Albert v Australasian Conference Association Limited (No. 1) T/as Sanitarium Health Food Company
[2005] NSWWCCPD 71
•18 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Albert v Australasian Conference Association Limited (No. 1) t/as Sanitarium Health Food Company
[2005] NSWWCCPD 71
APPELLANT: Ion Albert
RESPONDENT: Australasian Conference Association Limited (No. 1) t/as Sanitarium Health Food Company
INSURER:(a) Allianz Australia (risk period 15.9.96
– 30.3.1998)
(b)Vero Workers Compensation (NSW) Ltd (risk period 31.3.98 – 31.3.2002)
FILE NUMBER: WCC4906 - 04
DATE OF ARBITRATOR’S DECISION: 18 December 2003
DATE OF APPEAL DECISION: 18 July 2005
SUBJECT MATTER OF DECISION: Sections 66 and 67 entitlements; application of 68A of the Workers Compensation Act 1987 and adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Carroll & O’Dea Solicitors
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: (1) The decision of Commissioner Hunt is
revoked.
(2) The matter is remitted to the Registrar
for referral to an Arbitrator to determine the claims under section 66 and section 67 of the Workers Compensation Act 1987.
(3)The Respondent is to pay the costs of the Appeal.
BACKGROUND TO THE APPEAL
Ion Albert (‘the Appellant’) was employed by Australasian Conference Association (No. 1) Limited t/as Sanitarium Health Food Company (‘the Respondent’) as a general hand working on the factory floor. He commenced work in February 1996. His duties included cleaning, bagging, packing, boxing and stacking on the packaging line.
He claims he suffered injuries to his back, both legs, pelvis and neck as a result of four frank injuries in the course of his employment with the Respondent and/or that he suffered from a disease of gradual onset within the meaning of section 15 and/or 16 of the Workers Compensation Act 1987 (‘the 1987 Act’).
He further claims that as a consequence of a medical examination by one of the Respondent’s doctors on 28 April 2000, he injured his coccyx, and/or his back and pelvis, as a result of which he suffered, inter alia, a loss of sexual function.
He brought proceedings before the previous Compensation Court of NSW for lump sum compensation pursuant to section 66 and section 67 of the 1987 Act by ‘Application for Determination’ filed on 28 March 2002.
Those proceedings were heard by Commissioner Hunt on 7 October 2003, and judgment was delivered on 18 December 2003.
.
In short, Commissioner Hunt found that the Appellant suffered a 20% permanent impairment of the back and a 10% permanent impairment of the neck, both awards being reduced by half due to pre-existing degenerative changes. He found no loss of use of either leg nor of sexual function. His decision is silent on the claim for permanent impairment of the pelvis.
The Appellant filed a Notice of Appeal pursuant to section 34 of the Compensation Court Act, 1984 (‘the CCA’) in the Compensation Court on 24 December 2003. That section provides for an appeal from a decision of a Commissioner to a judge of the court “in point of law or on a question of admission or rejection of evidence”.
The CCA was repealed effective 31 December 2003 by the Compensation Court Repeal Act, 2002. Clause 7 of the Compensation Court Repeal (Transitional) Regulation 2003 provides that:
“7 (1).For the purposes of an appeal, on or after 1 January 2004, against an award of the Compensation Court …
(b) In the case of an award of a commissioner or registrar of the Compensation Court –
the award is taken to be a decision referred to in section 352 of the 1998 Act (that is, a decision of an Arbitrator of the WCC)”
The matter was eventually referred to the Commission for determination. By a Direction dated 5 May 2004, the Appellant was directed to serve submissions by 27 May 2004. Late receipt of the transcript of proceedings before Commissioner Hunt resulted in an application for an extension of time to complete submissions and to amend the Notice of Appeal as a result of matters arising from the transcript. The Appellant provided submissions on 31 May 2004 and the Respondent on 10 June 2004.
On 10 June 2004, the Appellant filed an ‘Application to Admit Late Documents’ being the Amended Notice of Grounds of Appeal dated 31 May 2004 and the Appellant’s Outline of Submissions also dated 31 May 2004. A ‘Certificate of Service’ of these documents by the Appellant was filed on 30 June 2004, and the Respondent’s Certificate on 24 June 2004.
It appears that it was not necessary for the Appellant to file an ‘Application to Admit Late Documents’ since a file note from the Commission suggests that an extension of time beyond 27 May 2004, due to late receipt of the transcript, was granted by the Registrar on 27 May 2004. The file note reads “…they should get their submissions in as soon as they can”. Given the length of the transcript and the extensive material tendered by both parties before Commissioner Hunt, I think that completion of the Appellant’s submissions and consequential amendment to the Notice of Appeal by 31 May 2004 was a reasonable time frame within the context of the Registrar’s note. Those documents are accordingly admitted.
LEAVE TO APPEAL
The Appeal was filed in time, and satisfies the criteria set out in section 352 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’).
ON THE PAPERS REVIEW
The Appellant submits that “…the whole of the matter is not capable of determination on the papers…” because “…the Commissioner’s Reasons for Judgment do not, sufficiently or at all, disclose the facts found so as to ‘enable the case properly and sufficiently to be laid before the Higher Appellate’ Tribunal. (Pettit v Dunkley (1971) NSWLR 376 at 388 per Moffat JA)”.
Further, the Appellant claims that questions of credit are relevant and that ‘procedural fairness’ should permit the parties to make oral submissions on the matters in dispute, “…including the basis on which the hearing below was conducted”.
The Respondent submits that “…it is appropriate for the matter to be determined on the papers as all the material relevant to the appeal is contained within the transcript of evidence and judgment”.
The power of a Presidential Member of the Commission on Appeal to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR172). My task is concerned with claimed error, of law, fact, and/or discretion not with the hearing of evidence and determination of the matter at first instance. As Deputy President Fleming said in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD7:
“A Presidential Member has a specific and limited role in the review of a
decision… It is not an ‘appeal’ in the strict sense, as the Commission can receive
further evidence. Similarly, it is not a ‘rehearing’ of the matter where the
Commission is re-exercising the power of the Arbitrator at first instance by hearing
the matter ‘do novo’ and coming to a fresh decision based on all the evidence
available at that later time…”
I am also mindful of the Commission objective to provide a timely and cost effective resolution of disputes.
Having carefully read Commissioner Hunt’s decision, the transcript and all the exhibits in the former court file, together with the lengthy submissions by both parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE GROUNDS OF APPEAL
There are four grounds of appeal, as follows:
“(i)Commissioner Hunt made an error in law in the application of section 68A of the Workers Compensation Act 1987.
(ii)Commissioner Hunt made an error in law in failing to find any permanent loss of efficient use of sexual organs in accordance with the decision of the Court of Appeal in RTA v Malcolm [sic].
(iii)Commissioner Hunt failed to provide any adequate reasons for finding that the claimant suffered no permanent loss of efficient use of either leg as a consequence of injury to the back.
(iv)The Commissioner erred in law in that he misdirected himself in finding as evidence of a primary fact that the Appellant did not sustain a compensible injury on 28 April 2000, arising out of his employment.”
SUBMISSIONS AND EVIDENCE
As to the first ground, section 68A(1) of the 1987 Act provides that “…there is to be a deduction for any proportion of the loss that is due to any previous injury… or that is due to any pre-existing condition or abnormality”.
The Appellant concedes that the finding by Commissioner Hunt that 50% of the impairment of the back and neck is due to pre-existing conditions was open on the evidence. As Commissioner Hunt said at paragraph 43 of his decision:
“Doctors qualified by both the Applicant and the Respondent acknowledge that there is widespread degenerative change over the length of his spine and that there is a degree of impairment which quite possibly is the result of the aggravation of that degeneration and a consequence of a series of events in the work place. I accept that proposition…”
The Appellant’s complaint however is that no, or no adequate reasons were given either for the finding of a 50% deduction or for the apparent acceptance of Dr Bornstein’s deduction in this amount. The Commissioner simply said, after finding a 20% impairment of the back and 10% impairment of the neck, “I would attribute half of each of these impairments to his pre-existing degenerative condition…”
Doctors reporting on behalf of the Appellant made no deduction under section 68A. All the Respondent’s doctors either found no work related impairment or made deductions under section 68A. The Commissioner in his decision referred to each of the reports simply quoting what he regarded as the ‘relevant’ extracts from them.
It would appear that the Commissioner adopted the percentage deduction expressed by Dr Bornstein, but that doctor’s opinion is not easy to decipher. In his report dated 13 May 2003, he says this:
“I consider that his complaints are a combination of constitutional factors as well as having been aggravated by his employment.
Employment has been a contributing factor. Whether it has been a substantial contributing factor is very difficult to determine. My understanding of substantial means greater than 50% contribution.”
He concludes “I again consider that 50% of my assessment is related to employment”.
