Aluminium Louvres & Ceilings Pty Ltd v Zheng
[2004] NSWWCCPD 26
•17 May 2004
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR STATUS: Decision confirmed on Appeal: Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; (2007) 4 DDCR 206 CITATION: Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 APPELLANT: Aluminium Louvres & Ceilings Pty Ltd RESPONDENT: Xue Qin Zheng INSURER: CGU Workers Compensation (NSW) Limited FILE NUMBER: WCC 5911-03 DATE OF ARBITRATOR’S DECISION: 12 September 2003 DATE OF APPEAL DECISION: 17 May 2004 SUBJECT MATTER OF DECISION: Procedural Fairness, Cross Examination, No Transcript, Appeal on Ground of No Evidence, Sections 4 and 9A of the Workers Compensation Act 1987, Inadequacy of Reasons. PRESIDENTIAL MEMBER: Dr Gabriel Fleming HEARING: Conference 22 April 2004, thereafter ‘On the Papers’. REPRESENTATION: Appellant: Leigh Virtue & Associates Solicitors Respondent: Sankoson Lawyers ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed. The Appellant Employer should bear the costs of the appeal. THE APPEAL
1.On 9 October 2003 Aluminium Louvres & Ceilings Pty Ltd (‘the Appellant Employer/Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision, dated 12 September 2003.
2.Xue Qin Zheng (‘the Respondent Worker/Mr Zheng’) is named as the Respondent to the appeal.
3.The appeal is in relation to a claim by Mr Zheng for payments of weekly compensation and medical expenses as a result of an injury he allegedly received while working for the Appellant Employer as a leading hand. The injury was said to have occurred on 8 October 2002 when another worker physically attacked him at his place of work.
4.The Certificate of Determination, and attached ‘Statement of Reasons for Decision’ (‘the Reasons’) records the Arbitrator’s orders as follows:
· That the Respondent pay the Applicant weekly compensation from 8th October 2002 to 2nd December 2002 under S. 36 of the Workers Compensation Act 1987.
· That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
· That the Respondent pay the Applicant’s costs as agreed or assessed.
5.The Appellant Employer seeks to have the decision revoked and a new decision, that it is not liable to pay compensation to Mr Zheng, made in its place.
6.The Appellant Employer’s claimed grounds of appeal were annexed to the Application to Appeal with further submissions filed on 14 November 2003. The Respondent Worker did not file a ‘Reply to the Appeal’.
7.This matter was referred to me for review on 30 March 2004. Directions were made on that day inviting the parties to make further submissions by 16 April 2004. The Appellant Employer did so on 8 April 2004. The Respondent Worker’s written submissions were received in the Commission on 19 April 2004.
8.A conference was held in the appeal on 22 April 2004, attended by the legal representatives of both parties. Mr Zheng also attended, and was assisted by an interpreter in the Mandarin language, provided by the Commission. The transcript of that conference is before me on the appeal, along with the evidence that was before the Arbitrator and the parties’ submissions. The Appellant Employer’s legal representative made lengthy oral submissions addressing the grounds of appeal. The Respondent Worker’s legal representative also made submissions, however they have been of limited assistance in the determination of the appeal. The Respondent Worker’s legal representative appeared unaware of the practice and procedure of the Commission, the legal issues and principles in dispute in the appeal, and the application of the substantive law to the facts of this case.
ABSENCE OF TRANSCRIPT
9.No transcript is available of the arbitration proceedings held on 5 August 2003. This complicates the task of review in this matter as the grounds of appeal allege denial of procedural fairness and errors of law and discretion, that go to the conduct of the arbitration, as well as to the findings and reasoning contained in the Arbitrator’s written reasons.
10.The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. It is not intended that this review become a complete second hearing of the dispute (McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble 11” [2003] NSW WCC PD 22).
11.I have considered the parties’ submissions as to how, if at all, the appeal should be conducted in the absence of a transcript of proceedings before the Arbitrator. The Appellant Employer urges that the review be abandoned and the matter be referred to an Arbitrator to be, effectively, reheard, ab initio. The Respondent Worker argued that the appeal should ‘not proceed’ because of the absence of transcript. However in oral submissions the Respondent Worker stated that I should proceed to confirm the Arbitrator’s decision on the basis of the documents before me.
