Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)

Workers' compensation - Appeals from Workers' Compensation Arbitration Service (WA) - Turns on own facts

District Court of Western Australia Act 1969 (WA), s 64

District Court Rules 2005 (WA), r 52

Legal Profession Act 2008 (WA), s 280

Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 176, s 188, s 198, s 203, s 213, s 247, s 267, sch 1 cl 17, cl 19

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Beer v Duracraft Pty Ltd [2004] WASCA 192

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Catholic Education Office of WA v Granitto [2012] WASCA 266

Cooper Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 (S)

Konings v Commonwealth Bank of Australia [2016] WASCA 122

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Pollock v Wellington (1996) 15 WAR 1

Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370

Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, No 146 of 1986, 16 June 1986)

Rekabe v Foxline Logistics [2013] WADC 104

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2017] WASCA 76 (S)

Thomas v Chandler Macleod [2015] WADC 78

Tobin v Dodd [2004] WASCA 288

Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113

Waite v Alcoa of Australia Ltd [2020] WASCA 1

Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

1. These two appeals arise from two decisions after arbitration pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA).
2. Following the hearing of the appeals, but before supplementary submissions were filed by the parties, the court was advised by the registrar of the Workers' Compensation Arbitration Service (WCAS) that not all of the material that was before Arbitrator Rutherford was before the District Court. The court requested a copy of all the documents pursuant to r 52(3)(a) - r 52(3)(f) of the District Court Rules 2005 (WA). The parties were then given an opportunity to inspect the documents received by the court from WCAS. The case was re-opened to allow the parties an opportunity to be heard with respect to the documents.
3. For the reasons which follow I am of the view that the court has all the documents that are materially relevant to the appeals.
4. Further, for the reasons which follow, both the application for leave to appeal in each appeal and each appeal should be dismissed.

1. CFC Consolidated Pty Ltd (Respondent) employed Mr Stephane Armet (Appellant) as a labourer. On 18 March 2015, the Appellant claimed he suffered an injury to his back in the course of his employment. The Appellant claimed he aggravated his back injury on 4 September 2015. He has not returned to work since September 2015. The Appellant made a claim under the WCIMA. The Respondent accepted liability and commenced weekly compensation payments to the Appellant.
2. On 14 June 2016, the Appellant lodged an application for arbitration of a dispute in which he described the issues in dispute as being the failure of the Respondent to accept liability for tinnitus and a determination of liability of the Respondent with respect to payment of his statutory allowances - application A34042.
3. On 19 August 2016, the Appellant lodged an application for arbitration of a dispute in which he described the issues in dispute as being the failure of the Respondent to accept liability for hair loss causally related to various injuries, non-treated (case number C36114), acceptance of liability for lipoma and neck injury arising as a consequence of the second incident at work on 4 September 2015 (case number C36115) and acceptance of liability for foot pain and/or plantar fasciitis arising as a consequence of the initial injury on 18 March 2015 (case number C36116) - application A36114.
4. On 5 October 2016, part of the application relating to lipoma was dismissed by consent.
5. The disputes progressed to arbitration. The two applications, together with application A34818 were heard before Arbitrator Rutherford between 21 - 24 February 2017.
6. By decision dated 13 December 2017, Arbitrator Rutherford dismissed application A34042 in respect to the claim for tinnitus.
7. By decision dated 13 December 2017, Arbitrator Rutherford, with respect to application A36114 as to the claimed foot injury, ordered the Respondent to pay the fees rendered by podiatrist, Mr B Trewben. The application was otherwise dismissed in respect to plantar fasciitis, neck pain and hair loss.
8. A decision was also made with respect to application A34818.
9. The Appellant appealed all three decisions to the District Court. The appeal relating to A34818 was resolved.
10. By appeal notice filed 10 January 2018, the Appellant appealed in respect of the decision in application A34042 (APP 4 of 2018) and application A36114 (APP 5 of 2018).
11. On 5 February 2018, the Respondent filed a notice of respondent's intention in relation to each appeal in which the Respondent advised that it intended to take part in each appeal and would argue that each decision be upheld on the grounds relied on by the arbitrator.
12. By order made by Principal Registrar Melville in chambers on 27 March 2018, the Respondent was granted leave to apply to strike out the Appellant's grounds of appeals in both appeals.
13. On 31 August 2018, Principal Registrar Melville struck out the grounds of appeal in relation to APP 4 of 2018 relating to application A34042. In relation to APP 5 of 2018 relating to application A36114, Principal Registrar Melville struck out grounds 1 - 6 of the grounds of appeal but was not persuaded that ground 7, which contends that the arbitrator failed to give adequate reasons for his decision, should be struck out.
14. On 8 January 2019, the Appellant filed an affidavit attaching a 'notice of appeal with legal sophistication'.
15. On 9 January 2019, Birmingham QC DCJ ordered that APP 4 of 2018 and APP 5 of 2018 be consolidated and be heard at the same time.
16. On 7 February 2019, the Appellant filed (draft) amended notices of appeal.
17. On 16 April 2019, Ms Maryse Aranda was appointed the legal representative for the Appellant.
18. The appeals came on for hearing on 24 April 2019. On that day, the Appellant was given leave to further amend the grounds of appeal. It was further determined that the substantive issues on the appeals would be determined rather than focusing on the procedural or interlocutory appeals relating to Principal Registrar Melville's decision on 31 August 2018.
19. The matters were heard on 8 and 12 August 2019. At the conclusion of the hearing on 12 August 2019 supplementary submissions were ordered to be filed by the Appellant by 19 August 2019 and the Respondent by 26 August 2019.
20. On 15 August 2019 and before supplementary submissions were filed the principal registrar of the District Court was advised by email by the registrar of WCAS that:

Mr Stephane Armet has requested the Arbitration Service conduct an audit of the evidence that was before Arbitrator Rutherford (in Arbitrations A36114, A34818 and A34042). He has contended that the material provided by the Arbitration Service to the District Court, to where he has appealed Arbr Rutherford's decision, is incomplete.

Our review of the material indicates that not all of the material that was before Arbr Rutherford has made its way to the District Court.

...

1. The parties were advised of the position on 16 September 2019.
2. On 9 October 2019 the acting principal registrar of the District Court wrote to the registrar of WCAS requesting that the Arbitration Service give to the court a copy of all those documents that comply with r 52(3)(a) - r 52(3)(f) of the District Court Rules within 21 days.
3. Rule 52(3) of the District Court Rules provides:

(3) As soon as practicable after being given the copy of the appeal notice or an appeal notice (WCIMA appeal), the primary court must give the Court a copy of the following documents -

(a) any record that has been filed or filed with the primary court as required by law and that forms part of the court's record of the primary court case;

(b) any record admitted as evidence in the primary court case together with a list of them and the exhibit numbers given to them by the primary court;

(c) any record tendered in the primary court case but not admitted as evidence in the case together with a list of them and any numbers given to them by the primary court;

(d) the transcript of the proceedings in the primary court case or the notes made by the judicial officer who presided at the proceedings;

(e) the primary court's decision in the primary court case and any written reasons given for it;

(f) any other record held by the primary court that is or may be relevant to the appeal.

1. Five volumes of material were received by the court on 28 October 2019. The parties were given an opportunity to inspect the documents received by the District Court.
2. The matter was re-listed on 27 February 2020 to give the parties an opportunity to make further submissions on the documents received from WCAS.
3. On that day the Appellant submitted that the material with the court was still incomplete and confusing in its assembly, with some documents missing and others misplaced in the parties' files.
4. The Appellant submitted that the appeals be allowed and judgment be entered in his favour or that the decisions of the arbitrator be quashed and the matters be remitted to a new arbitrator for determination.
5. The Appellant was given an opportunity to file and serve an affidavit in relation to the documents from WCAS. After a further mention hearing on 15 April 2020, the Appellant filed an affidavit on 29 April 2020.
6. The Respondent's submissions with respect to the documents was filed on 13 May 2020.
7. A further hearing was conducted on 22 June 2020. Oral submissions were made with respect to the documents given to the court by WCAS.

1. In oral submissions the Appellant relied on his affidavit filed on 29 April 2020. The Appellant submitted that the court documents do not accurately reflect the documents filed at the Arbitration Service. He affirmed:[1]
   1. I found that some documents were missing, others were misplaced in the Appellant's folder, other unknown materials were disseminated and yet others were duplicated.

1. I also found that some documents were still missing while others were misplaced in my folder and yet others were duplicated.

1. Attachments 0 to 5 are attached to this affidavit with copies of the anomalies:
   1. Attachment 0

(i) The documents in Attachment 0 were not sighted in Volume 4 (SRB Volume).

(ii) I provided the documents in Attachment 0, in their entirety, at or before the arbitration hearing.

(i) These are multiple copies in Volume 1 of the document headed: 'To the Arbitrator, Mr.G.Rutherford ...'.

The following documents were missing from my file volume 5:

(i) WCWA progress certificate of capacity dated 31/03/2016 with diagnosis: Tinnitus (Anxiety, Backpain, Neck pain, Foot pain); and

(ii) WCWA progress certificate of capacity dated 31/03/2016 with diagnosis: Backpain (Neck pain, Foot pain, Tinnitus, Anxiety). But both documents were provided in their entirety (each comprised of 3 pages), at or before the arbitration hearing.

(iii) However, when I did the inspection at the District Court, I found only one page 2 from one certificate (Diagnosis: Back Pain) and one of each page 2 & 3 from the other certificate (Diagnosis: Tinnitus) in my volume 5).

(iv) I provided at or before the arbitration hearing 10 pages of a brochure from the WA Commerce website regarding employers' responsibilities, but page 9 was missing from my volume 5.

(v) I provided at or before the arbitration hearing 5 pages of a brochure from the Worksafe Vic website regarding claims process, but page 2 was missing from my volume 5.

(vi) I provided at or before the arbitration hearing 7 pages of the Hyster B60Z brochure clearly shows that the electric pallet jack is designed for indoor use.

(vii) However, when I did the inspection at the District Court, I found only 2 pages of the brochure in my volume 5, neither page referred to the indoor use of the electric pallet jack.

(viii) An email dated 3 January 2016 from me to Perth City Legal regarding Dr Low's first assessment and report dated 16 December 2015 at point 12 also noted my neck, shoulder and tinnitus pain. This document was missing from volume 4 SRB File and rendered unnoticeable in my file volume 5.

These documents were found in my file volume 5 but I did not provide any of these documents to WorkCover or the Arbitration Service.

These documents are an example of the haphazard and non-chronological filing of documents and do not reflect the order in which I provided the documents to WorkCover and / or the Arbitration Service.

These documents are an example of the disorganised filing of 10 pages of medical certificates and 17 pages of WCWA progress certificate (not part of documentation provided to the Arbitration services) which are scattered throughout my volume 5.

1. I also inspected Volume 4, the SRB File and I found the following discrepancies:

1. Numerous duplications of tax invoices (18 times). 2. Statements of Brett Wolfenden and Jagmeet Singh wrongly kept in evidence when these persons did not give evidence at the Arbitration.

1. Pre-start checklists from Brett Wolfenden wrongly kept as evidence.

1. Numerous copies of supervisor's statement. 2. Information relating to Appeal 6 of 2018 which is not relevant to the current matter of Appeal 4 and 5 of 2018 and should have been removed. 3. Multiple copies of Dr John Low reports (7 times). 4. I found many documents were missing and that means that the SRB File is incomplete, for example, the employer's statement form dated 25/03/2015 which first mention the foot injury, a number of medical certificates, medical exams, GIO Insurance forms 3C & 3B, WCWA claim form are just some missing.

1. The Respondent contended in relation to the specific documents identified in attachment 0 of the Appellant's affidavit that all the documents other than the one page Yale document at page 14 of the Appellant's affidavit, and the one page Foresite document at page 15 of the Appellant's affidavit were included in the worker's book of documents. Accordingly, the Respondent submitted that the Appellant has not established that the documents were in evidence at the arbitration. Further, each document does not contain any material relevant to the matters in issue in the present appeal.[2]
2. In relation to attachment 1, the Respondent contended whilst a portion of the document appearing at pages 48 - 54 of the affidavit can be found in the worker's book of documents, the balance of materials appearing at pages 55 - 61 of the Appellant's affidavit were not present. The Respondent submitted that these pages 55 - 61 appear to serve as an index of documents rather than substantive evidence having a bearing on the disposition of these appeals.[3]
3. In relation to annexure 2, the Respondent contended that a progress medical certificate dated 31 March 2016 can be found at pages 123 - 125 of the worker's book of documents. In respect to the other progress medical certificate of 31 March 2016, the Appellant does not allege that the document was put into evidence at the arbitration, only that it was provided 'at or before the arbitration hearing'. Accordingly, the Respondent submitted that the Appellant has not established that document was in evidence at the arbitration. In any event, the Respondent submitted it is clear that both the certificate included in the worker's book of documents and the other certificate now advanced by the Appellant refer to back pain, neck pain, foot pain, tinnitus and anxiety. In the circumstances the Respondent submitted that little turns upon the absence of the second certificate in any event.[4]
4. As to the Hyster B60Z brochure, only two pages were included in the worker's book of documents (pages 357 and 358). Whilst the Appellant maintains that he provided seven pages of the brochure 'at or before the arbitration hearing', the Appellant attaches 13 pages from the relevant document without identifying what portions of the document he alleges were so 'provided'. Further, and more importantly, the Appellant does not allege that the additional pages were put into evidence during the course of the Arbitration, only that he provided them at some indeterminate time. Accordingly, the Respondent submitted that the Appellant has not established that document was in evidence at the arbitration.[5]
5. The Respondent agreed that any documents included by the Appellant in attachment 3 of his affidavit should be ignored if they are before the court. Those materials were neither adduced in evidence nor put before the arbitrator in any other manner.[6]
6. In respect to attachments 4 and 5, the Respondent did not propose to comment on the Appellant's contentions as to the 'haphazard, non-chronological or disorganised filing of documents'. With respect such matters, if true, do not impact on the substantial merits of the appeals.[7]
7. As to par 10 of the Appellant's affidavit, the Respondent made the following submissions:[8]

(a) as to the duplication of tax invoices, supervisor's statement and medical reports of Dr Low, such repetition, where it does occur, does not impact on the substantial merits of the appeals;

(b) as to the statements of Wolfenden and Singh, the documents were included as forming part of the complete Respondent's book of documents. As Wolfenden and Singh did not give evidence the Respondent agrees that no regard should be paid to the content of those statements for the purposes of the appeals;

(c) as to the pre-start checklist, these arose during the evidence of Ms Flockton and were admitted into evidence;[9]

(d) as to information relating to appeal 6 the Appellant does not identify the specific document or documents and accordingly the Respondent is unable to respond meaningfully; and

(e) as to the remainder of documents the Respondent has identified and responded to the Appellant's contentions above.

1. The Respondent in concluding submissions said that with the exception of the documents identified in attachment 3 and the statements of Wolfenden and Singh, the Appellant has failed to identify any or any significant issue with the documents before the court.
2. With respect to attachment 3 and the statements of Wolfenden and Singh, the Respondent agreed that no regard should be had to those materials for the purpose of these appeals.[10]

1. On 28 October 2019 the court received five volumes of documents from WCAS in compliance with r 52(3)(a) - r 52(3)(f) of the District Court Rules as follows:
   • Volume 1 contains the formal order recording the decisions and the arbitrator's reasons for decision.
   • Volume 2 contains the transcript of the hearings to which the decision relates.
   • Volume 3 and volume 4 contain the documents and other records tendered as exhibits at the hearing to which the decision relates, together with the exhibit list.

A-Z Workers Book of Documents (Combined A34042; A34818; A36114)

1-15 Workers Book of Documents (Combined A34042; A34818; A36114)

A16 Workers Summary of Documents & Pre-Information (Combined A34042; A34818; A36114)

A17 Workers Statement for Arbitration Hearing (Combined A34042; A34818; A36114)

A18 Workers Bundle of Receipts/Invoices (Combined A34042; A34818; A36114)

A19 Counter-report for John Low third report dated 4 February 2017

A20 Counter-report for Prof. T.C. McManus Supplementary Report dated 3 February 2017

A21 Corrections of Dr. Peter Watson Report dated 1 Nov 2016

• Volume 5 contains the submissions, the conciliation certificates, the applications (with annexures), the reply (with annexures) and any other record which may be relevant to the appeal.

1. The Appellant's contentions in relation to the anomalies with documents lack merit for the following reasons:
   1. The Appellant's contention in relation to attachment 3 can be resolved. The court is not in possession of the documents set out in attachment 3 of the Appellant's affidavit.
   2. The court accepts that it will have no regard to the content of the statements of Mr Brett James Wolfenden and Mr Jagneet Singh in these appeals as the witnesses were not called at the arbitration.
   3. In relation to the missing documents, the Appellant in oral submissions focused on a missing progress medical certificate dated 31 March 2016 and missing documents from a Hyster B60Z brochure. I will address each of these items separately below.
   4. The court accepts that there is duplication of some documents contained within the five volumes of files. The duplication of material has no impact on my decision-making or on the outcome of these appeals.

1. In his affidavit, the Appellant contended that he provided seven pages of a Hyster B60Z brochure that clearly shows that the electric pallet jack is designed for indoor use. The Appellant contended that he only found two pages of the brochure in the District Court file (in my volume 5), neither page referred to the indoor use of the electric pallet jack.
2. As pointed out at the hearing in June, the Appellant is incorrect in his contention that the court was only in possession of two pages from a brochure for a Hyster B60Z Walkie/Rider Pallet Truck.
3. As part of exhibit 12 contained within the worker's book of documents (combined A34042, A34818, A36114) in volume 3 of the WCAS documents, the court was in possession of 25 pages as follows:
   1. Hyster B60Z Walker/Rider Pallet Truck brochure comprising four pages, cover page, dimensions, information about function, standard equipment inclusion.
   2. Centurion Electronic Pallet Trolley Operations dated 26 September 2008 (three pages).
   3. Yale MPE060 Rider/Walkie Pallet Truck brochure comprising 12 pages and induction records as follows:
   4. Centurion Record of HSE Induction - Hazelmere site, four pages dated 2 October 2013;
   5. Centurion Record of HSE Induction - Hazelmere site, one page dated 24 November 2014; and
   6. Centurion Area Induction, one page dated 24 November 2014.
4. As noted at the hearing, the court was in possession of the cover page which is identical to pages 73 and 74 in the Appellant's affidavit. The court was in possession of page 75 (the dimensions), page 76 (information about function) and page 77 (standard equipment inclusion).
5. The court was not in possession of page 78, which is identical to page 80 of the Appellant's affidavit but the Respondent was in possession of that page. That page was titled 'raising the standard for lift trucks'. As noted at the hearing on 22 June 2020, the court will take notice of that page.
6. Accordingly, the documents not in possession of the court but identified in the Appellant's affidavit comprise five pages as follows:
   1. Page 81 of the Appellant's affidavit (one page from a brochure for a Hyster B60ZAC rider pallet truck).
   2. Page 82 and 83 of the Appellant's affidavit that appear to be hyperlinks to a YouTube video in relation to a Hyster B60ZAC electric ride-on pallet jack.
   3. Pages 84 and 85 of the Appellant's affidavit that appear to be screenshots of Google images of ride-on electric pallet jacks.
7. The Appellant submitted that page 81 of his affidavit was relevant, because the sentence on that page stated:

A versatile truck designed for indoor use, this truck is ideally suited for a wide variety of applications such as grocery stores, department stores, fresh fruits and vegetables, general warehousing and storage, bottled and canned soft drinks.

The Appellant submitted that was his argument in the arbitration.

1. The Appellant has not persuaded me that the one page of the brochure identified at page 81 of his affidavit was before the arbitrator. He has not persuaded me that pages 82, 83, 84 and 85 of his affidavit were before the arbitrator.
2. First, the arbitrator made no reference to a sentence from a brochure in his reasons for decision. He said:[11]

He also claimed that the electric pallet jacks should not have been used outside the factory as it was not designed for outside use. He adduced into evidence a brochure of the electric pallet jack and pointed to the photos of the machine shown inside a factory, standing on smooth internal concrete, in support of his allegation.

1. In my view, at the arbitration hearing, the Appellant relied on the photographs of the machine, not any sentence from a page from a brochure.
2. Moreover, the page relied upon does not relate to a Hyster B60Z pallet jack but a B60ZAC model. It is not part of the same brochure.
3. Third, the Respondent was not in possession of any of these documents.
4. Even if those pages were before the arbitrator, they do not progress the Appellant's appeal for the following reasons.
5. First, the page from the B60ZAC rider pallet jack is from a marketing/sales document. It is not expert evidence. The page is not relevant, as the learned arbitrator found, to any limits on the pallet jack's use.[12]
6. Secondly, the sentence the Appellant relied upon does not say that a pallet jack cannot be used outside. As noted on the dimension page from the Hyster B60Z brochure:[13]

Note: Performance specifications are for truck equipped as described under standard equipment in this Technical Guide. Performance specifications are affected by the condition of the vehicle and how it is equipped, as well as by the nature and condition of the operating area.

1. Thirdly, there was dispute at the hearing as to what brand of electric pallet jack the Appellant used at his workplace.
2. The Appellant referred to the Yale manual in his examination-in-chief.[14] However, in cross-examination he denied he used the Yale pallet jack at his work.[15] He said he used the Hyster pallet jack.
3. In contrast Mr Uren, the former occupational, health and safety supervisor of the Respondent, agreed that his statement provided to the arbitrator at the hearing was true and correct.[16] In the statement he said all the pallet jacks were Yale model MPE060F pallet jacks. In his evidence he agreed that the Yale MPE060 ride-on pallet jack could be operated outside, provided it was on a smooth surface.[17]
4. He said he thought that the electric pallet jacks were regularly maintained on a three monthly basis by Yale who were the supplier/manufacturers of them.[18]
5. The arbitrator did not determine that dispute in his decision.
6. Fourthly, the internet sourced documents do not progress the Appellant's appeal. As the arbitrator said:[19]

I have further disregarded documents where their authenticity has not been established, such as various internet sourced documents. In that regard, some of these internet sourced documents were not in any event relevant to the issues to be decided in this dispute.

1. In relation to the progress certificate dated 31 March 2016, the Appellant contended that he provided two progress certificates dated 31 March 2016. He further contended that the progress certificate dated 31 March 2016 in the WCAS file comprised page 2 from one certificate (diagnosis back pain) and pages 2 and 3 from the other certificate (diagnosis tinnitus).
2. The copy of the certificate in the WCAS file is part of exhibit L of the worker's book of documents in volume 3. In his chronological summary to that book the Appellant referred to only one progress certificate 'WorkCover WA - Progress Certificate of capacity (Dated 31/03/2016)'.
3. Moreover, the diagnosis is back pain on page 1 and follows on sequentially at pages 2 and 3 with an injury management plan at point 6 (page 2) and next review date at point 7 (page 3).
4. The copy of the certificate contained within the Appellant's affidavit with the diagnosis of tinnitus has no injury management plan at point 6. The next review date at point 7 is on page 2 of that certificate.
5. The Appellant submitted the two certificates were important because the arbitrator maintained that the Appellant did not mention his neck pain until May 2016. However, as pointed out during oral submissions the arbitrator made no such determination.[20] He said:[21]

It was also put to him in cross-examination that he did not report neck pain until 31 May 2016. The Appellant gave evidence that he reported it earlier and in that context referred to the report from Dr Imani.

1. Moreover, as noted during oral submissions the progress certificate dated 31 March 2016 on the WCAS file does note neck pain in the comments section.
2. Both progress certificates note neck pain. Accordingly, even if one of the progress certificates is not before the court, it does not progress the Appellant's appeal.
3. I conclude that the court is in possession of all documents materially relevant to each appeal.

1. The arbitration proceedings were heard together 21 - 24 February 2017. The Appellant was not legally represented at the arbitrations. The services of a French interpreter were provided to the Appellant for the four days of the hearing.
2. The Appellant gave evidence. He also called Ms Pamela Alison Gabriels, audiologist and Mr Benjamin Charles Trewben, podiatrist.
3. The Respondent called Mr Samuel Alan Uren, Mr Ian Douglas Kitching, Ms Hanny Listyowati, Ms Kirsty Jade Morrison, Mr Carmelo Cocila, Professor Charles Mulvey and Ms Francine Flockton.
4. The arbitrator had the benefit of the material including:

(a) reports of Professor McManus dated 11 January 2016 and 10 February 2017;

(b) reports of Dr Low dated 28 December 2015, 1 May 2016 and 4 February 2017;

(d) report of Mr Soni Narula dated 6 November 2015;

(e) reports of Dr Fairhurst dated 12 February 2016 (Form AMS 7, Form AMS 8 and report);

(f) Centurion (Hazard) near miss report dated 4 September 2015;

(h) reports of Ms Gabriels dated 15 February 2016, 18 March 2016 and 25 August 2016;

(i) reports of Dr Ian Wallace dated 30 March 2016 and 8 September 2016 and statement for arbitration hearing dated 15 February 2017;

(j) report of Mr Benjamin Trewben dated 29 August 2016;

(l) report of Dr Peter Watson dated 1 November 2016;

(m) report of dermatologist Dr Heenan dated 26 August 2016;

(n) first medical certificate and progress certificates of capacity from Dr Deraniyagala; and

(o) number of invoices/receipts relating to the Appellant's applications.

1. The arbitrator also had the benefit of written submissions as well as oral submissions made during the course of the arbitrations by the parties.

1. The arbitrator set out the issues to be determined:[22]

(a) Did Mr Armet develop the condition tinnitus?

(b) If so, did the tinnitus develop

1. due to exposure to excessive loud noise and/or excessive vibration at work; and/or
2. as a consequence of a compensable back injury?

(c) If so, is the tinnitus a compensable injury as defined in s 5(1) of the Act?

(d) Are the various expenses claimed in relation to any tinnitus condition payable within Sch 1 cl 17 of the Act and, in fact, incurred by Mr Armet?

1. The Appellant gave evidence. The arbitrator considered the evidence of the Appellant closely and set out his evidence in summary form from the various statements and his oral testimony.[23]
2. The arbitrator assessed the credibility of the Appellant. He made findings concerning his credibility. For instance, he said:[24]

I find that Mr Armet did advise the various doctors that he moved pallets weighing 600 kg or up to 600 kg. In fact, he did not move pallets weighing 600 kg or near that weight. The evidence does not establish that to be correct, a fact which at least in part was admitted by Mr Armet in the course of his evidence. The pallets may have been heavy, but I find the weight was exaggerated.

As indicated, in my view Mr Armet had a tendency to exaggerate and embellish his evidence and this is an example of that embellishment. Another example of that is in relation to the noise associated with the use of the ride-on electric jacks, to which I will return.

