitive nature of [the respondent’s] employment duties from 12 March 2012 to 1 July 2019”?

   Snell DP held that in this matter, the Senior Arbitrator did not make a finding of injury pursuant to both subcll (a) and (b) of s 4. In the reasons at [195], he specifically rejected the proposition that there was “a disease process in terms of s 4(b)(i) of the 1987 Act”. The Senior Arbitrator’s reasons proceeded on the basis that s 4(b)(ii) was not relied on. To the extent that this aspect of the submissions sought to raise the issue of whether findings pursuant subcll (a) and (b) of s 4 are mutually exclusive, this did not arise. The Senior Arbitrator’s injury finding was solely on the basis of s 4(a). The issue rather was whether it was open to the Senior Arbitrator, on the evidence that was before him, to make the finding which he did of injury pursuant to s 4(a). ([149]–[151])

   (e) Whether it was open to the Senior Arbitrator to make a finding that the respondent’s back injury resulted from both the ‘nature and conditions’ of employment and the incident on 1 July 2019?

   The Senior Arbitrator’s reasons clearly recognised that the weight of Dr Bodel’s opinion was affected by limitations in the way in which the doctor’s assessment was carried out, but he considered it was not deprived of all weight. This approach was open in the circumstances. There was no evidence to the effect that Dr Bodel’s opinion was deprived of all weight by the circumstances in which the respondent was examined. The only medical evidence on that topic was from Dr Bodel and was to the contrary. The extent to which the weight afforded to an expert opinion is affected, if at all, by the way in which the assessment is carried out, depends on the facts and circumstances of the particular case. The way in which the Senior Arbitrator dealt with this aspect of the evidence did not involve error. ([152]–[157])

8. It followed that Ground 1 failed. ([158])

Ground 2

9. The appellant’s submission, that it was erroneous to apply the test in s 9A of ‘substantial contributing factor’, was dependent on acceptance that the basis of any proposed ‘injury’ finding was pursuant to the ‘disease’ provisions in s 4(b). This was contrary to the finding of injury the Senior Arbitrator made. ([162])
10. The only specific attack the appellant made on the Senior Arbitrator’s analysis dealing with s 9A was to submit that absence of an alternate cause was not evidence that the pathology resulted from employment. Whilst this may be true, when a fact-finder is weighing evidence to consider whether something is proved on the probabilities the absence of evidence to the contrary is relevant to that task. The Senior Arbitrator’s remark about other evidence did not, in any event, appear to be dispositive. It appeared at the end of a passage in which he has considered the evidence relevant to s 9A and found s 9A to be satisfied “given the [respondent’s] medical and factual evidence”. The analysis did not suggest the Senior Arbitrator was dependent on the absence of evidence to the contrary in reaching this conclusion. ([165])
11. The appellant was critical of the adequacy of the Senior Arbitrator’s reasons dealing with s 9A. The reasons clearly enough exposed why the relevant findings of fact were made in dealing with s 9A. The reasons given by the Senior Arbitrator, dealing with the s 9A issue, complied with his obligation to provide adequate reasons. Ground 2 failed. ([166]–[168])

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

Nonconformist Pty Ltd v Fisher [2021] NSWPICPD 26

WORKERS COMPENSATION – epidemiological evidence and the question of causation – Amaca Pty Ltd v Booth [2011] HCA 53; Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262; 19 NSWCCR 385 discussed and applied – principles applicable to establishing error in accordance with s 352(5) of the 1998 Act – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600 applied

Wood DP

19 August 2021

Facts

Mr Clifford (the deceased) was employed by the appellant as a courier driver. He was the sole director of that company and performed courier services through a sub-contract arrangement between the appellant and Direct Couriers (Aust) Services Pty Ltd (Direct Couriers). On 22 January 2016, in the course of his employment, the deceased died while driving his van through Campvale, New South Wales during his last delivery run for that day.

The death certificate issued on 18 February 2016 listed the cause of death as ischaemic heart disease and coronary artery atherosclerosis. The autopsy report prepared for the coroner listed the direct cause of death as ischaemic heart disease with an underlying condition of coronary artery atherosclerosis as an antecedent cause.

