Adecco Australia Pty Ltd v Kirkovski
[2007] NSWWCCPD 246
•18 December 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Adecco Australia Pty Ltd v Kirkovski [2007] NSWWCCPD 246
APPELLANT: Adecco Australia Pty Ltd
RESPONDENT: Vasilije Kirkovski
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC3999-07
DATE OF ARBITRATOR’S DECISION: 15 August 2007
DATE OF APPEAL DECISION: 18 December 2007
SUBJECT MATTER OF DECISION: Admission of late evidence; treatment of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Gillis Delaney Lawyers
Respondent: Taylor & Scott Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 15 August 2007 is confirmed.
The Appellant, Adecco Australia Pty Ltd, is to pay the costs of the Respondent, Mr Kirkovski in this appeal.
BACKGROUND TO THE APPEAL
On 10 September 2007, Adecco Australia Pty Ltd (‘Adecco’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 15 August 2007. The Respondent to the appeal is Vasilije Kirkovski. Adecco’s workers compensation insurer is QBE Workers Compensation (NSW) Ltd (‘QBE’).
Mr Kirkovski was born in Macedonia on 6 June 1945 and is aged 62. He migrated to Australia in about 1986. Mr Kirkovski suffered a crush injury to his right hand when lifting a television onto a forklift on 21 June 2000. At that time, he was working for Adecco as an assistant forklift driver at the premises of Nick Scali Furniture. QBE initially accepted liability for the injury and paid weekly compensation and medical expenses. Mr Kirkovski returned to work for Adecco, as well as other employers, at various times until May 2003. On 30 May 2003, Mr Kirkovski brought a claim for unfair dismissal against Adecco. On 16 January 2004, his application was dismissed by the Industrial Relations Commission of NSW for want of prosecution and because further proceedings in the matter would be frivolous or vexatious.
In September 2004, the parties filed a Section 66A Agreement in the Commission pursuant to which Adecco agreed to pay Mr Kirkovski $7,000 compensation for 10% permanent loss of efficient use of the right hand pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’). On 29 April 2005, QBE denied any further liability for workers compensation on the basis that employment was no longer a substantial contributing factor to the condition of Mr Kirkovski’s right hand, relying on a report by Dr Robert Reid.
On 31 May 2006, Mr Kirkovski had surgery on his right hand to replace the metacarpophalangeal joint of the right middle finger.
On 31 May 2007, the Commission registered Mr Kirkovski’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation from 29 April 2005 to date and continuing and for medical, hospital and rehabilitation expenses. On 19 June 2007, Adecco filed its ‘Reply’. On 5 July 2007, the Arbitrator conducted a teleconference with the parties. On 17 July 2007, conciliation having proved unsuccessful, she conducted an arbitration hearing. Her decision, dated 15 August 2007, was in the terms set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 August 2007, records the Arbitrator’s orders as follows:
“Finding
1. The surgery by way of joint replacement of the metacarpophalangeal joint of the right middle finger undertaken by Dr Scougall on 31 May 2006 was reasonably necessary medical treatment as a result of the work injury to the right hand. It is therefore a proper past expense pursuant to section 60 of the 1987 Act which the Respondent must pay on the production of accounts and/or receipts.Orders
1. The Respondent is to pay the Applicant weekly benefits compensation from 29 April 2005 and continuing at the maximum statutory rate for a worker with no dependants pursuant to section 40 of the Act. As at 29 April 2005 that rate was $334.10 per week, from 1 October 2005 to 31 March 2006 that rate was $340.90 per week, from 1 April 2006 to 30 September 2006 that rate was $349.70 per week, from 1 October 2006 to 31 March 2007 that rate was $354.40 per week and from 1 April 2007 that rate is $361.30 per week, such weekly payments to continue in accordance with the provisions of the 1987 Act.2. The Respondent is to pay the Applicant’s section 60 expenses resulting from the injury to his right hand on 26 [sic] June 2000 on the production of accounts and/or receipts. Such expenses include the cost of surgery by Dr Scougall on 31 May 2006.
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for her decision, the Arbitrator identified the issues for her to determine as first, whether, from 29 April 2005, the effects of the injury on 21 June 2000 had ceased so that Mr Kirkovski was no longer incapacitated for work by reason of the injury, and, second, if Mr Kirkovski continued to be incapacitated for work by reason of the injury, whether that incapacity was total or partial and, in the case of the latter, what was his entitlement to weekly compensation.
The Arbitrator accepted the opinion of Dr Ian Collins, Physician, expressed in a report dated 13 June 2006, that Mr Kirkovski’s continuing incapacity for work was the direct result of the injury and that the debilitating effects of that injury are continuing. Relying on Dr Collins’ opinion and on WorkCover and Centrelink medical certificates, the Arbitrator found that Mr Kirkovski continues to be partially incapacitated for work. She accepted Mr Kirkovski’s evidence that he had not worked since January 2005 because of the pain and limitations resulting from the injury.
The Arbitrator found that Mr Kirkovski was partially incapacitated for work from 29 April 2005 until the time of the surgery, totally unfit for work from 31 May 2006 to 1 July 2006, and partially incapacitated for work since that time. She found that Mr Kirkovski was entitled to weekly compensation pursuant to section 40 of the 1987 Act. The Arbitrator then determined the amount of weekly compensation to which Mr Kirkovski was entitled by reference to the NSW Court of Appeal decision in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527. She found that Mr Kirkovski’s probable weekly earnings but for the injury varied “over the period of the claim between $519.34 and $550.96 allowing for an increase of 3% per annum on his actual pre-injury earnings” (paragraph 25).
The Arbitrator found Mr Kirkovski to be severely restricted in the type of work he can do, and his residual capacity to compete in the labour market reasonably open to him to be very limited by reason of these restrictions, his limited work skills, poor English skills and age. The Arbitrator concluded that Mr Kirkovski could perform “some light physical work within his restrictions” for “not more than 10 hours per week” at a casual rate of $15.00 per hour (paragraph 29). She therefore found Mr Kirkovski would be able to earn $150.00 per week in some suitable employment post-injury. She also found there was nothing to warrant exercising her discretion under section 40(1) of the 1987 Act. Her determination of weekly compensation is as set out in the orders above.
The Arbitrator found Adecco was liable to pay Mr Kirkovski’s section 60 medical expenses arising from the injury, including in respect of the surgery performed by Dr Scougall, which she found to be reasonably necessary medical treatment as a result of the injury.
ISSUES IN DISPUTE
The grounds of appeal identified by Adecco are, first, that the Arbitrator failed to accord it procedural fairness by allowing the tender of Mr Kirkovski’s medical certificates that had neither been previously served nor appended to a Notice to Admit Late Documents, and second, the Arbitrator erred by making findings that were not logically available on the medical evidence of Dr Collins. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions of the parties. Adecco submits the matter can be determined on the basis of the written material, while Mr Korkovski’s solicitors submit the matter should be the subject of an oral hearing. Having considered these submissions and the other documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue exceeds $5,000 and constitutes more than 20% of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The first ground of appeal is that the Arbitrator failed to accord Adecco procedural fairness by allowing the tender of Mr Kirkovski’s medical certificates that had neither been previously served nor appended to a Notice to Admit Late Documents. Adecco submits that although the Arbitrator has a discretion to admit late documents pursuant to rule 10.3(3) of the Workers Compensation Rules 2006, that discretion was wrongly exercised here in admitting Centrelink medical certificates at the hearing over Adecco’s objection. Apart from Dr Collins’ report dated 13 June 2006, these certificates were the only medical evidence of continuing incapacity following the surgery on Mr Kirkovski’s right middle finger. Adecco was irrevocably prejudiced thereby as it was unable to test or rebut this evidence at this late stage. Had the certificates been attached to the ‘Application to Resolve a Dispute’, Adecco could have sought updated medical evidence, and made further enquiries of the Commonwealth Rehabilitation Service (‘CRS’) or served it with a Direction to Produce. The appropriate course for the Arbitrator to follow would have been to reject the tender of evidence and make a finding of a closed period of incapacity up until approximately July 2006. Mr Kirkovski would then have been at liberty to bring fresh proceedings about the subsequent period and the issue could have been litigated fairly.
