Taylor v J & D Stephens Pty Ltd

Court of Appeal (NSW)|2018-07-05|Before: Payne JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was employed as a shearer, wool presser and shed hand from 1996 to 2011, at times by the respondent. From 2012 to 2015 the respondent was his employer. On 24 June 2015, in the course of that work, he was injured as a result of a faulty piece of equipment. He suffered a crush injury to his right arm. Subsequent medico-legal examination revealed injuries to his right upper extremity, left upper extremity, neck, back, left and right lower extremity which were said to have resulted from the nature and conditions of his employ. The appellant filed a claim in the Workers Compensation Commission (the Commission). The claim was referred to an Arbitrator. The only claim for determination was the claim for lump sum compensation in relation to the nature and conditions injury under s 66 of the Workers Compensation Act 1987 (NSW) (WC Act). The claim was made in reliance on s 4(b)(i) and (ii) of the WC Act. The Arbitrator issued a Certificate of Determination on 20 June 2017. She found that the appellant had failed to prove that he had suffered a "disease injury" within the meaning of s 4(b)(i) or (ii). The essential reason for her conclusion lay in the absence of any "contemporaneous" complaints of symptoms, and what she perceived as inconsistencies in the evidence provided on behalf of the appellant. The appellant appealed to the Commission constituted by a Presidential member (a Deputy President) against the determination. The appeal was limited to whether the decision of the Arbitrator was affected by any error of fact, law or discretion, and correction of any such error. On appeal, the appellant's principal ground of appeal was that the Arbitrator had misdirected herself as to whether there needed to be a complaint of symptoms for the appellant to establish he had suffered an injury. The Deputy President rejected the appeal and confirmed the determination of the Arbitrator. The Deputy President held that the challenge raised in the appeal was not raised or argued before the Arbitrator at first instance, and in any event was without merit. On appeal from the decision of the Deputy President, the appellant raised, inter alia, similar grounds of appeal. An appeal from a decision of a Presidential member lies only on a point of law. Held Per McColl AP: Counsel for the appellant put to the Arbitrator that the evidence demonstrated the appellant had suffered a physiological change sufficient to constitute an "injury" for the purposes of s 4(b)(i) and (ii) of the WC Act: at [12]. There was uncontroverted medical evidence that the injuries and the degenerative conditions the appellant suffered were occupational diseases for shearers, which was supported by the appellant's evidence of the "heavy, arduous and dangerous" work of a shearer leading to him suffering pain and discomfort in the parts of his body the subject of his nature and conditions claim: at [4] - [6]. It was sufficient as a matter of law for the appellant to establish "injury" of the nature of which he complained that he had suffered "a disturbance of the normal physiological state which may produce physical incapacity and suffering", but not necessary that he had complained of that injury: at [8]. The appellant ran this case before the Arbitrator who gave no reasons as to why it was not accepted: at [12] - [14]. The Deputy President erred in failing to identify the Arbitrator's error in misdirecting herself with respect to the proper test to determine the "disease injury": at [15]. The Deputy President's failure to identify the Arbitrator's error meant there had been a constructive failure to exercise the jurisdiction s 352 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) conferred, constituting an error of law: at [17]. Per Simpson AJA at [100]-[108] (McColl AP and Payne JA agreeing), upholding the appeal and remitting the matter to the Commission: (2) Inherent in a complaint of the application of an incorrect test is a complaint that that application has yielded a wrong result. The Deputy President failed to exercise jurisdiction by placing too narrow a construction on the argument that had been put before the Arbitrator. (3) The Deputy President failed to address the substance of whether a complaint of symptoms is necessary before disease injury can be established. Failing to deal with that argument denied the appellant procedural fairness. In adopting the Arbitrator's approach to determining the issue, by excluding reference to medical and radiological evidence, the Deputy President failed to give adequate weight to relevant considerations. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1008 cited; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 cited; Lovell v Lovell (1950) 81 CLR 513 cited; Kumar v Legal Services Commissioner [2015] NSWCA 161 cited.

Judgment

McCOLL AP: I have had the benefit of reading in draft the reasons of Simpson AJA. I agree with her Honour's reasons and with the orders her Honour proposes.
I make the following additional observations.
There was no controversy before the Arbitrator that there were no contemporaneous references in the treating medical evidence of injuries or symptoms experienced in the body parts the appellant alleged in his nature and conditions/disease injury claim in the period the appellant worked for the respondent. [1]
However, Dr Dixon's uncontroverted evidence was that: "This claimant had been working as a shearer in excess of 10 years, shearing an average of 150 sheep per day, averaging 750 sheep in a five day week, averaging 36,000 sheep per year. The stresses and strains on the right upper extremity, left upper extremity, neck, back, left and right lower extremity due to the repetitive nature of his work as a shearer has led to acceleration of his right upper extremity, left upper extremity, neck, back, right lower extremity and left lower extremity [sic, injuries]. These injuries and the degenerative conditions are occupational diseases for shearers."
This evidence was supported by the appellant's statement of 12 October 2015 in which he described in detail the "heavy, arduous and dangerous work" of a shearer. In particular, he explained that: "This work is back breaking work, which puts a lot of pressure on your neck, shoulders, elbows, wrists, knees and ankles, and especially your wrists and hands …".
The appellant concluded that statement by saying, relevantly, that as a result of "the nature and conditions of my employment as a shearer for many years, I suffer pain and discomfort in the following parts of my body." He then identified the parts in relation to which the nature and conditions claim was made.
When Dr Powell was asked by the respondent's legal representatives to determine whether any of the conditions or injuries of which the appellant complained related to the nature and conditions of his employment, he commented that Mr Taylor "is employed as a shearer and this is quite a physically demanding occupation." He said he would need to re-examine the appellant to express an opinion. The respondent did not take that any further.
The appellant's claim for compensation arising out of the nature and conditions of his employment was based upon s 4(b)(i) and (ii) of the Workers Compensation Act 1987 (1987 Act). As expressed in this Court, the appellant's case was that, pursuant to Zickar v MGH Plastic Industries Pty Ltd, [2] it was sufficient for him to establish "injury" of the nature of which he complained that he had suffered "a disturbance of the normal physiological state which may produce physical incapacity and suffering …". [3] He contended, however, it was not necessary he had complained of that injury. The respondent did not contest this proposition.
Before the Arbitrator, counsel for the appellant contended, in a somewhat more vernacular way, as the Arbitrator recorded: "69. Mr Taylor's counsel submits that Mr Taylor is now only 43 years of age and he has quite significant degenerative changes in his cervical and lumbar spines. He submits referring to Judge Burke, that 'shearers and bad backs always go together like a horse and cart or husband and wife.' He also relies on Dr Powell's statement that work as a shearer is quite a physically demanding occupation. …"
The reference to Judge Burke was a reference to the decision of his Honour in Harris v Sweeney, [4] which counsel drew to the Arbitrator's attention. In addition, counsel drew the Arbitrator's attention to Miller v RC & DM Skinner t/as Deloraine Partnership (No 2), [5] in which Nielson CCJ observed that: "… shearing is notoriously stressful to the back. One could almost categorise degenerative disease of the back as an occupational disease for shearers. Cases of a shearer's back are common before this Court."
In each of these cases, on evidence similar to Dr Dixon's, and with shearers with work histories similar to the appellant's, experienced workers compensation judges had no difficulty in finding the applicant was entitled to compensation under the 1987 Act.
It could not, in my view, be gainsaid that counsel for the appellant was putting to the Arbitrator that the evidence demonstrated the appellant had suffered a physiological change sufficient to constitute an "injury" for the purposes of s 4(b)(i) and (ii) of the 1987 Act.
The Arbitrator accepted that the appellant's work "over many years as a shearer involves heavy manual work, which is repetitive in nature, and can have periods in the day where work is at a fast pace." [6] She referred to Dr Powell's statement that "[w]ork as a shearer is physically demanding and involves prolonged and repetitive use of the upper limbs", [7] and to Dr Dixon's opinion that the symptoms in the parts of the appellant's body the subject of the nature and conditions claim could be "categorized as a disease condition being an underlying premorbid pathological condition which results from his work as a shearer". [8]
The Arbitrator also did not doubt that "work as a shearer is heavy work and physically demanding, and is a type of work that could cause injury to the body parts claimed and aggravation of disease." However, she rejected the appellant's claim on two bases. First, she found "the evidence is lacking … that it did cause injury." [9] She gave no reasons as to why she rejected Dr Dixon's unchallenged evidence to the contrary. Nor, save for the quote from Judge Burke, did she refer to the cases the appellant's counsel had drawn to her attention. Secondly she held the appellant had not discharged his burden of proof because of "a lack of contemporaneous complaints about these body parts, [and] … inconsistencies in his histories …". [10]
The Deputy President identified the appeal before her as being "founded on a complaint that the Arbitrator misdirected herself with respect to the proper test to determine the 'disease injury' …" [11] However, she dismissed this challenge to the Arbitrator's decision as it "was not raised or argued before" the Arbitrator. [12] This was notwithstanding the fact that the Deputy President accepted the transcript recorded submissions made by counsel for the appellant before the Arbitrator that the nature of his work was "heavy, that he suffered a degenerative condition and that the disease can be described as 'occupational'". [13] In addition, as the respondent acknowledges, counsel for the appellant submitted before the Arbitrator that absence of complaint did not equate to absence of symptoms.
In my view, the Deputy President's failure to identify the Arbitrator's error means there has been a constructive failure to exercise the jurisdiction s 352 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) conferred, this constituting an error of law.
I make the following additional observations.
In this Court, counsel for the appellant's submissions commenced with the proposition that proceedings before the Workers Compensation Commission, a specialist tribunal, proceed on the basis, that as such, it is well familiar with fundamental principles related to its area of specialty.
With respect to the Arbitrator and the Deputy President, while perhaps counsel's vernacular reference to the "principles" he was contending the Arbitrator should apply [14] should have been more polished, he was identifying fundamental principles with which those in the Commission should be familiar and should be accustomed to applying as binding in the interpretation of, relevantly, the 1987 Act.
By the same token, it is incumbent on counsel to draw a decision-maker's attention to critical decisions, rather than assume familiarity with what might be accepted to be established principle.
PAYNE JA: I have read the decision of Simpson AJA in draft. I agree with her Honour's reasons. I wish to add some additional observations which are not intended to be inconsistent with those reasons. In what follows familiarity with the relevant facts described by her Honour is assumed.
The appeal to this Court is limited by s 353 of the WIM Act to one where a party is aggrieved by the decision "in point of law". Care must be taken that this Court does not impermissibly stray beyond the limits fixed by s 353 of the WIM Act.
This is a case where, as Simpson AJA explains, the Presidential member did not receive the assistance that she was entitled to from the parties. Nevertheless, I have concluded that error in point of law has been established and the matter must be remitted to the Workers Compensation Commission.
First, I agree with Simpson AJA that that the content of the test to establish an "injury" within the meaning of s 4 of the WC Act was not a "new argument raised for the first time" by the appellant before the Presidential member. It was an error in point of law for the Presidential member so to conclude.
What was put to the Arbitrator was that contemporaneous complaint of symptoms was not an element of the test to find "injury" within the meaning of s 4 of the WC Act. As Simpson AJA explains, the Arbitrator regarded the issue of contemporaneous complaint as relevant to the question of whether the appellant had suffered an "injury" as defined. In coming to the view that that this issue had not been argued before the Arbitrator, and therefore declining to allow it to be raised before her, the Presidential member erred in point of law. To the extent that the Presidential member went on to consider the argument put by the appellant on a contingent basis, that consideration addressed a different issue, namely whether upon a correct application of the test the appellant had established that his injury was causally related to his employment within the meaning of s 4(b) of the WC Act.
Secondly, the Presidential member did not address the substance of the appellant's ground one. As I have said, the contingent basis upon which the Presidential member considered the appellant's case addressed a different issue, namely whether upon a correct application of the test the appellant had established that his injury was causally related to his employment within the meaning of s 4(b) of the WC Act. Failing to address the appellant's ground one, and the question of whether the appellant had suffered an "injury" within the meaning of s 4 of the WC Act, was an error in point of law: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229.
I agree with the orders proposed by Simpson AJA.
SIMPSON AJA: The Workers Compensation Act 1987 (NSW) ("the WC Act") and the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) ("the WIM Act") in tandem establish an elaborate procedure for the determination of claims for compensation for injuries suffered by workers arising out of or in the course of their employment.
The appellant in these proceedings unsuccessfully made such a claim. He now appeals against the dismissal of that claim. In order to do so he needs an extension of the time fixed for filing the appeal. His solicitors, by misunderstanding the relevant time provisions, failed to file the appeal within the time prescribed by the Uniform Civil Procedure Rules.
The respondent opposes the grant of an extension of time. It does not complain of any prejudice. Its opposition is limited to what it contends to be the unmeritorious nature, and therefore the futility, of the proposed appeal. I am satisfied, on the explanation provided for the failure to file the appeal within the time provided, that an extension of time ought to be granted. Further, in my view the appellant has demonstrated error of law on the part of the Deputy President.
It is convenient to commence these reasons by referring to the relevant provisions of the legislation.

The Workers Compensation Act

By s 9(1) of the WC Act a worker who has received an injury is entitled to receive from his or her employer compensation in accordance with the WC Act.
For present purposes the critical provision of the WC Act is s 4, which relevantly defines "injury" in the following way: "'injury': (a) means personal injury arising out of or in the course of employment, (b) includes a 'disease injury', which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, … (para (c) excludes certain diseases, and is not presently relevant). "Disease" is not defined.
It can be seen that there are three components to a "disease injury" - the existence of a "disease", that the disease was contracted (or aggravated etc) in the course of employment, and that the employment was the main contributing factor to the contraction (or aggravation etc) of the disease. If all three are demonstrated, the worker has suffered a "disease injury" within the meaning of s 4(b), and is entitled to benefits as prescribed by Part 3 of the WC Act.
Section 66 provides, in certain circumstances, for compensation where a worker has suffered an injury that results in permanent impairment. It applies where the degree of permanent impairment is greater than 10%. Subsection (2) specifies the amount of compensation payable depending on the degree of permanent impairment. "Permanent impairment" is not defined. However, by s 65, permanent impairment is to be assessed as provided by that section and Part 7 of Chapter 7 of the WIM Act. By s 65(3), where there is a dispute about the degree of permanent impairment of an injured worker, compensation under s 66 may not be awarded unless the degree of permanent impairment has been assessed by an "approved medical specialist", appointed under s 320 of the WIM Act.
Sections 15 and 16 of the WC Act make provision for the liability of employers where the injury for which compensation is claimed is "of such a nature as to be contracted by a gradual process" or "consists in the aggravation, acceleration, exacerbation or deterioration of a disease". In each case, any compensation awarded is to be payable by the employer who last employed the worker in employment to the nature of which the disease is due or that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration thereof. These provisions have no direct application to the issues arising in the present appeal; they are mentioned only because they have featured from time to time throughout the proceedings at first instance (in the Workers' Compensation Commission) and in this Court. Similarly, s 9A, which provides that no compensation is payable under the WC Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury, is not material, but has featured from time to time in the arguments advanced. The Commission did not resolve this issue because it rejected the appellant's claim that he had suffered "injury".

The WIM Act

The WIM Act deals, inter alia, with the processes by which compensation under the WC Act is claimed and awarded. For that purpose, by s 366, the Workers Compensation Commission ("the Commission") is established.
Part 2 of Chapter 7 deals with claims for compensation. It imposes duties on both claimant workers and employers and lays down the procedures to be followed.
By s 288(1) any party to a dispute about a claim under the WC Act may refer the dispute to the Registrar of the Commission for determination by the Commission. By s 375(1) any such claim is to be heard by the Commission constituted by an Arbitrator.
Section 320 provides for the appointment of "approved medical specialists" for the purpose of Part 7 of Chapter 7 of the WIM Act, which applies to medical assessment.
By s 322(1) assessment of the degree of permanent impairment for the purposes of the WC Act is to be made in accordance with Workers Compensation Guidelines issued under s 376 of the WIM Act by the State Insurance Regulatory Authority.
By s 352(1) a party to a dispute in connection with a claim for compensation may appeal against a decision made by an Arbitrator to the Commission constituted by a Presidential member. By subs (5) an appeal under subs(1): "is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error". Expressly, the appeal is not a review or new hearing.
By s 353 a party to proceedings before the Commission constituted by a Presidential member who is aggrieved by the decision in point of law may appeal to this Court.

