By Mark Civitella, Partner and Zilke Wright, Lawyer

In Dodson v Woolworths Group [2022] WASCA 22 the Court of Appeal of the Supreme Court of Western Australia dismissed an appeal in which it was argued that an Arbitrator at WorkCover WA wrongfully rejected the evidence of a worker who claimed to have suffered a recurrence of a prior work injury.

Background Facts

The appellant, Ms Dodson, injured her back while working for the respondent on 6 April 2010. The respondent accepted liability to pay workers’ compensation for the back injury and paid compensation until a final medical certificate was issued on 19 October 2011. In 2017, the appellant lodged a further claim for workers’ compensation alleging that on 12 July 2017 she suffered a recurrence of the injuries to her back, with symptoms affecting her bilateral legs and ankles. The appellant claimed that she had suffered continuous pain since the incident on 6 April 2010 and that the pain had become worse over time. The appellant’s claim of a recurrence was denied by the respondent who denied any causal connection between current symptoms and the original injury.

On 3 December 2019, an Arbitrator of WorkCover WA dismissed the appellant’s claim for recommencement of workers’ compensation benefits. The Arbitrator concluded that the most reliable source of evidence of the appellant’s symptoms was the contemporaneous medical and physiotherapy evidence. The Arbitrator formed the view that the appellant had not suffered any pain after December 2011 up until she made a claim in 2017 (as she alleged) and expressed a view that if she had done so the appellant would have consulted her GP and physiotherapist about the pain. The Arbitrator accepted the evidence of an independent medical expert engaged by the Respondent that the appellant had completely recovered from her original injury by September 2011 and there was no causal link between the 2010 injury and her ongoing symptoms which the specialist considered were degenerative in nature. In preferring this evidence, the Arbitrator noted that the respondent’s medical specialist had been provided with all of the relevant medical evidence (whereas specialists engaged by the appellant had not) and had the opportunity to examine the appellant in 2010, 2011 and again in 2017.

An appeal was brought by the Appellant to the District Court of Western Australia alleging four grounds of appeal. District Court Judge Londsdale dismissed the appeal and considered that it was open to the Arbitrator to make the conclusions that she did based on the evidence and that there had been no error.

A further appeal was made to the Court of Appeal.

Grounds of Appeal

The appellant advanced one ground of appeal, namely that the Judge erred in law in failing to uphold certain grounds of appeal which asserted that the Arbitrator had erred in making certain factual findings. Such factual findings included a finding that given the lack of medical or physiotherapy evidence recording that the appellant reported back or bilateral leg and ankle pain the appellant was not in fact experiencing pain in the period from 2011-2017. The ground of appeal alleged that the Arbitrator erred in law in finding, contrary to the appellant’s sworn testimony, that there was no continuity of symptoms given that the appellant’s evidence was not challenged in cross examination, was not inherently incredible and was in fact corroborated in contemporaneous documentary evidence.

Decision

The Court of Appeal comprising Quinlan CJ, Buss P and Beech JA refused leave to appeal and dismissed the appeal on the basis that no error of law or error of any kind had been demonstrated.

The Court found that the appellant clearly had sufficient notice throughout the conduct of the case before the Arbitrator that her evidence that she had suffered continuous pain was disputed by the respondent and there was no unfairness in her not having been cross examined directly on this point.

The Court expressed a view that there was no error in the conclusion that if the appellant had suffered pain she would have consulted her GP and physiotherapist and that there was insufficient contemporaneous medical evidence to support the appellant’s assertion that she had suffered a recurrence or continuation of her original injury. The Court held that such a conclusion did not impose on the appellant a legal requirement of corroboration but was rather an observation rooted in common sense and experience.

Concluding thoughts

The decision in Dodson offers a useful reminder to employers and workers’ compensation insurers of the importance of acquiring contemporaneous medical notes of treating doctors and allied health professionals which have the potential to override a claimant’s testimony about their history of symptoms at various points in time.