Astle v Toll Pty Ltd

[2007] NSWWCCPD 112

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION

CONSTITUTED BY AN ARBITRATOR

CITATION:Astle v Toll Pty Limited [2007] NSWWCCPD 112

APPELLANT:  Craig Astle

RESPONDENT:  Toll Pty Limited

INSURER:Toll Pty Limited - self insurer

FILE NUMBER:  WCC14203-04

DATE OF ARBITRATOR’S DECISION:          23 August 2006

DATE OF APPEAL DECISION:  14 May 2007

SUBJECT MATTER OF DECISION: Determination of ‘injury’ under Section 4 of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin

HEARING:On the papers

REPRESENTATION:  Appellant:      Turner Freeman Lawyers

Respondent:   Leigh Virtue & Associates

ORDERS MADE ON APPEAL:  1.         The decision of the Arbitrator dated 23          August 2006 is revoked and the matter   is remitted to another Arbitrator for                    determination afresh in accordance   with these reasons.

2.Toll Pty Limited is to pay Mr    Astle’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 19 September 2006 Craig Astle (‘Mr Astle’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 August 2006.

1. The Respondent to the Appeal is Toll Pty Limited (‘Toll’).

1. Mr Astle was born on 22 June 1971 and is 35 years of age.  He left school at the end of year nine and worked at a number of different jobs before commencing employment with Finemores Pty Ltd in December 1998.  At some later time this employer was taken over by Toll.

1. Mr Astle was employed as a driver and his job involved him in delivering furniture and white goods to residential homes.  He alleges that on 2 November 2000 he injured his neck, shoulders and left arm whilst delivering a refrigerator to a customer.  Compensation was claimed but liability was denied from the outset.  Mr Astle’s employment was terminated on 12 December 2000.  He states that as a result of the injuries he suffered in this accident, he has been unable to obtain employment since 22 December 2000.

1. On 12 June 2002 Mr Astle commenced proceedings in the Commission as a self-represented litigant.  The matter was against Finemores Pty Ltd and although I do not have the substantive file before me, it would appear the proceedings were based on the same injury that Mr Astle is now litigating against Toll, who as I stated above took over Finemores Pty Ltd.

1. The proceedings were listed for a teleconference on at least three occasions where Mr Astle could not be contacted on the telephone number provided.  The Arbitrator set the matter aside and on 9 October 2003 ordered Mr Astle to pay Finemores Pty Ltd costs as he “repeatedly does not participate in teleconferences”.

1. Mr Astle instructed his current solicitors some time in the middle of 2003, as there is correspondence in the current substantive file from those solicitors to Toll dated 22 August 2003.

1. The proceedings which are the subject of this appeal were filed by Mr Astle’s solicitors on 14 September 2004.  Mr Astle claimed weekly compensation on a continuing basis, medical expenses and lump sum compensation. 

1. The matter was referred to Dr John Silver, Approved Medical Specialist (‘the AMS’) which resulted in a Medical Assessment Certificate (‘the MAC’) being issued on 6 October 2005.  Mr Astle appealed from the MAC and the Appeal Panel handed down a new MAC on 23 March 2006.  The Appeal Panel determined the matter ‘on the papers’ without Mr Astle undergoing a further medical examination.

1. On 6 June 2006 Mr Astle’s solicitor sought a reconsideration of the ‘costs order’ made on 9 October 2003.  A request was made that the reconsideration be joined to the current proceedings (Matter No: 14203-04) to avoid further unnecessary costs.

1. The Registrar asked the Arbitrator in the current proceedings to deal with the reconsideration, presumably because the original Arbitrator was not available.  On 14 July 2006 the Arbitrator issued a Direction refusing the application to reconsider the ‘costs order’ of 9 October 2003.

1. An arbitration hearing took place on 11 August 2006 and both parties were legally represented.  No oral evidence was given, the matter being determined on the basis of documentary evidence and oral addresses.  Mr Astle has appealed from the Arbitrator’s decision.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 23 August 2006 records the Arbitrator’s orders as follows:

“1.Award for the Respondent with respect to the Applicant’s claim for weekly payments of compensation.

2.Award for the Respondent with respect to the Applicant’s claim for compensation under sections 60 and 66 of the 1987 Act.

3.No order as to costs.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator:

·        made errors of fact leading to the wrong decision;

·        determined the matter against the weight and relevance of the evidence;

·        erred in failing to disqualify himself;

·        erred in his consideration of the first MAC, and

·        erred in his consideration of the new MAC issued by the Appeal Panel.

ON THE PAPERS REVIEW

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

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Mr Astle submits that the matter is able to be dealt with on the papers.  Toll submits the matter is only able to be dealt with on the papers if the appeal is refused, otherwise a hearing is required.

1. Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, 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. The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act).

1. No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD5).

1. Accordingly I grant leave to appeal.

FRESH EVIDENCE

1. Neither party seeks leave to introduce fresh evidence.

EVIDENCE

Mr Astle’s evidence

1. The Application to Resolve a Dispute annexes a statement from Mr Astle dated 18 November 2003.  Mr Astle describes how he injured his neck, left arm and shoulder on 2 November 2000 whilst carrying a refrigerator into a house with a fellow worker, Kim McCulloch (‘Mr McCulloch’). Mr Astle states he told Mr McCulloch that he hurt his arm, either at the time or later in the truck.  He indicates he continued working and that night reported the incident to his supervisor by phone, because there were no incident forms in the office at the depot.  Mr Astle states that he cannot remember when he finally saw the doctor, although he was examined by the company doctor about two weeks later.  He recalled a lower back strain with the same employer on 11 January 1999, however states he had no similar injury to that suffered on 2 November 2000 before.

1. A work injury incident report dated 13 November 2000 is annexed to the application.  In this report Mr Astle states that he injured his arm, shoulder and neck whilst lifting a ‘fridge’ into a house on 2 November 2000.  He nominates Mr McCulloch as the witness.  He further states that the injury is not a recurrence of a previous injury or ailment.

1. There is a medical report from Dr Glynn Kelly dated 21 November 2003.  In this report the doctor states that Mr Astle attended his surgery on one occasion only, 19 August 2002.  Dr Kelly takes a history of left hand pain, shoulder pain and neck pain when lifting a fridge into a house in 2000 whilst working in furniture removal.  The doctor was not prepared to offer an opinion on diagnosis or prognosis as he saw Mr Astle on the one occasion only.

1. Mr Astle was examined by Dr Donald Glen on 18 February 2004 at the request of his solicitor.  The doctor records the history consistent with Mr Astle’s statement which I have referred to above.  When asked about previous injuries, Dr Glen records Mr Astle referring to a non work-related back injury in 1998 only.  The doctor was of the opinion that the diagnosis was unclear on the information to hand.

1. Mr Astle saw Dr David McGrath on 8 September 2003 at the request of his solicitor.  The doctor records a history of injury on 2 November 2000 that is again consistent with Mr Astle’s statement.  Dr McGrath is silent on the question of injuries/ailments prior to the work incident in question.  The doctor was of the opinion that it was likely that Mr Astle  “is irritating a structure at the base of the neck which is probably at C5/6 with a pain referral into the arm along with a possible nerve root compromise at that level.”  Although the doctor thought the pathology in the neck did not solely arise from his work, he wrote in a subsequent report that the incident on 2 November 2000 was a critical event leading to a significant, subjective disability.

1. In documents admitted later at the request of Mr Astle there is a short report from Dr Justin Pik, neurosurgeon, dated 24 March 2006.  The doctor tersely states that as his priority is the treatment of patients, he is unable to provide a report or opinion on Mr Astle.  A number of medical certificates were also submitted late which include two from the Tuggeranong Square Medical Practice.  The first certificate is signed by Dr Verghese on 4 November 2000 and states Mr Astle is unfit for work from 3 November 2000 to 4 November 2000 with left shoulder tendonitis and left carpal tunnel.  The second certificate is signed by Dr Dillon on 8 November 2000 and certifies Mr Astle unfit for work from 6 November 2000 to 12 November 2000 inclusive, due to work related neck/arm injury.

1. Also admitted late at the request of Mr Astle is a report from Gabrielle Jess, Career Management Consultant, dated 26 February 2002.  Ms Jess refers to an injury whilst employed by Finemores Pty Ltd in either October 2000 or October 2001.  The report goes on to state that Mr Astle injured his neck while lifting furniture (or a mattress).

1. Further medical certificates were admitted late at the request of Mr Astle.  The first of these certificates commences in January 2005 and the last certificate covers the period to August 2006.

Toll’s Evidence

1. Mr Astle was examined by Dr Kim Edwards on 13 April 2005 at the request of Toll.  The doctor records a history of injury which is again consistent with Mr Astle’s statement.  Mr Astle denied any history of neck or arm pain prior to 2 November 2000.  The doctor was of the opinion that his examination did not show any convincing evidence of organic disability and Mr Astle was fit to return to his pre-injury duties.

1. Dr Lloyd Hughes also examined Mr Astle on 13 April 2005 at the request of Toll.  Again the doctor notes a history consistent with Mr Astle’s statement and records no serious illness in the past other than an episode of low back pain in 1999.  The doctor was of the opinion that Mr Astle’s symptoms probably emanate from a degenerative cervical disc lesion, however there is no injury related to a work incident on 2 November 2000.  The doctor further stated that Mr Astle was fit for his previous employment.

1. A short report from Dr P L Renshaw refers to Mr Astle consulting the doctor on 13 November 2000 and stating he injured his left arm whilst lifting a fridge on 2 November 2000.  The doctor recorded pain in the left shoulder and felt Mr Astle may have sustained a soft tissue injury and possibly damaged a cervical disc.  The doctor records he saw Mr Astle on 30 November 2000 when he was considered fit to resume pre-injury duties.

