A SUMMARY UPDATE OF THE MACMAHON HOLDINGS LIMITED V MCKENZIE [2018] WADC 28 DECISION BY HIS HONOUR O'NEAL DCJ HEARD 8 NOVEMBER 2017, DECISION DELIVERED 21 FEBRUARY 2018

The appeal was brought under s 247 of the Workers' Compensation and Injury Management Act 1981 (the Act) from a decision of a WorkCover WA Arbitrator. The Arbitrator ordered that weekly payments of compensation be reinstated to Mr McKenzie.

The claim

Mr McKenzie was injured whilst exiting a scraper he had been operating at Roy Hill Tailings Storage Facility, the injury was a rolled right ankle. He obtained a medical certificate and made a workers' compensation claim. GIO the workers compensation insurer accepted liability for weekly payments and medical expenses and payments commenced. In November 2013 GIO issued a notice to discontinue weekly payments and Mr McKenzie did not respond to this notice and his weekly payments were lawfully discontinued.

Mr McKenzie then filed an application for conciliation at WorkCover WA and the conciliation process ended without settlement being reached. The conciliation certificate of outcome specified, among other things, –

  • A conciliation conference was held on 15 June 2016.
  • The worker's representative confirmed that the worker was seeking weekly repayments of compensation from 2 March 2016.
  • Liability for the worker's claim in relation to his right knee, left ankle and hip is disputed by the employer.
  • Further, liability for any recurrence to his right ankle is also disputed.
  • The employer submits that it denies that the worker is incapacitated for work. If the worker is incapacitated for work, then any incapacity does not result from the 10 September 2012 injury...

Mr McKenzie then filed an application for Arbitration in July 2016 and he sought orders pursuant to section 62 of the Act seeking reinstatement of weekly payments. The learned Arbitrator granted the worker's application pursuant to s 62 of the Act, finding that his condition warranted the reinstatement of his weekly payments from 2 March 2015.

The appeal

The employer appealed to the District Court, the threshold question with such an appeal is whether the appeal involves a question of law.

In the District Court His Honour O'Neal DCJ outlined the statutory provisions relating to dispute resolution and said –

"Part XI of the Act establishes a system of dispute resolution which, at least in theory, was intended to be simpler, quicker, and cheaper than traditional litigation. One of the cornerstones of that process is the way that an arbitrator is bound to conduct hearings and entitled to receive evidence:

188.Practice and procedure, generally

  1. An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
  2. The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator
    1. is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
    2. is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
    3. An arbitrator may inform himself on any matter as the arbitrator thinks fit.
  4. An arbitrator may —
    1. receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
    2. adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
  6. To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.

And at 26 "The following provisions of the Act, summarised in my decision in Thomas v Chandler Macleod [2015] WADC 78 are also relevant here:

  1. Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
  2. An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.

The objects of the Act are set out at s 3:

3. Purposes

The purposes of this Act are –

  1. to establish a workers' compensation scheme for Western Australia dealing with
    1. compensation payable to or in respect of workers who suffer an injury; and
    2. (the management of workers' injuries in a manner directed at enabling injured workers to return to work; and
    3. specialised retraining programs for injured workers; and
    4. ancillary and related matters;

    and

  2. to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and
  3. to provide for the resolution of disputes under this Act; and
  4. to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.'

There are a number of other provisions in pt XI of the Act that point to the intention of the legislature to create a dispute resolution process that is simpler and cheaper than ordinary civil litigation. Section 177(1) of the Act states that the object of pt XI is '... to provide a fair and cost effective system for the resolution of disputes under this Act that –

  1. is timely; and
  2. is accessible, approachable and professional; and
  3. minimises costs to parties to disputes; and...
  4. in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.'

Consistently with those objectives, the Arbitration Rules 2011 made pursuant to the Act, provide that parties may be represented by legal practitioners or lay representatives. At arbitration hearings, unless an arbitrator grants leave, any medical evidence of a medical practitioner must be given in writing. Leave must not be granted 'unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick'.

Pursuant to r 57(1): 'If a party proposes to adduce oral evidence from a witness ...' then among other things a detailed statement of the witness must be provided in advance as well as a statement of the reliance that the party intends to place on the evidence.

An arbitrator may be required to give a decision in writing, but s 213(4) provides:

'The reason for an arbitrator's decision —

  1. need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so;
  2. need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so;
  3. need not canvas all the evidence given in the case; and
  4. need not canvas all the factual and legal arguments or issues arising in the case.'

His Honour continued –

"By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected."

The question of law

His Honour then stated –

"The only real question is whether it can be said that 'a question of law is involved'. The answer to that question will be found in the grounds of appeal." He then examined all the Grounds of Appeal in detail and stated – "If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics and the formulation of the ground cannot alter the position. The ground that asserts the decisions against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 61 [53] – [55] and the cases cited therein: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21].
34 It is apparent that, notwithstanding the linguistic gymnastics engaged, several of the grounds patently do not involve a question of law. Among these are grounds 1(b), 6 and 9.
And at 41 "The central issue raised in this appeal closely parallels one considered by Herron DCJ in BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6."

Having regard to the findings of the learned Arbitrator his Honour said –

"Having considered all of the evidence, including the evidence of the worker and the medical evidence that she canvassed in some detail she finds:

69.Accordingly, I find that the 10 September 2012 injury is a material contributing cause of the post-traumatic osteoarthritis in the applicant worker's right ankle.

70.I also find that the respondent employer has not established that the applicant worker was, prior to the compensable injury, in a condition that, without the accident, would have led to his post-accident state of health. The weight of the evidence does not support any such finding."

And His Honour concludes –

"As can be seen from her reasons, any question of a need for MacMahon to prove anything only arose after the arbitrator was satisfied of the matters that she describes at [69] of her reasons. No 'reversal of onus' is suggested. Accordingly, grounds 5 and 13 fail.

76 For the above reasons, no question of law being involved I refuse leave to appeal.

77 I will hear the parties as to costs.

Conclusion

A summary update of this decision such as this cannot replace the value of reading the full decision as it contains a very helpful and detailed examination of the facts of this particular case, the evidence in the Arbitration hearing, the statutory framework of the Act and relevant case decisions.

By way of interest the following cases are referred to in the judgment –

  • Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
  • Balenzuela v De Gail (1959) 101 CLR 226
  • BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
  • Heppingston v Commissioner of Railways (1901) 3 WALR 63
  • Manonai v Burns [2011] WASCA 165
  • Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
  • Pollock v Wellington (1996) 15 WAR 1
  • Thomas v Chandler Macleod [2015] WADC 78
  • Velez Pty Ltd v Tudor [2011] WASCA 218 [2018] WADC 28 O'NEAL DCJ

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