Ms Fisher, the wife of the deceased, lodged a claim for workers compensation on the basis that she was dependent upon the deceased. The appellant disputed that:

(a) the deceased’s death resulted from an injury in the course of his employment within the meaning of s 4 of the 1987 Act;

(b) the deceased’s employment was a substantial contributing factor to any injury as required by s 9A of the 1987 Act;

(c) the nature of the deceased’s employment gave rise to a significantly greater risk of injury than if he had not been employed in employment of that nature, as required by s 9B of the 1987 Act, and

(d) if the injury was a disease within the meaning of s 4 of the 1987 Act, the disease was not contracted in the course of employment and the deceased’s employment was not the main contributing factor to the injury or the aggravation of the injury.

The Arbitrator found that the appellant was liable to pay the compensation claimed. The outstanding issues of dependency and apportionment were remitted to the Registrar in order for the Registrar to fix a date for further arbitration. The appellant appealed.

Amongst 8 other grounds of appeal advanced (which ultimately were not considered due to the appeal being upheld on grounds 2 and 5), the issues on appeal were whether the Arbitrator erred as follows:

(a) Ground Two: making incorrect findings on, and giving undue weight to, medical literature, in particular the World Health Organisation review, and

(b) Ground Five: error of fact in relation to the reports of Dr Herman concerning the scientific studies.

Held: The Certificate of Determination dated 18 December 2020 was revoked and the matter was remitted for re-determination by another member.

Consideration

1. Grounds Two and Five of the appeal related to the Arbitrator’s primary consideration of whether the deceased’s exposure to air pollutants caused or contributed to the ventricular fibrillation, resulting in his death. As the Arbitrator’s finding that the deceased suffered an injury in the course his employment as a result of exposure to air pollutants impacts upon the Arbitrator’s consequent determinations, it was appropriate that Grounds Two and Five and the submissions made by the parties relevant to each of those grounds be dealt with first. ([135]–[136])
2. The appellant asserted that the Arbitrator made incorrect findings about the medical and scientific literature and gave undue weight to that literature (Ground Two), thus erring in relation to his preference for the opinion of Dr Helprin over that of Dr Herman (Ground Five). The appellant submitted that the Arbitrator erred in finding that the literature supported a causal connection between exposure to air pollutants and ventricular fibrillation or cardiac arrest. Both grounds were dealt with together by Deputy President Wood. ([163])

