Duinker v St Vincent de Paul Society Aged and Special Services Limited

Court of Appeal (NSW)|2008-05-20|Before: Beazley JA, Hodgson JA, McColl JA, Coll JA

CITATION: Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; McColl JA at 56

CATCHWORDS: WORKERS COMPENSATION - Determination of claim by Arbitrator - Review of decision by Presidential member - Nature of review - Whether necessary for Presidential member to identify error - Whether Presidential member bound to apply the principle in Abalos - Whether error of law by Presidential member shown.

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 294, 350, 352, 353, 354 Workers Compensation Commission Rules 2006 (NSW), Rule 15.6

Abalos v Australian Postal Commission (1990) 171 CLR 167 Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 Fox v Percy [2003] HCA 22, 214 CLR 118 Mifsud v Campbell (1991) 21 NSWLR 725 CASES CITED: Paric v John Holland (Constructions) Proprietary Limited (1985) 59 ALJR 844 Siddik v WorkCover Authority of NSW [2008] NSWCA 116 South Western Sydney Health Service v Edmonds [2007] NSWCA 16 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; 185 ALR 703 Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190

PARTIES: Nicole DUINKER (Appellant) ST VINCENT DE PAUL SOCIETY AGED and SPECIAL SERVICES LIMITED (Lewisham Nursing Home) ABN 7210 0907 0180 (Respondent)

COUNSEL: P WEBB QC/ D A BAKER (Appellant) S G CAMPBELL SC/ P J MENARY (Respondent)

SOLICITORS: Graham Jones (Appellant) Sparke Helmore (Respondent)

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT JUDICIAL OFFICER: Acting Deputy President Deborah Moore

LOWER COURT MEDIUM NEUTRAL CITATION: St Vincent De Paul Society Aged & Special Services Limited (Lewisham Nursing Home) v Duinker [2007] NSWWCCPD 207

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40558/07 WCC 11002-06

BEAZLEY JA HODGSON JA McCOLL JA

4 JUNE 2008 Nicole DUINKER v ST VINCENT DE PAUL SOCIETY AGED and SPECIAL SERVICES LIMITED (Lewisham Nursing Home) ABN 7210 0907 0180 Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: On 20 November 2006, an Arbitrator of the Workers Compensation Commission determined that the respondent pay the appellant weekly compensation from 4 April 2004 to 3 March 2005, and also certain expenses and costs. 3 The respondent appealed to the Commission constituted by a Presidential member pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act), and on 3 May 2007 Acting Deputy President Moore revoked the decision of the Arbitrator and made an award in favour of the respondent. 4 The appellant appeals to this Court pursuant to s 353 of the WIM Act.

Statutory Provisions 5 Relevant to this appeal are the following provisions of ss 294, 350, 352, 353 and 354 of the WIM Act: 294 Certificate of Commission's determination (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination. …..

350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.

352 Appeal against decision of Commission constituted by Arbitrator (1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator. ….. (5) An appeal under this section is to be by way of review of the decision appealed against. (6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. (7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission. ….. (8) In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.

353 Appeal against decision of Commission constituted by Presidential member (1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal. (2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit. (3) A decision of the Court of Appeal on an appeal under this section is binding on the Commission and on all the parties to the proceedings in respect of which the appeal was made. ….. (5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.

354 Procedure before Commission (1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means. (5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them. (6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing. (7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate. (7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings: (a) if it is satisfied that the proceedings have been abandoned, or (b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or (c) for any other ground of dismissal specified in the Rules. (8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted. 6 Also relevant is Rule 15.6 of the Workers Compensation Commission Rules 2006 (the Rules): 15.6 Certificates of determination (1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include: (a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and (b) the Commission's understanding of the applicable law, and (c) the reasoning processes that lead the Commission to the conclusions it made. (2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.

