Ashley v Ashmore Constructions Pty Ltd

Case [2006] NSWWCCPD 225

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Ashley v Ashmore Constructions Pty Limited [2006] NSWWCCPD 225

APPELLANT:  Morris James Ashley

RESPONDENT:  Ashmore Constructions Pty Limited

INSURER:Employers Mutual Indemnity (Workers Compensation) Limited

FILE NUMBER:  WCC17016-04

DATE OF ARBITRATOR’S DECISION:          2 May 2005

HEARING:4 August 2006

DATE OF APPEAL DECISION:  12 September 2006

SUBJECT MATTER OF DECISION: Injury: chemical exposure; section 9A of the Workers Compensation Act 1987; conflict in medical opinions; absence of transcript

PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy

REPRESENTATION:  Appellant:      Carroll & O’Dea, Solicitors

Respondent:    Moray & Agnew, Solicitors

ORDERS MADE ON APPEAL:  1. The decision of the Arbitrator dated 2 May 2005 is confirmed.

2. Each party to pay its/his own costs of the appeal.

BACKGROUND TO THE APPEAL

  1. Morris James Ashley (‘the worker’) was a builder and a working director of Ashmore Constructions Pty Limited (‘the employer’).  For some years he carried out building work and employed subcontractors in that work as well as performing some of the work himself.

  2. On Sunday 17 June 2001 the worker became ill while walking with his daughter at about 2 p.m.  At 11 p.m. he attended Mona Vale Hospital where he was admitted until 19 June 2001.  The note of the hospital on admission is as follows:

    “History walking dog 1400 this afternoon chest pain constantly and increasing in intensity pain in left arm and numbness pain in left leg pain central left chest worse on examination alert orientated headache nausea saturated oxygen 99% hypertensive and no diaphoresis given anginine ½ ecg attended” (I have to the best of my ability translated the medical abbreviations used in the notes.)

  3. He gave a history that his symptoms had been getting progressively worse throughout the day.  He said he had experienced chest pain of a similar nature five years before and had a stress test at that time with no abnormality detected.  Since that time he had progressive episodes of chest pain occurring at more frequent intervals.

  4. An exercise test (‘stress test’) was performed on 19 June 2001 at the Hospital and the conclusion reached was “negative stress test no significant change from stress test of 25 3 93”.  The worker was the same day discharged from the Hospital and attended his general practitioner, Dr Lee, on Wednesday 20 June 2001.  His complaints when he saw that doctor were numbness in both the left arm and leg, headaches and general tiredness.  He was referred for a CT scan of the brain which was done the same day and was reported as normal.

  5. On 21 June 2001 the worker attended Dr John Harrington, an associate of Dr Lee.  Dr Harrington, in a report of 4 March 2003 says that he thought that it was about that time, that is 21 June 2001, that the worker mentioned some exposure to white ant treatment a week before.  The worker, according to Dr Harrington, appeared very anxious and distressed and declared himself unable to…

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Ashley v Ashmore Constructions Pty Ltd [2006] NSWWCCPD 225
Case
[2006] NSWWCCPD 225
Decision Date

CaseChat Overview and Summary

The case of Ashley v Ashmore Constructions Pty Ltd involves a dispute between the worker, who had sought compensation for injuries allegedly sustained during employment, and the employer, who disputes the claims. The dispute was initially arbitrated, and now the worker seeks to introduce new evidence in the form of a medical report from Dr Richard Haber, which was not presented at the arbitration. The matter was heard by the Industrial Commission of Queensland.

The primary legal issue before the court was whether leave should be granted to introduce the new evidence, specifically the report of Dr Richard Haber dated 8 February 2006. The worker argued that Dr Haber was not known to them until after the arbitration date, and thus the opportunity to consult him arose post-arbitration. The employer opposed the introduction of this new evidence, arguing that it was inconsistent with the findings made by the Arbitrator and lacked substantive value. The court had to determine whether the new evidence met the criteria for admission under Practice Direction Number 6, which requires that the new evidence could not reasonably have been obtained prior to the arbitration and that its exclusion would cause substantial injustice.

The Industrial Commission found that the new evidence should not be admitted. The court was not convinced of the probative value of Dr Haber’s report due to the inconsistency in the history provided by the worker and the lack of competence of Dr Haber in toxicology. The court also noted that the opinion of another physician could have been obtained prior to the arbitration. Consequently, the court refused to grant leave for the new evidence to be introduced, considering it did not meet the necessary criteria for admission under the practice direction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:“New EvidenceWhere a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.” Practice Direction Number 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:“ -a schedule of the new evidence, -a copy of the new evidence, -a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and -submissions why the new evidence should be admitted.” On 17 February 2006 the worker’s solicitors sought leave to rely on a report of Dr Richard Haber dated 8 February 2006. The worker had seen that doctor as a consultant physician in November and December 2005 and February 2006. That doctor professed himself to be competent to comment on the worker’s medical problems but not on toxicology. He obtained a history that current symptoms had persisted since the original exposure in June 2001 and considered that if there had been exposure to Dursban or arsenic trioxide, then it seemed quite possible and probable that the symptoms were due to small fibre neuropathy relating to chemical exposure, most likely Dursban or less likely, arsenic trioxide, or both of these chemicals. The difficulty with the doctor’s opinion is that the history given to that doctor was inaccurate and incomplete and despite the doctor’s protest that he was not competent to comment on toxicology, he appears to have done precisely that. The reason given by the worker’s solicitor for seeking leave is stated to be that Dr Haber was not known to the worker at the time of the arbitration and the opportunity for him to consult Dr Haber for treatment arose only after the arbitration date. The employer objects to the admission into evidence of the report of Dr Haber. It is said that the factual basis of Dr Haber’s opinion is inconsistent with the determination made by the Arbitrator and thus has no substantive value in the proceedings. My conclusion is that leave ought not be granted to admit fresh evidence, being the report of Dr Haber dated 8 February 2006. In refusing leave I am mindful of the limited support which Dr Haber’s opinion is to the worker in this case. I do not regard his opinion as having any great probative value for the reasons which I have stated, namely a history inconsistent with that of Dr Harrington which was taken contemporaneously, and Dr Haber’s statement that he is not competent to comment on toxicology. Quite obviously, the opinion of another physician could have been obtained prior to the determination by the Arbitrator.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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