The scientific literature

3. The appellant said that Dr Helprin’s opinion, which the Arbitrator accepted, was that the literature established as a certainty that ambient air pollution in metropolitan areas was a direct cause of ventricular fibrillation, in the presence of a cardiac condition. The appellant said that the literature fell short of establishing the connection as a “certainty.” ([164])
4. The appellant asserted that there were no such conclusions in the literature, and the highest the scientific literature could be put was that there was an “association” between exposure to air pollutants and ventricular fibrillation. Both Dr Helprin and Dr Herman agreed that there was an “association,” but ultimately arrived at differing conclusions about the scientific literature. As an example, there was a complete divergence of opinion between Dr Helprin and Dr Herman as to the conclusion reached in the study “A systematic review of air pollution and incidence of out-of-hospital cardiac arrest” by Teng et al. ([166])
5. Deputy President Wood held that the Arbitrator did not explain why he included reference to that particular research study as a basis for his acceptance of Dr Helprin’s opinion. Dr Helprin’s observations about that study do not appear to be indicative of the study being supportive of his opinion on causation. The Arbitrator also did not address the divergent opinion of each of these medical experts as to the conclusion reached in the study by Teng et al. ([170])
6. The studies relied upon by Dr Helprin in arriving at his conclusion that there was a “certainty” that there was a direct causal connection did not involve consideration of the World Health Organisation review. ([171])
7. The appellant raised a significant issue as to what conclusions were arrived at in both the World Health Organisation review and the studies relied upon by Dr Helprin. The appellant asserted that the World Health Organisation review specifically noted that there were critical gaps in the studies that needed further research in order to assess the contribution of air toxicity to adverse health outcomes. The appellant submitted that the many points made in the studies about the limitations indicated that the outcomes were consistent with Dr Herman’s conclusion that the scientific studies remained a hypothesis. ([172])
8. The Arbitrator acknowledged the appellant’s submissions about the World Health Organisation review and the other studies relied upon by the occupational and medical experts in the reasons. The Arbitrator did not go so far as to say that the report from the World Health Organisation stated with certainty what the cause and effect of exposure to air pollutants would have been. However, he rejected the evidence of Dr Herman in part because it was, in his view, inconsistent with the World Health Organisation review and also because the association between exposure to air pollutants and cardiac events could not be classed as a hypothesis. The Arbitrator did not engage with the appellant’s submissions about the limitations of the findings other than to say that, in any event, in circumstances where science can only assert possibilities, a tribunal can determine, on the basis of the whole of the evidence, that the causal link is established on the balance of probabilities. ([173])
9. The difficulty with that approach was that the Arbitrator proceeded to reject the opinion of Dr Herman without having considered the submissions about the alleged inconsistency between the findings in the research and the opinion of Dr Helprin and without identifying what he determined the status of the findings in the research to be. Of note was the inconsistency between Dr Helprin’s assertion of the conclusion reached in the study undertaken by Teng et al and that recorded by Dr Herman in respect of the same study. ([174])
10. The epidemiological evidence about the association between exposure to air pollutants and cardiac events constituted “strands” in the causal chain of connection consistent with Kirby P’s observations in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 but were not, of themselves, evidence establishing the necessary causal connection between the exposure to air pollution, if accepted, and the deceased’s ventricular fibrillation resulting in death. An assessment of the competing expert evidence of Mr Prezant and Mr Strautins, and that of Dr Herman and Dr Helprin as to the question of causation was a further step in the consideration of the question of causation and an assessment of the evidence of those experts required an examination of whether the opinions were properly founded upon the facts and the conclusions in the scientific literature. ([176])
11. Thus the “strands in the cable” which formed the circumstantial facts upon which the Arbitrator could draw the necessary inference that the exposure to air pollutants materially contributed to the injury were not sufficiently exposed. Without having dealt with that issue, the Arbitrator did not address those purported shortcomings when providing his reasons for affording greater weight to the opinion of Dr Helprin over that of Dr Herman. ([178])
12. The appellant asserted that Dr Helprin’s opinion was flawed because he overstated the conclusions reached in the scientific literature and did not provide a properly reasoned basis for his assertions. The Arbitrator did not deal with those submissions when assessing the evidence and before accepting Dr Helprin’s opinion. Further, he rejected Dr Herman’s opinion because of its “inconsistency” with the World Health Organisation conclusions without having assessed what those conclusions were and without identifying the inconsistency. ([180])

Rejection of Dr Herman’s opinion over that of Dr Helprin on the basis that Dr Herman failed to provide reasons for his conclusions

13. The appellant was critical of the Arbitrator for taking into account Dr Helprin’s medical specialty when Dr Herman was of the same expertise. Deputy President Wood did not consider that the Arbitrator was referring to Dr Helprin’s expertise as being a reason to prefer his opinion over that of Dr Herman. ([181])

    (Amaca Pty Ltd v Booth [2011] HCA 53 applied)

14. While the scientific literature formed a basis upon which a medical opinion could be arrived at, the medical opinion as to the cause of the deceased’s ventricular fibrillation and death must be expressed by an appropriately qualified expert. In this case, both Dr Helprin and Dr Herman held appropriate qualifications, and the Arbitrator was simply observing that Dr Helprin was suitably qualified to offer a medical opinion on causation. He did not reject Dr Herman’s opinion on the basis of lesser qualifications. ([182])
15. Deputy President Wood held that in concluding that Dr Herman did not provide reasons for his opinion in relation to the status of the scientific literature and in relation to the likelihood that the deceased’s exposure would be less than that asserted by Dr Helprin, the Arbitrator did not address those reasons. In failing to do so, the Arbitrator fell into further error in his preference for the opinion of Dr Helprin over that of the evidence of Dr Herman. ([188])

Conclusion

16. The Arbitrator’s finding as to causation was affected by error. That finding underpinned the Arbitrator’s consequent findings that the deceased’s employment was a significant contributing factor to the injury (s 9A of the 1987 Act), the employment was the main contributing factor to the aggravation of the deceased’s pre-existing coronary disease (s 4(b)(ii) of the 1987 Act) and that s 9B of the 1987 Act were satisfied. In the circumstances of the appellant having established error of the kind that materially affected the Arbitrator’s ultimate conclusions, it was not necessary nor was it appropriate for the Deputy President to consider the remaining grounds of appeal. The Arbitrator’s Certificate of Determination was revoked, and in the circumstances of this case, it was appropriate for the matter to be remitted to another member for re-determination. ([191])