1. The Respondent led evidence from the Appellant's supervisor, Ms Fran Flockton, Mr Ian Kitching the divisional manager with the Respondent and Mr Samuel Uren, the Respondent's occupational health and safety advisor.
2. The arbitrator considered the evidence of each witness closely. Their evidence went to the duties of the Appellant and the Appellant's use of both manual and ride-on electric pallet jacks. Each witness also gave evidence as to the nature and condition of the operating area for the pallet jacks. Each witness confirmed there had never been any complaints relating to noise emitted from the pallet jack.[26]
3. In addition, a noise assessment report prepared by Mr Carl Cocila and his evidence in relation to the measurement test was considered. The arbitrator was of the view that the evidence of the noise survey test results had some but limited evidential value.[27]
4. The arbitrator had expert opinion evidence from four medical practitioners and two audiologists.
5. Ms Pamela Gabriels, audiologist was called by the Appellant. Ms Gabriels set out the results of her testing of the Appellant's hearing and provided a brief history of the information given to her by the Appellant.[28]
6. On 25 August 2016 Ms Gabriels recorded her audiogram testing of that day.[29] Ms Gabriels set out the score on the Tinnitus Handicap Inventory which the arbitrator understood was based on the Appellant's 'subjective observations i.e. it is not based on testing as such but a "score" provided by the patient'.[30] In her further report to Dr Wallace dated 25 August 2016 the Appellant asked her to complete a questionnaire prepared by the Appellant. The arbitrator set out the relevant questions and answers.[31] He observed that her answers were at best speculative and dealt in possibilities only.[32]
7. The arbitrator accepted that Ms Gabriels was an expert on the testing of tinnitus.[33] However, he found that she was not qualified as an expert in matters of medical causation. The arbitrator found her evidence in answering the questionnaire as therefore not persuasive nor admissible as expert testimony.[34]
8. The arbitrator set out various other questions put to Ms Gabriels by the Appellant, and her answers, but found that this evidence took the matter no further.[35]
9. A further document headed '20/01/2017' set out further questions and answers put to her by the Appellant.[36] Again, the arbitrator was not persuaded that the experience and skills necessarily qualify Ms Gabriels as to such matters and again, in any event, she is referring to possibilities only. Further, her evidence about the relationship between Naproxen and tinnitus was based on her discussions with her husband, an orthopaedic surgeon. Given that this practitioner was not called to give evidence, the evidence was hearsay and was inadmissible.[37]
10. The arbitrator also considered the evidence of Ms Hanny Listyowati, audiologist. Ms Listyowati produced her audiology testing report dated 9 November 2015. She confirmed in her evidence that she was asked to test for hearing loss, not tinnitus. The arbitrator stated that 'her further oral evidence was that about 80% of people who have hearing loss have tinnitus'.[38]
11. The arbitrator then considered expert opinion evidence from four medical practitioners.
12. The first opinion considered was that of Dr A Deraniyagala, the Appellant's general practitioner. The first medical certificate is dated 19 November 2015 and identifies the onset of the tinnitus complaint as at that date and the workplace location as 'Centurion - work place'. The arbitrator set out the worker's description as to how it occurred.[39]
13. The arbitrator said:[40]

However prior to that date, on 15 September 2015, Dr Deraniyagala provided a progress certificate of capacity in which the diagnosis is 'Back pain and tinnitus' and it is stated 'Tinnitus-states as he was exposed to loud sounds at work without ear plugs and now developed tinnitus'. I am unclear therefore why the First Medical Certificate has the date of onset as 19 November 2015. Based on the content of this progress certificate, that date appears incorrect as to the date of first onset. I deduce that the reference to November 2015 is a mistake and that, from the progress certificate, the onset of tinnitus was some time before 15 September 2015. That is consistent with Mr Armet's evidence that he noticed a 'ringing' in his ears about 7 days after ceasing work on about 4 September 2015.

1. The arbitrator concluded that the onset of tinnitus was some time before 15 September 2015 which was consistent with the Appellant's evidence.[41]
2. The second opinion considered was that of Dr Pedram Imani, a consultant otolaryngologist head & neck surgeon, facial plastic surgeon. Dr Imani examined the Appellant on 5 February 2016. The arbitrator set out the history given by the Appellant and his clinical assessment.[42] The arbitrator concluded that Dr Imani's somewhat qualified conclusions are therefore essentially predicated upon it being proven that the Appellant was exposed to 'loud machinery noise' or 'loud noise exposure' connected with the use of a ride-on electric pallet jack that the Appellant was using 'for 4 hours a day, 5-6 days a week for a 10 month period in 2015'.[43]
3. The third opinion considered was that of Dr Ian Wallace, an ENT specialist. The Appellant was reviewed by Dr Wallace who provided a report dated 30 March 2016. Dr Wallace set out the history given by the Appellant for the onset of his symptoms.[44]
4. The arbitrator said that Dr Wallace's opinion is based on certain assumed facts, in particular the alleged extent of the use of the electric pallet jack, and its use being 'very noisy'.[45]
5. The arbitrator discounted the opinion of Dr Wallace in relation to the audio recording and analysis of the recording by Acoustics and Audio Production. As noted by the arbitrator, the Appellant did not adduce the recording or the report at the arbitration. On that basis, the arbitrator properly had no regard to the recording or the report nor to that part of Dr Wallace's opinion based on this evidence.[46]
6. The arbitrator considered a further report of Dr Wallace dated 8 September 2016. The Appellant reported that the tinnitus symptoms 'continues to worsen' and that the Appellant 'has become increasingly reliant on sedative medication for sleeping with an increased dosage'. The arbitrator summarised the responses from Dr Wallace to a number of written questions put to him by the Appellant.[47]
7. The arbitrator also considered Dr Wallace's short 'Statement for Arbitration Hearing' dated 15 February 2017.[48]
8. The fourth opinion considered was that of Professor T C McManus, consultant otolaryngologist, who provided two reports dated 11 January 2016 and 10 February 2017.
9. The arbitrator set out the history of events from the Appellant in his first report and noted that this history was not consistent with other histories nor the arbitrator's understanding of the facts.[49] He noted the present medication as at that date was Naproxen and Endone. He provided his diagnosis as 'Mild sensorineural hearing loss' based on the audiometry performed on 13 October 2015.
10. The arbitrator was of the view that Professor McManus' opinion related more to hearing loss than tinnitus and his opinion was based on an 'incident' at work, not exposure to noisy machinery over a period of time as alleged by the Appellant. Further, other than his clinical information and the results from Ms Listyowati's assessment, it was unclear what other medical information or history Professor McManus had available to him. He concluded that these matters reduce the weight to be accorded to Professor McManus' opinion.[50]
11. In the second report Professor McManus answered a number of questions put to him by the Respondent's solicitors. The arbitrator said that Professor McManus had not addressed or not clearly addressed the Appellant's allegation that his tinnitus was caused by exposure to loud noise over a period of time. He has however addressed the question of causation and exacerbation by other factors such as back pain but he does not explain his opinion that such matters do not exacerbate tinnitus. In the arbitrator's view this again reduces the weight to be accorded to this evidence.[51]
12. In his findings the arbitrator considered that tinnitus does fall within the definition of 'disease' within s 5(1) of the WCIMA.[52]
13. The arbitrator then considered whether there was an injury for the purposes of par (c) of the definition of 'injury' in the WCIMA s 5(1).
14. This paragraph required the Appellant to show that his 'disease was contracted by a worker in the course of his employment and to which the employment was a contributing factor and contributed to a significant degree'.
15. The arbitrator applied the factors set out in WCIMA s 5(5):
    1. Terms used

...

(5) In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -

(b) the nature of, and particular tasks involved in, the employment; and

(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and

(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and

(e) matters affecting the worker's health generally; and

(f) activities of the worker not related to the employment.

The arbitrator addressed each of those factors in his decision.[53]

1. The arbitrator found in relation to issue 1 that the Appellant developed the condition tinnitus. He was persuaded that the tinnitus condition started in September 2015, approximately a week after the September 2015 injury. He relied on the evidence of the ENT specialists and the testing of Ms Gabriels.[54]
2. In relation to issue 2 the arbitrator was not persuaded the tinnitus developed:

(a) due to exposure to excessive noise and/or excessive vibration at work; and/or

The arbitrator did not accept that the evidence established that the Appellant was exposed to excessive noise and vibration when operating an electric ride-on pallet jack over the period of 10 months in the employ of the Respondent.[55]

1. The arbitrator found there were no complaints from the Appellant about the electric pallet jack being noisy or having some form of adverse vibration during his 10 months employment. Further there were no records of anyone else making a complaint about noise or vibration.[56]
2. The arbitrator found that other than his own testimony the Appellant has produced no evidence establishing that the electric pallet jacks are excessively noisy and/or have an excessive vibration when used.[57]
3. The arbitrator rejected the Appellant's contention that the electric pallet jack is not designed for use on a surface that is not smooth concrete. The Appellant pointed to the machine's brochure to support the contention. The arbitrator found there was no expert evidence, nor any technical information to suggest that the Appellant's contention is based in fact.[58]
4. The arbitrator rejected the Appellant's contention that one ear is worse than the other due to the way he had to stand when riding on the electric pallet jack. In his view the contention was speculative. There was no evidence establishing that contention.[59]
5. The arbitrator was of the view that the Appellant exaggerated the noise associated with the use of the electric pallet jack. He further exaggerated the amount of time he spent on the machine during the working day.[60]
6. The arbitrator rejected the Appellant's contention that his use of the machine was mostly 'outside' the warehouse and the surface was rough with potholes etc. The arbitrator preferred the evidence of Ms Flockton and Mr Uren. Both witnesses said the surface outside the warehouse was like a road surface without potholes.
7. He found the evidence of Ms Flockton and Mr Uren to be compelling.[61] The arbitrator had some regard to the Coffey noise assessment report to deduce that there was no evidence on the day of noise testing that the work environment of a person who was then working in a similar role to the Appellant was exposed to noise in excess of acceptable noise limits.[62]
8. The arbitrator did not accept the Appellant's evidence that he was using the electric pallet jack as extensively as he alleged. The arbitrator preferred the evidence of Ms Flockton, corroborated to some extent by Mr Kitching, that the use of the electric pallet jack was about 1 - 2 hours a day. He found the Appellant's daily use of the electric pallet jack to be more in the region of 2 hours a day as an average.[63]
9. The arbitrator concluded:[64]

On that basis, the medical evidence on which he relies, based primarily on the assumption that his tinnitus was caused by the use of a noisy or excessively noisy electric pallet jack used for about 40% of his daily hours over a 10 month period is not supported by the findings of fact and is therefore accorded no weight on this issue.

1. The arbitrator then turned to consider whether the Appellant's tinnitus was 'exacerbated' by factors such as alleged neck/back/foot pain and the use of medications.
2. The arbitrator was not persuaded that the evidence clearly established that his tinnitus in fact got worse.[65]
3. In any event, the arbitrator was not persuaded that any increased symptoms were caused by chronic pain whether that pain arose from his back, neck or foot. He considered the evidence of the use of his pain-killing medication of some relevance.[66] He found the Appellant's evidence as to his use of medication inconsistent and vague. Further, the evidence of Dr Imani (which is consistent with the evidence of Dr Low) was that the Appellant reduced his pain medication to aspro in about February 2016. The arbitrator deduced that the level of pain had by then reduced.[67]
4. He was not persuaded that any worsening of tinnitus was a result of pain medication. There was insufficient evidence to conclude the Appellant was taking pain medication after February 2016.[68]
5. He considered any 'stress' arose due to the Appellant's tinnitus. That was also the dominant reason he attended Emergency in April 2016.
6. He was not satisfied that pain was a significant contributor when the Appellant attended Emergency in April 2016.[69]
7. In relation to issue 3, the arbitrator concluded that the Appellant's tinnitus was not a compensable injury as defined in s 5(1) of WCIMA.[70]
8. In answer to issue 4, he concluded that any expenses incurred were not payable within sch 1 cl 17 of the WCIMA, nor were any travel expenses incurred, payable within sch 1 cl 19 of the WCIMA.[71]
9. The arbitrator in summary said:[72]

Essentially, based on my analysis of the evidence including having considered the various factors set out in s 5(5) of the Act, I am not satisfied the evidence establishes that Mr Armet's employment was a contributing factor and contributed to a significant degree to the development of tinnitus, nor am I satisfied that the employment was a contributing factor and contributed to a significant degree to the contraction of tinnitus or to any aggravation ("exacerbation") of the tinnitus.

In addition, when having regard to the observations of the Court of Appeal in Napier, I am also not satisfied that the various expenses incurred fall within Sch 1 cl 17 and cl 19. Mr Armet has not established that the tinnitus is a compensable injury within the Act, for the reasons expressed, nor do I consider that it is a condition that results from any compensable injury.

Whereas the evidence may establish that there (sic) a possible connection between the exacerbation of tinnitus and back or other pain, the evidence does not establish that that is more probable than not to be the case.

Application A36114 - foot injury, neck injury and hair loss claims

1. The arbitrator commenced by stating that by his application the Appellant sought an order that the Respondent pay various incurred expenses claimed pursuant to sch 1 cl 17 and cl 19 of the WCIMA.
2. The Appellant claimed further injuries/conditions (1) back ache with sciatica; (2) neck injury; (3) foot injury (which is expressed as 'foot-pain' and/or 'plantar fasciitis'); (4) hair loss.
3. The arbitrator said that the Respondent disputed each part of the application, denied that the Appellant suffered a neck injury, or foot injury or suffered any hair loss as a result of any compensable injury. As to the claimed back injury with sciatica, the Respondent admitted liability for the claim to back injuries, and contended in effect that this part of the application does not set out a new alleged injury/condition and, further, is not aware of any unpaid claimed expenses relating to the accepted back injury claim.[73]
4. In relation to the claim relating to 'back ache with sciatica' the arbitrator determined this was not a new injury or condition. On that basis, there was no dispute and therefore no decision was required.[74]
5. The arbitrator set out the issues for determination as follows:[75]

(a) whether Mr Armet developed or suffered (1) a foot injury; (2) a neck injury; and (3) hair loss;

(b) whether any or all such conditions are compensable injuries/conditions within the Act; and

(c) if so, whether Mr Armet has incurred any expenses for any compensable condition which amount to reasonable expenses which are payable to pursuant to Sch 1 cl 17 or cl 19 of the Act.