1. Documents were produced by Dr Dillon which include Progress Notes.  Mr Astle attended Dr Dillon on 26 October 2000 and reported:

“Some paraesthesia in both hands for several months.
Pain in left shoulder over last week.
Lots of lifting at work-driving and furniture moving”

On 4 November 2000 Dr Verghese (of the same practice) records:

“Discussion of above probs.  Had to have time off x 2 days off b/c carpal tunnel syndrome and left shoulder? tendonitis.”

Medical Assessment Certificate

1. As I stated above the MAC from the Approved Medical Specialist was overturned on appeal and a new MAC issued.  The Appeal Panel recorded Mr Astle’s history of injury on 2 November 2000 and noted that he claimed he had no problem with his neck of left arm prior to that injury.  The Panel certified 4.5% permanent impairment of the neck and 4.5% permanent loss of efficient use of the left arm at or above the elbow after a one-tenth deduction due to pre-existing injury, abnormality or condition.  The Appeal Panel makes no reference to the history contained in Dr Dillon’s Progress Notes, which I have set out in paragraph 33 above.

SUBMISSIONS AND DISCUSSION

Errors of Fact

1. At paragraph 52 of the decision the Arbitrator states:

“I have referred to the medical evidence presented by the Applicant above and that evidence is of a very limited nature.  The Applicant’s case really hangs on the determination of the Medical Appeal Panel (which is not binding on me with respect to causation) and a collection of Medical Certificates which have been prepared for Centrelink and are not in WorkCover approved form.  While the Medical Certificates stretch into more recent times, there is no more recent medical evidence submitted by the Applicant to support his claim for compensation under ss66, 60 and for weekly compensation.”

1. Mr Astle submits that the Arbitrator erred in finding that there was a collection of medical certificates prepared for Centrelink and not in WorkCover approved form.

1. In reply Toll submits that Mr Astle misstates what is set out in paragraph 52 of the decision because the Arbitrator simply makes reference to the non WorkCover medical certificates attached to the application and to the absence of more up-to-date medical certificates.

1. Paragraph 52 of the decision is not entirely clear, however the Arbitrator does not refer to a medical certificate from Dr Renshaw which is in Workcover approved form.  This medical certificate, tendered in Mr Astle’s case, is undated however refers to the injury on 2 November 2000 and certifies Mr Astle unfit for work for the period 13 November 2000 to 20 November 2000.  The certificate goes on to state that the doctor will reassess Mr Astle on 20 November 2000.

1. At paragraphs 55 and 56 of the decision the Arbitrator stated:

“…I am not satisfied that the Applicant has discharged his onus to provide sufficient evidence to ground his claim for compensation under the 1987 Act.  I therefore intend to make an award for the Respondent with respect to the Applicant’s claims in these proceedings.

The Applicant did not give any notice to the Employer within a reasonable period (if, as he says that his treating doctors were aware this was a work-related injury) and there is no record in the contemporaneous clinical notes of an incident at work.”

1. Mr Astle submits that the Arbitrator erred in finding that he did not give notice of injury to his employer within a reasonable period.

1. In reply it is submitted by Toll that the failure by Mr Astle to give notice to the employer is simply one of the matters that the Arbitrator has weighed in reaching his decision.  It is further submitted  that the evidence before the Arbitrator did not support the assertion by Mr Astle that he gave notice to his employer within a reasonable period and rather contradicted this assertion.

1. I agree with the submission by Mr Astle.  The statement he provided, which I have referred to above in paragraph 22, clearly refers to him telling Mr McCulloch of the incident and then phoning the supervisor that night to report the matter because there were no incident forms in the depot office.  There was also in evidence before the Arbitrator the incident report detailing the injury and nominating Mr McCulloch as a witness.

1. Toll did not seek leave to cross-examine Mr Astle on the matter, nor did they provide evidence orally or in statement form from either Mr McCulloch or the supervisor.

1. If the Arbitrator’s reference to not giving notice to the employer within a reasonable time is aimed at the incident report being dated 13 November 2000 (eleven days after the injury), then Mr Astle has provided a reasonable explanation when he states there were no incident forms in the depot office.

1. In my view it was clearly an error of fact for the Arbitrator to state that Mr Astle “did not give any notice to the Employer within a reasonable period…”.  Although there are significant ‘holes’ in Mr Astle’s case, the Arbitrator based his decision that Mr Astle had not “discharged his onus” on two main facts, one being erroneous.

1. Clearly the error is such that the decision needs to be revoked without the necessity to consider the other issues in dispute.  Although Mr Astle did not give oral evidence, it is not appropriate that I redetermine the matter as Toll has placed all issues in dispute, which I understand to include Mr Astle’s credit.

DECISION

1. The decision of the Arbitrator dated 23 August 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons..

COSTS

1. Toll Pty Limited is to pay Mr Astle’s costs of the appeal.

JULIAN MARTIN

Acting Deputy President  

14 May 2007

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

ASSOCIATE