As the Appellant rightly points out, it appears that the doctor has confused the application of section 68A with a rather curious interpretation of section 9A of the 1987 Act. Section 9A was not raised as a defence in the Answer filed by the Respondent, although it was alluded to by counsel for the Respondent in the hearing before the Commissioner.
If the Commissioner were accepting the opinion of Dr Bornstein on the section 68A issue, he should have said so, and his reasons why, given the flaws to which I have referred. As the Appellant submits, “…beyond merely adverting to the opinion of Dr Bornstein, the Commissioner provided no reason to prefer that opinion over others and nor did he state that he determined 50% to be an appropriate deduction in the exercise of the Court’s knowledge as a specialist tribunal.”
This issue was considered by Hodgson JA in NSW Ambulance Service v Daniel (2000) 19NSW CCR697 at 718. He said this:
“The judgment of the trial Judge made no reference to the material in (the doctor’s) report which could support the finding, nor did it indicate any reliance on the knowledge of the Compensation Court as a specialist tribunal. In my opinion, having regard to the absence of any mention in the judgment of the possibly relevant expert evidence to which I have referred, and the absence of mention of the court’s knowledge as a specialist tribunal, the matters actually referred to by the trial Judge do not amount to evidence capable of supporting the finding. The trial Judge may have taken into account the matters which he did not refer to; but this Court is left to speculate whether or not he did, and if so, how he took them into account.
In my opinion, if a judge’s reasons show that he or she made a finding of fact relying exclusively on material that could not as a matter of law support that finding, then although the reasons may be adequate, they will disclose an error of law”.
The Commissioner in my opinion has overlooked his obligation as set out in Wiki v Atlantis Relocation (NSW) Pty Limited [2004] NSWCA 174 to give reasons when deciding as between experts, or for relying on a particular expert opinion. The court referred to the decision of Soulemezis v Dudley (Holdings) Pty Limited (1987) 10NSWLR 247 where Mahoney JA said that :
“A judge is not required to make a finding in respect of every fact leading to the final conclusion of fact… nevertheless a judge must distinguish between the essentials and the peripherals…reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted… it is necessary that the essential grounds upon which the decision rests should be articulated”.
The Respondent submits that the Appellant “…has not demonstrated by reference to the transcript of evidence and judgment that the commissioner had erred in the application of section 68A”. Certainly, Commissioner Hunt made reference to section 68A, but as I have said, his conclusion was not supported by adequate reasoning, particularly in light of the manner in which some of the doctors expressed their ‘opinion’ on section 68A.
Failure to give adequate reasons constitutes an error of law. Merely quoting extracts from various medical reports does not in my opinion amount to sufficient or adequate reasoning. In my view, Commissioner Hunt has erred in his Application of section 68A of the 1987 Act.
As to the second ground of appeal, Commissioner Hunt determined that (paragraph 5) “I can find no loss of efficient use of sexual organs as a consequence of anything related to this man’s employment”.
The Appellant claimed that as a result of being asked to squat by Dr Connolly at his medical examination on 28 April 2000, he lost his balance, and fell, with his heel striking his coccyx. He complained of significant coccydinial pain thereafter, difficulty sitting, and difficulties with sexual function. Dr Stuckey in his report dated 25 June 2001, had suggested that the Appellant consult a neurologist or urologist on this issue. He was subsequently seen by Professor James Lance who concluded, in his report dated that 4 March 2003, “…his coccydinia was caused by the accident of 28 April 2000, and it is probable that his sexual dysfunction is the result of trauma to the nerve supply to the penis at the moment of impact”.
Dr McMahon, genitourinary physician, was qualified on behalf of the Appellant to comment on his sexual difficulties in a context of his expertise as a sexual health physician and prepared a report dated 5 October 2002. Dr Katelaris, urological surgeon, saw the Appellant on behalf of the Respondent. In his report dated 20 May 2003 he reported that his physical examination was “unremarkable” and concluded that the Appellant “…had not suffered sexual impairment as a result of his alleged work related incidents”. He does not appear to have understood the claim in the context of the injury on 28 April 2000.
Predictably then, there was conflict in the expert medical evidence as to whether or not the Appellant suffered sexual impairment. What was also at issue however, was the ‘accident’ which the Appellant said resulted in his sexual dysfunction.
Dr Connolly reported that, on the day of his examination, the Appellant “…squatted well down to the floor but said it hurt his lower back when getting up”.
Commissioner Hunt said (paragraph 49) “I feel obliged to accept the doctor’s version of what happened on that day”. He did not say why. The incident was pleaded as arising out of the course of employment insofar as the medical examination by Dr Connolly was arranged by the Respondent’s Insurer. The Respondent’s Answer did not deny the occurrence of the incident pleaded. There was no additional evidence from Dr Connolly in relation to the allegation by the Appellant. Indeed, Dr Connolly’s report simply does not address the issue, only referring to a complaint of back pain on arising.
The Commissioner further said (paragraph 49) “There have been several radiological investigations of the coccyx none of which before the court has disclosed any fracture.”
The apparent absence of a clearly defined fracture however, is not the end of the matter. Some doctors opined that the Appellant may have suffered a fracture. The CT Scan of the sacrum and coccyx dated 18 July 2000 referred to “subluxation”. Dr Stuckey referred to x-rays dated 24 October 2000 as showing “…a significant flexion at the junction of the 1st and 2nd coccygeal segments” and that the appearance suggested to him “…the possibility that there had been a fracture of the coccyx…”
There was certainly considerable medical evidence suggesting that the Appellant had suffered some sort of injury to his coccyx.
Ground 4 of the Appeal ties in with this ground to the extent that the Appellant submits that the Commissioner erred in law in finding as evidence of a primary fact that the Appellant did not sustain a compensible injury on 28 April 2000, arising out of his employment. As I have said, the incident was not disputed in the Respondent’s Answer. Dr Connolly did not say such an incident did not occur, only that on arising, the Appellant complained of back pain.
As the Appellant rightly points out, in cross-examination relating to the ‘Connolly incident’ “…it was never put to the Appellant that he did not suffer injury during the Doctor’s examination in the manner alleged or at all. Furthermore, no questions were asked by the Respondent of any witness concerning facts relevant to the application of section 9A”.
The Commissioner’s finding that the Appellant did not suffer any loss of efficient use of sexual organs may well have been the ultimate result on the medical evidence, contradictory as it was. Nevertheless, it appears from an overall reading of the Commissioner’s decision that his finding that the Appellant had not suffered any loss of efficient use of sexual organs was because he felt “…obliged to accept the doctor’s version of what happened on that day” and took that to mean that no such incident occurred and/or that it was not “…anything related to this man’s employment”.
This, in my opinion, is a fundamental error of law and indeed of fact. As I have said, there did not appear to be any dispute by the Respondent that an incident occurred on 28 April 2000.
Moreover, the Commissioner appears to have over looked the principles enunciated in Department of Public Works v Morrow (1986) 5NSWLR 166. It is clear law that a reduced use of a limb caused by pain in another part of the body may constitute a loss within the meaning of the 1987 Act. This decision was discussed in RTA v Malcolm NSWCA 40618 of 1995 – unreported decision 4 July 1996. That case related to a finding by the trial Judge that the Worker had suffered an 80% loss of efficient use of his penis as a sexual organ consequent upon back pain. The Worker’s penis was physically and physiologically normal, but back pain had caused loss of erection. Handley JA, in discussing Morrow quoted from McHugh JA as follows:-
“From the point of view of the Worker, for practical purposes, he has lost the use of the limb. It can hardly matter that the pain which prevents the use of the limb is located in the back instead of the limb. Section 16(5) is concerned with efficient use and not with the physiological impairment of the limb.”
No reasons were given by Commissioner Hunt as to his acceptance or rejection of the Appellant’s evidence in this regard.
The Respondent in its submissions merely states “the Commissioner did not err in law by failing to give adequate reasons in respect of his determination of a claim for loss of sexual organs.” For the reasons stated above, I disagree and I confirm the Commissioner erred in both law and fact.
In the third ground of appeal, the Appellant again complains that the Commissioner failed to provide any adequate reasons for making a finding that the Appellant did not suffer any permanent loss of efficient use of either leg as a consequence of injury to his back.
After discussing the impairments of the back and neck, in the next paragraph (paragraph 44) the Commissioner simply said this. “There is nothing in the radiology to support the Applicant’s claim that any loss of use of either leg is a consequence of injury to his back. That leaves me to consider the claim for loss of efficient use of sexual organs”.
It is clear law that a reduced use of a limb caused by pain in another part of the body may constitute a loss within the meaning of the 1987 Act. The decisions of Morrow and Malcolm are again applicable in the context of the claim for loss of efficient use of the legs. There were no radiological reports of the Appellant’s legs. The Commissioner had before him radiological reports of the sacrum and coccyx, the pelvis and hips, and the thoracic and lumbar spine. There were also a number of MRI Scans of the lumbar spine.