12.In my view the absence of a transcript, while clearly the responsibility of the Commission and in breach of its own policy, is not fatal to the process of review, in this particular case. Mr Zheng gave oral evidence at the arbitration and was cross-examined, although to what extent is a matter in issue in the appeal. There are two written statements of Mr Zheng filed in the proceedings dated 18 March 2000 and 1 November 2002, and a letter from Mr Zheng to the Director of the Employer setting out the circumstances of the incident, dated 14 October 2002. Written statements from other workers are also in evidence as are medical reports filed by both parties and copies of relevant correspondence and claim forms.
13.In the absence of any adequate submissions from the Respondent Worker, I am prepared to accept the Appellant Employer’s submissions as to the facts of what occurred before the Arbitrator and her directions as to the conduct of the proceedings. The Appellant Employer’s legal representative has submitted an account of what occurred based on his attendance at the arbitration, his notes and his recollection. It should be noted that the Respondent Worker, despite having the opportunity at the conference on 22 April 2004, has not sought to contradict the Appellant Employer’s account of the arbitration proceedings, other than to assert that ample opportunity for cross-examination of the worker was provided by the Arbitrator (this is a matter that is discussed further below). Ultimately, I am satisfied that I can fairly and lawfully review the decision by proceeding on the basis that the Appellant Employer’s statement of what occurred at the arbitration is correct. The review of whether the Arbitrator made her decision on the basis of no, or inadequate evidence, can proceed upon the documentary evidence and the findings that are elaborated in the Reasons.
14.I am satisfied that I have sufficient information to proceed on the basis of the oral submissions made at the conference of 22 April 2004 and the documents before me, and that this is the appropriate course in the circumstances.
LEAVE
15.In this matter I am satisfied that:
· The appeal is filed within 28 days of the decision appealed against (section 352(4) of Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)),
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
· The amount of compensation at issue on the appeal is at least 20% of the amount awarded in the decision appealed against, (352(2)(b) of the 1998 Act), and
· No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
16.Leave to appeal was granted orally at the conference held on 22 April 2004.
ISSUES IN DISPUTE
17.The ‘review’ of a decision of an Arbitrator is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesch v Maunz [2000] 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Appellant Employer submits that the Arbitrator’s decision should be revoked on a number of grounds, which may be summarised as follows:
The Arbitrator erred in:
·Denying the Employer procedural fairness by restricting cross-examination of the worker at the arbitration (‘The Procedural Fairness Error’);
·Failing to make the determination on the basis of logically probative evidence (‘The No Evidence Error’);
·Misapplying section 4 of the Workers Compensation Act 1987 (‘the 1987 Act (‘The Section 4 Error’);
·Failing to apply, or misapplying, section 9A of the 1987 Act (‘The Section 9A Error’); and
·Failing to give adequate reasons for the decision (‘The Reasons Error’).
DISCUSSION AND FINDINGS
The Facts
18.The facts of the dispute are set out in the Arbitrator’s reasons and are not repeated in full here. Mr Zheng has worked in the Appellant Employer’s factory since 1992 and has been a leading hand since 1996. He claims to have suffered an injury, being a post-traumatic stress disorder and abrasions to the head, when a co-worker attacked him on 8 October 2002.
19.The Appellant Employer claims that Mr Zheng had not commenced work at the time when the incident occurred because he had not yet turned on any machinery or commenced his usual duties and thus the injury occurred outside the normal hours of his employment. Mr Zheng’s written statement claims that he had entered the factory and turned on the compressor before he was assaulted.
The Procedural Fairness Error
20.The common rules of procedural fairness provide that a person who is to be affected by a decision has a right to notice of the case against him, or her, to be heard in relation to it, and to have the matter decided by an unbiased decision-maker. Express statutory provisions may modify the common law requirements. The exact content of procedural fairness in Commission proceedings is determined by the provisions of the 1998 Act, the nature of the decision under review and the demands of the instant case (Kioa v West [1995] 159 CLR 550). A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).
21.The procedure before the Commission is set out in section 354 of the 1998 Act, as follows:
Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
22.The Appellant Employer alleges that: “. . . the arbitrator denied [it] natural justice in the manner in which the arbitrator dealt with the conduct of the proceedings particularly with regards to the restrictions that were placed upon the Respondent in its cross examination of the Applicant worker in a matter of this nature.” It submits that the limitation on cross-examination of Mr Zheng denied it the opportunity to test his evidence in relation to a number of claims, including whether the incident that gave rise to the injury occurred before he had actually commenced work.
23.The Appellant Employer relied upon a number of authorities including R. v War Pensions Entitlement Appeal Tribunal [1933] 50 CLR 228 at 256; A and B v Director of Family Services [1996] ACTSC 48; Saverio Barbaro and Minister for Immigration and Ethnic Affairs [1980] 3 ALD 1; Ex Parte Hardiman [1980] 54 ALJR 314; GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) [1990] 20 NSWLR 15; Re Supetina Pty Ltd and Others [1984] 5 FCR 439 and Ileris v Comcare [1999] AATA 647.
24.A number of relevant principles may be drawn from these authorities. Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.
25.The Commission is bound by the principles of procedural fairness, which requires that parties’ be given the opportunity to address evidence against them, where the Commission is to rely that evidence in making the decision. Rule 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that:
70 Principles of Procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.
26.Rule 71 provides that:
71 Measures to assist parties
The Commission is to take such measures as are reasonably practicable to:(a)assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and
(b)explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and
(c)ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d)ensure that the parties have the opportunity to explore settlement in the proceedings.
27.In Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, Davies J, President of the Administrative Appeals Tribunal (‘the AAT’), discussed the nature of tribunal proceedings that are not bound by the rules of evidence. Justice Davies stated that, in the context of administrative review by the AAT;
“. . . the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits” (emphasis added).
28.The proviso set out by Justice Davies is critical to the task of ensuring that Commission proceedings comply with the requirements of procedural fairness, as well as with section 354 of the 1998 Act. A similar proviso is contained in Rule 71 (c), which expressly states that in ensuring parties have the ‘fullest opportunity practicable to have their case in the proceedings considered” the Commission must not compromise the achievement of its statutory objectives.
29.There is no general law ‘right’ to cross-examination in civil proceedings in a court (GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) [1990] 20 NSWLR), and clearly no ‘right’ exists in relation to the Commission, which is solely governed by the provisions of the statute. Procedural fairness, in the context of Commission proceedings, does not demand that a party be afforded an unrestricted right of cross-examination in relation to evidence given at an arbitration hearing. To suggest otherwise would be to deny the broad provisions of section 354 of the 1998 Act any meaning or effect, and to force a Commission Arbitrator to conduct arbitration proceedings in the adversarial style of the traditional courts. This was clearly not the intention of the legislature in the establishment of the Commission.
30.The determination of what is procedurally fair will be a matter for the Arbitrator in the circumstances of the particular case. It must not be made arbitrarily, or without regard to the requirements of the 1998 Act and the Rules. To guide and assist Arbitrators, parties and legal practitioners in the conduct of Commission proceedings, the President of the Commission has issued a ‘Guideline for the Practice of Conciliation/Arbitration’ (‘the Guideline’), which is published on the Commission’s internet site and is widely available in hard copy. This Guideline is expressly based on the following principles:
·The Commission is part of a broader statutory scheme for dealing with workers compensation issues and claims in a way which is timely, fair and affordable (ss 3 & 367 of the 1998 Act).
·All of the information to be used in the dispute resolution process is to be provided and exchanged at the beginning (s 290 of the 1998 Act & Rules 38, 40, 42 & 44). Key information will already be in existence, having been used to support prior resolution attempts between the parties (Parts 2 & 3 of Chapter 7 of the 1998 Act).
·Agreement between the parties is to be encouraged and facilitated at each and every stage of the process (s 355 of the 1998 Act, Rule 71(d)).
·The Commission will take all practicable measures to ensure that parties understand the nature of the application, the legal implications of any assertions made in the proceedings, the procedure of the Commission and any decision or ruling made (Rule 71(a) & (b)).
·Arbitrators are required to play an inquisitorial role in resolving disputes. Therefore, traditional adversarial processes are absent or heavily modified and those remaining must be exercised in the context of the Commission’s objectives (s 354 of the 1998 Act).
·Parties are entitled to procedural fairness consistent with the inherently inquisitorial character of the process and the objectives of the Commission (ss 367(1)(a) & (2) of the 1998 Act, Rules 70 & 71(c)). Timeliness and consistency of procedure are strong elements of fairness in this method of dispute resolution.
·The dispute resolution process will be as informal and free of legal technicality as is possible (s 354 of the 1998 Act).
·The focus is at all times on the parties to the dispute. Legal representatives and agents play a role in supporting parties with information and advice, and in assisting the dispute resolution process (ss 367 & 356 of the 1998 Act, Standards of Conduct During Proceedings).
·Evidence used as a basis for any final arbitral decision-making will usually be in documentary form. There will be limited opportunity for oral evidence to be given (Rules 66 & 67).
·The Act requires that the same Arbitrator who is to determine a dispute will first use his or her best endeavours to bring the parties to a settlement that is acceptable to the parties (section 355 of the 1998 Act).
31.The Guideline then sets out a detailed protocol for the dispute resolution process, including the conduct of a telephone conference, conciliation conference and arbitration hearing. Before parties reach an arbitration hearing all the evidence should be before the Arbitrator, settlement discussions should have occurred and the issues which remain in dispute should have been carefully and critically examined and refined. Where there is agreement as to the facts and/or issues in dispute the Arbitrator should be in a position to articulate this agreement at the start of the arbitration phase of the proceedings. The following guidance is given in the Guideline, in relation to matters of ‘further evidence’ at the arbitration:
·If the Arbitrator determines there is the need for further evidence to be taken, he or she may do any or all of the following:
- question the parties or witnesses.
- take evidence on oath or affirmation.
- permit parties or their representatives to ask questions of witnesses, by or through the Arbitrator (s 360 of the 1998 Act).
·Questioning or cross examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
- contradictory evidence requires to be clarified or tested, or
- adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.
·The Arbitrator will ask the parties and their representatives if there are matters requiring clarification. The Arbitrator may then ask the questions or allow the party or representative to do so.
·Before making a final determination, the Arbitrator may receive oral or written submissions (s 356(5) of the 1998 Act). Submissions will be brief and will address only matters in issue which may be:
- the findings which the party argues should be made on material questions of fact, referring to the evidence, and/or
- reference to the applicable law, and
- the conclusions the party argues should be reached.
32.The Guideline allows the Arbitrator discretion in relation to cross-examination, within the context of the statutory objectives and procedures of the Commission and the demands of procedural fairness in the instant case. It is consistent with the Commission’s power to control its own proceedings. Clearly there will be cases where the Arbitrator allows cross-examination to occur, to a lesser or greater extent, depending upon the particular facts. At the same time procedural fairness, in the Commission’s non-adversarial process, is not equated with allowing cross-examination to occur in all cases where, for example, matters such as the credit of the worker or witnesses is in issue.
33.In this matter I have accepted (as stated above, and in the absence of a transcript of the arbitration), the Appellant Employer’s account of the Arbitrator’s refusal to allow cross-examination of Mr Zheng, particularly, on the issue of whether he had commenced work at the time his injury occurred. This did not amount to a denial of procedural fairness. The evidence of what occurred was, in accordance with the Rules, contained in Mr Zheng’s written statement, plus a letter notifying the Employer of the incident, and in statements by Ngoan Bui and Van Pham, filed by the Employer. The Appellant Employer was aware, well in advance of the arbitration, of the case that Mr Zheng sought to make to support his claim. Mr Zheng’s account of entering his workplace and turning on a compressor was not contradicted in the other accounts of what occurred. Clearly the purpose of cross-examining Mr Zheng was to challenge his account, by challenging his credit as a witness. The Arbitrator did not err in refusing to allow the Appellant Employer to pursue this course. She considered that Mr Bui’s statement, to the effect that he approached Mr Zheng in his role as a ‘team leader’, supported Mr Zheng’s version of events. Mr Pham did not address this issue in his written statement. Neither Mr Bui nor Mr Pham was available to give oral evidence and be similarly cross-examined. On the material before the Arbitrator, the Employer had not filed any written evidence or submissions in Reply to the Application that put in dispute Mr Zheng’s claim that he had started work at the time of the incident. Even if the Appellant Employer did put this issue in dispute, the requirements of procedural fairness could have been met by the filing of documentary evidence and/or submissions addressing the issue. Given the legislative intention that Commission proceedings be informal and non-technical it is not tenable to assert that these matters can only satisfactorily be addressed by cross-examination of the witness at an oral hearing. Indeed section 354(6) of the 1998 Act provides that the Commission may, if satisfied that it has ‘sufficient information’ before it, proceed to determination of a dispute without holding a conference or formal hearing.
