The onus of proof is on the worker to produce evidence to
establish his case on the balance of probabilities.
Given the significant underlying conditions, it was not open
for the Arbitrator to find that the injuries were work-related on
the mere basis of the timing of the onset of symptoms.
There was no medical evidence to support the Arbitrator's
conclusion that the cause of the worker's injuries was the
flight from Perth to Tom Price.
It was not open for the Arbitrator to make her own findings on
matters that required supportive expert medical evidence.
Mr Piggott was employed by Spotless as an electrical maintenance
worker at Tom Price, Western Australia, on a fly-in fly-out basis.
On 15 December 2013, Mr Piggott flew to Tom Price from Perth.
During the flight he slept leaning against a window on his right
side. He awoke just prior to landing and immediately felt severe
pain in his neck.
The next day, Mr Piggott was experiencing severe neck pain, but
managed to complete his normal 10 hour shift. The following day, Mr
Piggott sought medical treatment for his neck. On 13 January 2014,
Mr Piggott had scans which revealed bursitis, chronic subacromial
impairment and a tear of his insertional supraspinatus tendon in
his left shoulder.
Mr Piggott claimed worker's compensation for a neck and left
shoulder injury. The claim form alleged that the shoulder injury
resulted from 'sitting in a plane/lifting a bag'. In his
statement of evidence, Mr Piggott attributed the shoulder injury to
the work duties on 16 December.
At Arbitration, Mr Piggott claimed workers' compensation for
neck and left shoulder injuries which he sustained during the
flight. He did not allege that he had sustained any injuries at
work. Expert evidence was given by two orthopaedic surgeons, Dr
Hardcastle and Dr Hurworth.
In Dr Hardcastle's opinion it was unlikely that the flight
had caused the aetiology of the shoulder injury. In his opinion Mr
Piggott's work activities on 16 December were the likely cause
of the shoulder symptoms. As to the neck, Dr Hardcastle said that
'the evidence does not support the neck as being aggravated by
his work to any significant extent" but rather, related to the
development of natural degenerative stiffness and some mild
Dr Hurworth's opinion was that Mr Piggott's shoulder had
been degenerative for some time. He did not consider whether the
flight had caused the onset of symptoms, observing that it could
have become symptomatic at any time. Dr Hurworth did not address
the neck injury.
The Arbitrator held that Mr Piggott 'had one strain injury
extending from the neck to the left shoulder'.
Mr Piggott had suffered a personal injury by accident with
respect to a 'strain' type injury to his neck. With respect
to the left shoulder, Mr Piggott had underlying age related issues
which were asymptomatic prior to the flight. The Arbitrator held
that the flight, coupled with the overhead work the following day,
contributed to a significant degree to the aggravation of the
pre-existing shoulder condition. The shoulder injury had occurred
in the course of the employment, since the air travel was an
incident of the employment.
The District Court Appeal
The District Court appeal was heard by His Honour McCann DCJ.
His Honour held that given Mr Piggott's pre-existing
conditions, it was not open to the Arbitrator to find in favour of
Mr Piggott on the mere basis of the timing of the onset of
His Honour observed that an Arbitrator is entitled to accept
all, none or parts of the expert's evidence and findings can be
drawn from the opinions of more than one expert. The Arbitrator was
not bound to accept all of Dr Hardcastle's evidence nor did
there need to be a correlation between the facts as found by the
Arbitrator and those relied on by Dr Hardcastle.
However, it was not permissible for the Arbitrator to "fill
in the gaps" or to "extrapolate from" the expert
evidence. The Arbitrator's reasoning that Dr Hardcastle'
opinion on the relevance of Mr Piggott's activities on 16
December held good for 15 December also, was erroneous, and there
was no evidence to support that conclusion.
His Honour was of the same opinion in respect of Mr
Piggott's neck injury. There was no evidence to support a
finding that the neck injury was anything other than ephemeral. The
Arbitrator did not explain why the flight was a factor in
initiating or prolonging Mr Piggott's neck injury. In fact, the
Arbitrator found that there was no specific injury on the flight.
It followed that the neck symptoms arose in the ordinary course of
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