It is not clear what the Commissioner thought the radiological evidence might demonstrate in relation to the claim for loss of use of the legs. There was clear evidence, both from the Appellant and particularly from the Appellant’s treating specialists, Dr Schwarzer, that the Appellant had continually complained of problems with his left leg, and to a lesser extent his right leg. The Appellant had indeed complained to all doctors he saw about problems with his legs.
There are simply no reasons in support of this finding. The basis of the finding is a matter for speculation only. There are no reasons given as to why the Commissioner might have either accepted or rejected the various expert opinions in relation to the Appellant’s complaints, and relied on ‘the radiology’ only.
Again, in paragraphs 30 – 42, the Commissioner has merely quoted short extracts of all the medical reports tendered. For example, at paragraph 33, he states “Dr Stuckey reported on 25 June 2001 and assessed a 20% permanent impairment of the back and a 10% permanent loss of efficient use of the left leg at or above the knee”. His comments are in a similar vain in respect of the many other medical reports tendered.
Nowhere has the Commissioner explicitly either accepted or rejected the Appellant’s own evidence as to the symptoms and disabilities he claimed he experienced in his legs.
The failure to provide any reasons whatsoever in relation to this aspect of the Appellant’s claim is in my opinion again a fundamental error of law.
Although not specifically raised in the four grounds of appeal, the Appellant submits (paragraph 37of the Submissions dated 31 May 2004) that “the Commissioner fell into error by failing to make any finding at all in respect of the claim for 5% permanent impairment of the Appellant’s pelvis. There are no reasons in the judgment to explain the absence of any finding or any reasons which address this issue at all”.
Careful perusal of Commissioner Hunt’s determination confirms that this is indeed correct. He has omitted to make any determination on this aspect of the claim at all. He has clearly erred in this respect.
THE RESPONDENT’S SUBMISSIONS ON SECTION 27 OF THE COMPENSATION COURT ACT 1984
The Respondent’s submissions, whilst denying any error of law in relation to section 68A of the 1987 Act and the lack of reasons in respect of the determination relating to loss of sexual organs and loss of use of the legs, focus particularly on the provisions of section 27 of the Compensation Court Act 1984. Section 27(1) provides that “proceedings in any matter before a Commissioner can be conducted with as little formality and technicality as the proper consideration of the matter permits.” Section 27(4) provides that “the decision of a Commissioner in any proceedings is, subject to the rules, to include details of the findings made by the Commissioner on material questions of fact and of the Commissioner’s reasons for the decision”.
It is the Respondent’s submission that Commissioner Hunt’s judgment is within the scope of section 27, of this Act.
I am certainly mindful of these provisions, but in my opinion, Commissioner Hunt’s decision does not reflect ‘proper consideration’ of the matter. The Commissioner was required to provide details of his findings and reasons for his decision such that the Appellant was sufficiently apprised as to the results of his claim.
In my opinion, the Commissioner’s reasons in respect of the issues raised by the Appellant are inadequate even within the scope of section 27 of the CCA.
CONCLUSION
In my opinion, Commissioner Hunt erred in law in failing to give adequate reasons in respect of many aspects of his decision.
I am satisfied that the Appellant has demonstrated not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that Commissioner Hunt failed to exercise his statutory duty to fairly and lawfully determine the Application (see YG & GG v Minister for Community Services [2002] NSWCA 247 and Absolon v NSW TAFE [1999] NSWCA 311).
The matter is not such that I consider it appropriate to substitute my own decision. The Appellant submitted that the written judgment “appears to refer obliquely to questions of credit which are not the subject of any explicit finding”. In respect of the ‘on the papers’ review, the Appellant submitted that “it is appropriate the parties be allowed to supplement the written outline of submissions with oral submissions on the matters in dispute, including the basis on which the hearing below was conducted”. I do not understand quite what is meant by this last point, but these matters suggest to me and I am minded that the appropriate course is to refer the matter to an Arbitrator to determine the claim.
DECISION
(1) The decision of Commissioner Hunt is revoked.
(2)The matter is remitted to the Registrar for referral to an Arbitrator to determine the claims under sections 66 and 67 of the Workers Compensation Act 1987.
COSTS
The Respondent is to pay the costs of the Appeal as agreed or assessed.
Deborah Moore
Acting Deputy President
18 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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