Factual and Procedural Background

The appellant was born in 1974. From 1996 to 2011 he was employed as a shearer, wool presser and shed hand, at times by the respondent. From 2012 to 2015 the respondent was his employer. On 24 June 2015, in the course of that work, he was injured as a result of a faulty piece of equipment. He suffered a crush injury to his right arm. He claimed, and was paid, compensation under Part 3 of the WC Act. Through its insurer (EML Workers Insurance NSW Limited) the respondent made weekly payments of compensation, and met medical expenses.
On 23 May 2016, on referral by his solicitors for medico legal purposes, the appellant was examined by Dr Drew Dixon, an orthopaedic surgeon. The referral was specifically in relation to the injury of 24 June 2015 to the appellant's right arm. This injury has been referred to as a "frank injury", a term I will at times adopt. On 25 May 2016 Dr Dixon reported on the injury, and then added: "He has struggled to return to work since this injury and also notes that in the course of his duties has developed pain in his lower back with sciatica and because he uses his knees repetitively while shearing has developed pain in both knees as well as pain in his right wrist which is the site's [sic] of the frank injury and also the wrist in which he held the shearer's hand piece and wide comb. …"
Under the heading "Present Symptoms" Dr Dixon again referred to the appellant's right arm injury, and said: "He reports pain in the lower back with lumbar stiffness and has reticula complaint with sciatica on the left extending to the heel and sciatica on the right extending to the mid calf. He has difficulty with prolonged standing and sitting and pain in his knees on prolonged walking of more than 30 minutes. He has difficulty kneeling and squatting due to pain in his knees which he localises to the rectro-patella areas and reports difficulty with jogging and running due to knee pain. He has difficulty using steps and stairs and has a limp particularly on uneven terrain. His knees can lock up but he reports no gross instability."
Under the heading "Examination", Dr Dixon said: "There was stiffness of his cervical spine with forward flexion 3cm from the anterior chest wall with extension decreased by one third, as was lateral rotation to the right and that to the left by one half. Lateral flexion was decreased by one half bilaterally. There was tenderness of the left trapezius muscle and of the mid cervical facet joint on the left and his cervical foraminal compression test was positive as was his brachial plexus stretch test. There was tenderness of the supra clavical brachial plexus on the right. There was radicula complaint with parathesia extending down his inner arm and forearm to the ulnar to digits of his right hand as well as left sided occipito-frontal headaches." There was much more, including a report of stiffness on elevation of the shoulders, soft tissue crepitus in the right arm, stiffness of the lumbar spine, muscle spasm, retro-patella crepitus in both knees, and tenderness at L4/5.
Dr Dixon summarised his diagnosis as follows: "1. Crush injury to his right forearm with soft tissue swelling … 2. Neck strain injury with post traumatic stiffness with C8/T1 radicula complaint. 3. Post traumatic stiffness of both shoulders with scapula pain on the right and trapizial pain on the left. 4. Low back strain injury with post traumatic stiffness with erecta spinae muscle spasm and reticula complaint with sciatica. 5. Repetitive contusion to both knees and retro patella crepitus with chondromalasia patellae clinically. 6. Impaction of his injuries on activities of daily living. 7. Reliance on analgesia."
He expressed the opinion that these conditions were: "… causally related to the frank injury at work (right forearm, both shoulders and neck), and to the nature and conditions of his employ (back pain and knee pain)." (italics added)
It will be seen that, although the referral to Dr Dixon was specifically for assessment of the frank injury of June 2015, Dr Dixon went beyond that and commented on a discrete condition affecting various parts of the appellant's body, which he ascribed to "the nature and conditions" of the appellant's employment. This was subsequently referred to as "the nature and conditions" injury. In a separate report of the same date, Dr Dixon provided assessments of permanent impairment for the purposes of s 66 of the WC Act. He assessed the "whole person impairment" of the frank injury at 9%, ie below the threshold required for compensation under s 66. Although it is not entirely clear, he appears to have assessed the "nature and conditions" injury at 27% "whole person impairment".
Dr Dixon's letterhead identifies him as a "consulting orthopaedic surgeon and medico-legal consultant." Under his signature on the report appear the words "Certified Evaluator of Disability and Impairment Rating". There is no indication that he is an "approved medical specialist" appointed under s 320 of the WIM Act.
On 6 June 2016 the appellant underwent a series of radiological investigations of his cervical and thoracic spine. On 14 June 2016 Dr Dixon reported on these as showing advanced degenerative disc changes at C5/6 with moderate left sided foraminal stenosis with minor right sided foraminal narrowing at C7/T1. He made a similar comment in relation to the thoracic spine radiology. He said that the radiological findings were consistent with the appellant's clinical condition.
Dr Dixon again reported on 7 November 2015 (the report is wrongly dated as 2015, but it is apparent that the correct date was 2016). He again noted the various "stresses and strains" to the appellant's body, which he said were "occupational diseases for shearers".
He then said: "The applicant's right upper extremity, left upper extremity, neck, back, right lower extremity and left lower extremity can be categorised as a disease condition being an underlying pre morbid pathological condition which results from his work as a shearer, which is notoriously heavy and physically demanding on the body, especially the upper extremities, neck, back and lower extremities can cause aggravation and can cause an aggravation of the disease condition from which the claimant suffers. It is confirmed that the above requirements have been met in this claimant's case, as the nature and conditions of his employ resulted in injuries to his neck, upper extremities, back and lower extremities as indicated in my previous report. …"
The appellant was referred by the respondent's insurer for examination by another orthopaedic surgeon, Dr Richard Powell, for a report on the frank injury to the right arm. Dr Powell examined the appellant on 14 September 2015 and again on 7 November 2016 and reported on 16 September 2015 and 5 December 2016. Although the referral and examinations were for the purposes of assessment of the appellant's frank injury, in his second report, Dr Powell also noted that additional radiological investigation had been performed and added to his report: "In addition, Mr Taylor is also suffering from symptoms related to some cervical spondylosis. … Cervical spine. Mr Taylor is suffering from a degenerative condition in the cervical spine which is pre-existing and not the result of injury sustained in the specific work place incident." (The "specific work place incident" was the incident of 24 June 2015. Dr Powell made no comment about the cause of what he called "cervical spondylosis", other than to say that that condition was not causally related to the 24 June 2015 incident).
In a separate report of the same date, Dr Powell noted that the appellant had also lodged a claim "for the following body parts", being both shoulders, both knees, neck and lower back. In the context of the frank injury, he reported that the mechanism of the injury as described to him was sufficient to have caused a soft tissue injury of the right forearm with associated problems, but: "… cannot be held responsible for symptoms involving the left shoulder, right shoulder, neck, back, right knee or left knee. Symptoms involving these areas are not related to the work place injury that forms the subject of this claim."
Again, the work place injury to which he referred was the frank injury of 24 June. He made no comment about the cause of the degenerative condition. He said that he was not in a position to provide a definitive diagnosis of "any of these areas", he had mentioned; such a diagnosis would require further assessment and review of any supporting documentation and investigations, none of which was available at the time of assessment. He repeated that, in order to provide a definitive opinion "in regard to assessment of his entire musculo-skeletal system" he would need the opportunity to re-examine the appellant.
In response to a question about whether "any of those other conditions/injuries related to the nature and conditions of Mr Taylor's employment with J & D Stephens", Dr Powell said: "Mr Taylor is employed as a shearer and this is quite a physically demanding occupation." He repeated that, in order to provide a definitive opinion "in regard to assessment of his entire musculo-skeletal system" he would need the opportunity to re-examine the appellant.
There is no evidence that Dr Powell was asked to conduct any further assessment or provide any further reports specifically in relation to any part of the appellant's body other than his right arm.
On 10 January 2017 solicitors acting for the appellant filed in the Commission on the appropriate form an "Application to Resolve a Dispute". They identified the claim as for "medical expenses" and "lump sum compensation where liability in dispute". I take this to be a reference to a claim under s 66 of the WC Act (as did the Arbitrator to whom it was referred). They inserted a cross in a box signifying that they requested the Registrar to appoint an Approved Medical Specialist. There is no evidence whether that was done.
The claim form required a description of the injury. The appellant's solicitors inserted: "1) Crush injury to the Applicant's right forearm; 2) Crush strain with post traumatic stiffness with C8/T1 radicular complaint; 3) Post traumatic stiffness of both shoulders with scapular pain in the right and trapegial pain on the left; 4) Low back strain injury with post traumatic stiffness with erector spinal muscle spasm and radicular complaint with sciatica. 5) Contusion to both knees and retropatellar crepitus with chondiomalacia patellae; 6) Impaction on his activities and daily living."
The following section of the form asked for a description of how the injury happened. The solicitors responded in three parts. The first they headed "Frank Injury" and described the 24 June injury. The second they headed "Nature and Conditions", and said that the appellant's work involved repetitive bending and lifting of heavy weights, and specified body parts which they said were affected by the nature and conditions of the work. In the third part they claimed that, as the respondent was the appellant's last employer, ss 15 and 16 of the WCA rendered them liable for the claim.
Attached to the claim was a bundle of material, including medical and radiological reports, two statements by the appellant describing the nature of his work as a shearer and the circumstances in which he came to suffer the "frank [or crush] injury".
The first statement by the appellant, dated 12 October 2015, included, as a final paragraph, the following: "53. As a result of the frank injury and the nature and conditions of my employment as a shearer for many years, I suffer pain and discomfort in the following parts of my body: 1. (right upper extremity) forearm; 2. (lumbar spine with pain radiating down right and left leg; 3. (cervical pain; 4. (pain in the left lower extremity and right lower extremity in respect of pain in both of my knees. 5. (pain in right upper extremity - right wrist." He essentially repeated this in the second statement, made in June 2016.
It appears that medical records, including clinical notes of a general practitioner who had regularly treated the appellant, were also before the Arbitrator. These were not included in the material provided to this Court.
The respondent filed a Reply, to which were annexed medical reports and other documents, including a number of Certificates of Incapacity. (The Reply was filed out of time, but nothing turns on that for present purposes).
The claim was, pursuant to s 288 of the WIM Act, referred to an Arbitrator. Before the Arbitrator were the medical and radiological reports referred to above, the statements of the appellant, and a bundle of Certificates of Incapacity (all in relation to the frank injury) and other material. Included in the material presented by the respondent was a report of surveillance undertaken on behalf of the respondent but this was never suggested to have advanced the case in any way.
A hearing took place on 4 April 2017. The appellant and the respondent were both represented by counsel. It seems clear that all parties understood the claim to be in two parts: the claim for the frank injury and the claim related to the various body parts mentioned. No oral evidence was given. Both counsel addressed orally. The proceedings were transcribed. At the outset of the hearing, counsel for the appellant abandoned the claim for medical expenses and for lump sum compensation under s 66 in respect of the frank (crush) injury to the right arm. Thus, the only claim for determination was the claim for s 66 lump sum compensation in relation to what was described as "the nature and conditions" injury: that is, what was alleged to have been the accumulated damage to various parts of the appellant's body arising out of the heavy work of a shearer. Counsel for the appellant expressly confirmed that the claim was made in reliance on s 4(b)(i) and (ii) of the WC Act.
Counsel for the appellant placed heavy emphasis on the radiological evidence and on the assessments by Dr Dixon. He noted that no contrary case had been advanced on behalf of the respondent. He anticipated, and acknowledged as "the obvious elephant in the room", that counsel for the respondent would point out that none of the medical evidence, including the clinical notes of the appellant's general practitioner, disclosed any prior complaint by the appellant of symptoms in the relevant parts of his body. He submitted that, nevertheless, the medical and radiological evidence established injury.
Counsel's anticipation was well founded. Counsel for the respondent did rely on the absence of evidence of complaints of symptomatology prior to the appellant's consultation with Dr Dixon, specifically in the records of the appellant's general practitioner.

The determination of the Arbitrator

The Arbitrator issued a Certificate of Determination on 20 June 2017. She rejected the claim and made an award for the respondent. She gave, as she was obliged to do, reasons for the determination: Taylor v J & D Stephens Pty Ltd [2017] NSWWCC 148.
She found that the appellant had failed to prove that he had suffered a "disease injury" within the meaning of s 4(b)(i) or (ii).
She noted the (undisputed) evidence that shearing involved heavy manual work which is repetitive in nature and can be fast paced. She reviewed extensively the medical evidence. The essential reason for her conclusion lay in the absence of any "contemporaneous" complaints of symptoms, and what she perceived as inconsistencies in the evidence provided on behalf of the appellant.
Under the heading "Determination" the Arbitrator said: "61. I do not doubt that work as a shearer is heavy work and physically demanding, and is a type of work that could cause injury to the body parts claimed and aggravation of disease. But I find the evidence is lacking in Mr Taylor's case that it did cause injury. He has the onus of proof. In Nguyen the Court of Appeal said a tribunal must feel an actual persuasion of the existence of facts. I am not so persuaded. In Mr Taylor's case, not only is there a lack of contemporaneous complaints about these body parts, but there is so many inconsistencies in his history which leaves me unable to be satisfied on the balance of probabilities that he has in fact sustained injury to these body parts as claimed." (The reference to "Nguyen" was a reference to a decision of this Court in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, which the Arbitrator had previously mentioned).
In [66] she listed a series of matters of "additional concern". She declined to place any weight on the opinions expressed by Dr Dixon, saying: "70. The respondent refers to the MRI scan requested by Dr Pik of the whole spine and to his statement that there was no evidence of spinal cord compression throughout the cervical and thoracic spine. There are degenerative changes at L3/4 and L4/5. The respondent submits that there is no medical evidence to state whether it is unusual to have degenerative changes of this nature at age 43. I accept this submission and note that Dr Dixon did not comment on this scan or on any radiology of the lumbar spine. Therefore, I find that Dr Dixon has not provided a sufficiently detailed opinion regarding causation in relation to any of the body parts claimed and I do not place weight upon his opinions."
The Arbitrator went on to say: "71. Due to this finding about Dr Dixon's evidence, and coupled with the unexplained inconsistencies in the evidence about onset of symptoms, I find that Mr Taylor has not established injury from his work as a shearer to any of the claimed body parts due to the nature and conditions of his work or his disease injury. The inconsistencies are many; Mr Taylor has complained about these body parts being symptomatic after the rehabilitation for the right forearm injury, he has told Dr Dixon that the neck and shoulders were injured in the right forearm injury and then there is the account to Dr Win [the appellant's general practitioner] of ongoing neck pain, shoulder pain, back pain and pain in both knees since 27 May 2016 related to [an unrelated event]. In light of these factors and the matters discussed above, I do not feel an actual persuasion that Mr Taylor has sustained the injuries he claims in the present proceedings. 72. The respondent relied on Ireland in which the President refers to the need to consider all the evidence. The facts in Mr Taylor's case differ from that in Ireland, but I find applying the principles discussed therein and in Nguyen that Mr Taylor has not discharged his onus of proof either under s 4(b)(i) or 4(b)(ii) of the 1987 Act that he sustained injury to his neck, back, knees and shoulders." (The reference to Ireland was a reference to a decision of the President of the Commission, Judge Keating, in Department of Education and Training v Ireland [2008] NSWWCCPD 134, referring to the onus of proof).
As indicated above ([32]), there are three components to a claim for disease injury under s 4(b) of the WC Act. The components are distinct, and, in many cases, will need to be addressed individually. The first component is that there has been a disease injury. The second is that it was contracted in the course of employment. The third is that the employment was the main contributing factor to the contraction of the disease.
It is not entirely clear to me whether the Arbitrator rejected the appellant's claim on the basis that he had not established injury, or that he had not established causation, or both. There are indications both ways in the passages of the Reasons that I have extracted.
A fair reading of the Reasons makes it plain that there was really one essential basis for the Arbitrator's rejection of the appellant's claims. That was the absence of any record of complaints by the appellant of symptoms in any of the relevant body parts, despite repeated consultations with his general practitioner. That would suggest that she was not satisfied that the appellant had proved that he suffered injury as distinct from being satisfied of an employment-related cause of the injury.
The first of the matters of "additional concern" to which the Arbitrator referred in [66] of the Reasons involved what the appellant said in his statement about an assessment he had undergone with a physiotherapist, Ms Anne Davies. Of this, the Arbitrator said: "(a) In paragraph 19 [of his statement] he says when he got home he had severe pain in the right arm, neck and also his back, legs, knees and right wrist. So, it seems that Mr Taylor was attributing pain in these areas to the rehabilitation assessment undertaken in relation to the right forearm injuries. However, recourse to Mr Taylor's statement shows that he stated that, prior to the appointment with Ms Davies, his right arm and neck pain was 'between 4 to 5 out of 10'."
This seems further to confirm that the Arbitrator rejected the claim, not because the appellant failed to establish that the injury he asserted was caused by the nature and conditions of his shearing work, but because she was not satisfied that he had established that he suffered an injury. At [71], she said: "… I find that Mr Taylor has not established injury from his work as a shearer to any of the claimed body parts due to the nature and conditions of his work or disease injury."
However, she concluded that paragraph by saying: "… in light of these factors and the matters discussed above, I do not feel an actual persuasion that Mr Taylor has sustained the injuries he claims in the present proceedings."
The Arbitrator laid particular emphasis on the clinical notes of the appellant's general practitioner, which, she said, did not record complaints of discomfort in the relevant parts of Mr Taylor's body.
It is a matter of passing concern that such a finding, adverse to a claimant, could be made in the absence of any examination or cross-examination that might have given him an opportunity to explain the absence of any recorded complaints of symptomatology.

The appeal to the Deputy President

Pursuant to s 352 of the WIM Act, the appellant appealed to the Commission constituted by a Presidential member (a Deputy President) against the determination. As set out above, the appeal was limited to whether the decision was affected by any error of fact, law or discretion, and correction of any such error. Such an appeal is not a rehearing.
The grounds of appeal were specified in a document entitled "Amended Grounds of Appeal and Submissions in Support". The grounds as stated were: "GROUND ONE: The Arbitrator misdirected herself as to whether there needed to be a complaint of symptoms for the Appellant to establish he has suffered injury. … GROUND TWO: Having found that the appellant suffers from a disease contracted in the course of his employment as a shearer which is the type of work that could cause injury to the body parts claimed and aggravation of disease, the Arbitrator should have found in favour of the appellant. … GROUND THREE: Misapplication of authorities such as Department of education [sic] v Ireland [[2008] NSWCCPD 134."
Both parties provided written submissions to the Deputy President. No oral hearing took place. Although Ground one was formulated with clarity, and was limited to a narrow contention concerning the Arbitrator's approach to the determination of whether the appellant had established that he had suffered an injury, the submissions provided in support lacked the same clarity. They proceeded on the false premise that the Arbitrator had found that the appellant had established that he had suffered injury. A good part of the submissions was devoted to the effect of ss15 and 16 of the WC Act, which were not in issue, and were entirely irrelevant to the ground as formulated. What remained of the submissions was founded on a misreading of [61] of the Arbitrator's reasons. That para is set out above at [74]. There the Arbitrator stated: "But I find that the evidence is lacking in Mr Taylor's case that it [his employment as a shearer] did cause injury … [the lack of contemporaneous complaints and inconsistencies in his histories] leaves me unable to be satisfied on the balance of probabilities that he has in fact sustained injury to these body parts as claimed."
The author of the submissions plainly misread this paragraph. The submission was made to the Deputy President: "19. It is submitted that, once the Arbitrator found that the Appellant was suffering from a disease or the aggravation thereof (para 61) and that work as a shearer could (that is, as a matter of real risk) cause injury to the body parts claimed, it was not necessary for her to give consideration as to when and in what circumstances the appellant suffered symptoms arising from that condition …"
The submissions in support of Ground two were brief and also proceeded on the same false basis, that is, that the Arbitrator had accepted that the appellant had established that he suffered an injury. These submissions were also largely confined to ss 15 and 16 of the WC Act.
The submissions in support of Ground three did not identify any asserted error of fact, law or discretion but rather sought to draw upon the contrast between the facts in Ireland and the facts in the present case. The submissions concluded: "The Arbitrator should not have been hunting for trails of symptoms in a disease case."
The Deputy President determined the matter "on the papers". On 14 November 2017 she rejected the appeal and confirmed the certificate of determination of the Arbitrator: Taylor v J & D Stephens Pty Ltd [2017] NSWWCCPD 50.
In her reasons, the Deputy President noted the grounds of appeal (at [37]). She reviewed the evidence before the Arbitrator and the Arbitrator's reasons, and recorded the grounds pleaded and the submissions on the appeal. She set out, as relevant to the appellant's submissions, ss 15, 16 and 17 of the WC Act (sections 15 and 16 have been mentioned above: s 17 is a similar provision, specifically related to hearing loss claims. It has no application or relevance to the present proceedings. As mentioned above, ss 15 and 16 are relevant only for the purpose of fixing liability for any injury of accumulation or gradual process on the most recent employer, in this case the respondent).
With respect to Ground one of the appeal, the Deputy President said: "66. The Appeal is founded on a complaint that the Arbitrator misdirected herself with respect to the proper test to determine 'disease injury' and makes no challenge to the factual findings with respect to the evidence before the Commission or the Arbitrator's rejection of Dr Dixon's opinions. It follows it is not necessary for me to evaluate the Arbitrator's acceptance or rejection of the factual assertions made by Mr Taylor or her decision as to the probative value of Dr Dixon's reports. 67. Mr Taylor challenges the Arbitrator's decision that she was not satisfied on the balance of probabilities that Mr Taylor had suffered injury to neck, back, knees and shoulders pursuant to s 4(b)(i) or s 4(b)(ii). The challenge is confined to the test the Arbitrator applied in determining injury. Mr Taylor asserts that all that is required in a disease case is to establish that there is a disease condition and that employment with the respondent was employment 'to the nature of which' the disease is due. Mr Taylor maintains that if those two factors are satisfied then 'injury' is established. … 70. The challenge to the Arbitrator's decision raised in this appeal was not raised or argued before the Arbitrator at first instance. No submissions were made that the proper test for the Arbitrator to apply in this case was that referred to in [66] [sic - [67]] that is, in a disease case, all that is required is to establish that the employment was employment 'to the nature of which the disease is due'. The Arbitrator was not directed to the authorities now relied on in this appeal or any other authorities relevant to the burden of proof in a disease case."
She then considered authorities relevant to raising a new argument on appeal, concluding that that could be permitted only in exceptional circumstances which, in this case, she did not find; accordingly, in [78], she said that she declined to allow Ground one to be "raised".
However, against the possibility that that was wrong, she also determined that Ground one was without merit.
She disposed of the appellant's references to ss 15 and 16 (correctly, in my opinion) by observing that, since there was no issue that the respondent was, for the purposes of those provisions, the appellant's last employer, they had no bearing on the outcome, and the Arbitrator was not obliged to make any determination under those sections ([92]-[94]).
She concluded that discussion by saying: "94. …In the present case, Mr Taylor was unable to satisfy the Arbitrator that there was any employment injury as she determined there was a complete lack of contemporaneous complaints, inconsistencies in the evidence and scant evidence from Mr Taylor as to the onset of symptoms and its connection with work as a shearer. 95. The finding of the Arbitrator that she was not satisfied on the evidence of an occurrence of injury has not been raised as an appeal point. Ground one of the appeal is limited to what legal tests the Arbitrator was required to apply in determining Mr Taylor's entitlement. … 97. With respect to 'Ground 1', after considering the submissions of the parties at arbitration and on Appeal, together with the authorities referred to above, I find I am not satisfied Mr Taylor has made out the alleged error in the Arbitrator's decision." That concluded her consideration of Ground one.
She rejected Ground two, pointing out (again, correctly, in my opinion) that it was based on a misreading of [61] of the Arbitrator's reasons.
Finally, she rejected Ground three, finding no error in the application of the principles relevant to onus of proof, as stated in Nguyen.

The appeal to this Court

As noted above, a party to an appeal determined by a Presidential Member of the Commission who is aggrieved by the decision on a point of law may appeal to this Court.
The appellant pleaded five grounds of appeal, although not all grounds as pleaded contain a discernible issue. As I perceive the issues raised by the pleaded grounds, the appellant:

complains that "the Deputy President dismissed the appeal on the basis that the second ground of appeal had not been argued at first instance, but made no reference as to whether the First ground has been argued" (ground 2);
complains that "the dismissal of the appeal (para 76) due to a failure to allow the second issue to be raised … was therefore in error as the first issue also had been raised at first instance" (ground 3);
complains that the Deputy President erred in law by holding that "the appellant had to establish contemporaneous complaints of symptoms in order to establish 'injury' in the form of a disease process" (grounds 4 and 5).

Discussion

The first and second issues are based on a patent misapprehension of what the Deputy President did. What is asserted is directly contrary to what the Deputy President did. As can be seen from the extracted passages and summary of the Deputy President's reasons above, she expressly found that Ground one raised an issue that had not been argued before the Arbitrator, and declined to allow it to be "raised". The relevant question is whether the Deputy President misapprehended what had been put to the Arbitrator and therefore failed to address the issue that was put to her. In my opinion she too narrowly confined the issue identified in Ground one.
The issue raised by Ground one of the appeal to the Deputy President directly raised the question of the correct test to be applied in the determination of an application for compensation for a "disease injury". She considered that this did not incorporate any complaint as to the findings that followed from the application of an incorrect test.
The Deputy President held that the question of the correct test had not been raised before the Arbitrator, and declined to allow it to be "raised". That in my opinion, was a misunderstanding of what had been argued before the Arbitrator. Inherent in a complaint of the application of an incorrect test is a complaint that that application has yielded a wrong result. Plainly inherent in the argument put to the Arbitrator was the proposition that contemporaneous complaint of symptoms was not a pre-requisite for a finding of disease injury. In coming to the view that that had not been argued before the Arbitrator, and therefore declining to allow it to be "raised" before her, she failed to exercise the jurisdiction that had been entrusted to her. Failure to exercise jurisdiction is an error of law.
The statement by the Deputy President that she declined to allow the issue to be raised on appeal sits a little uncomfortably with the facts that it had, in fact, been argued (in the written submissions) and that she then went on to determine the issue on its merits.
That the Deputy President did, in fact, go on to determine the issue on its merits goes some way to nullifying the effect of the error of law constituted by the failure to exercise jurisdiction.
However, in what followed, the Deputy President did not address the substance of the issue raised by Ground one - whether a complaint of symptoms is necessary before disease injury can be established. What she did was to adopt the Arbitrator's reasons for rejecting the appellant's claim. Those reasons relied on the absence of any record of complaint of symptoms prior to the appellant's referral to Dr Dixon.
In failing to deal with that argument, the Deputy President denied the appellant procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229. Moreover, she failed to give any weight to the medical and radiological evidence.
This is not a question of reviewing the weight given to relevant considerations. I accept that questions of weight are for the decision-maker, and, ordinarily, dispute or disagreement as to weight will not raise issues of law for the purposes of an appeal under s 353 of the WIM Act. But failure to give adequate weight to relevant considerations may amount to a failure to exercise the jurisdiction entrusted to the decision-maker: see Lovell v Lovell (1950) 81 CLR 513 at 519; Kumar v Legal Services Commissioner [2015] NSWCA 161 at [112] per Leeming JA. In my opinion, that is what has happened here.
In my opinion the appellant has succeeded in establishing that the Deputy President misdirected herself in two respects. First, she placed too narrow a construction on the argument that had been put before the Arbitrator, and accordingly declined to exercise jurisdiction by entertaining a ground of appeal that was raised. In adopting the Arbitrator's approach to determining whether the appellant had established a disease injury by reference only to the absence of complaints of symptoms, and excluding reference to medical and radiological evidence, she fell into error in point of law.
I would, accordingly, allow the appeal. That raises a question of what orders this Court ought to make. By subs (2) of s 353 of the WIM Act, this Court may remit the matter to the Commission for determination in accordance with its decision, and may make such other order in relation to the appeal as it thinks fit.
It can be seen that the error identified in the approach taken by the Deputy President replicated an error in the Arbitrator's decision. In the circumstances, the order that should have been made by the Deputy President was to remit the matter to an Arbitrator for determination in accordance with the decision (which should have included a direction that the absence of contemporaneous complaint was not determinative of whether the appellant had suffered injury): see s 352(7) of the WC Act.
The issues raised by the appellant in his application have not been properly addressed. The matter should be remitted to the Commission to be dealt in accordance with this decision.
The orders I propose are:
Extend the time for filing the Notice of Appeal.
Allow the appeal.
Set aside the order of the Deputy President and, in lieu thereof, order that the appeal from the Arbitrator be allowed.
Remit the matter to the Workers Compensation Commission for determination according to law.
The respondent pay the appellant's costs of the appeal.

Endnotes

Taylor v J & D Stephens Pty Ltd [2017] NSWWCC 148 at [19] (Arbitrator's reasons).
(1996) 187 CLR 310 at 332; [1996] HCA 31 per Toohey, McHugh and Gummow JJ, applying Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252 - 253; [1947] HCA 34 per Latham CJ; see also Kirby J at 340 - 341.
Cf Military Rehabilitation & Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 at [57] to the effect that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are not sufficient to provide a positive answer to the question whether "injury" had been established.
(Compensation Court (NSW), 23 February 1996, unrep) at 3.
(1998) 16 NSWCCR 222 at [10].
At [13].
At [50].
At [59].
At [61].
At [61].
Deputy President at [66] - [67].
At [70].
At [71].
At [69].

Amendments 15 November 2018 - Typographical errors. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2018

Workplace Injury Management and Workers' Compensation Act 1998(NSW)

(1998) 16 NSWCCR 222

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)