34.The medical evidence challenged whether or not Mr Zheng had a recognised ‘injury’, not the circumstances of when the alleged injury occurred. If Mr Zheng’s credibility, in terms of his account of the incident that gave rise to the injury, was the basis for refusing the claim, this should have been particularised earlier in the Commission proceedings and evidence submitted in support of it. Given the non-adversarial nature of Commission proceedings, and the circumstances of this case, I find that the Arbitrator did not deny the Employer procedural fairness by refusing to allow this line of questioning at the arbitration. It follows that the Arbitrator did not fail in her obligation to give ‘proper consideration’ to the matter before her in accordance with section 354(2) of the 1998 Act.
35.The Appellant Employer also argued that the Arbitrator erred in considering “workplace injury management issues” as they were under consideration by the Registrar (through her delegate) and not before the Arbitrator. The Arbitrator merely ‘noted’ these issues and they are not material to the application for review of the Arbitrator’s decision. The Arbitrator did not make any findings or order in relation to workplace injury management and any issues in relation to this may be referred back to the Registrar for further action.
The No Evidence Error
36.The Appellant Employer makes a number of submissions that refer to the Arbitrator’s failure to consider, or give appropriate weight to the evidence, including:
· Giving less weight to the evidence of Van Pham because he was unable to give oral evidence as he died on the morning of the arbitration;
· Finding that the injury occurred after Mr Zheng had commenced work and ‘in the course of Mr Zheng’s supervisory duties’ (Reasons at paragraph 42) when there was no evidence to support this finding;
· Giving less weight to the evidence of Mr Bui because he did not attend the arbitration and have his evidence tested;
· Finding, against the weight of the evidence, that Mr Zheng had suffered a ‘psychological injury’.
37.The Appellant Employer submits that the Arbitrator erred in framing the questions that needed to be decided in the dispute (at paragraph 19 of the Reasons). The questions set out at paragraph 19 of the Reasons have no direct connection to the matters later, and in my view correctly, identified, decided and summarised by the Arbitrator, namely: at paragraph 37, “Did injury arise out of or in the course of employment and was employment a significant contributing factor?” (sic), I assume the word ‘significant’ should be ‘substantial’); at paragraph 47 and following, was Mr Zheng incapacitated as a result of his injury?; and, at paragraph 50 and following, what was Mr Zheng’s entitlement to payment of compensation by way of weekly benefits and medical expenses? The questions posed by the Arbitrator in paragraph 19 may reflect the way in which the matter was argued before her. However, given her finding that the injury occurred after Mr Zheng commenced work they are less relevant. In any event, they do not, in the context of the whole of the reasons for decision, disclose an error on her part.
38.The Reasons do not support the Appellant Employer’s contention that the Arbitrator erred in relation to the evidence of Van Pham. His evidence is considered at paragraph 40 of the Reasons. The Arbitrator weighed the version of events given by Mr Pham, in his written statement, against that of Mr Zheng and Mr Bui, whose evidence the Arbitrator preferred. It is stating the obvious for the Arbitrator to say that Mr Pham was not present at the hearing so this allegation could not be tested. I do not accept that this is an error. Clearly Mr Pham could not attend as he had, tragically, died on the very day of the hearing. The Arbitrator had no choice but to weigh his written evidence against the other evidence before her. She was entitled to exercise her discretion in terms of the relative weight and probative value of the evidence before her. To do so is not, ipso facto, to find that Mr Pham’s evidence was such that it was likely to have been adverse to the Appellant Employer.
39.The Arbitrator relied upon the evidence of Mr Zheng and Mr Bui in finding that the injury occurred when Mr Zheng had started work and was in the course of his supervisory duties (Reasons paragraph 42). The finding that Mr Zheng had already started work at the time of the incident that gave rise to the injury is consistent with Mr Zheng’s written statement dated 1 November 2002 where he states, “I then turned on the compressor that is located just outside the workshop, and then I walked through the open roller door of the factory”. The Appellant Employer contends that Mr Zheng contradicted this in oral evidence. Without a transcript this cannot be confirmed, however regardless of whether this oral evidence was given, it is not correct to claim that there was ‘no evidence at all’ that the injury occurred prior to Mr Zheng commencing work. The Worker, at the conference held on the appeal, continued to press the claim that Mr Zheng had started work at the time of the injury, and did not concede that this had been contradicted in oral evidence (transcript of conference at page 33).
40.The Arbitrator must weigh all the evidence and then decide what is preferred in terms of its weight and probative value. There was logically probative evidence before the Arbitrator that the injury occurred after Mr Zheng had commenced work and she, therefore, did not err in making this factual finding. Whether or not the task of opening the roller door and turning on the compressor was a ‘supervisory’ task is not material to the finding that the incident occurred after Mr Zheng had commenced work. To the extent that Mr Zheng’s position of leading hand included supervisory responsibilities, this description may be correct. Mr Bui, in his statement of 31 October 2002, stated that he considered Mr Zheng to be a ‘Team Leader’ and approached him to ask for permission to take home a piece of aluminium grate.
41.The Arbitrator refers to the evidence of Mr Bui at paragraph 43 of the Reasons. She considers whether Mr Zheng’s conduct was “serious misconduct such as would disentitle him from claiming that the injury arose in the course of his employment”. It is not correct to state that the Arbitrator purported to draw an adverse inference from the fact that Mr Bui did not attend the arbitration and give oral evidence. The Arbitrator’s reference to the fact that Mr Bui “. . .was not present at the hearing to answer questions or elaborate on what was meant by his statement. . .” appears in the context of weighing the conflicting factual evidence about exactly what happened between Mr Bui and Mr Zheng, which was before her. She notes that Mr Bui does not refer to certain matters in his statement and, ultimately accepts Mr Bui’s evidence that he approached Mr Zheng as a supervisor, but rejects his evidence that Mr Zheng provoked the attack. The Arbitrator was entitled, and indeed obliged, to weigh the evidence in this way and did not err in doing so.
42.The Appellant Employer submits that the Arbitrator erred in “ . . . purporting to suggest that there were significant gaps and inadequacies in the specialist psychiatric medical evidence offered by the employer and the Arbitrator erred in finding that there had been any psychological or psychiatric injury at all”. The Appellant Employer maintains that Dr Robert’s evidence was to be preferred over that of Dr Teoh, Mr Zheng’s treating Psychiatrist, and Dr Leung, his General Practitioner. According to the Appellant Employer neither Dr Teoh nor Ms Lee offered any diagnosis that confirmed Mr Zheng suffered from a psychiatric injury.
43.The Arbitrator refers to the medical evidence in paragraphs 47-52 of the Reasons. However, only in her ‘SUMMARY’ does the Arbitrator expressly find that Mr Zheng “received an injury to soft tissue on his head and a post traumatic stress disorder arising out of his employment as a leading hand with Aluminium Louvres and Ceilings Pty Ltd”. Overall the Arbitrator notes that there were “significant gaps and inadequacies in the specialist psychiatric medical evidence offered by both parties in this case”(paragraph 48 of the Reasons) however she accepted the evidence of Dr Leung, General Practitioner, in his certificates covering the period from 8 October 2002 to 2 December 2002, and found that Mr Zheng was totally incapacitated for work for that period. The Arbitrator sets out clearly the reasons why she gave little weight to the opinion of Dr Roberts. These include that: he did not see Mr Zheng until some five months after the incident; his report makes conclusions that are unsubstantiated and reflect on his view of the credibility of Mr Zheng; and, he has no claimed expertise in making assessments where language and cultural issues are critical issues.
44.Having found Dr Roberts’ evidence not to be persuasive the Arbitrator was left with the worker’s medical evidence. Dr Leung, not being a psychiatrist, referred Mr Zheng for psychological assessment. He completed a number of WorkCover Medical Certificates certifying that Mr Zheng was unfit for work from 8 October 2002 to 2 December 2002. His diagnosis on 8 and 17 October 2002 was, ‘soft tissue injury/anxiety’, and on 18 October 2002 was ‘? Post Traumatic Stress Disorder’.
45.It is not correct to say, as the Appellant Employer does, that no diagnosis of a psychiatric injury has ever been made of Mr Zheng. Dr Teoh’s report of 7 November 2002 states that Mr Zheng “. . . will require psychological therapy to help him deal with his symptoms, which are consistent with post traumatic stress disorder”. To state that this is not a ‘diagnosis’ but simply a ‘record’, is unreasonable. However, Dr Teoh’s report is very brief and deals with the connection between the incident at Mr Zheng’s employment and his mental state only by inference. Correspondence from Ms Lee, dated 22 May 2003, does not give any information or opinion on Mr Zheng’s mental state.
46.The medical evidence is, as the Arbitrator noted, affected by significant gaps and inadequacies. However the parties had ample opportunity to file medical evidence in the Commission in support of their respective claims. The Arbitrator has proceeded to determine the matter on the basis of the evidence before her. It is for the worker who is claiming a workplace ‘injury’ to substantiate that claim. In this matter the Arbitrator has proceeded to determine the claim on the basis of her view of the probity of the evidence. There is nothing to suggest that this discretion has been exercised unlawfully or unfairly and, in my view, she has made no error. The claim that there was no probative evidence upon which to make her finding is not substantiated.
47.The Appellant Employer submitted that the Arbitrator erred in making a number of findings on the basis of ‘no evidence’. The Appellant Employer claims that there was no evidence for the assertions that; Mr Zheng “is considered by management to be a good and reliable worker and has had a high level of responsibility” (at paragraph 21 of the Reasons); and, “the employer had trusted Mr Zheng as a supervisor over a long period of time” (at paragraph 40 of the Reasons). However, I note the evidence of Mr Cooke, Director of the Appellant Employer. In his letter to the Commission dated 12 May 2003, Mr Cooke states, inter alia, that “[d]uring Zheng’s employment with us he was a very good worker that took a lot of care with his duties and as a result was appointed as a leading hand and had my full confidence in doing his work”. The Appellant Employer’s claim, that the Arbitrator had no evidence to support her findings, is simply not sustainable. It appears to be an objection to the way in which the Arbitrator has summarised the evidence, rather than to any matter of material and substantive relevance to the issues in dispute. The Appellant Employer’s assertion, that “there was no suggestion of him being a good or reliable employee at all” (transcript of appeal conference at page 38), is incorrect.
The Section 4 Error
48.The Appellant Employer submits that the Arbitrator erred in the application of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act), which defines ‘injury’ to mean “personal injury arising out of or in the course of employment”.
49.At paragraph 18 of the Reasons the Arbitrator states “the onus of proving that an injury arose in the course of employment falls on the employee. However, if there is an allegation by the employer that the course of employment has been interrupted, the onus falls on the employer. In either case, the onus of proof is the civil one”. The Appellant Employer claims that the Arbitrator “incorrectly reversed the onus of proof so as to apparently require the [employer] to establish that there had been some interruption in the course of the applicant’s employment notwithstanding the applicant’s evidence that the altercation occurred prior to his commencing work”.
50.It is wrong to assert, as the Appellant Employer does in this appeal, that the Arbitrator has reversed the onus of proof in relation to the issue of whether an injury occurs ‘in the course of employment’. The Arbitrator has not made this error. The Arbitrator is also correct to state that where the employer asserts that there has been an interruption to the ‘course of employment’ then in asserting that fact, the employer has the evidentiary onus to prove it on the balance of probabilities. This does not result in the reversal of the legal onus on the Worker to prove that he satisfies the requirements of section 4, or 9A, of the 1987 Act.
The Section 9A Error
51.The Appellant Employer submits that the Arbitrator erred in the application of section 9A of the 1987 Act in that she purported to determine whether Mr Zheng’s employment was a ‘significant’ rather than a ‘substantial’ contributing factor to his injury.
52.The Arbitrator was clearly in error in referring to the test found in section 9A of the 1987 Act as a ‘significant’ rather that ‘substantial’ contributing factor (at paragraph 46 of the Reasons). The Arbitrator also did not expressly refer to the factors set out in the section. However, she did set out her consideration of the relevant matters including whether “. . . Mr Zheng would have suffered a similar injury had it not been for this incident. He had worked for the employer for ten years. He was a reliable and trusted employee and supervisor. There is no evidence that he had taken time off or his work had ever been affected by any psychological injury prior to this incident. Even after the previous injury he had not missed work or absented himself. All of the evidence indicates that the Applicant’s employment was a substantial contributing factor to this injury.”
53.The reference to ‘significant’ rather than ‘substantial’, when considered in the context of the whole of the Reasons of the Arbitrator, was a ‘slip’, not an error of law or a misapplication of section 9A of the 1987 Act.
54.The Appellant Employer also submits that the Arbitrator failed to “consider, or properly consider a number of relevant issues including the time of the alleged injury . . . the nature of the work performed and the particular tasks of that work . . . the duration of the employment, the probability that the injury or a similar injury would have happened anyway . . etc”. Taking the Arbitrator’s reasons as a whole this claimed error is not made out (indeed paragraph 46 should be read as a whole) (Beale v GIO (NSW) [1997] 48 NSWLR 430 at 444; Collector of Customs v Pozzolanic [1993] 43 FCR 280 at 287). The Arbitrator clearly considered these matters, where relevant, and found, among other things, that Mr Zheng had commenced work at the time of the injury, had turned on the compressor and was inside the factory. Not all of the factors set out in section 9A of the 1987 Act will be relevant to each and every claim for compensation under the Workers Compensation Acts (the 1987 Act and the 1998 Act). In the particular circumstances of this case, the fact that Mr Zheng had been employed by the Appellant Employer for over ten years does not appear to have much relevance, nor does the question of whether the injury would have happened anyway, the latter consideration being commonly more relevant to injuries that may be attributable to degenerative diseases.
The Reasons Error
55.Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Rule 73 of the 2003 Rules; Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
56.Rule 73 of the Rules provides that:
(1)A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently ( in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.
57.The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The application of these principles to the setting out of written reasons is reflected in Rule 73(2) above. Lengthy written reasons will not always be necessary to convey, simply, clearly and concisely, the reasons why a decision has been made, which is the purpose of giving reasons.
58.To succeed on the ground of ‘inadequate reasons’ the Appellant Employer must demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application (YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21).
59.The Appellant Employer submits that the Arbitrator failed to give reasons about the application of section 9A of the 1987 Act and the ‘ reversal’ of the onus of proof. As found above, the Arbitrator did not err in her statement, and application, of the onus of proof of matters relevant to section 9(A). The Arbitrator’s reasons in relation to section 9A are set out at paragraph 43 of the Reasons and are discussed above. While they may benefit from greater attention to the use of the words of the statute, they are not inadequate. They set out the matters that were relevant and were considered and, importantly, convey to the reader an explanation of why she has found that Mr Zheng’s employment was a ‘substantial contributing factor’ to his injury.
60.The Appellant Employer also submits that the Arbitrator failed to give adequate reasons in relation to the weight of the medical evidence and finding of incapacity. The Appellant Employer’s submissions in relation to the adequacy of the reasons for finding that Mr Zheng suffered an injury, namely, ‘post traumatic stress disorder’ have some merit. The Arbitrator considered the medical evidence that was before her and gave reasons for giving no weight to the report of Dr Roberts and preferring the ‘Certificates’ of Dr Leung. She was critical of the report of Dr Roberts and, quite properly, was entitled to come to her own view on the persuasiveness of his evidence. The fact that Dr Leung was not a psychiatrist is not, of itself, a reason to give his evidence less weight. The Arbitrator does not refer to the evidence of Dr Teoh nor to the limitations of the report of Dr Leung, whose report is brief and does not set out the history of Mr Zheng’s injury or the full extent of his incapacity. The Arbitrator does not deal with the fact that Dr Leung, in his written report of 2 December 2002 states that he considers Mr Zheng to be suffering from ‘anxiety depression’. Dr Leung’s only reference to ‘post traumatic stress disorder’ is in the WorkCover Certificates of 7 and 18 November 2002. These are matters that should have been considered and their import adequately explained in the Arbitrator’s reasons.
61.This is not to say (as discussed above) that there was ‘no evidence’ to support the Arbitrator’s finding, found in the ‘SUMMARY’ of the Reasons, that Mr Zheng has ‘post traumatic stress disorder’. Although the Arbitrator’s reasons do not adequately address the medical evidence, I do not accept that they demonstrate that the Arbitrator failed to exercise her statutory duty to fairly and lawfully determine the application. The medical evidence before her, from both parties, was not highly credible and persuasive, and, as she noted, contained many ‘gaps’. However it must be said that on the best evidence before her there was ultimately, as discussed above, sufficient evidence upon which to make the decision: the report of Dr Teoh and the WorkCover Certificates of Dr Leung. The fact that Dr Leung saw Mr Zheng immediately following the incident and observed him, as his treating general practitioner, over a period of time, gives his opinion obvious weight. To this end the Arbitrator’s error in failing to provide adequate reasons for the decision should not result in its revocation.
DECISION
62.The decision of the Arbitrator is confirmed.
COSTS
63.The Appellant Employer has been unsuccessful in the appeal and the costs fall to be determined according to Part 8, Division 3 of the 1998 Act. Section 345 provides as follows:
345Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b) if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay, are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
64.The Appellant Employer should bear the costs of the appeal.
Dr Gabriel Fleming
Deputy President
17 May 2004.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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