1. The arbitrator set out a summary of the relevant provisions of the WCIMA and legal principles.[76]
2. The arbitrator considered that the Appellant's evidence was somewhat bundled together and it had been difficult to clearly identify which parts of the Appellant's evidence related specifically to each of the disputed claimed conditions.[77]
3. He set out the claimed expenses in full.[78]

1. The arbitrator considered the evidence of the Appellant closely.[79]
2. The Appellant led evidence from Mr Benjamin Trewben, podiatrist and relied on his report dated 29 August 2016.
3. In that report Mr Trewben said that:[80]

... Mr Armet's foot pain is directly related to his back injury. Based on the information given I would also say that the plantar fasciitis noted on the MRI could be attributed to the level of work-load given to Mr Armet over the abovementioned 3 days of work. ...

1. The history given by the Appellant in his letter of instruction stated that his 'ignored' and 'non treated' work-related injuries (backache with sciatica, foot pain) was aggravated by 'pulling and pushing manually hundreds of pallets worth hundreds of kilos on a 3 consecutive days period'.[81] The arbitrator was not satisfied that the Appellant was pushing or pulling pallets weighing hundreds of kilos.[82]
2. The arbitrator referred to Mr Trewben's evidence in cross-examination.[83] He noted that plantar fasciitis could be caused by the factors identified by Dr Low.[84] Given this, the arbitrator gave Mr Trewben's evidence little weight, due to his concerns about the reliability of Mr Trewben's evidence.[85]
3. The arbitrator turned to Ms Fran Flockton's evidence. Ms Flockton said the Appellant did not tell her about any leg or foot pain after the March 2015 incident.[86]
4. The arbitrator then turned to the medical evidence. The first opinion considered was that of Dr A Deraniyagala, a general practitioner. The report of Dr A Deraniyagala to GIO is dated 2 September 2015 and the first medical certificate dated 28 July 2015. He notes that the worker's symptoms were recorded in the certificate as 'Backpain radiating to right leg and foot.' He further noted the clinical findings to include 'Can walk on tip toes, No pain when walking on heels'.[87] The arbitrator also set out the progress certificate of capacity dated 15 September 2015 and the diagnosis.[88]
5. The arbitrator considered the MRI report concerning the Appellant's spine and right foot dated 7 December 2015.[89] In addition, the arbitrator considered the opinion of neurosurgeon, Dr Soni Narula, who examined the Appellant on 4 November 2015. Dr Narula provided a report dated 6 November 2015, which set out the relevant history and examination findings.[90] In this report, the weight of the pallet was recorded as 60 kg. The Appellant gave evidence that Dr Narula 'got that wrong' (a 'misprint') and the weight was in fact 600 kg.[91] The arbitrator noted that Dr Narula in his report recommended further investigations, and that an MRI be undertaken. The arbitrator deduced that Dr Narula was providing a preliminary opinion only.[92]
6. The arbitrator then considered Dr Andrew Fairhurst's opinion set out in his reports dated 12 February 2016. The arbitrator considered his answer with respect to the Appellant's right foot injury and whether work had been a cause of this injury.[93] The arbitrator was of the view that he is saying no more than set out in his first report.[94]
7. The arbitrator then considered the report of Dr John Low, an occupational physician. Dr Low reviewed the Appellant on three occasions, 16 December 2015, 27 April 2016 and 31 January 2017. The arbitrator considered medical reports from Dr Low dated 1 May 2016 and 4 February 2017.
8. In his first report Dr Low referred to his first examination of the Appellant and his report dated 28 December 2015.[95] The arbitrator set out the Appellant's history following his first examination and current symptoms. His current medication included Loraxepam nightly, antidepressant medication for the past month, Aspro 500 'when I feel too much pain', 'THC ... you know what that is? ... the cookie ones'.[96]

The arbitrator noted Dr Low's examination findings and his assessment.[97] Dr Low opined that his foot condition is not work related and unrelated to his back. This condition can be recalcitrant but this does not necessarily incapacitate him to a full extent. It may limit his ability to stand for prolonged periods of time and he may need insoles and good footwear to manage his condition.[98]

1. The arbitrator then considered Dr Low's further report dated 4 February 2017. The arbitrator set out his assessment in relation to the plantar fasciitis as follows:[99]

My opinion regarding the cause of his plantar fasciitis has been detailed in my initial report. In addition, I am uncertain as to why he would suffer ongoing pain and such significant dysfunction (which seems to have spread to the Achilles) given he has been resting and away from work for the past 16 months if it was work related given he has been off his feet. I am also surprised that after incurring bills totalling $2200 from the podiatrist, he has not been fitted with insoles.

1. The arbitrator was of the view that there was cogent evidence establishing that the Appellant suffered referred pain to the right foot (to the heel) and that was as a result of the March 2015 injury. He said that is clear from the evidence of most if not all of the examining medical practitioners and is consistent with the evidence of the Appellant.[100] He said it is less clear however whether that referred pain continued and, if so, the consequence of that condition to this application.[101]
2. The arbitrator said that the MRI clearly established that the Appellant has developed plantar fasciitis. The question is whether this condition is compensable.[102]
3. The arbitrator referred to Dr Low's first report attributing the plantar fasciitis to the following other possibilities, 'a combination of abnormal foot biomechanics, ill-fitting footwear or change in footwear, degenerative change, loading of the plantar fascia/foot due to high body mass index (BMI>35) and activities which significantly load the foot'.[103]
4. The arbitrator was of the view that Dr Low did not clearly articulate his understanding of the Appellant's work duties nor did he refer to the September 2015 injury when expressing his opinion.
5. The arbitrator referred to the Appellant's evidence in that he had a lot of lifting in the three days in September 2015 with a manual jack to move pallets which either weighed 600 kg or up to 600 kg. The arbitrator found the weight of pallets being moved was exaggerated by the Appellant.[104]
6. Given the lack of evidence he was unsure whether the Appellant's work could safely be said to 'load the foot'.
7. The arbitrator was not satisfied that the evidence established that the Appellant's plantar fasciitis condition was compensable, whether that condition is an injury being a personal injury by accident or whether the condition is best regarded as a 'disease' within the definition of 'injury' within the WCIMA.[105]
8. He applied the factors set out in s 5(5) of the WCIMA and found in relation to issue 2, that the evidence did not establish that the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of plantar fasciitis.[106]
9. However, he was satisfied that the Appellant suffered referred pain from his back injury, which resulted in pain in his heel, from the March 2015 injury.[107]
10. He considered whether the evidence also established whether the referred pain also resulted from the September 2015 events.
11. He was of the view that having regard to the Appellant's tendency to exaggerate matters, there was insufficient medical evidence establishing that there was any aggravation of foot pain in this incident. At best, there was a short lived increase in pain. The referred pain otherwise resulted from the earlier injury.[108]
12. Accordingly, he found that the Respondent was liable for the costs of Mr Trewben's podiatric treatment for his heel pain pursuant to sch 1 cl 17 or cl 19 of the WCIMA.[109]

1. In relation to his neck injury the arbitrator set out the Appellant's 'Summary of Events & Supporting Documents' - Doc A and 'Summary of Events Stephane Armet' - Doc E. He noted that the Appellant also referred to the ultrasound of the neck organised by Dr Deraniyagala on 29 October 2015. The arbitrator also noted that adduced into evidence were a number of progress certificates of capacity from Dr Deraniyagala from 15 September 2015 to March 2016 which referred to back and leg pain and tinnitus, but make no mention of neck pain. The MRI report dated 19 February 2016 was adduced into evidence. The reason for the scan noted as 'Bilateral tinnitus.? Cause. Right arm pain when turning neck'. The arbitrator considered the opinion of Dr A Fairhurst dated 12 February 2016 and there was no reference to neck pain.
2. The second opinion considered was that of Dr P Watson, neurosurgeon dated 1 November 2016. The arbitrator set out Dr Watson's opinion in relation to the alleged neck injury and considered the Appellant's 'counter-report' to the report of Dr Watson.[110] At the hearing the Appellant agreed that he told Dr Watson that his neck pain was from the September 2015 incident.[111] The Appellant did not agree with the proposition that he did not make an allegation of neck pain until after an MRI which showed some degeneration to his neck. The Appellant insisted he told his GP before the MRI. It was also put to him that the claim form from the September 2015 incident also made no reference to the neck. He said there was then no pain. He agreed that when he saw a rehabilitation provider Recovre, he made no report of neck injury. He first saw Recovre in November 2015.[112]
3. The arbitrator concluded that there was no evidence of any neck injury from the March 2015 injury. The arbitrator referred to Dr Imani's examination of the Appellant on 5 February 2016 which pre-dated the MRI. On that basis the arbitrator found that he reported problems with or associated with his neck in early February 2016.[113]
4. The arbitrator concluded that there was no or insufficient evidence establishing that the Appellant had or complained of any neck symptoms (or indeed any right arm symptoms which may suggest related neck problems) at about the time of the September 2015 injury. The arbitrator further found that the earliest time that there was any reference to issues connected with the cervical spine was in February 2016, some five months post injury.[114] He concluded that he was not satisfied the evidence established on the balance of probabilities that the Appellant's neck pain was as a result of the September 2015 injury.

1. The Appellant contended that he had suffered hair loss and claimed that the hair loss was a result of stress and/or pain medication, which stress and medication was related to his back injury. The arbitrator further set out that if he established either scenario, no order can be made unless there was satisfactory evidence proving that expenses pursuant to sch 1 cl 17 had been incurred or were likely to be incurred relating to the claimed hair loss.[115]
2. The Respondent submitted there was no evidence establishing that any expenses within the schedule had been incurred and there was insufficient proof that the hair loss had been caused by pain medication as alleged, or by 'stress'.[116]
3. In his decision the arbitrator set out the Appellant's summary of events as set out in 'Doc A' and 'Document E'.[117]
4. The arbitrator referred to the reports of Dr Deraniyagala dated 2 September 2015, Professor McManus' report dated 11 January 2016, Dr Imani's report of 7 April 2016, the Appellant's attendance at Rockingham Kwinana Hospital Emergency Department on 6 April 2016 and his attendance with Dr Deraniyagala on 9 April 2016. He also referred to his attendance with Dr Wallace in September 2016. The arbitrator also set out the medication that the Appellant was taking.[118]
5. The arbitrator then referred to the expert opinion evidence from Dr Hannes Gebauer dated 13 September 2016. Dr Gebauer examined the Appellant in his rooms on 25 August. Dr Gebauer stated:[119]

He informed me that he had sustained an injury to his back causing severe radiating pain down his right leg whilst at work in March 2015. He also informed me that in September 2015 he developed severe Tinnitus. Though he couldn't give me specific dates he informed me that in May 2015 he started noticing significant patchy hair loss which he thought was probably stress related and related to the severe pain he was experiencing at the time.

Mr Armet attended my Rockingham rooms on the 25th August, 2016. Clinically he had patchy scarring Alopecia affecting approximately 50% of his scalp surface. In order to establish a specific diagnosis I took an incisional biopsy......... .

...

By exclusion therefore I will postulate that he developed Lichen Planus post injury which has now spontaneously resolved as it does leaving him with significant scarring...

The commonest cause of Lichen Planus is drugs and medication and in particular pain killing drugs are a common triggering cause. I would therefore postulate that there is a direct association between his injury and his permanent scarring Alopecia.

1. The second opinion considered was that of Dr John Low, occupational physician. In his report dated 4 February 2017 Dr Low opined that:[120]

... it does not appear that Mr Armet was taking any significant medication (as highlighted in the body of this report). I note in the dermatologist's report that there was no mention of the type or duration of medication alleged to have been taken by Mr Armet.

As such, the alleged cause postulated by the dermatologist for the hair loss was not present.

...

1. The arbitrator then considered the list of medications taken by the Appellant since April 2016 as set out by Dr Low in his report.[121] The arbitrator examined the available evidence as to what medication the Appellant was taking and for what purpose the drugs were prescribed.[122]
2. The arbitrator concluded that the Appellant suffered hair loss occurring sometime during the period 2015 to 2016.
3. The arbitrator said:[123]

There is some evidence that pain-killers were prescribed. I deduce that as they are prescribed, their comparative strength is greater than over - the counter type pain killers. Nonetheless, there is no evidence as to dosage nor how many were either prescribed over a period of time, or consumed. There is also no medical evidence of hair loss either observed or reported in May 2015 or indeed any time until about October 2016. By that stage, the medications being taken by Mr Armet were by and large for anxiety or insomnia, not pain.

Based on my understanding of the evidence, and having considered the various factors, whereas it is a possible that Mr Armet's alopecia was caused by the consumption of pain-killing medication, I do not consider the evidence establishes that to be the case on the balance of probabilities. The evidence does not clearly establish which if any pain-killers Mr Armet was taking nor over what period, nor does Dr Gebauer record to which drugs he was referring, other than 'painkillers', nor the dosage. Further, there is no evidence in about May 2015 that Mr Armet had hair loss and Dr Gebauer's report appears to assume hair loss commenced by or at that stage. I am therefore not convinced that Dr Gebauer's opinion is based on proven facts and therefore the weight to be given to it is little to none.

Further, if hair loss had then occurred, it would seem more likely that Mr Armet would have sought medical advice at that stage (as he has in relation to many other medical ailments he has suffered since 2015) and not wait until 2016.

Further, if there is a connection with medications and hair loss, based on the adduced evidence, the dominant medications taken by Mr Armet were to treat anxiety and insomnia. Dr Gebauer has not addressed such medications.

As such, I consider that Mr Armet has failed to establish his case on the balance of probabilities that his alopecia is a consequence of his consumption of pain-killing medications.

1. By s 176(3) of the WCIMA, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes. By s 188:
   1. Practice and procedure, generally

(1) An arbitrator is bound by the rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.

(2) The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -

(a) is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and

(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(3) An arbitrator may inform himself on any matter as the arbitrator thinks fit.

(a) receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and

(b) adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.

(5) To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.

1. By s 198 and s 203:
   1. Ways of conducting arbitration proceedings

(2) If an arbitrator thinks it appropriate, the arbitrator is to allow the parties and their representatives and any witnesses (or one or more of them) to participate in a hearing of a proceeding by means of telephones, video links, or any other system or method of communication.

(3) If an arbitrator thinks it appropriate, the arbitrator may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.

(4) An arbitrator may take into account a written submission prepared by a legal practitioner or registered agent acting for a party to a proceeding and submitted by or on behalf of the party, whether or not the party is represented by a legal practitioner or registered agent at any hearing of the proceeding.

(5) If an arbitrator conducts a proceeding in accordance with this section, the arbitrator is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the arbitrator with the attendance in person of all persons involved in the proceeding.

(6) Provisions of this Act applying to hearings apply with any necessary modifications in relation to a proceeding conducted in accordance with subsection (3).

(1) In any proceeding before an arbitrator, the arbitrator may -

(b) examine any witness on oath or affirmation, or by use of a statutory declaration; and

(c) examine or cross examine any witness to such extent as the arbitrator thinks proper; and

(d) require any witness to answer questions put to the witness.

(2) Nothing in subsection (1) enables an arbitrator to require a witness to answer a question if the witness -

(a) is excused by section 206(1) from answering the question; or

(b) has a reasonable excuse (other than on the ground mentioned in section 204(1) or 205) for refusing to answer the question.

1. By s 213 arbitrators are required to provide written reasons for decision. By s 213(4):
   1. Decisions and reasons, form and content of

(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and

(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

General principles on an application for leave to appeal

1. If, as is the case here, written reasons for each arbitrator's decision under WCIMA pt XI in respect of a dispute are given to a party to a dispute, a party may, with the leave of the District Court, appeal to the District Court against the decision.[125]
2. The bases on which leave may be granted are set out in WCIMA as follows:[126]
   1. Appeal against arbitrator's decision made under Part XI

(2) ... the District Court is not to grant leave to appeal unless -

(a) in the case of an appeal in which an amount of compensation is at issue -

(i) a question of law is involved and the amount at issue in the appeal is both -

(I) at least $5,000 or such other amount as may be prescribed by the regulations; and

(II) at least 20% of the amount awarded in the decision appealed against;

(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;

(b) in any other case, a question of law is involved.

1. A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[127]
2. An appeal will 'involve a question of law' if the arbitrator has made an error of law or an error of mixed law and fact.[128]
3. An arbitrator does not make an error of law merely because he or she finds a fact wrongly or upon a doubtful basis.[129]
4. An arbitrator does not make an error of law simply because he or she prefers one version of the evidence or one set of inferences over another version of evidence or set of inferences.[130]
5. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as the result of illogical reasoning, there is no error of law.[131]
6. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[132]
7. If leave to appeal is granted, then the appeal is to be by way of a 'real review' of the decision. The aggrieved party must provide some 'proper basis for disturbing the decision under challenge'. It remains valid unless the appeal judge, on review, is persuaded that the order being reviewed should be altered or discharged.[133]
8. In this case no formal orders were made for the application for leave to appeal in each appeal and the appeal be heard together. However, the issue as to whether I should grant leave to appeal was simultaneously addressed with the substantive issue as to whether each appeal ought to be allowed.
9. Where this occurs, the appropriate approach is to deal with the question of leave after considering the merits of the proposed grounds of appeal. The court will then be in a position to either grant leave and uphold or dismiss the appeal, or refuse leave to appeal.[134]

1. The threshold issue for determination is whether this is an appeal in which an amount of compensation is at issue. If that is the case, it falls within s 247(2)(a) and not s 247(2)(b) of the WCIMA.
2. The Appellant submitted this was not an appeal pursuant to WCIMA s 247(2)(a) but rather an appeal pursuant to WCIMA s 247(2)(b).
3. The Appellant submitted that the amount of compensation is not readily ascertainable because the Appellant has suffered permanent injuries. The Appellant is incapacitated and continues to be so incapacitated and the Appellant's injuries and expenses are continuing. The Appellant relied on the decision of Thomas v Chandler McLeod.[135] In that case, O'Neal DCJ said:[136]

In my view the proper construction of s 247(2)(a) requires that the phrase 'an amount of compensation' be taken to mean literally that. That is, it applies to cases of appeals where there is what might be described as a liquidated claim that is readily ascertainable. Disputes of the kind encompassed by s 62 applications do not involve 'an amount of compensation'. They involve broader claims of entitlement but not 'an amount' that is determinable.

1. The Respondent submitted that this is an appeal pursuant to WCIMA s 247(2)(a)(i)(I). The Respondent further asserted that the amount in issue was not in excess of $5,000 in either appeal and therefore s 247(2)(a)(i)(I) is not satisfied.
2. The Respondent submitted that the keywords in that judgment were the words 'liquidated claim'. The Respondent submitted the claims were liquidated claims.
3. The Respondent relied upon the reasons for decision of the arbitrator in relation to application A34042 (APP 4 of 2018). The arbitrator said:[137]

By his application for arbitration, he seeks an order that CFC pay various expenses incurred by him in relation to an alleged tinnitus condition.

1. In relation to his reasons for decision in application A36114 (APP 5 of 2018) the arbitrator said:[138]

By his application for arbitration Mr Stephane Armet seeks an order that CFC Consolidated Pty Ltd pay various incurred expenses claimed pursuant to Sch 1 cl 17 and cl 19 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The various expenses are said to have been incurred as the result of various injuries or conditions either suffered at work during his period of employment with CFC or as a consequence of compensable injuries suffered during the course of his employment with CFC.

1. Further, the Respondent submitted the onus is upon the Appellant to establish that the expenses totalled not less than $5,000 or that the matter is of such importance that 'in the public interest' an appeal should lie.
2. The application before the arbitrator in each proceeding was a claim for expenses. I accept the Respondent's submissions that the amount of compensation was quantifiable as at the date of the hearing before the arbitrator. Accordingly, each appeal is one in which an amount of compensation is at issue. Both the Appellant and the Respondent agreed that in this particular case it was appropriate to calculate the amount at issue as at the date of the arbitration hearing.
3. Therefore, I conclude that each appeal falls within s 247(2)(a)(i) and not s 247(2)(b) of the WCIMA. It has not been argued that this may be an appeal that falls within s 247(2)(a)(ii) of the WCIMA.
4. Accordingly, before considering the amended grounds of appeal it is appropriate that I determine whether the amount at issue in each appeal is at least $5,000.

Application A34042 - APP 4 of 2018 - Amount at issue

1. In his decision the arbitrator listed the invoices/receipts relied upon by the appellant that fall within sch 1 cl 17 or cl 19 of the WCIMA.[139]
2. I have checked the relevant invoices and have prepared a schedule of the relevant invoices, together with the travel expenses as claimed by the Appellant with respect to the relevant invoices. The travel expenses were not included in the arbitrator's list. I am of the view that the travel expenses claimed by the Appellant appear reasonable. I have added an additional travel expense of $10.58 that was in the Appellant's schedule for Rockingham Medical Centre on 29 October 2015 because it relates to his tinnitus claim.
3. I have not included invoices claimed by the Appellant that were incurred after the arbitration hearing. I have not included invoices claimed twice by the Appellant. Neither have I included invoices relating to medico-legal reports as they do not constitute 'medical treatment' as defined in the WCIMA and are therefore not claimable.[140] The one exception was the report from Dr Ian Wallace for the sum of $1,350 dated 30 March 2016 which the arbitrator included in his list.
4. There were no other invoices presented that could be included in the schedule that related to the Appellant's tinnitus claim.

1. Accordingly, the amount of compensation at issue including travel expenses and Dr Wallace's invoice is $3,939.26. Therefore, I find that the amount of compensation at issue for APP 4 of 2018 does not exceed the $5,000 threshold for jurisdiction to appeal under the Act.

Application A36114 - APP 5 of 2018 - Amount at issue

1. In his decision the arbitrator listed the invoices/receipts relied upon by the Appellant that fell within sch 1 cl 17 or cl 19 of the WCIMA.[141]
2. I have checked the relevant invoices and have prepared a schedule of the relevant invoices together with the travel expenses claimed by the Appellant with respect to the relevant invoices. The travel expenses claimed by the Appellant for these invoices appear reasonable.
3. I have not included invoices claimed by the Appellant that were incurred after the arbitration hearing. Neither have I included invoices for Dr Soni Narula purporting to be for a sum of $300 on 2 February 2016 and $200 on 2 August 2016 as those invoices have not been provided to the court. Further, I have not included invoices for medico-legal reports that are not claimable such as Benjamin Trewben's report for lawyer dated 19 September 2016 in the sum of $90.
4. I have further checked each of the invoices as against the Appellant's schedules and where differences were noted the amounts per the invoices were substituted.
5. I have also included travel for the Rockingham Medical Centre as set out in a further schedule from the Appellant that was before the arbitrator[142] where the travel relates to 'medical treatment' in cl 17 of sch 1 of the WCIMA.[143] I have not included travel expenses claimed by the Appellant in his schedule for 18 May 2016 and 2 June 2016. There were no documents to support those travel claims.

Professional Attendance by a specialist in the practice of his

Total Rockingham Medical Centre travel expenses amount = $148.12

1. Accordingly, the total amount of compensation including travel expenses is $3,718.45. Therefore, I find that the amount of compensation in issue for APP 5 of 2018 does not exceed the $5,000 threshold for jurisdiction to appeal under the Act.
2. In conclusion, having considered each claim, I am of the view that the amount at issue in each appeal does not meet the threshold of at least $5,000. The Appellant has not satisfied s 247(2)(a)(i) of the WCIMA.
3. Accordingly, leave to appeal cannot be granted.

1. If I am wrong in my conclusion on the threshold issue as to the amount at issue in relation to each appeal, I now address the grounds of the appeal.
2. The amended grounds of appeal are as follows:
   1. That the arbitrator misdirected himself in law as to the facts, and misinformed himself is an error of law.
   2. That the arbitrator failed to give adequate reasons for his decision and/or whether the arbitrator had no evidence to support his conclusions is an error of law.
   3. Whether natural justice was not afforded to the worker and/or the arbitrator failed to conduct the hearing fairly and in accordance with the WCIMA and thus a jurisdictional error.

1. In summary, the Appellant submitted the following in relation to ground 1:[144]
   • Had the arbitrator considered the relevant evidence, a different finding may have been reached or additional facts may have been found to exist.
   • The learned arbitrator, having determined that the Appellant did in fact develop the condition tinnitus that started in September 2015, went on to erroneously reject the supporting evidence that it was a compensable injury by failing to take into account relevant considerations such as the Appellant's medical reports supporting the progression of the injury and cherry-picking aspects of the medical reports to justify the rejection of the application.
   • This finding was not open to the Arbitrator as there was no evidence to support the finding. Not having regard to the relevant evidence is an error of law.
   • The arbitrator erred in failing to consider the proposition that foreseeability is a criterion of remoteness and treating the eggshell skull principle is an accepted illustration of it.
   • It was contended that, what one person considers noisy, another person considers fairly quiet. The evidence from a witness that 'the loudest part of the jack was its horn', was irrelevant as it was not continuously used.
   • The Appellant's evidence that once the rubber was off, it was a ferocious engine, leads to the inference that noise levels grew exponentially and this affected his hearing.
   • It was submitted that the limited use of the noise survey test results was a misapplication given there was no testing of the jack and because there was no evidence that Mr Singh used the pallet jack when the noise survey was completed.
   • It was asserted that exposure to explosives in the French Army was irrelevant. It was contended that the arbitrator should not have rejected the Appellant's evidence of the pallet jack brochure because the evidence shows that the terrain was not smooth concrete. The Appellant asserted that the witness accounts referred incorrectly to a Yale model but the Appellant used a Hyster model.
   • The decision to be not satisfied that the tinnitus developed due to exposure to excessive noise or as a consequence of a compensable injury is not justified on the material before the arbitrator.
   • The arbitrator failed to take into account relevant considerations, namely the report of Dr Imani that noted that tinnitus is a complex, multifactorial symptom, which can be exacerbated by other injuries, pain and mental disorders such as anxiety and depression.
   • It was submitted the arbitrator ignored the effect of causation in Dr Wallace's report in that the particular activity of pushing or pulling heavy weights exacerbated an existing work injury and exacerbated the tinnitus symptoms.
   • It was submitted that the personal opinion of the Appellant's conduct is an irrelevant consideration to take into account in arriving at a decision to reject the Appellant's application.
   • Further, that the arbitrator should have provided notice to the Appellant of his intention to reach specified findings of fact.
2. The Respondent submitted in summary that the ground of appeal disclosed no error of law. The error of law is asserted to be a failure by the arbitrator to have regard to the relevant evidence. The Respondent contended that what the Appellant was attempting to do is to persuade the court that a different conclusion was open on the evidence and ought to be preferred. That is not permissible under s 247 of the WCIMA. The Respondent relied on Azzopardi v Tasman UEB Industries Ltd.[145]
3. In any event, the Respondent submitted that the arguments were not borne out by the arbitrator's reasons for decision. In relation to the particular complaints:[146]
   • The Respondent contended that Ms Flockton's evidence as to the noise of the horn for the pallet jack was a relevant consideration.
   • The reasons of the arbitrator specifically refer to the evidence of the rubber being off the machine. There is no misdirection.
   • The arbitrator addressed the limited use of the noise survey results. There was no error.
   • In relation to the Appellant's exposure to explosives in the French Army, it appeared in the context of setting out Dr Imani's evidence.
   • In relation to Dr Imani's evidence the arbitrator set out the relevant material. The expert evidence was predicated upon certain facts being made out and the arbitrator was not satisfied the facts were made out.
   • In relation to the pallet jack brochure, the Respondent contended it was a red herring. The issue of a jack being used outside was irrelevant. The Respondent contended the only relevance was whether the Appellant was exposed to sound levels which might have caused him physical harm. The arbitrator considered the relevant evidence and concluded there was no significant noise levels associated with the use of the jack.
   • In relation to Dr Wallace's evidence the Respondent asserted that the arbitrator correctly recognised the issue whether there was a causative link and then determined that issue. The arbitrator concluded that the level of pain reduced over the relevant period.
4. The Respondent submitted that the Appellant's contention as to the arbitrator's observations and comments as to the manner in which the Appellant gave evidence were 'irrelevant considerations', defied logic. Assessing the credibility and reliability of witnesses is a core component of the decision-making process.[147]

1. I accept the Respondent's submission that the contentions raised by the Appellant in relation to ground 1, when properly analysed, do not involve a question of law.
2. The New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Ltd considered the issue of what constitutes a question of law in the context of workers' compensation legislation. Glass JA, with whom Samuels JA agreed, said:[148]

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654.

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 138; 57WN53 at 55. The decision here assailed is not of that character.

Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found.

1. I further observe that the factual basis upon which an expert's opinion is based must be established for the opinion to be admissible.[149]
2. It is for the arbitrator to accept or reject any evidence and make findings of fact.
3. In my view, in effect the Appellant's submissions are more in the nature of a complaint about the facts upon which reliance was placed by the arbitrator in making his findings. It is also a complaint about the weight which the arbitrator gave to parts of the evidence. In my view, appeal ground 1 involves a challenge to the arbitrator's findings of fact. That is not a matter of law.
4. In assessing the credibility of the Appellant, the arbitrator set out and analysed the relevant evidence and stated why he preferred the evidence of the Respondent's witnesses over the evidence of the Appellant in relation to critical issues such as the Appellant's use of the pallet jack, the operating area and the noise of the machine. The arbitrator provided reasons for making the relevant findings of fact and conclusions he reached. The arbitrator's assessment of a witness's credibility is an essential part of the decision making process. The arbitrator made no error of law.
5. For example, the arbitrator found that the Appellant exaggerated the noise associated with the use of the electric pallet jack and exaggerated the amount of time he spent on the machine during the working day. He preferred the evidence of Ms Flockton and Mr Uren as to the nature and condition of the operating area. He preferred the evidence of Ms Flockton, corroborated to some extent by Mr Kitching, as to the Appellant's daily use of the pallet jack. He noted that the Appellant did not complain about the electric pallet jack being noisy or of having adverse vibration during his 10 months of employment. He found there were no records of anyone else making a complaint about the noise or vibration of the pallet jack.
6. As to the particular matters raised by the Appellant I am of the view that the arbitrator did not misapprehend the evidence in making his findings of fact. In particular:
   • While I accept that the arbitrator did make an error in his finding that Ms Flockton used the electric pallet jack, this error did not materially contribute to the decision.[150] The arbitrator correctly summarised Ms Flockton's evidence in all other aspects.[151] Ms Flockton's evidence was clear in her evidence 'that the noisiest part of the machine was the horn so that people are aware you are around ... It is a safety thing'.[152] The arbitrator was entitled to rely upon that factual evidence.
   • As I have already observed the arbitrator made no determination as to which type of machine the Appellant was using. There is conflicting evidence as to whether the Appellant used a Hyster or Yale electric pallet jack.[153]
   • The Appellant submitted that the arbitrator was wrong in preferring the evidence of Ms Flockton over Mr Uren regarding the state of the road surface. Counsel for the Appellant referred me to Mr Uren's evidence where he said there was bound to be pot holes and also dirt because there are truck vehicles coming in.[154] However, Mr Uren was clear in his evidence that to the best of his knowledge there were no pot holes in the area where the pallet jacks operated.[155] He was also clear in his evidence that the two different surfaces for the use of the pallet jack, being polished concrete in the warehouse and the surface outside the warehouse under the awning, even outside the awning which is a little bit smoother than a road base type sort of concrete, gravelly. It was smoother than a normal road.[156] The arbitrator did not misapprehend the evidence.
   • The arbitrator noted the limitations of the evidence of the noise survey results. The arbitrator did not misapprehend the evidence.
   • The arbitrator set out the evidence of the Appellant's history as to his exposure to weapon fire and explosives during his term in the French Army. The arbitrator did not misapprehend the evidence.
   • The arbitrator set out the Appellant's evidence as to the rubber wheels on the pallet jack. The arbitrator did not misapprehend the evidence.
   • I reject the Appellant's submission that the evidence of the pallet jack brochure should not have been rejected. The arbitrator was correct in my view that the brochure did not constitute expert evidence. Moreover, such a brochure did not set out limits on the use of the pallet jack.
   • In relation to the medical evidence, that is, the evidence of Dr Imani and Dr Wallace, the arbitrator determined that the conclusions were predicated upon it being proven that the Appellant was exposed to loud noise exposure. The arbitrator, as I have stated, was not persuaded that such exposure occurred on the evidence before him. This ground involves a challenge to the arbitrator's findings of fact.
   • Further, the arbitrator considered Dr Wallace's opinion that chronic pain does exacerbate the subjective experience of tinnitus. The arbitrator was not persuaded, having found the Appellant prone to exaggeration, whether the evidence clearly established that his tinnitus in fact got worse. The arbitrator found he reduced his pain medication over the relevant period. The arbitrator deduced that the level of pain reduced. This ground involves a challenge to the arbitrator's findings of fact.
7. In all the circumstances I refuse leave to appeal on this ground.

1. This ground was not relied upon by the Appellant in relation to application A34042.

1. This ground of appeal relates to both appeals as the arbitration proceedings were heard together. Accordingly, I will consider the appeal ground in application A34042 - APP 4 of 2018. The appeal ground also relates to application A36114 - APP 5 of 2018.
2. The Appellant submitted that the arbitrator failed to follow the rules of natural justice and/or procedural fairness by:[157]

(a) insufficiently addressing the difficulties faced by an unrepresented litigant who was not just unrepresented but also:

(ii) Suffering a disability of comprehension from being in an unfamiliar environment, that is, legal, and without support;

(iii) Suffering disability of language as the Appellant's native tongue is French and, although the Appellant speaks English, his understanding and comprehension of English is not comparable to his familiarity with the French language.

In effect, it was alleged that there was confusion shown by the Appellant and there were clear indications of misunderstandings and lack of comprehension.

1. In effect, the Appellant submitted the arbitrator failed to properly consider the medical evidence and adequately question witnesses.
2. It was further alleged the arbitrator failed to provide the opportunity to lead evidence after the conclusion of the hearing, for example, Dr Narula's report.
3. It was further alleged the arbitrator failed to give the Appellant the opportunity to outline his case in closing.
4. In effect, it was also alleged the arbitrator failed to accept the Appellant's evidence and drew conclusions about his character with insufficient evidence to support it.
5. In summary, the Respondent submitted that the Appellant's argument appeared to fall into the following broad categories:[158]

(b) Failed to accommodate the Appellant's difficulties as a self-represented litigant.

(d) Failed to provide the opportunity to admit evidence after conclusion of the hearing.

(e) Inadequate opportunity to outline his case in closing.

(f) Failure to accept or prefer the Appellant's evidence.

1. In respect to the issue of language, the Respondent submitted an interpreter was provided to the Appellant and was present throughout the proceedings. The use of the interpreter does not appear to have been limited by the arbitrator.[159]
2. The Respondent submitted that the arbitrator took great pains to identify various options to the Appellant as an unrepresented litigant.[160]
3. The Respondent submitted that it was not the arbitrator's role to take over the conduct of the Appellant's case. Further, the Respondent submitted that the Appellant was not denied procedural fairness simply because the arbitrator did not pursue enquiries that the Appellant now believed to be of significance and which he himself did not pursue. The Respondent submitted that there was no error or failure in the alleged failure to permit the admission of evidence after the conclusion of the hearing. The Respondent referred to s 188(2)(b) of the Act. The Respondent submitted there was no attempt by the arbitrator to inhibit the Appellant's opportunity to outline his case in closing.[161]
4. In relation to the Appellant's contention that the arbitrator failed to accept his evidence, the Respondent submitted that is not a matter that goes to natural justice or procedural fairness.[162]
5. A denial of procedural fairness constitutes an error of law.[163]
6. The role of a judge when faced with an unrepresented litigant has been examined in a number of decisions. As the court observed in Konings v Commonwealth Bank of Australia:[164]

A party is not denied natural justice, or procedural fairness, merely because they do not have legal representation. That is the case whether the lack of legal representation is a matter of choice or because they are unable to afford it. It is accepted, however, that a court ought to assist a litigant in person to the extent consistent with the interests of justice. What the court ought [to do] will depend upon the nature of the case and the litigant's capacity to understand the issues in the case. But the court must not intervene to such an extent that a position of neutrality cannot be maintained or an unrepresented litigant is given a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored.

(citations omitted)

1. The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd.[165] As Samuels J outlined in Rajski v Scitec Corp Pty Ltd, adopted by Heenan J in Tobin v Dodd:[166]

'In my view, the advice and assistance which a litigant in person ought to receive from a court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'

1. I also refer to the Court of Appeal decision in Zerjavic v Chevron Australia Pty Ltd. The court said:[167]
   1. Grounds 1 and 2 depend on acceptance of the proposition that, because the appellant was a self-represented litigant, the primary judge was obliged to inform the appellant of his 'responsibility' to obtain expert evidence. At the hearing of the appeal counsel for the appellant expressed the submission in terms that the primary judge had to advise the appellant that he, the appellant, should have called the expert evidence.
   2. There are a number of recent occasions in which this court has examined what should be done by a trial judge to ensure a fair and just trial where one of the parties is a self-represented litigant. The subject has been considered countless times in the New South Wales Court of Appeal and, in the important decision of In the Marriage of Johnson, by the Full Court of the Family Court of Australia. The application of the general principles varies depending on the particular circumstances of the case; for example, the nature of the case and the nature of the litigant including his or her understanding of the case. One abiding difficulty is the tension between the duty of a trial judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties. At all times a trial judge must remain an impartial adjudicator measured against the touchstone of fairness. For this reason the assistance a self-represented litigant ought to receive should be limited, ordinarily, to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a self-represented litigant faces by reason of not being legally trained.
   3. For present purposes it is enough to repeat that:
      1. The court's obligation is to ensure a fair and just trial for all parties.
      2. A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant.
      3. The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case). In general, however, the guidance provided in In the Marriage of Johnson is valuable and of general application even though it is specifically directed to the exigencies of family law litigation. Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence. Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions.
      4. A trial judge's duty does not extend to advising a self-represented litigant as to how his or her rights should be exercised.
      5. All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self-represented litigant.

... The necessity to provide information in an attempt to overcome procedural disadvantage faced by a self-represented litigant is not a duty to run the case for him or her. All the more so it is not a duty to identify an alternate case that the litigant should run and then to suggest that a self-represented litigant call expert evidence in support of that alternate case. It was not the primary judge's role to advise the appellant as to a case which he might have differently pleaded and presented. The assistance to be provided by a trial judge to a self-represented litigant is limited to providing sufficient information about the practice and procedure of the court, so far as is reasonably practicable, for the purpose of ensuring a fair and just trial. In that regard there is a clear distinction between explaining the practices and procedures of the court - something compatible with the trial judge's position as an independent adjudicator - and descending into the arena so as to become an adviser to the self-represented litigant by identifying an alternate case and commending that evidence of a particular type be adduced in support of that case.

1. In my view there is no merit in the Appellant's submission that the arbitrator breached the rules of natural justice and/or procedural fairness.
2. In relation to the Appellant's language difficulties, the Appellant was provided with an interpreter for all four days of the hearing. The arbitrator summarised why the interpreter was there:[169]

First of all, Ms Kayer, as the interpreter your services throughout the four days will be needed from time to time and, Mr Armet, in my experience, mostly understands what is being said. On occasions he requires some assistance. So to that extent, therefore, Ms Kayer, I will swear you in formally as an interpreter.

The arbitrator placed no limits or restrictions on the use of the interpreter by the Appellant. It was entirely up to the Appellant to decide when he wanted to utilise the services of the interpreter.

1. The arbitrator approached the documents in which the Appellant articulated his claims with flexibility. For example, the Appellant's documents for all three proceedings were combined in the one book. Furthermore, the arbitrator admitted into evidence documents that were not witness statements.[170]
2. The arbitrator clearly set out options available to the Appellant with respect to a report that had not been received at the time of the arbitration proceedings. For example, I refer to a report of Dr Narula that was not before the court. The arbitrator told the Appellant that he could only decide the case on the evidence that was put before him. The arbitrator told the Appellant that he could ask for an adjournment.[171] The Appellant made the decision to pursue his claim in the absence of the report. In my view, the Appellant is bound by the way in which he conducted his case.
3. The arbitrator explained how the evidence would be taken at the arbitration.[172] He clarified the process of giving evidence to the Appellant, such as explaining re-examination to him.[173]
4. The arbitrator explained to the Appellant how submissions were to be made in closing. He told the Appellant there were no time restrictions.[174]
5. In my view the submission that the arbitrator failed to question witnesses lacks merit. An arbitrator is required to act in a manner that is fair, just, informal and quick[175] and to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[176] It was not for the arbitrator to take over the running of the Appellant's case. That is not his role.
6. Complaints that the arbitrator showed impatience and made facetious remarks, when examined in context, do not in my view disclose any conduct by the arbitrator that can be called into question.
7. The allegation that the arbitrator erred in his assessment of the Appellant's accuracy and reliability is not a matter that goes to natural justice or procedural fairness.
8. In conclusion, having considered the entire transcript of the arbitration I am of the view that the arbitrator conducted the proceedings before him in a way that gave considerable flexibility and assistance to the Appellant. In my view the arbitrator was entirely fair in his dealings with the Appellant.
9. In all the circumstances the Appellant has not satisfied me that he was denied natural justice in relation to the way the arbitration proceedings were conducted. Accordingly, leave to appeal should not be granted in respect of ground 3 in respect of either appeal.

1. The Appellant submitted in effect that the arbitrator failed to take into consideration that first, the GP ordered an ultrasound of his neck in October 2015 and further, that the Appellant told Dr Watson he had neck pain from the September 2015 incident.
2. The Respondent submitted that the evidence did not undermine the arbitrator's finding.
3. I was taken to the radiologist's report of the ultrasound of the neck that was requested on 20 October 2015 and performed on 29 October 2015. The report reads:[177]

Scanning through the neck region in the area of concern showed an elliptical ovoid well defined lesion in the deep subcutaneous compartment measuring 5.8 x 1.1 x 2.6 cm in dimension. This is avascular. It is consistent with a benign lesion such as a lipoma. If there has been enlargement of this lesion or tenderness then an MR scan may be required to further evaluate prior to surgical review.

1. I accept the Respondent's submission that the ultrasound report did not provide any assistance in determining whether the Appellant was having neck pain as of October 2015. It is clear that the ultrasound showed a lesion consistent with a benign lesion such as a lipoma. That the Appellant was referred for an ultrasound does not of itself corroborate the contention that the Appellant advised his GP of neck pain. The lipoma claim made by the Appellant was dismissed by consent.
2. Furthermore, Dr Watson saw the Appellant on 1 November 2016, well over a year after the September 2015 incident. Dr Watson recorded the history given to him by the Appellant.
3. In my view the Appellant is really complaining about the weight which the Appellant says the arbitrator should have given to parts of the evidence namely, the referral for ultrasound in October 2015 and the history given to Dr Watson in November 2016. These are matters of fact. There is no merit to this ground.

1. In effect the Appellant submitted the arbitrator did not provide adequate reasons in accordance with s 213(4) of the WCIMA for dismissing the claim for neck pain in that he ignored the ultrasound report and Dr Watson's report. The Appellant submitted an MRI was suggested for further investigation. The MRI report was dated 19 February 2016. I note that an MRI following the ultrasound was only suggested by the radiologist in the ultrasound report:[178]

If there has been enlargement of this lesion or tenderness then a MR scan may be required to further evaluate prior to surgical review.

1. The Respondent submitted that reasons were provided by the arbitrator and he complied with s 213(4) of the WCIMA.
2. As Davis DCJ said in Rekabe v Foxline Logistics:[179]
   1. The common law position is that a function of reasons is to provide procedural fairness to a litigant who is entitled to know why he or she has been successful or unsuccessful, and to allow an appeal court to determine whether the decision was based on an appealable error. The reasoning process which led to the result must be disclosed with sufficient certainty to achieve those ends: Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32].
   2. This has been modified, however, by the provisions of s 213(4) of the Act, as was discussed by Commissioner McCann in Nardi [29] - [31] and the Court of Appeal in Velez Pty Ltd v Tudor [57] - [70]. Section 213(4) only requires the arbitrator to identify the facts accepted and give reasons for doing so, however, the arbitrator is still obliged to expose the reasoning process linking them and justifying the ultimate result: Velez Pty Ltd v Tudor [70].

1. In my view the arbitrator's reasons were adequate. He identified the facts that he accepted in coming to his decision and gave reasons for doing so: s 213(4)(a). The law was applied and his reasoning process applying the law to the facts was revealed: s 213(4)(b). He did not have to canvass all the evidence nor all the factual and legal arguments or issues arising in the case: s 213(4)(c) and s 213(4)(d).
2. The reasons for the arbitrator's decision in rejecting the neck injury claim were clearly identified.
3. In my view the arbitrator's decision does not reveal any infringement of the requirements of s 213(4). I consider there is no merit to this ground.

1. In relation to ground 1, the Appellant submitted that the arbitrator erred in deciding that his hair loss was either non-compensable under the Act or not attributable to employment when the medical evidence showed on the balance of probabilities that the injuries were as a result of a compensable injury.[180]
2. In relation to ground 2, the Appellant submitted in effect that the arbitrator ignored the evidence of Dr Gebauer and failed to give adequate reasons for his decision. Additionally, the Appellant contended that the arbitrator failed to understand the connection that drugs taken for treatment of anxiety and insomnia and neuropathic pain are, in effect, pain medications and thus the causal link as postulated by Dr Gebauer. Furthermore, the Appellant contended that the evidence of Dr Gebauer ought to have been preferred to that of Dr Low because of the former's area of specialty. It was also contended that the arbitrator disallowed a further report from Dr Gebauer.[181]
3. In relation to ground 1, the Respondent submitted that this contention related entirely to a matter of fact and not law.[182]
4. In relation to ground 2, the Respondent submitted the arbitrator clearly identified and considered the evidence of Dr Gebauer and set out his reasoning process in determining that the Appellant had failed to establish his claim with respect to hair loss.[183]
5. The Respondent submitted there was no factual basis for the contention of the Appellant that drugs taken for treatment of anxiety and insomnia and neuropathic pain were in effect pain medications.[184]
6. The Respondent further submitted that in relation to the expert reports, the arbitrator followed the correct reasoning process.[185]
7. The principles of law concerning expert medical evidence contained in the decision of Pollock v Wellington[186] were set out by Anderson J at (3):

Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts. ...

As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it. ...

1. In Beer v Duracraft Pty Ltd[187] McLure J stated:

In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.

1. As to the issue of preference the authorities make clear:[188]

[I]f there is evidence, or if there are available inferences which compete for the [arbitrator's] acceptance, no error of law occurs simply because the [arbitrator] prefers one version of the evidence to another or one set of inferences to another.

1. The arbitrator considered Dr Gebauer's opinion.[189]
2. The arbitrator considered Dr Low's opinion.[190]
3. The arbitrator examined the available evidence as to what medication the Appellant was taking, for what purpose the drugs were prescribed and the dates the medication was purchased.[191]
4. The arbitrator set out the differences between Dr Gebauer's opinion evidence on the one hand and Dr Low's opinion evidence on the other hand as to the Appellant's medication.[192]
5. The arbitrator discounted the opinion evidence of Dr Gebauer on two bases. First, the evidence did not clearly establish which, if any, pain-killers the Appellant was taking, nor over what period, and Dr Gebauer did not record which drugs he was referring to other than 'painkillers', nor the dosage. Second, there was no evidence that in about May 2015 the Appellant had hair loss. Dr Gebauer's opinion assumed hair loss commenced by or at that stage.[193]
6. The arbitrator did make a factual error that there was no medical evidence that hair loss was observed or reported until October 2016.[194] However, I am of the view this factual error does not undermine his decision. The first report of hair loss by the Appellant was to Dr Gebauer in August 2016. In my view, having considered all of the available evidence, it was open to the arbitrator to give no weight to the opinion of Dr Gebauer because it was based on unproven facts. That is, that the Appellant's hair loss commenced in about May 2015 and the causation of the hair loss was the consumption of drugs and medication, in particular, pain killing drugs. In my view, having regard to all the relevant evidence, no error of law has been demonstrated. As the authorities make clear no error of law occurs simply because the fact finder prefers one version of evidence to another. Accordingly, I refuse leave on ground 1.
7. As to ground 2, I find the arbitrator set out in sufficient detail the medical opinions and evidence relevant to the question of the Appellant's hair loss. Further, he explained why he reached his conclusion in relation to the Appellant's claim.
8. In relation to the Appellant's particular allegation that the arbitrator failed to understand that drugs taken for treatment of anxiety and insomnia and neuropathic pain are in effect pain medication, I accept the Respondent's submission that there was no factual basis for such an assertion.
9. Finally, the Appellant alleged that the arbitrator disallowed a further report from Dr Gebauer. In my view, this allegation is not established by the evidence. I have not seen a second report of Dr Gebauer and one is not contained within the materials from WCAS. The arbitrator stated in the transcript there was a letter from Dr Gebauer that was not a medical opinion but a strategy.[195]
10. In all the circumstances the Appellant has not persuaded me that the arbitrator did not discharge his obligations under s 213(4).
11. For the above reasons I do not consider there is any merit in these grounds of appeal.

1. In relation to ground 1, the Appellant in summary submitted that the two injuries of referred pain and plantar fasciitis were separate yet closely related to the incident in September 2015. The Appellant contended it was a misapplication of the law to reject the claim of plantar fasciitis against the evidence linking the injuries to the work environment.[196]
2. The Respondent submitted that this was a matter of fact. No error of law has been identified.[197]
3. In relation to ground 2, the Appellant submitted:[198]

The Arbitrator shows confusion in his reasons for discounting the compensability of the plantar fasciitis by a general statement of not being satisfied, but, does not set out, in any comprehensive manner, why or how he comes to make such a statement of not being satisfied in light of the podiatrist report and the cross-examination together with the report by Mr Narula [F68].

The Appellant further points to the second report from Mr Narula that was not considered at all by the Arbitrator [P14 - P16].

1. In relation to ground 2, the Respondent submitted the arbitrator was clear in his reasoning.[199]

1. In relation to ground 1, I am of the view that no error of law has been identified. I am of the view that the ground of appeal really involves a challenge to the arbitrator's findings of fact. It is a complaint about the fact finding exercise by the arbitrator and is not an error of law.
2. In relation to ground 2, in my view the arbitrator's reasons were adequate. He identified the facts that he accepted in coming to his decision and gave reasons for doing so: s 213(4)(a). The law was applied and his reasoning process applying the law to the facts was revealed: s 213(4)(b). He did not have to canvass all the evidence nor all the factual and legal arguments or issues arising in the case: s 213(4)(c) and s 213(4)(d).
3. The basis for the arbitrator's decision in rejecting the plantar fasciitis claim was apparent.
4. There is no basis for the complaint that the arbitrator did not consider a further report from Dr Narula. I refer to my reasons at [254].

1. The view of Buss JA in BHP Billiton[200] was that if a question of law is involved leave should be granted if, in all the circumstances of the case, it is in the interests of justice to do so.
2. Having considered the grounds of appeal I find that:

(a) Grounds 1 and 2 do not involve a question of law.

(b) Ground 3 arguably involves a question of law however the Appellant has not satisfied me that he was denied natural justice in the proceedings before the arbitrator.

In all the circumstances I consider it is not in the interests of justice to grant leave to appeal and I should refuse leave to appeal. Each application for leave to appeal and each appeal should be dismissed.

1. Pursuant to s 247(7) of the WCIMA on hearing an appeal made under this section the District Court may:

(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.

1. Section 267 provides:

(1) The District Court is not to make an order for costs against a worker on the ground that an appeal under Part XIII was successful.

(2) If the appellant in an appeal under Part XIII is a worker and is unsuccessful on the appeal, the District Court is not to make an order for the payment of the appellant's costs on the appeal by any other party to the appeal.

1. The Respondent applied for a special costs order should the Respondent be successful in the appeals. The Respondent submitted that it was put to essentially three different sets of two appeals because of the substantial amendments made by the Appellant. An additional basis was the sheer amount of materials which the Appellant put before the court.
2. The Appellant submitted there should not be a special costs order.

Relevant rules regarding the court's discretion to award costs

1. The Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 1 provides that the court has discretion with respect to costs of and incidental to proceedings.
2. Section 64(3) of the District Court of Western Australia Act 1969 (WA) provides that a District Court judge has the same power in relation to the payment of costs by any party as has a judge of the Supreme Court.
3. The default position is that costs 'shall abide the event': Cooper Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service.[201]
4. As Gething DCJ said in Ellis, apart from that default position:[202]

... the court's discretion is unconfined in the sense that it contains 'no positive indication of the considerations upon which the court is to determine by whom and to what extent costs are to be paid'. The discretion must be exercised judicially, that is, in accordance with established principles and factors directly connected with the litigation, and not arbitrarily, capriciously or so as to frustrate the legislative intent. It must be exercised so as to achieve what is fair and just between the parties according to the circumstances of the particular case.

(footnotes omitted)

The Respondent's application for a special costs order - s 280(2) of the Legal Profession Act 2008

1. The power to make special costs orders is contained in Legal Profession Act 2008 (WA) (LPA) s 280(2), as follows:

... if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court of officer may do all or any of the following -

(a) order the payment of costs above those fixed by the determination;

(b) fix higher limits of costs than those fixed in the determination;

(c) remove limits on costs fixed in the determination;

(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.

