- A matter cannot be referred to an approved medical specialist (AMS) where liability for an injury has not been determined by the Workers Compensation Commission of New South Wales (WCC).
- A finding of fact may only be disturbed on appeal if it is shown that it was wrong. It is not enough that a different inference could have been drawn.
Frankie Vaughan (the appellant) was employed by the Department of Education (the respondent) as a teacher. On 13 November 2012, the appellant suffered injuries when he took the weight of a number of pre-cut metal sheets when a shelf collapsed at his place of work.
There was a dispute regarding the nature of the injury. The appellant alleged that he sustained injuries to his right shoulder, left shoulder and right biceps. The respondent accepted liability for the cost of surgery to both shoulders. However, on 20 September 2016, the respondent issued a notice under s 74 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) denying liability for the right and left shoulder injuries. The insurer accepted liability for the right biceps injury only.
On 5 May 2017, the appellant commenced proceedings in the WCC challenging the respondent’s decision to deny liability for his right and left shoulder injuries. At the arbitration hearing on 28 June 2017, the appellant submitted that the precise nature of his injuries was a matter for an AMS to determine. Arbitrator Wynyard (the Arbitrator) refused to refer the matter to an AMS, and in a Certificate of Determination dated 21 July 2017, the Arbitrator entered an award in favour of the respondent. The Arbitrator considered that the appellant had sustained a right biceps injury only, not injuries in his right and left shoulders.
In his statement of reasons, the Arbitrator referred to the medical evidence finding that there was no treatment of the appellant’s left shoulder until May 2013 and no support for the ‘later claim’ that it was injured on 13 November 2012. The Arbitrator referred to the respondent’s acceptance of liability for the cost of the surgery to both shoulders, stating that payment of compensation does not ‘of itself create an admission of liability’, applying Department of Education & Training v Sinclair. The Arbitrator concluded that he was “unable to determine on the balance of probabilities that the [right and left shoulder] injuries alleged by [Mr Vaughan] were sustained on 13 November 2012”.
The appellant appealed the Arbitrator’s decision. The appeal was lodged out of time and the appellant made an application to extend time pursuant to r 16.6(12) of the Workers Compensation Commission Rules 2011 (the Rules).
The grounds of appeal addressed the following two key issues:
- whether the Arbitrator exceeded his statutory authority in making findings regarding the right and left shoulder injuries, and
- whether the Arbitrator fell into error in the way he analysed the evidence.
On 10 January 2018, Acting President Michael Snell (the Acting President) refused the appellant’s application to extend time.
Nevertheless, the Acting President addressed each ground of appeal, finding that the appeal would not have succeeded on its merits.
Firstly, the Acting President found that the Arbitrator did not exceed his statutory authority in making findings regarding the right and left shoulder injuries, rather than referring the matter to an AMS to determine liability.
The Acting President referred to the decision of Jaffarie v Quality Castings Pty Ltd in which Roche DP said the following:
“it follows that, since ‘the nature of the injury’ (or the ‘condition’ or ‘aetiology of the condition’) is not a matter on which an assessment in a MAC is conclusively presumed to be correct, the opinions of an AMS on such matters do not bind [the WCC]” and “…’the nature of the injury’ is a matter for [the WCC] to determine”.
The Acting President also discussed the decision of Favetti Bricklaying Pty Limited v Benedek. In Benedek, Bellew J held that s 321(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) prevented referral to an AMS where liability for an injury had not been determined by the WCC. Bellew J considered that “necessarily presupposes” that the WCC has the jurisdiction to resolve the issue of liability prior to a matter being referred to an AMS.
Secondly, the Acting President found that the Arbitrator did not fall into error in the way in which he analysed the evidence.
The Acting President accepted that the Arbitrator preferred the evidence of one expert and criticised the inconsistencies in the clinical material, resulting in the Arbitrator’s conclusion that the appellant had failed to prove that he sustained injuries to his right and left shoulder.
The Acting President relied on the decision of Raulston v Toll Pty Ltd in which Roche DP stated the following:
“an Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”.
The Acting President found that the Arbitrator was permitted to draw an inference from the primary facts. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong. As the appellant did not address whether the Arbitrator’s approach involved error, the ground of appeal failed on the basis of the principles in Raulston.
This case follows the earlier decisions of Jaffarie and Benedek, confirming that the WCC has the jurisdiction to resolve issues of liability. A matter cannot be referred to an AMS unless liability for the alleged injury or injuries has been determined by an Arbitrator of the WCC.
It also confirms that an Arbitrator is entitled to prefer one view of the primary facts to another as being more probable and such findings can only be disturbed if it can be shown that it was wrong.
Further, the case confirms that payment of compensation does not of itself constitute an admission of liability.