Court Of Appeal Does The Hard Yards On Factual Analysis

Case Summary: Hawker Pacific Pty Ltd v Lang [2015] WASCA 256

In December 2015 the Supreme Court handed down a decision on an appeal against an arbitrator’s determination on an application by an injured worker for medical expenses. An appeal against the arbitrator’s determination allowing the claim for expenses had been taken to the District Court but dismissed.  The Supreme Court was required to consider whether there had been an error of law on the part of the arbitrator and Eaton J in the District Court.

The respondent (Lang) had suffered compensable injury to her left wrist in 2007 whilst employed as an administrative assistant by the appellant (the 2007 injury). She claimed compensation for at least one or two additional work related injuries in 2009 and 2010, however these were not held to be compensable injuries for differing injuries.

The appellant accepted liability for the 2007 injury and the treatment including some initial surgical procedures. Mrs Lang however continued to suffer symptoms in her left wrist though returning to work.  Some years later her surgeon recommended that she have left wrist fusion surgery.  Mrs Lang claimed the cost of the surgery as an expense related to the 2007 injury.

The issue before the arbitrator was whether the expenses that would be incurred by the wrist fusion were “reasonable expenses” within the meaning of clause 17 of Schedule 1 of the Act of the Workers Compensation and Injury Management Act 1981.  The arbitrator agreed with the respondent that the fusion surgery was a reasonable expense and made an award accordingly.  The appellant appealed the arbitrator’s finding and the appeal was held by Eaton DCJ in the District Court.  The learned Judge held that none of the appellant’s grounds of appeal had been made out and refused leave to appeal.

This resulted in the appeal to the Court of Appeal and a reversal of the decision. The Court of Appeal held that the need for the wrist surgery had not been shown to be connected with the original 2007 injury.  It was unclear from the medical evidence whether the need for fusion surgery was related to the 2009 injury or to some other cause, but the “required connection” under clause 17 of Schedule 1 of the Act between the need for surgery and the 2007 injury had not been established.  The Court of Appeal held that Eaton DCJ had erred in law in both declining to undertake a review of the evidence relevant to the grounds of appeal and accepting that the arbitrator had provided sufficient reasons for finding a causal relationship between the 2007 injury and the need for surgery.

The appellant in fact contended there was no evidence to support the arbitrator’s finding that the need for surgery was causally related to the 2007 injury and the Court of Appeal did not disagree. The Court of Appeal did not consider that any further review of the evidence was warranted and set aside the arbitrator’s decision, allowing leave to appeal and dismissing the claim for the surgery expenses.

What is particularly noteworthy in the reasons for decision of the Court of Appeal is the extent to which an examination of the particular features of the medical evidence was relevant to that decision. Critical to their findings had been the diagnoses formulated of different wrist conditions that had affected Mrs Lang at different times and the question of which particular problem resulted in a need for further surgery.

The court in fact lamented some difficulty in dealing with the technical evidence resulting from the need to simply consider the medical reports without the benefit of any particular explanation or elaboration from the medical experts. The court did however reach a unanimous decision on the conclusions to be drawn from the evidence with the decision on appeal essentially being made possible by the conclusion that there was in fact no evidence to support the arbitrator’s finding of the relevant connection between the 2007 injury and the requirement for surgery.

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