BHP BILLITON IRON ORE PTY LTD -V- TREBY  WADC 6
Heard by His Honour Herron DCJ on 3 June & 6 October 2016 and decision delivered 20 January 2017.
This case involved a claim by Ms Treby for workers compensation payments under the WA Workers' Compensation and Injury Management Act 1981 (the WA WCIMA) arising from a back injury stated as being 'L4 endplate fracture, left L4 nerve root impingement, L4/5 degeneration and foraminal disc protrusion'. Ms Treby alleged the injuries occurred as a result of truck driving involving 'repetitious bouncing and rocking whilst driving, being jolted back and forward and shuddering of truck', although the injury was described as occurring on one specific date – 21 March 2013.
The appellant BHP Billiton Iron Ore Pty Ltd (BHP Billiton) denied the claim and the claim dispute proceeded to a hearing before Arbitrator Mr Nugawela on 6 February 2015. On 21 October 2015 the learned Arbitrator published his written reasons upholding Ms Treby's claim.
By notice of appeal BHP Billiton sought leave to appeal the arbitrator's decision. Subsequently the appellant filed a minute of proposed amended notice of appeal which the respondent opposed. A hearing to determine the issue of the proposed amended notice of appeal took place and the appellant was granted leave to amend its notice of appeal.
After hearing the application for leave to appeal His Honour Judge Herron stated –
"In summary, the notice of appeal challenges the finding of the arbitrator at  of his reasons for decision that Ms Treby suffered an endplate fracture of the L4/5 level in 2013 which was consistent with what was reported in a MRI report dated 19 March 2013 and was consistent with the opinion of Mr Wong, a neurosurgeon, whose opinion he preferred to the opinion of Dr Flahive, an occupational physician. In preferring the opinion of Mr Wong over Dr Flahive, the arbitrator found Dr Flahive did not have the same degree of neurosurgical expertise as Mr Wong. He also found that Dr Flahive's opinion that there was no endplate fracture, disagreeing with Mr Wong's opinion that there was an endplate fracture, and that a CT scan of 9 July 2013 and a bone scan of 10 July 2013 showed endplate degeneration rather than a fracture, was in part based on epidemiological studies which had not been disclosed and which required many assumptions to be made. The arbitrator was not persuaded that the reliance on epidemiological studies carried more weight than the opinion of a trained and experienced neurosurgeon expressing a view within his area of specialisation.
15. The arbitrator went on to find at  that Ms Treby's work with BHP Billiton as a truck driver caused a traumatic fracture of the L4 endplate and was an injury within the meaning of par (a) in the definition of 'injury' in s 5 of the Act.
16. Further, the arbitrator found  – , at least implicitly, that Ms Treby was suffering pre-existing but asymptomatic degeneration in her lumbar spine which made her susceptible to the type of fracture he found Ms Treby had suffered and that after the onset of back pain, the pain became progressively worse while Ms Treby continued to undertake her work duties as a truck driver. The arbitrator found, in the alternative, that Ms Treby was suffering from a degenerative disease which was aggravated or exacerbated to a significant degree by her employment within the meaning of par (d) of the definition of 'injury'.
17. At  –  the arbitrator made findings regarding Ms Treby's capacity for work, finding she was incapacitated for her pre-injury work as a truck driver. He rejected Dr Flahive's opinion, who was of the view Ms Treby had the capacity to work as either a truck driver or in alternative roles for which she had the necessary experience. He rejected Dr Flahive's opinion that the sole ongoing cause of Ms Treby's medical condition was improper medical advice, poor management and under treatment.
18. At  –  the arbitrator specifically considered whether Ms Treby was fit for alternative duties as a radio announcer which work she had undertaken in 1996. The arbitrator accepted Ms Treby could only sit for about 15 to 30 minutes which precluded her from being able to work as a radio announcer."
His Honour then undertook an exhaustive and very helpful examination of the provisions in the WA WCIMA relating to the Dispute Resolution System and the roles and powers of Arbitrators and stated at 78, 79 and 80 –
"I reject that submission. This is not a case involving jurisdictional error such as might be made by an administrative body exceeding its jurisdiction, by, for example, asking itself the wrong question or by making erroneous findings or ignoring relevant material.
Counsel submits an arbitrator is not a court and therefore similar principles which govern how administrative bodies or tribunals must exercise their jurisdiction apply to an arbitrator. It was submitted that an arbitrator is in a very different position from that of a court. A court will not commit jurisdictional error merely by making erroneous findings of fact, identifying the wrong issue or asking itself a wrong question or ignoring relevant material. If such errors are made they will commonly involve errors of law or fact which are subject to any statutory right of appeal.
79. In my view an arbitrator is more akin to a court than an administrative body or tribunal. An arbitrator is required to make findings of fact and to decide questions of law, to resolve disputes about the facts and the law. An arbitrator resolves disputes between parties by conducting hearings at which the parties are represented by legal practitioners or lay advocates. An arbitrator receives and hears evidence including by witnesses being examined and cross-examined. He is involved in an adversarial process. Part XI div 4 of the Act provides for the powers of arbitrators, the types of disputes arbitrators are empowered to resolve and how arbitrators are required to resolve those disputes. Those provisions establish that arbitrators fulfil judicial functions and are, subject to the Act, bound to act judicially in the discharge of their duties. Compare Summit Homes v Lucev (1996) 16 WAR 566, 569 Ipp J, with whom Kennedy and Rowland JJ agreed, when he was referring to review officers in the context of the then dispute resolution system provided in the Act. The provisions dealing with review officers were later repealed and replaced with pt XI div 4. The role and powers of arbitrators reflect the role and powers of review officers.
80. I am satisfied the arbitrator had the jurisdiction to make the findings he did."
His Honour found an arbitrator, when determining an issue between parties in an adversarial process, is exercising a judicial function and not an administrative function.
In summarising the essence of the issues in the appeal His Honour stated at 87 and 88 –
"In essence, the issues raised by the notice of appeal come down to the proposition that the report of Mr Wong was of no probative force or value and was inadmissible and therefore ought to have been rejected by the arbitrator and ought not to have been relied upon by the arbitrator. Therefore the arbitrator's acceptance of Mr Wong's report, and his decision based upon the report, are so unreasonable that no reasonable arbitrator could have ever have come to it or, in the terms explained in Li, the arbitrator's decision lacked an evident and intelligible justification. It was irrational. It follows, so it is submitted, the arbitrator erred in law.
88 For the reasons I have already explained I reject the submission that the arbitrator erred in relying upon Mr Wong's report. It follows therefore I do not accept the submission that the arbitrator's decision, significantly based upon Mr Wong's report, was in error. I reject the submission that the arbitrator's decision was so unreasonable that no reasonable arbitrator could have reached the same decision. I reject the submission that the arbitrator's decision lacked an evident and intelligible justification or that it was irrational. I am satisfied there was a sufficient basis set out in Mr Wong's report for his opinion to be understood and evaluated and to be accepted and relied upon. It was open to the arbitrator to accept Mr Wong's opinion and on the basis of that opinion make the findings he did."
Accordingly, His Honour refused the application for leave to appeal.
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