1. As the Court of Appeal explained in Sino Iron Pty Ltd v Mineralogy Pty Ltd:[203]
   1. By s 280(1) of the Act, a party's recoverable costs are confined, in effect, by the scale limits. To that extent, s 280(1) is protective of the party charged and, more generally, serves the due administration of justice by limiting the allowable scope for legal costs. Section 280(2) operates as an exception to s 280(1) of the Act. Section 280(2) of the Act operates to give the successful party the opportunity to recover those costs which have been reasonably and properly incurred where, in the court's opinion, the scale is inadequate because of the unusual difficulty, complexity or importance of the matter. To that extent, s 280(2) of the Act is protective of the successful party to the litigation and, on that account, also serves the administration of justice by facilitating, within the limits imposed by the statutory criteria, the operation of the general principle that a successful party is entitled to its costs of the litigation. Even where orders are made under s 280(2) of the Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.
   2. Before such a power will be exercised, the court must form an opinion that has two components. First, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant cost determination. Secondly, the court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the 'unusual difficulty, complexity or importance of the matter'. Issues of the kind which arise are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.
   3. For the purposes of exercising the powers conferred by s 280(2) of the Act, it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that a greater amount should be allowed than that which is allowable under the relevant determination: Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd.
   4. A fairly arguable case to that effect will not be established merely because a party incurred greater costs than those allowable under the relevant determination. However, depending on the particular case and all the circumstances, the fact that a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under items of the relevant determinations, when viewed in the context of the difficulty, complexity or importance of the matter, may sustain the conclusion that there is a fairly arguable case that each of the items identified is inadequate (and thereby the amount of costs allowable in respect of the matter is inadequate) because of the unusual difficulty, complexity or importance of the matter.
   5. The word 'unusual' in s 280(2) of the Act qualifies only the 'difficulty' of the matter, and not its 'complexity' or 'importance'. The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the court. That essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases: Wainwright v Barrick Gold of Australia Limited. Also, the reference to 'importance' in this context allows the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq).
   6. In Kidd v The State of Western Australia, this court observed, with reference to Electricity Generation, that the question of unusual difficulty, complexity or importance arises in respect of the proceedings as a whole and not in respect of each individual item in the relevant costs determination. In Electricity Generation, Martin CJ observed:

[T]here are no words within [s 280(2)] which suggest that the court is required to assess the difficulty, complexity or importance of the work done in respect of each and every item in the relevant determination before exercising the power conferred by s 280(2). The natural and ordinary meaning suggested by the words used is that the 'matter' is the matter in respect of which legal services were provided.

1. In my view the Respondent has not demonstrated that the maximum amount allowable under the relevant scale item is inadequate. Secondly, the Respondent has not satisfied me that the inadequacy of the costs allowable under the Cost Determination arises because of the 'unusual difficulty, complexity or importance of the matter'. I conclude that the Respondent is not entitled to a special costs order pursuant to s 280(2) of the LPA. I order the Appellant pay the Respondent's costs of each appeal including the costs of the strike-out applications to be taxed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Appellant's affidavit filed 29 April 2020, pars 3, 7, 9, 10.

[2] Respondent's supplementary submissions with respect to documents dated 13 May 2020, pars 4 - 5.

[3] Respondent's supplementary submissions with respect to documents dated 13 May 2020, pars 6 - 10.

[4] Respondent's supplementary submissions with respect to documents dated 13 May 2020, par 12.

[5] Respondent's supplementary submissions with respect to documents dated 13 May 2020, par 12.

[6] Respondent's supplementary submissions with respect to documents dated 13 May 2020, par 13.

[7] Respondent's supplementary submissions with respect to documents dated 13 May 2020, par 14.

[8] Respondent's supplementary submissions with respect to documents dated 13 May 2020, pars 15 - 16.

[9] ts 318 - ts 323 (particularly ts 323 where documents were formally admitted into evidence).

[10] Respondent's supplementary submissions with respect to documents dated 13 May 2020, pars 17 - 18.

[11] Arbitrator's decision (application A34042) [31].

[12] Arbitrator's decision (application A34042) [155].

[13] Part of Exhibit 12, worker's book of documents.

[19] Arbitrator's decision (application A34042) [27].

[21] Arbitrator's decision (application A36114) [40].

[22] Arbitrator's decision (application A34042) [12].

[23] Arbitrator's decision (application A34042) [31].

[24] Arbitrator's decision (application A34042) [46].

[25] Arbitrator's decision (application A34042) [47].

[26] Arbitrator's decision (application A34042) [58], [65], [70].

[27] Arbitrator's decision (application A34042) [83].

[28] Arbitrator's decision (application A34042) [86] - [87].

[29] Arbitrator's decision (application A34042) [89].

[30] Arbitrator's decision (application A34042) [89] - [90].

[31] Arbitrator's decision (application A34042) [93].

[32] Arbitrator's decision (application A34042) [94].

[33] Arbitrator's decision (application A34042) [85].

[34] Arbitrator's decision (application A34042) [94].

[35] Arbitrator's decision (application A34042) [96] - [98].

[36] Arbitrator's decision (application A34042) [101].

[37] Arbitrator's decision (application A34042) [101] - [102].

[38] Arbitrator's decision (application A34042) [104] - [106].

[39] Arbitrator's decision (application A34042) [107].

[40] Arbitrator's decision (application A34042) [108].

[41] Arbitrator's decision (application A34042) [108].

[42] Arbitrator's decision (application A34042) [109].

[43] Arbitrator's decision (application A34042) [110].

[44] Arbitrator's decision (application A34042) [113].

[45] Arbitrator's decision (application A34042) [115].

[46] Arbitrator's decision (application A34042) [117] - [118].

[47] Arbitrator's decision (application A34042) [123] - [124].

[48] Arbitrator's decision (application A34042) [125].

[49] Arbitrator's decision (application A34042) [128] - [129].

[50] Arbitrator's decision (application A34042) [135].

[51] Arbitrator's decision (application A34042) [138] - [139].

[52] Arbitrator's decision (application A34042) [140] - [141].

[53] Arbitrator's decision (application A34042) [144].

[54] Arbitrator's decision (application A34042) [145] - [148].

[55] Arbitrator's decision (application A34042) [150] - [151].

[56] Arbitrator's decision (application A34042) [152].

[57] Arbitrator's decision (application A34042) [153].

[58] Arbitrator's decision (application A34042) [154] - [155].

[59] Arbitrator's decision (application A34042) [156].

[60] Arbitrator's decision (application A34042) [158].

[61] Arbitrator's decision (application A34042) [159].

[62] Arbitrator's decision (application A34042) [161].

[63] Arbitrator's decision (application A34042) [162].

[64] Arbitrator's decision (application A34042) [163].

[65] Arbitrator's decision (application A34042) [169].

[66] Arbitrator's decision (application A34042) [170].

[67] Arbitrator's decision (application A34042) [170].

[68] Arbitrator's decision (application A34042) [171].

[69] Arbitrator's decision (application A34042) [172].

[70] Arbitrator's decision (application A34042) [173].

[71] Arbitrator's decision (application A34042) [174].

[72] Arbitrator's decision (application A34042) [175] - [177].

[73] Arbitrator's decision (application A36114) [4].

[74] Arbitrator's decision (application A36114) [11].

[75] Arbitrator's decision (application A36114) [14].

[76] Arbitrator's decision (application A36114) [15] - [24].

[77] Arbitrator's decision (application A36114) [25] - [27].

[78] Arbitrator's decision (application A36114) [29].

[79] Arbitrator's decision (application A36114) [34], [35], [37].

[80] Arbitrator's decision (application A36114) [41].

[81] Arbitrator's decision (application A36114) [47].

[82] Arbitrator's decision (application A36114) [49].

[83] Arbitrator's decision (application A36114) [52].

[84] Arbitrator's decision (application A36114) [52].

[85] Arbitrator's decision (application A36114) [53].

[86] Arbitrator's decision (application A36114) [54] - [56].

[87] Arbitrator's decision (application A36114) [60].

[88] Arbitrator's decision (application A36114) [61].

[89] Arbitrator's decision (application A36114) [63].

[90] Arbitrator's decision (application A36114) [66].

[91] Arbitrator's decision (application A36114) [67].

[92] Arbitrator's decision (application A36114) [69].

[93] Arbitrator's decision (application A36114) [74].

[94] Arbitrator's decision (application A36114) [75].

[95] Arbitrator's decision (application A36114) [77].

[96] Arbitrator's decision (application A36114) [80].

[97] Arbitrator's decision (application A36114) [81] - [82].

[98] Arbitrator's decision (application A36114) [85].

[99] Arbitrator's decision (application A36114) [86].

[100] Arbitrator's decision (application A36114) [89].

[101] Arbitrator's decision (application A36114) [90].

[102] Arbitrator's decision (application A36114) [91].

[103] Arbitrator's decision (application A36114) [92].

[104] Arbitrator's decision (application A36114) [98].

[105] Arbitrator's decision (application A36114) [100].

[106] Arbitrator's decision (application A36114) [103].

[107] Arbitrator's decision (application A36114) [104].

[108] Arbitrator's decision (application A36114) [103] - [104].

[109] Arbitrator's decision (application A36114) [105] - [109].

[110] Arbitrator's decision (application A36114) [118].

[111] Arbitrator's decision (application A36114) [119].

[112] Arbitrator's decision (application A36114) [122].

[113] Arbitrator's decision (application A36114) [124] - [125].

[114] Arbitrator's decision (application A36114) [126] - [130].

[115] Arbitrator's decision (application A36114) [134].

[116] Arbitrator's decision (application A36114) [135] - [136].

[117] Arbitrator's decision (application A36114) [137] - [140].

[118] Arbitrator's decision (application A36114) [141] - [149].

[119] Arbitrator's decision (application A36114) [150].

[120] Arbitrator's decision (application A36114) [151].

[121] Arbitrator's decision (application A36114) [153].

[122] Arbitrator's decision (application A36114) [160], [162], [164], [165].

[123] Arbitrator's decision (application A36114) [167].

[124] Arbitrator's decision (application A36114) [171] - [173].

[125] WCIMA, s 247(1).

[126] WCIMA, s 247(2).

[127] See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (Pullin JA with whom Buss and Wheeler JJA agreed).

[128] BHP Billiton Iron Ore Pty Ltd v Brady [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].

[130] BHP Billiton Iron Ore Pty Ltd v Brady [5].

[131] Australian Broadcasting Tribunal v Bond (356).

[132] Waite v Alcoa of Australia Ltd [2020] WASCA 1 [78] (judgment of the court); BHP Billiton Iron Ore Pty Ltd v Brady [20].

[133] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] - [22], [24] and [26] (Wheeler JA, with Pullin JA and Buss JA agreeing); Catholic Education Office of WA v Granitto [2012] WASCA 266 [56] - [57] and [65].

[134] BHP Billiton Iron Ore Pty Ltd v Brady [14].

[135] Thomas v Chandler Macleod [2015] WADC 78.

[136] Thomas v Chandler Macleod [80].

[137] Arbitrator's decision (application A34042) [4].

[138] Arbitrator's decision (application A36114) [1].

[139] Arbitrator's decision (application A34042) [28].

[140] Sch 1 cl 17; Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230.

[141] Arbitrator's decision (application A36114) [29].

[142] Exhibit 13 (workers' book of documents), vol 3.

[143] Schedule 1 cl 17; Napier v BHP Billiton (Worsley Alumina) Pty Ltd [104] - [105].

[144] Appellant's further outline of submissions dated 16 May 2019, pars 4 - 19.

[145] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 26 - 27.

[146] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 28 - 54.

[147] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 55 - 56.

[148] Azzopardi v Tasman UEB Industries Ltd (155) - (157).

[149] Pollock v Wellington (1996) 15 WAR 1; Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

[150] Arbitrator's reasons (application A34042) [54]; ts 339.

[151] Arbitrator's reasons (application A34042) [50] - [62].

[157] Appellant's further outline of submissions dated 16 May 2019, par 48.

[158] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, par 93.

[159] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 94 - 95.

[160] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 97.

[161] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 101 - 104.

[162] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 110 - 111.

[163] See Waite v Alcoa of Australia [107].

[164] Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12]; see Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113 [15].

[165] Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, No 146 of 1986, 16 June 1986).

[166] Tobin v Dodd [2004] WASCA 288 [14].

[167] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [73] - [75].

[168] Zerjavic v Chevron Australia Pty Ltd [84].

[170] Arbitrator's decision (application 34042) [25].

[175] WCIMA, s 3(d).

[176] WCIMA, s 188(2)(b).

[177] Exhibit 13 (worker's book of documents), tab M.

[178] Exhibit 13 (worker's book of documents), tab M.

[179] Rekabe v Foxline Logistics [2013] WADC 104 [103] - [104].

[180] Appellant's further outline of submissions dated 16 May 2019, par 26.

[181] Appellant's further outline of submissions dated 16 May 2019, pars 35 - 45.

[182] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, par 69.

[183] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 84 - 86.

[184] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, par 87.

[185] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, par 88.

[186] Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).

[187] Beer v Duracraft Pty Ltd [2004] WASCA 192 [80].

[188] Azzopardi v Tasman UEB Industries Ltd (151) (Kirby P); BHP Billiton v Brady [5].

[191] Arbitrator's decision (application 36114) [160] - [162], [164].

[192] Arbitrator's decision (application 36114) [152].

[193] Arbitrator's decision (application 36114) [171].

[194] Arbitrator's decision (application 36114) [167].

[196] Appellant's further outline of submissions dated 16 May 2019, par 23.

[197] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 58 - 60.

[198] Appellant's further outline of submissions dated 16 May 2019, pars 46 - 47.

[199] Respondent's submissions in respect to APP 4 of 2018 and APP 5 of 2018 dated 30 May 2019, pars 90 - 92.

[200] BHP Billiton v Brady [20].

[201] Cooper Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 (S) (Gething DCJ) (Ellis).

[203] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2017] WASCA 76 (S) [11] - [16].