Taylor v J & D Stephens Pty Ltd

1. [1]

   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.

2. [2]

   I make the following additional observations.

3. [3]

   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]

4. [4]

   However, Dr Dixon’s uncontroverted evidence was that:

5. [5]

   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:

6. [6]

   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.

7. [7]

   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.

8. [8]

   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.

9. [9]

   Before the Arbitrator, counsel for the appellant contended, in a somewhat more vernacular way, as the Arbitrator recorded:

10. [10]

    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:

11. [11]

    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.

12. [12]

    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.

13. [13]

    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]

14. [14]

    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]

15. [15]

    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.

16. [16]

    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.

17. [17]

    I make the following additional observations.

18. [18]

    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.

19. [19]

    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.

20. [20]

    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.

21. [21]

    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.

22. [22]

    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.

23. [23]

    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.

24. [24]

    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.

25. [25]

    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.

26. [26]

    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.

27. [27]

    I agree with the orders proposed by Simpson AJA.

28. [28]

    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.

29. [29]

    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.

30. [30]

    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.

31. [31]

    It is convenient to commence these reasons by referring to the relevant provisions of the legislation.

32. [32]

    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.

33. [33]

    For present purposes the critical provision of the WC Act is s 4, which relevantly defines “injury” in the following way:

34. [34]

    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.

35. [35]

    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.

36. [36]

    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”.

37. [37]

    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.

38. [38]

    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.

39. [39]

    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.

40. [40]

    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.

41. [41]

    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.

42. [42]

    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):

43. [43]

    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

1. [44]

   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.

2. [45]

   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:

3. [46]

   Under the heading “Present Symptoms” Dr Dixon again referred to the appellant’s right arm injury, and said:

4. [47]

   Under the heading “Examination”, Dr Dixon said:

5. [48]

   Dr Dixon summarised his diagnosis as follows:

6. [49]

   He expressed the opinion that these conditions were:

7. [50]

   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”.

8. [51]

   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.

9. [52]

   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.

10. [53]

    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”.

11. [54]

    He then said:

12. [55]

    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:

13. [56]

    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:

14. [57]

    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.

15. [58]

    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.

16. [59]

    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.

17. [60]

    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.

18. [61]

    The claim form required a description of the injury. The appellant’s solicitors inserted:

19. [62]

    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.

20. [63]

    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”.

21. [64]

    The first statement by the appellant, dated 12 October 2015, included, as a final paragraph, the following:

22. [65]

    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.

23. [66]

    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).

24. [67]

    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.

25. [68]

    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.

26. [69]

    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.

27. [70]

    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

1. [71]

   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.

2. [72]

   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).

3. [73]

   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.

4. [74]

   Under the heading “Determination” the Arbitrator said:

5. [75]

   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:

6. [76]

   The Arbitrator went on to say:

7. [77]

   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.

8. [78]

   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.

9. [79]

   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.

10. [80]

    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:

11. [81]

    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:

12. [82]

    However, she concluded that paragraph by saying:

13. [83]

    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.

14. [84]

    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

1. [85]

   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.

2. [86]

   The grounds of appeal were specified in a document entitled “Amended Grounds of Appeal and Submissions in Support”. The grounds as stated were:

3. [87]

   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:

4. [88]

   The author of the submissions plainly misread this paragraph. The submission was made to the Deputy President:

5. [89]

   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.

6. [90]

   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:

7. [91]

   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.

8. [92]

   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).

9. [93]

   With respect to Ground one of the appeal, the Deputy President said:

10. [94]

    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”.

11. [95]

    However, against the possibility that that was wrong, she also determined that Ground one was without merit.

12. [96]

    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]).

13. [97]

    She concluded that discussion by saying:

14. [98]

    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.

15. [99]

    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

1. [100]

   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.

2. [101]

   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:

Discussion

1. [102]

   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.

2. [103]

   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.

3. [104]

   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.

4. [105]

   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.

5. [106]

   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.

6. [107]

   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.

7. [108]

   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.

8. [109]

   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.

9. [110]

   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.

10. [111]

    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.

11. [112]

    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.

12. [113]

    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.

13. [114]

    The orders I propose are: