Alexakis v Caterair Airport Services (Sydney) Pty Limited

[2005] NSWWCCPD 140

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Alexakis v Caterair Airport Services (Sydney) Pty Limited

[2005] NSWWCCPD 140

APPELLANT:  Theorodus Konstantine Alexakis

RESPONDENT:  Caterair Airport Services (Sydney) Pty Limited

INSURER:Vero Workers Compensation (NSW) Limited

FILE NUMBER:  WCC6597-2004

DATE OF ARBITRATOR’S DECISION:          19 September 2005

DATE OF APPEAL DECISION:  24 November 2005

SUBJECT MATTER OF DECISION:                Whether claim duly made; admission of medical evidence

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant:   Self represented   

Respondent: Hunt & Hunt Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

No order is made as to costs of the appeal.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 17 October 2005 Theorodus Konstantine Alexakis, the Appellant, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 19 September 2005.

1. The Respondent to the Appeal is Caterair Airport Services (Sydney) Pty Limited.

1. ‘Notice of Opposition’ to the appeal was lodged in the Commission on 10 November 2005.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 19 September 2005 records the Arbitrator’s orders as follows:

“1.The Applicant’s claim for lump sum compensation in respect of whole person impairment due to psychological injury has been duly made.

2.The medical report of Dr K Lagios (of 17 March 2005) is not admitted to the proceedings.”

1. In written submissions in support of this appeal the Appellant states, “It is in respect of the medical report of Dr Lagios only that this appeal is now brought.”

1. However, on reading the Arbitrator’s ‘Statement of Reasons for Decision’, the refusal to admit Dr Lagios’ report is based upon his finding, summarised at paragraph 37, that, “The Applicant’s claim for lump sum compensation in respect of loss of sexual function has not been duly made and the medical report of Dr K Lagios (of 17 March 2005) cannot be admitted to these proceedings.”

1. This matter has a lengthy history in the Commission and involves a number of issues, in addition to the issues, the subject of this appeal.  Given the very limited scope of the issues raised in this appeal, it is not necessary to reproduce the history here, other than to make appropriate reference to certain relevant aspects in my findings and reasons for decision, as set out below.

1. I note that the Appellant was not represented in the proceedings before the Arbitrator and is not represented in this appeal.  However, it is clear from the contents of the Commission file that the Appellant has been effectively informed and assisted by the Registrar’s staff in relation to his dealings with and before the Commission.  His submissions on appeal are substantial and comprehensive.  It is clear that some relevant expertise has been employed in their preparation.   

ISSUES IN DISPUTE

1. Following on paragraphs 4, 5 and 6 above, the issues in dispute in the appeal are therefore:

(1)whether a claim for lump sum compensation in respect of loss of sexual function has been made and whether a dispute in relation to such a claim was before the Arbitrator, and

(2)whether the report dated 17 March 2005 of Dr K Lagios should have been admitted into evidence in the proceedings before the Arbitrator.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998Act’) provides:

   “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.”

2. As previously stated, the Appellant’s submissions on appeal are substantial and comprehensive.  They provide considerable background material and address the issues before me.  The Appellant makes no specific submission as to whether this appeal should be dealt with on the papers, except to indicate that if a face-to-face hearing is to take place, he wishes to be accompanied by his brother.  The Respondent has no objections to the matter being dealt with on the papers.

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the written submission by the parties, 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. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. Essentially, the Appellant submits that the amount of the claim exceeds $100,000, thereby satisfying the requirements of section 352(2)(a) of the 1998 Act, and although no amount has been awarded, section 352(2)(b) of the 1998 Act has no application. 

1. The Respondent submits that leave to appeal should not be granted as the decision of the Arbitrator is “no more than an evidentiary ruling”; there is no amount at issue, and section 352 of the 1998 Act  “does not contemplate an appeal from what is effectively an interlocutory determination as to the admission of evidence and in the circumstances leave should not be granted.”

1. The decision by the Arbitrator as to the admission of evidence is a decision of a substantive nature and not one of mere administrative procedure.  Moreover, the finding by the Arbitrator that a claim for loss of sexual function has not been duly made was a substantive finding in the proceedings before him, upon which his decision to reject Dr Lagios’ report was based.  His decision was made in the proceedings that were properly before him.  (See Mawson v Fletchers International Exports Limited [2002] NSW WCC PD 5 (‘Mawson’); Robert Grimson v Integral Energy [2003] NSW WCC PD 29 (‘Grimson’)).  I find accordingly.