Decision of Arbitrator 7 It was common ground before the Arbitrator that the appellant worked one day per week (Monday) for the respondent at Lewisham Nursing Home, and on the other four weekdays worked as an assistant for her husband in his painting business. 8 The appellant's evidence accepted by the Arbitrator was to the effect that on 29 March 2004, while working at the respondent's premises, she experienced symptoms in her neck and shoulder; that those symptoms continued over the following days; and that on Sunday 4 April 2004 she woke up with very severe symptoms in those areas which disabled her. 9 The Arbitrator found that the appellant received an injury to her neck arising out of or in the course of her employment with the respondent, and that her employment with the respondent was a substantial contributing factor to the injury. Relevantly, he gave the following reasons: Injury Did Ms Duinker receive an injury to her neck arising out of or in the course of employment with the Respondent? 6. Ms Duinker outlines in her statement continuous symptoms in the neck and shoulders from 29 March 2004 onwards. The Respondent submits that there is insufficient evidence for her to discharge the onus of proof that the injury occurred while working for the Respondent. The Respondent submits that the work with Mr O'Toole in the days following 29 March 2004 up to 4 April is the more likely cause of injury. Ms Duinker gave oral evidence at the arbitration hearing as to the duties she performed with her husband's company in the days following 29 March, largely comprising clerical duties which did not aggravate the neck injury. I found Ms Duinker to be a direct and truthful witness and I accept the account she gives in her written and oral statements as to the circumstances of injury. Her account is also consistent with the medical evidence overall. The Respondent submits that there is insufficient in the medical evidence to establish the relationship between the work on 29 March 2004 and the neck injury. 7. Dr Beer in his report of 2 February 2005 is consistent with Ms Duinker's account, and ascribes the injury to the duties with the Respondent. Dr Bodel for the Respondent is also consistent with her account in the history taken but says "She gives no history of any specific event which led to the onset of her symptoms in the neck and left arm and at this stage there is in my view no definite causal link between the pathology and her work at CFTTB Lewisham Nursing Home." This is also consistent with Ms Duinker's account. The Respondent made the point that there is no report commissioned by the Applicant from the treating specialist neurologist Dr Van Gelder, and that no history of injury to the neck was given to Dr Sachdev or to Dr Bruce. Ms Duinker explained in her evidence that she did tell Dr Gelder as to the shoulder symptoms experienced on the Sunday morning following Monday 29 March 2004, but did not at that time make the connection between the shoulder symptoms and a neck injury. She also explained that she saw Dr Sachdev and Dr Bruce about her hip problem and not about her neck. The account of Ms Duinker as to the development of the symptoms and the nature of her duties with the Respondent, and of her duties with Mr O'Toole after 29 March is sufficient in conjunction with the medical evidence available to satisfy me to the required level that the injury to the neck arose out of or in the course of the employment with the Respondent. Where Dr Beer differs from Dr Bodel I prefer Dr Beer because of the correlation with the other evidence.

Substantial Contributing Factor Was Ms Duinker' employment a substantial contributing factor to the injury? 8. An Applicant must establish that the employment is a substantial contributing factor to the injury. It is not sufficient that the injury arose out of or in the course of the employment, although this is a relevant consideration: Deputy President Byron in NSW Police Service v Kehoe [2004] NSW WCC PD 40. There may be other causative factors of an injury, and a substantial contributing factor is sufficient if the overall impression and degree in the circumstances of the case is that the factor is more than minimal: Deputy President Fleming in Central Coast Area Health Service v Clara Evans [2004] NSW WCC PD 10. 9. I have already preferred Ms Duinker's medical evidence on the issue of injury. Referring to the relevant examples in s9A(2) of the Act, there is no evidence of a previous injury or pre-existing degenerative disease. There was concurrent employment, but the evidence is that there was no injury arising from that. The only apparent cause of the neck pathology is Ms Duinker' employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury. 10 The Arbitrator also gave a list of the evidence taken into account in his decision, including a report of Dr J O'Neill dated 18 August 2006.

Decision of Presidential member 11 The appeal to the Presidential member was brought on three grounds: 1. That the decision of the Arbitrator … is contrary to the weight of the medical evidence before him.

That the Arbitrator … has failed to afford the Appellant procedural fairness by failing to consider all of the medical evidence before him.

That the Arbitrator's decision fails to adequately address how the Applicant discharged the onus of proof in the circumstances. 12 The appellant indicated that she was content for the matter to be determined "on the papers"; and the Presidential member was satisfied that it was appropriate to proceed under s 354(6) of the WIM Act and to deal with the matter on the papers. 13 In the course of considering the first ground of the appeal, the Presidential member said this concerning the evidence of the appellant (who she referred to as "the Worker" and also "Ms Duinker"): 63. In summary then, it must be said that there are, quite frankly, markedly conflicting statements as to the history of the development of neck and arm symptoms. The thrust of the Worker's written statements and her history to Dr Beer is that as a consequence of injuring her hip, she placed increasing strain on her neck and shoulders from carrying out her duties both with the Appellant and in her husband's company, and that these symptoms became particularly marked on 29 March 2004. However, it is not until almost a week later, on 4 April 2004, (or Sunday 5 April 2004) when her symptoms became severe. Yet in her oral evidence, the Worker was adamant that her symptoms arose at work with the Appellant on 29 March 2004. This, as I have said, is consistent with the account of Ms Popovich, and with the initial histories to Professor van Gelder and Dr Bodel. 64. The question to consider then is how to reconcile the Arbitrator's findings and reasons with this conflicting evidence. The Arbitrator stated at paragraph 6 of his 'Statement of Reasons': "Ms Duinker outlines in her statement continuous symptoms in the neck and shoulder from 29 March 2004 onwards". That is not an accurate summation of the Worker's statements. The Arbitrator went on to state "I found Ms Duinker to be a direct and truthful witness and I accept the account she gives in her written and oral statements as to the circumstances of injury. Her account is also consistent with the medical evidence overall." 65. The problem with this statement of course is that the Worker's accounts in her written and oral evidence were inconsistent and indeed, inconsistent with much of the medical evidence. It is not clear on what basis the Arbitrator claims that the Worker's "account" is consistent "... with the medical evidence overall." As I said earlier, no reference is made by the Arbitrator to the opinion of Dr O'Neill and the Arbitrator simply concluded: "Where Dr Beer differs from Dr Bodel [without identifying the particular report of Dr Bodel to which he refers] I prefer Dr Beer because of the correlation with the other evidence." What that "other evidence" is, was not identified by the Arbitrator. Earlier he stated (paragraph 7): "The account of Ms Duinker as to the development of the symptoms and the nature of her duties with the Respondent ...is sufficient in conjunction with the medical evidence available to satisfy me to the required level that the Injury to the neck arose out of or in the course of the employment with the Respondent.'" 66. Again, the "account of Ms Duinker" was conflicting as was "the medical evidence available" as to the cause of the Worker's undoubted cervical disc lesion. It is difficult to fathom how the Arbitrator concluded that this conflicting material was "sufficient" to enable him to conclude that the Worker suffered an injury to her neck arising out of or in the course of her employment with the Respondent. 67. Having indicated that he accepted the opinion of Dr Beer "... because of the correlation with the other evidence", (again, not identified) the Arbitrator went on to conclude that (paragraph 9) "The only apparent cause of the neck pathology is Ms Duinker's employment with the Respondent on 29 March 2004, which I find was as substantial contributing factor to the neck injury." 68. That was clearly not the opinion of Dr Beer, and it completely ignores the opinion of Dr O'Neill as to the possible cause of the neck pathology. Contrary to the Arbitrator's assertion that "... there is no evidence of previous injury or pre-existing degenerative disease", Dr O'Neill, a Neurologist, noted that the radiological investigations showed "... not only the causative disc lesion at C6/7 but also more widespread degenerative changes involving the mid cervical spine." As I said earlier, Dr O'Neill concluded that "it is not uncommon for patients with constitutional degenerative disease of the cervical spine to wake with an acute disc prolapse, forces somehow changing during sleep." 69. Thus the Arbitrator's statement that "the only (my emphasis) apparent cause of the neck pathology..." was as a result of work performed on 29 March 2004 was incorrect. 14 The Presidential member's conclusion on the first ground was as follows: 76. In all the circumstances, I accept the Appellant's submission that the Arbitrator's determination that "the only apparent cause of the neck pathology is Ms Duinker's employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury" was contrary to the weight of all the evidence before him. 77. The Worker's submissions before the Arbitrator and indeed on appeal focus on the argument that the Worker's case was run on two bases firstly, that work performed with the Appellant on 29 March 2004 caused the neck injury or, additionally or in the alternative, the prior hip injury and subsequent alteration in the manner of performing certain tasks was responsible for the C6/7 disc lesion. It is not uncommon in this jurisdiction for alternative propositions to be put forward as the cause or basis of worker's injury. Nonetheless, there must be evidence capable of supporting those propositions. The Arbitrator's acceptance that work performed on 29 March 2004 was causative of the Worker's injury was not only against the weight of evidence, but failed to address unexplained inconsistencies in both the Worker's oral and written evidence and some of her medical evidence, in particular, Dr Beer. Was there sufficient evidence for the alternative proposition? Again, in my view, there was a deficiency in the evidence on this point, it being only Dr Beer who opined that the hip injury and subsequent altered work practices were responsible for the Worker's condition. There was no clear or objective clinical basis for this opinion and it was isolated. Indeed, the Worker's counsel in submissions before the Arbitrator (page 29 transcript) conceded that the "secondary" proposition as it was described could not be sustained. Referring to the consequences of the hip injury, Counsel stated: "... whilst as a specific cause of the Applicant's onset of symptoms in her neck, I can't point to it being the cause of it, clearly, if one is protecting one part of the anatomy and tending to apply greater effort in relation to another part ...it is ...a not unreasonable inference to draw that that predisposed her to the sort of injury, we say, that she suffered on or about 29 March 2004 because of these other limitations, and I think that's the extent of that component of the case." 78. This submission was in effect supplementary to the thrust of the Worker's submissions which were to the effect that work performed on 29 March 2004 was causative of the Worker's condition. It was in effect a concession that Dr Beer was 'out on a limb' with his views on causation. There was no other medical evidence to support the proposition that the hip injury and its consequences in some way "predisposed" the Worker to the injury it was claimed she sustained on 29 March 2004. 15 The Presidential member's conclusion on the second ground of appeal was as follows: 83. I am of the view that the Arbitrator's 'Statement of Reasons' does demonstrate that he failed to consider all the medical evidence before him in particular, the omission of any reference whatsoever to the opinion of Dr O'Neill, notwithstanding detailed submissions made by the Appellant's legal representative before the Arbitrator as to the contents of that report. I see this not so much as an issue of 'procedural fairness' but rather an error by the Arbitrator in his apparent failure to have regard in particular to the opinion of Dr O'Neill and indeed to all the radiological material before him. 16 Her conclusion on the third ground was as follows: 95. These unexplained and unresolved inconsistencies, particularly the Worker's oral evidence and her conflicting written statements (particularly the second statement) have led me to the view that the Worker has failed to discharge the onus of proof upon her in establishing a causal connection between her work with the Appellant and her neck injury. I have very carefully considered all the evidence before the Arbitrator, the Worker's oral evidence and the parties' submissions before the Arbitrator. It is difficult to reconcile the Arbitrator's statement that the Worker was "a direct and truthful witness" in circumstances where her oral evidence differed so markedly from her written statements. This is not a criticism as such: I merely point out the discrepancies in her oral and written evidence. That oral evidence was also inconsistent with the history given to Dr Beer upon whom the Arbitrator appears to have placed great reliance. The Arbitrator's 'Statement of Reasons' contained glaring inconsistencies to which I have referred previously, in particular, his acceptance of the Worker's written and oral statements as being "consistent with the medical evidence overall" where that medical evidence was not identified and further, his statement that the Worker's account was consistent with the report of Dr Beer. Her written statements were to some extent consistent, but her oral evidence was utterly inconsistent. 17 Accordingly, the Presidential member came to the following conclusions on the appeal: 97. The Arbitrator's failure to resolve these conflicting accounts reflect a fundamental error in his reasons, and his determination must accordingly be set aside. My powers on review of an Arbitrator's decision contained in section 352 of the 1998 Act permit me, having revoked the decision, to either issue a new decision or remit the matter to an Arbitrator for re-determination.

Having reviewed the whole of the evidence, I am not persuaded that it is appropriate to remit the matter for re-determination. There was a considerable amount of evidence before the Arbitrator, and the Worker gave extensive oral evidence. She was represented by Counsel, and both parties made detailed submissions to the Arbitrator contained in the transcript to which I have referred. Notwithstanding the Arbitrator's acceptance of the Worker as a "direct and truthful witness" the unexplained and unresolved inconsistencies in all the evidence have led me to the view that the Worker failed to establish, on the balance of probabilities, the relevant causal connection between her employment with the Appellant and her undoubted C6/7 disc lesion.

Issues on Appeal 18 The appellant relies on the following grounds of appeal: 1. The Deputy President misdirected herself in the course of her review of the Arbitrator's decision in disturbing the decision of the Arbitrator as to the credibility of the Appellant. 2. The Deputy President misdirected herself in the course of her review of the Arbitrator's decision in determining that the Arbitrator's determination was contrary to the weight of medical evidence before him by reference to her opinion of the credibility of the Appellant. 3. The Deputy President erred in law in failing to consider the advantage of the Arbitrator in observing and assessing the demeanour of the Appellant. 4. The Deputy President erred in law in failing to provide any, or any sufficient reasons for determining that the evidence she relied upon made the Appellant's case "glaringly improbable" or incontrovertibly denied that case. 5. The Deputy President erred in law in failing to consider whether the evidence she relied upon made the Appellant's case "glaringly improbable" or incontrovertibly denied that case. 6. The Deputy President erred in law in finding that there were unexplained and unresolved inconsistencies in all the evidence sufficient to displace the Arbitrator's acceptance of the Appellant as a "direct and truthful witness". 19 Under s 353 of the WIM Act, an appeal lies to this Court only on a point of law. As developed, the grounds of appeal came down to one point of law, namely that the Presidential member erred in law in that she did not have regard to the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167, because she did not address the significance of the Arbitrator's finding that the appellant was a direct and truthful witness, and did not address what exceptions could justify an appellate tribunal departing from such a finding. 20 This in turn gave rise to a number of issues: (1) Does the Abalos principle apply to a review under s 352 of the WIM Act? (2) Was the credibility of the appellant an issue before the Arbitrator and the Presidential member? (3) Did the Presidential member err in law in not confirming the decision of the Arbitrator? (4) Did the Presidential member err in law in giving a decision in favour of the respondent? 21 I will deal with these issues in turn.

Application of Abalos 22 Mr Webb QC for the appellant submitted that the Presidential member was bound to apply the principle in Abalos, and that failure to do so would be an error of law. 23 He submitted that the cases of Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 and Boston Clothing Co v Margaronis (1992) 27 NSWLR 580, although decided under earlier workers compensation legislation, supported the applicability of Abalos. Mr Webb also referred to the case of W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; 185 ALR 703 at [64]: although in relation to that case, it should be noted that it dealt with s 476 of the Migration Act 1958 (C'th), under which there were limited grounds that could be relied on in an application for review. 24 Mr Campbell SC for the respondent submitted that Watson and Boston did not support the application of Abalos; and that the case of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 was against it. 25 I accept that the nature of a review under the previous legislation was considered in some detail in Watson and in Boston; but in my opinion neither case is clear authority one way or the other on the application of the Abalos principle. 26 In Watson at 195-206, Kirby P (with whom Handley JA and Hope AJA generally agreed) discussed the nature of a review; and he concluded (at 205) that such a review was "something wider than the narrow form of a reconsideration on appeal, strictly so called", but that there was "the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision of the challenge". The discussion that followed that statement suggests an assumption that the Abalos principle applied, but did not clearly assert this. 27 In Boston, the assumption that the Abalos principle applied is perhaps clearer (588-89), because the appeal was dismissed on the basis that the judge of the Compensation Court had applied that principle and had not erred in doing so. However, again there is no clear statement that the principle applied. 28 The present scheme is different from the previous scheme, among other things in that the review is not by a judge but by a tribunal whose operations are governed by s 354 of the WIM Act, which dispenses with formality and with the rules of evidence. This new scheme was discussed by McColl JA (with whom Giles JA and Tobias JA agreed) in South Western Sydney Health Service v Edmonds [2007] NSWCA 16 at [55]-[74] and [86]-[96], where her Honour came to the conclusion that s 354 does not exclude an obligation to afford procedural fairness. See also the further discussion of the present scheme by McColl JA (with whom Mason P agreed) in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 29 The nature of a review by the Presidential member was discussed in Chemler, at [22]-[29] by Spigelman CJ (with whom Basten JA and Bryson AJA agreed): [22] The scope of an internal merits review by a Presidential member is an important safeguard for the proper operation of the legislative scheme. Arbitrators' decisions, particularly on issues of credit, are entitled to respect. That does not, however, mean that such a merits review process should operate on the basis of some kind of presumption that the first instance decision-maker should redetermine the matter.

[23] In s 4 of the Act is a statement of objectives of the workers compensation system which concludes with the objective: 4(f) to deliver the above objectives efficiently and effectively.

[24] It is inconsistent with this objective to confine the discretion of the Presidential member to make a "new decision" in the manner proposed.

[25] Furthermore, a specific power, designed to serve objective 4(f), to hold what has been called a "paper hearing" is found in s 354(6):

354(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.

[26] This power may be exercised by a Presidential member conducting a review. The existence of such a broadly expressed discretion is itself inconsistent with the Appellant's contention that the power to review a decision is constrained.

[27] I note that the Acting Deputy President determined to proceed without a formal hearing. No challenge has been made to his 'satisfaction' that he had "sufficient information".

[28] The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of "review" instead of "appeal" with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.

[29] That line of authority is also inconsistent with the kind of restriction on the powers of a Presidential member for which the Appellant contends. (See Mansini v Director General of Education (1990) 6 NSWCCR 1 at pp 4-20; Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds [2007] NSWCA 16 at [133]-[134].) 30 In his separate judgment, Basten JA also said this: [63] The procedural challenge must therefore depend upon the proposition, as put in written submissions, that it was "not open" to the Deputy President to reverse a finding of fact made by the arbitrator. This proposition was based on the assertion that the appeal undertaken by the Deputy President was in the nature of a "review" and was therefore not a hearing de novo. By that it was presumably meant that because s 352(1) permitted an "appeal" against the decision of an arbitrator, the Presidential member considering the appeal was required to identify error on the part of the arbitrator.

[64] There are several difficulties with that approach. First, it appears to depend upon the classification of appeals in accordance with the terminology adopted in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621-622 (Mason J) and more recently identified in Coal and Allied Operations Pty Ltd v Australian Industrials Relations Commission (2000) 203 CLR 194 at [11]-[14]. Even if the appeal were to be placed in one class rather than another, as a matter of statutory construction the nature of the appeal by way of review should not be seen to be so constrained. Section 352(7) permits a Presidential member to confirm a decision or to revoke it and make a "new decision" in its place. Further, s 354 permits the Commission to conduct its proceedings with as little formality and technicality as the proper consideration of the matter permits, not to be bound by the rules of evidence and to act according to "equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 354(3). In particular, the Commission is relieved of any obligation to conduct proceedings "by formal hearing" and may conduct them by way of "a conference between the parties", or "without holding any conference or formal hearing": s 354(4) and (6).

[65] The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision: see generally Sue v Hill (1999) 199 CLR 462 at [42] (Gleeson CJ, Gummow and Hayne JJ); Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gleeson CJ and Handley JA); Italiano v Carbone [2005] NSWCA 177 at [70]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [87]-[94] (McColl JA, Tobias and Giles JJA agreeing), and Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158 at [42]. So long as each party has notice of, and a reasonable opportunity to address, the case against it, there is no reason to suppose that the Commission is not at liberty to determine how it will proceed and whether it should make a new decision. A different approach may apply in relation to a grant of leave to appeal, but that is not in issue in the present case: cf Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 275 (Deane, Gaudron and McHugh JJ).

[66] There are two further reasons, specific to the circumstances of this case, which indicate that there was no legal error on the part of the Deputy President in reconsidering the factual findings made by the arbitrator. The first was that this Court had set aside the decision of the arbitrator, but had not otherwise constrained the statutory power to be exercised by the Commission constituted by the Deputy President. Secondly, it was open to the Deputy President to consider and assess the findings made by the arbitrator. As the Deputy President fairly commented, the arbitrator had not made findings in the terminology of s 11A of the Workers Compensation Act 1987 (NSW) ("the 1987 Act"), in considering the effects of the disciplinary action and had made statements which the Deputy President described as confusing. That confusion needed to be resolved, as the Deputy President correctly recognised. 31 These passages in Chemler raise but do not clearly resolve two questions relevant to the present case: (1) Does the Presidential member have to identify an error before intervening? (2) Is the Presidential member bound to apply the Abalos principle? 32 As regards the first question, it is generally the case that an appeal court, dealing with an appeal from a first instance judge, will not intervene on a question of fact unless it is affirmatively satisfied that the decision of the first instance judge is wrong. This is particularly significant in relation to matters on which minds may reasonably differ, such as an assessment of what reasonable care requires. In relation to such matters, an appeal court recognises that minds may reasonably differ, and even if its own view, if it were approaching the matter de novo, would be different from that of the primary judge, it will not substitute its own view unless it is satisfied that the primary judge's view is wrong, in the sense of being one not reasonably available or vitiated by some error. A question whether this approach applies in the case of a review under s 353 of the WIM Act could be significant, particularly in relation to a question whether a worker's employment was a "substantial contributing factor" to an injury, within s 9A of the Workers Compensation Act 1987. The discussion by Basten JA at par [63]-[66] in Chemler suggests that this approach would not apply, so that it would be open to a Presidential member carrying out a review under s 353 of the WIM Act to substitute his or her own preferred view on such a question, even if he or she was not affirmatively satisfied that the Arbitrator's view was wrong. Paragraph [29] in the judgment of Spigelman CJ in Chemler also tends to support that view. 33 As regards the second question, it is clear that the Presidential member conducting such a review must apply substantive rules of law and must accord procedural fairness; but it is doubtful whether s 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos. Again, the discussion in Chemler seems to suggest that it is not. 34 For reasons I will give, in my opinion the Presidential member did not commit any error of law in this case, even if she was obliged to identify an error before intervening, and even if the Abalos principle applies. Accordingly it is not necessary to come to a final view on the two questions I identified.

Issue of Credibility 35 Mr Webb submitted that the credibility of the appellant was an issue before the Arbitrator, and also before the Presidential member. He submitted that this issue was found in favour of the appellant by the Arbitrator, and that this finding should have been accepted by the Presidential member but was not. 36 In my opinion, although some issue as to the credibility of the appellant was raised before the Arbitrator and also before the Presidential member, this was not the only or even the main issue. There was some challenge to the veracity of the appellant's account before the Arbitrator, but in final submissions (Combined Book 29), Counsel for the respondent said that her credibility was not in issue, and it is apparent (Combined Book 30) that the main thrust of his submission was that (accepting her as a credible witness) the combination of her evidence and the medical reports did not establish that the severe neck problem that gave rise to disability, which undoubtedly occurred on 4 April 2004, was due to injury arising out of or in the course of her employment with the respondent, or was something to which the employment with the respondent was a substantial contributing factor. 37 In my opinion also, that was the thrust of the submissions to the Presidential member, and the basis on which the Presidential member dealt with the case.

Error in not confirming the Arbitrator's decision? 38 Mr Webb submitted that the Presidential member embarked on making her own decision without identifying error by the Arbitrator; and that to the extent that the Presidential member purported to identify any error by the Arbitrator, there was in fact no such error and the Presidential member committed an error of law. 39 In my opinion, apart from her general review of the medical evidence, the Presidential member did identify at least two specific errors by the Arbitrator: (1) The statement that there was no evidence of degenerative changes. (2) An inconsistency between the Arbitrator's finding that the only apparent cause of the neck pathology was the appellant's employment with the respondent on 29 March 2004, and his statement that Dr Beer's report was consistent with the appellant's account; in circumstances where Dr Beer's report was based on a history of symptoms in the neck and shoulder noticed in late 2003 and increasing from then until 29 March 2004, supporting an opinion that the disc lesion was consistent with the nature of the duties she was carrying out with the respondent. 40 Mr Webb submitted that these were not errors. 41 As regards the first matter, he submitted that the Arbitrator's failure to refer to the report of Dr O'Neill, apart from simply listing it, was not a deficiency of reasons, having regard to the limited nature of the duty of an Arbitrator to give reasons. He further submitted that the statement that there was no evidence of degenerative changes meant only that, for the purpose of considering whether the employment was a substantial contributing factor, there was no evidence of pre-existing degenerative changes which were relevant to that issue and which would materially count against a finding that the employment was a substantial contributing factor. 42 As regards the second matter, Mr Webb submitted that any divergence between the facts as found by the Arbitrator and the history relied on by Dr Beer was not material, and did not significantly affect the weight of Dr Beer's opinion. 43 On the first matter, I am prepared to accept that, having regard to the task given to Arbitrators by the WIM Act and the provisions of s 294(2) of the WIM Act and Rule 15.6 of the Rules, it would not have been an error of the kind identified in Mifsud v Campbell (1991) 21 NSWLR 725 for the Arbitrator in this case not to have referred specifically to the opinion of Dr O'Neill. However, in my opinion the Arbitrator's categorical statement that "there is no evidence of a previous injury or pre-existing degenerative disease" was simply wrong, and cannot be explained away as submitted by Mr Webb. The report of Dr O'Neill was plainly evidence of a pre-existing degenerative condition, and plainly capable of preventing a finding that the appellant's employment with the respondent was a substantial contributing factor to the injury. 44 Accordingly, there was at least one error justifying intervention by the Presidential member, assuming that identification of such an error was necessary. As regards the second matter, I will consider it in connection with my consideration of the final issue.

Was there an error of law in deciding in favour of the respondent? 45 Mr Webb submitted that the Presidential member erred in not applying the Abalos principle; and that this was shown by her failure to refer to that principle and by failing to accept the appellant's account of the circumstances of her injury, in the absence of grounds for departing from the findings of the Arbitrator. Insofar as the Presidential member referred to internal inconsistencies between the appellant's written statements and her oral evidence, there were no material inconsistencies; and insofar as she referred to divergence between the appellant's oral evidence and the history accepted by Dr Beer, there was no material divergence. 46 As noted earlier, the Arbitrator had found that the only apparent cause of the appellant's neck pathology was her employment by the respondent on 29 March 2004. In her oral evidence, the appellant had said that she first noticed pain coming on on 29 March 2004; and when asked "Not prior? Not at any time prior?" she had answered "Only that you have tenseness, but I didn't actually connect that with anything" (Combined Book 12). 47 On the other hand, in her first written statement, the appellant had said: 25. On 9 December 2003 I had my contract renewed. It involved reduced pay and new duties. These included carrying equipment, moving garbage, moving metal beds with assistance, carrying commercial vacuum cleaners up and down stairs, moving tables, setting up boardrooms, etc. My weekly gross wage was $120.07 per week, plus overtime, however, I was no longer casual.

I continued to perform my duties for another 3 months. In this time I noticed that my symptoms were increasing around my neck and shoulders when performing my duties.

On 29 March 2004 I performed my normal duties at Lewisham Nursing Home. I was noticing that I was experiencing an ache in my left shoulder, across my neck and over to my right shoulder and I ceased work. I went home and picked up the children from school. I took an analgesic for the pain and went to bed. 48 And in her Further Written Statement, the appellant said this: 9. Following an injury at Lewisham Nursing Home on 8 September 2003 I was placed on light duties with Seumus O'Toole Renovations as I had injured my hip at the home moving an 'otto' bin. Annexed and marked with the letter "B" is a revised job description dated 23 September 2003.

After 14 March 2004 I took the next week off work as I had started getting symptoms in my left shoulder, across my neck and over to my right shoulder whilst performing my duties at Lewisham Nursing Home. I had not said anything to Lewisham Nursing Home and thought it would 'simply get better'.

On 29 March 2004, whilst performing my duties at Lewisham Nursing Home, I noticed an ache in my left shoulder, across my neck and over to my right shoulder and I ceased work. I went home and picked up the children from school. I took an analgesic for the pain and went to bed. 49 As noted earlier, Dr Beer's opinion relied on a history of pain from late 2003, and his opinion as to the relationship of the appellant's condition to her employment adverted to the nature and conditions of her employment, by implication at least, over a number of months leading up to 29 March 2004. 50 In my opinion, these matters did raise substantial questions whether the written statements and the oral evidence were consistent, whether they (and particularly the written statements) were consistent with the Arbitrator's finding as to the causative effect of what happened on the 29 March 2004, and whether the history as found by the Arbitrator diverged materially from that on which Dr Beer's opinion was based. 51 The question then is, assuming it would be an error of law not to apply the Abalos principle, was there such an error by the Presidential member? In considering this question, it is appropriate to note that there has been some fluctuation over time as to exactly what this principle requires; and I would take the present authoritative statement to be that in Fox v Percy [2003] HCA 22, 214 CLR 118, especially at pars [23]-[31]. 52 In my opinion, it was open to the Presidential member to regard the difference between the written statements and the oral evidence as material inconsistencies, and to regard the divergence between the history as found by the Arbitrator and the history relied on by Dr Beer as also being material. The Presidential member was not rejecting or disregarding the Arbitrator's finding as to the credibility of the appellant, but rather seeking to determine how that finding should be given effect to, in the circumstances. In those circumstances, in my opinion it could not be said that the approach taken by the Presidential member was contrary to the Abalos principle, or such as to indicate she was not complying with the Abalos principle. 53 In my opinion, if there were any error in her view as to inconsistencies in the appellant's evidence and/or divergence between the findings of the Arbitrator and the history relied on by Dr Beer, this would at most be an error of fact. I note that in Paric v John Holland (Constructions) Proprietary Limited (1985) 59 ALJR 844 at 846, the High Court affirmed the view that the question whether the case assumed by an expert was "sufficiently like" the case proved to render the opinion of the expert of any value, was a question of fact. 54 Accordingly, in my opinion, assuming the Abalos principle applies, there was no error of law.

CONCLUSION 55 For those reasons, in my opinion, the appeal should be dismissed with costs. 56 McCOLL JA: I agree with Hodgson JA. **********

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Workers Compensation Commission Rules 2006(NSW)

(1994) 10 NSWCCR 287

At a glance

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Judgment (47 paragraphs)

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Legislation Cited (3)

Cases Cited (20)