Worker successfully appeals dismissal of claim due to error and matter remitted back to be determined by new Arbitrator

08 December 2021

In issue

  • The decision concerned an appeal from a decision of a District Court Judge who, in turn, had decided an appeal from a decision of an arbitrator in the Workers’ Compensation Arbitration Service. The decision is significant in relation to appeals from decisions of arbitrators.

The background

In September 2017, the appellant reported experiencing persistent pain and altered sensation in her right arm. She ceased working for the respondent on 3 November 2017. An MRI scan in November 2017 revealed pathology in the cervical spine at C5/6 and C6/7. She was subsequently referred to a neurosurgeon, who considered her complaints to be consistent with severe bilateral C6 and C7 radiculopathies (pinched nerves). The appellant underwent surgery on 13 June 2018, following which her symptoms substantially resolved.

The appellant applied for compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (WA Act). On 18 June 2019, an arbitrator dismissed the application, on the grounds that she was not persuaded that the appellant suffered an 'injury' for the purposes of the WA Act.

The decision at arbitration

The Arbitrator was not persuaded that, on the balance of probabilities, the tasks required of the appellant in any, or all, or any combination over the period of her employment, made a contribution, to a significant degree, to any acceleration or aggravation of the pre-existing degenerative disease in her cervical spine.

The decision on appeal

The trial judge found that the arbitrator had made three errors of law in the course of arriving at her decision. Those errors were:

  1. The judge found that the arbitrator misapplied paragraph (d) of the definition of 'injury' by artificially dividing the analysis into the appellant's activities at work before and after 12 September 2017. The arbitrator erred by never considering the issue of whether the appellant's activities on 12 September 2017 contributed, to a significant degree, to any recurrence, aggravation or acceleration of any pre‑existing disease. The correct question was whether, on 12 September 2017, there was a recurrence, aggravation or acceleration of a pre‑existing disease to which the employment had been a contributing factor and had contributed to a significant degree.
  2. The judge found that the arbitrator erred in law in finding that the conditions for applying the principle in Jones v Dunkel were satisfied and in drawing the inferences that the evidence of the other health practitioners (who were not called as witnesses) would not have assisted the appellant.
  3. The primary judge found that the arbitrator erred in law in finding that the appellant’s gardening may have been causally related to her disc protrusions, when there was no medical evidence to that effect.

Despite the errors, the judge did not overturn the arbitrator’s decision because he decided that even though the arbitrator had made errors of law, so long as there was a sufficient basis for the arbitrator’s decision, the decision should not be overturned. He determined that the appellant had to show that the errors of law contributed to the extent that the decision would have been different.

The Court of Appeal held that because the arbitrator had made findings ‘for the reasons set out below’, and one of those reasons was a clear error of law, it did not matter that there was a sufficient basis in the facts to substantiate the arbitrator’s decision.

Once an error or miscarriage of justice is established, then the appellate court, if it is in a position to do so, substitutes its own decision for that of the arbitrator. The appellate court will ordinarily do so by reference to the facts found by the arbitrator which have not been successfully challenged and such findings of fact that the appellate court is able to make by reference to the written record. In deciding whether the appellate court is able to make findings, regard must again be had to the natural limitations of an appellate court working from written material without the benefit of seeing or hearing witnesses.

Where an arbitrator’s credibility-based findings of fact are infected by material error and cannot be relied upon, or where an assessment of primary evidence contested on credibility grounds is called for, then the appellate court will generally not be in a position to make its own findings of fact. In such a case, it will be necessary to remit the case for re-determination, usually by a different arbitrator.

The Court of Appeal over-ruled the primary judge’s decision that the arbitrator’s decision should stand and remitted the matter back to the Workers’ Compensation Arbitration Service before a different arbitrator for determination.

Implications for you

The decision highlights the appropriate appellate process from decisions of arbitrators.

Marks v Coles Supermarkets [2021] WASCA176

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