1. I am satisfied that the amount in issue is in excess of $5000 and consequently, section 352(2)(a) of the 1998 Act is satisfied.  Section 352(2)(b) has no application, (Mawson and Grimson).

1. Leave to appeal is granted.      

EVIDENCE AND SUBMISSIONS

1. The Appellant’s submissions are, as I have said, substantial and comprehensive.  However, much of the content is largely background information; the history of the proceedings in the Commission; canvassing of issues and matters that are not the subject of or relevant to this appeal, and general comments and opinions surrounding the wider dispute.

1. I have addressed myself to the submissions that relate only to the issues before me on appeal.

1. Essentially, the Appellant submits that the medical report in question was relevant to the dispute before the Arbitrator; that refusal to accept the medical report into evidence is a denial of natural justice; that the Arbitrator had already granted leave to admit the medical report in his direction of 8 March 2005, and that the Arbitrator was unduly and unfairly influenced by the legal representative of the Respondent, in the proceedings before him.

1. The Respondent submits in summary, that the appeal should not succeed because the Appellant has failed to demonstrate an error on the part of the Arbitrator; that the Arbitrator was correct in excluding the medical report as it was compiled by a sexual health physician, dealing with a matter that was not before the Commission, and that in any event, the medical report relates to a potential claim not yet duly made.

DISCUSSION AND FINDINGS

1. A Presidential Member has a specific and limited role in the review of a decision of an Arbitrator.  The review on appeal is not a rehearing de novo.  The powers of the Presidential Member to revoke the decision made by an Arbitrator are set out in section 352(7) of the 1998 Act and are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).

1. I have read all of the relevant documents in the Commission file, including the transcript of the proceedings before the Arbitrator.  I am left in little doubt that the Registrar’s staff, the Arbitrator and indeed, the Respondent have afforded every courtesy and assistance to the Appellant, insofar as it has been practicable and appropriate.  On what is before me I can only agree with the Respondent that, “The conduct of the matter before the Arbitrator… was characterised by an overwhelming attempt by the Arbitrator and the Respondent’s representatives to ensure that the worker was fully aware of all the issues and given every opportunity to put his position.”   I find that the Appellant’s submissions alleging or inferring impropriety or failure to deal with him in a proper manner as a self represented party, are without substance.

1. The Arbitrator did not, as alleged by the Appellant, grant leave to admit the medical report in a direction dated 8 March 2005.  The Arbitrator merely gave instructions to a member of the Registrar’s staff to give guidance to the Appellant as to how he should submit the medical report to the Commission so that it could be placed before the Arbitrator for consideration as to whether it would be admitted into evidence.  I note that the Arbitrator also asked that the Appellant be informed as to the necessity for the Respondent to be served with a copy of that document, in the interests of procedural fairness.  Accordingly, I find that the Arbitrator did not admit the medical report of Dr Lagios, dated 17 March 2005 into evidence, by direction dated 8 March 2005, which date in any event, precedes the date on which the document came into existence.  

1. The medical report referred to, does not support all existing claims for both medical and psychological injuries to the Appellant, as claimed by him.  It relates entirely to an apparent loss of sexual function.  It is a matter that was neither included nor mentioned in the ‘Application to Resolve a Dispute’ initially lodged in the Commission by the Appellant.  It is not an issue that was or is in dispute before the Arbitrator in this matter.  There is no evidence whatsoever before me to demonstrate that any claim for loss of sexual function has been duly made in accordance with the Legislation.  The Appellant is not entitled to simply introduce issues that are not relevant to the issues in dispute that he himself brought to the Commission in the first place, nor to introduce further issues on an ad hoc and incorrect basis as and when he may choose to do so.  Accordingly, I find that the Arbitrator was correct in rejecting as evidence the medical report of Dr Lagios dated 17 March 2005, in the dispute that was before him.  This ground of appeal fails.

1. I find no error of law, fact or discretion on the part of the Arbitrator.

1. Finally, I note that there is a substantial amount of material on the Commission file in relation to the issues before the Arbitrator.  Moreover, it seems that the Appellant wishes to pursue a further claim, in relation to loss of sexual function.  Notwithstanding the commendable efforts of the Registrar’s staff to assist the Appellant throughout his dealings with the Commission, it seems that he might be well advised to seek legal advice and assistance, as soon as possible, before proceeding further.  Nevertheless, it is appreciated that this is entirely a matter for the Appellant. 

DECISION

1. The appeal is not successful.  The decision of the Arbitrator is confirmed.

COSTS

1. No order is made as to costs of the appeal.

Gary Byron

Deputy President  

24 November 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE