Arbitrator’s Decision WorkCover WA – Preference of One Medical Opinion Over Another

BHP Billiton Iron Ore Pty Ltd -v- Treby [2018] WASCA 60
Heard: 21 December 2017
Delivered: 3 May 2018
On Appeal From: District Court of Western Australia

The respondent (worker) was employed as a truck driver on a mine site of the employer. In her application for Arbitration at WorkCover WA she sought weekly payments of compensation from 3 April 2014 as a result of a back injury described as “L4 end plate fracture, left L4 nerve root impingement, L4/5 degeneration and foraminal disc protrusion sustained through ‘repetitive bouncing and rocking, being jolted back and forward, and shuddering of truck”.

Essentially the claim was that the employment and truck driving generally gave rise to her injury rather than a specific injury on a specific date.

The appellant (employer) disputed that the worker suffered a compensable injury and disputed the worker’s incapacity for work. The main issue to be determined by the Arbitrator was whether the worker had suffered an injury, and if so, whether it resulted in total incapacity to work as claimed. In late 2015 after an Arbitration hearing at WorkCover WA the Arbitrator made orders that the employer pay the worker weekly payments of compensation for total incapacity with effect from 3 April 2014, together with statutory allowances in relation to the injury.

The employer sought leave to appeal the Arbitrator’s decision under s 247 of the Workers’ Compensation and Injury Management Act 1981 (WA) (WCIMA) to the District Court. The appeal involved a dispute as to the preference of one medical opinion over a competing medical opinion by the Arbitrator at WorkCover WA; whether it was open to the Arbitrator to rely on the report he preferred and in the end whether reliance on the report rendered the Arbitrator’s decision unreasonable or unreliable.

In January 2017 a District Court of WA Judge sitting alone refused the employer leave to appeal. The employer then appealed to the Full Court of the Supreme Court of WA.

Arbitration hearing

In the Arbitration hearing the Arbitrator referred to the worker’s evidence concerning her medical and work history and her description of her work as a truck driver and found her evidence was straight-forward and unembellished and that her oral evidence was consistent with her witness statements. He also found her evidence was factually accurate and corroborated by the evidence of a work colleague Mr Laidlaw. The Arbitrator considered the medical evidence of both parties being that of Mr Wong, Mr Bannan, Dr Flahive. He noted Dr Flahive is an occupational physician who although possibly conversant with epidemiological studies, does not have the same degree of neurosurgical expertise as Mr Wong and he was “…not persuaded upon a balance of probabilities that these would (if disclosed) carry more weight than the opinion of a trained and experienced neurosurgeon expressing a view within his area of specialisation”.

The Arbitrator preferred the opinion of Mr Wong to that of Dr Flahive, the former being “based on the correct or preferable understanding of the traumatic etiology/pathology of the applicant’s condition” and he also referred to Mr Bannan’s reference to the possibility of a spinal fusion. The Arbitrator found that the worker was totally incapacitated for work and ordered payment of weekly payments and statutory allowances.

District Court appeal

In the District Court appeal the learned Judge rejected a submission that Mr Wong’s report was of no probative value and found his report did satisfactorily explain the basis upon which Mr Wong’s opinion was reached to enable the Arbitrator to understand and evaluate the basis of his opinion. He also found that the factual background related by the worker and relied upon by Mr Wong to support his opinion was correct and that Mr Wong had personally reviewed and examined the respondent and the various scans including the MRI scan of 19 March 2013 and that all these steps explained the basis upon which Mr Wong reached his conclusion.


The learned Judge concluded that the Arbitrator was entitled to prefer Mr Wong’s interpretation of the scans over the contrary interpretation of Dr Flahive and rejected the submission that the Arbitrator’s reasons for decision were unreasonable or irrational.

The Full Court of the Supreme Court of WA found there was no merit in any of the grounds of appeal and refused leave to appeal and dismissed the appeal.

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