Mr Kirkovski’s solicitors note that interference with the exercise of the Arbitrator’s discretion, which required a balancing of the interests of Mr Kirkovski in having the evidence before the Commission, against any prejudice to Adecco, should only occur if it could be shown that the Arbitrator made an error in the exercise of her discretion. Mr Kirkovski’s solicitors submit that Adecco has failed to establish such a basis. Here the late admission of the medical certificates was in part necessitated by the late admission of Adecco’s medical evidence (see paragraph 9 of the Statement of Reasons). In any event, the admission of the certificates was one part of the medical evidence in support of Mr Kirkovski’s case. The fact that some prejudice occurred to Adecco does not of itself establish that the Arbitrator erred in the exercise of her discretion.
The second ground of appeal is that the Arbitrator erred by making findings that were not logically available on the medical evidence of Dr Collins. Adecco states that at the time of Dr Collins’ report (13 June 2006), Mr Kirkovski’s arm was in a sling and he was still recovering from the surgery performed on 31 May 2006. Thus, while Dr Collins’ report could potentially be relied on in respect of past incapacity, his opinion about the future was “rank speculation that, as a matter of law, should have been given no weight because of the apparent lack of reasoning to support it”. Dr Collins’ examination could only have been cursory given the circumstances, and he did not have access to radiological reports given the fact that he proceeded on the false assumption that the original injury was a fracture. While the Arbitrator did not regard the latter point as significant, such considerations should have alerted her to the unsupported nature of Dr Collins’ conclusions regarding Mr Kirkovski’s future long-term incapacity.
Mr Kirkovski’s solicitors note that Dr Collins assessed Mr Kirkovski after the surgery. Dr Collins is an experienced General Surgeon who accurately recorded and reviewed Mr Kirkovski’s injury and resultant treatment. Dr Collins’ expressed opinion on the likely continuing effects of Mr Kirkovski’s injury were clearly within Dr Collins’ expertise, and the Arbitrator treated his report and opinion as of assistance in the course of her detailed and careful reasons given at paragraphs 17 and 18 of her Statement of Reasons.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Adecco must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
With regard to the first ground of appeal, on 27 June 2007, before the teleconference on 5 July 2007, Adecco filed an ‘Application to Admit Late Documents’ with the Commission, listing a considerable number of attached documents on which Adecco sought to rely. These documents should have been appended to the ‘Reply’. At the hearing, the Arbitrator noted that the reason for their late filing was “that the documents were obtained by QBE subsequent to the filing of the reply as the file was in archives when the reply was done” (transcript p 5). In consenting to the late admission, the Arbitrator said there was no prejudice to the applicant by their admission, whereas there would be substantial prejudice to the respondent if not admitted. I note that Counsel for Mr Kirkovski did in fact point to “some prejudice caused to the applicant ... [from] the admission of Dr Reid’s opinion as to incapacity” (transcript p 6), Dr Reid’s report not having been attached (as stated) to the letter by which QBE declined further liability, dated 29 April 2005, which was appended to the ‘Reply’. In this letter, QBE relied on Dr Reid’s opinion.
With regard to Counsel for Mr Kirkovski’s application at the commencement of the arbitration hearing to admit six Centrelink medical certificates (dated 1 June 2006, 10 July 2006, 26 July 2006, 18 August 2006, 11 February 2007 and 10 May 2007) stating that Mr Kirkovski was unable to work for eight hours or more per week, Counsel explained to the Arbitrator that those documents had first been produced to him in conference that day prior to the hearing. He was unable to provide any further explanation other than to draw attention to the fact that Mr Kirkovski is a labourer whose first language is not English, noting that the certificates did not appear to be controversial, and go to meeting Dr Reid’s opinion, whose report was also served late (transcript p 9). Counsel for Adecco objected to the admission of the certificates on the ground that “there is some prejudice in terms of the respondent meeting the claim” and not having the opportunity to look at the issue of incapacity more closely (transcript p 10).
The Arbitrator discussed the issue at some length (transcript pp 10-11), noting that the certificates “effectively just confirm and continue the position” set out in Dr Collins’ report of 13 June 2006. She considered that the prejudice to the respondent by admission of the documents would not be significant, noting that the respondent had an opportunity to update their medical evidence after being put on notice of the claim but chose not to do so. Such prejudice to the respondent would be outweighed by the prejudice to the applicant if it were necessary, for example, for the applicant to file a further application. The Arbitrator concluded that the documents should be admitted “in the interests of justice” (transcript p 11).
Having reviewed the transcript, I am not satisfied that the Arbitrator erred in the exercise of her discretion. She appears to have canvassed the issue by reference to the submissions of the parties, weighed the competing prejudices, and made a reasoned decision. I am not satisfied that there is any basis on which I should interfere with the exercise of her discretion. This ground of appeal therefore fails.
Turning to the second ground of appeal, I note that Mr Kirkovski had surgery to his right hand, performed by Dr Scougall, on 31 May 2006. Dr Collins’ report dated 13 June 2006 was based on his examination on that day, when Dr Collins recorded a “healing surgical incision” over Mr Kirkovski’s third metocarpophalangeal joint of his right hand. There is nothing to suggest the examination was cursory, as alleged by Adecco. Dr Collins noted:
“The operation is very recent and he is not fit for any form of work until after the post operative period. Up till the present, he has been fit only for light work not involving the use of the right hand.”
Under the heading “Prognosis for the Future”, Dr Collins said:
“I believe that the operation will lead to improvement in the function of his right hand, but he will always be restricted to light work not involving strenuous use of the right hand.”
The Arbitrator noted Dr Collins wrongly referred to the injury being a “crush fracture that has done badly” rather than what, in fact, was a crush injury, but the Arbitrator obviously considered this mistake to be of little significance (Statement of Reasons, paragraph 17). She then discussed Dr Collins’ opinion as to incapacity, noting that at the time of Dr Collins’ examination of Mr Kirkovski, it was not long after the surgery. Nevertheless, the Arbitrator accepted Dr Collins’ opinion that “the Applicant’s continuing incapacity for work results from the injury, and that the debilitating effects of that injury are continuing” (paragraph 18). The Arbitrator then went on to discuss the other medical evidence as to incapacity, concluding that Mr Kirkovski “continues to be partially incapacitated for work” (paragraph 20).
In my view, it is clear from the Arbitrator’s Statement of Reasons that Dr Collins’ report was one of a number of pieces of evidence upon which she relied in concluding that Mr Kirkovski was partially incapacitated for work. At paragraphs 19 and 20, she discussed the evidence of Dr Scougall, the WorkCover and Centrelink medical certificates, and Dr Reid’s report, noting that the only contrary opinion before her on the issue of incapacity was that of Dr Reid, and stating that on the balance of the evidence before her, she did not agree with his opinion.
I am not satisfied from my review of Dr Collins’ report and of the Arbitrator’s Statement of Reasons that the Arbitrator made any error in her treatment of Dr Collins’ evidence and in her findings on the issue of incapacity as Adecco contends in the appeal. Thus, Adecco has also failed to establish its second ground of appeal, and the Arbitrator’s decision must be confirmed.
DECISION
The decision of the Arbitrator dated 15 August 2007 is confirmed.
COSTS
The Appellant, Adecco Australia Pty Ltd, is to pay the costs of the Respondent, Mr Kirkovski in this appeal.
Robin Handley
Acting Deputy President
18 December 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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