Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage
[2004] NSWWCCPD 31
•8 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSWWCCPD 31
APPELLANT: Australian Traineeship System (Cargill Meat Processes Pty Limited)
RESPONDENT: Dalliss Lawrence Ramage
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC 5763-03
DATE OF ARBITRATOR’S DECISION: 22 December 2003
DATE OF APPEAL DECISION: 8 June 2004
SUBJECT MATTER OF DECISION: No Evidence, Reconsideration, Error in Arbitrator’s Orders, Inadequacy of Reasons, Jurisdictional Error, Sections 36 and 38 of the 1987 Act.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:7 May 2004
REPRESENTATION: Appellant: Moray and Agnew Solicitors
Respondent: Bamford Marcellos O’Connor Solicitors
ORDERS MADE ON APPEAL: The Arbitrator has failed to make a determination in accordance with the Workplace Injury Management and Workers Compensation Act 1998.
The matter should be referred to the Registrar for allocation to an Arbitrator.
BACKGROUND
On 16 January 2004 Australian Traineeship System (Cargill Meat Processes Pty Limited) (‘the Appellant Employer’) sought leave to appeal against a decision of a Commission Arbitrator, dated 22 December 2003. The Respondent to the Appeal is Dalliss Lawrence Ramage (‘Mr Ramage/the Respondent Worker’).
The appeal relates to Mr Ramage’s claim for payment of weekly compensation and medical expenses as a result of an injury he allegedly suffered on 14 November 2001, in the course of his employment as an abattoir worker with the Appellant Employer. The Appellant Employer made payments of weekly compensation from 14 November 2001 to 11 December 2002. On 27 November 2002 the Appellant Employer advised Mr Ramage that it would no longer make workers’ compensation payments, or meet medical expenses, on the basis that it considered Mr Ramage was not incapacitated, and was physically fit for employment. Mr Ramage then lodged an ‘Application to Resolve a Dispute’ in the Commission. The Arbitrator ordered continuing payments of weekly compensation from 1 October 2002, and payment of related medical expenses (the detailed orders are set out in full below).
This matter was referred to me for review on 30 March 2004. A transcript of the arbitral proceedings was not provided until 7 April 2004. Directions were issued on that day inviting further submissions. The matter proceeded to a hearing of the appeal on 7 May 2004.
ISSUES IN DISPUTE
The Appellant Employer does not object to the finding of the Arbitrator in relation to liability, but appeals the Arbitrator’s decision in relation to the continuing award of weekly compensation and particularly the rate of payment of compensation to Mr Ramage, pursuant to sections 36 and 38 of the Workers Compensation Act 1987 (‘the 1987 Act’). The appeal in relation to the award of compensation pursuant to section 40 was withdrawn on 10 May 2004, following the appeal hearing.
The Appellant Employer submits, in summary, that the Arbitrator erred in:
· Making an award in favour of the Respondent Worker, in the absence of any statement or oral evidence from the Respondent Worker supporting the claim, or against the weight of the evidence (‘The No Evidence Error’);
· Failing to give adequate reasons for the decision (‘The Reasons Error’);
· Failing to properly apply sections 36 and 38 of the 1987 Act (‘The Sections 36 and 38 Error’) and,
· Failing to properly exercise the power of reconsideration under section 350 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) (‘The Reconsideration Error’).
PROCEEDINGS IN THE COMMISSION
Mr Ramage originally filed an ‘Application to Resolve a Dispute’ in the Commission on 9 January 2003. Attached to the Application were several WorkCover certificates, correspondence and medical reports. No statement of Mr Ramage’s evidence was filed with the Application. Mr Ramage filed further medical reports, WorkCover certificates and correspondence on 2 May 2003.
The Appellant Employer, who was the Respondent in the proceedings before the Arbitrator, filed a ‘Reply to the Application for Dispute Resolution’ on 21 January 2003. Attached to the Reply were several WorkCover Certificates, correspondence and medical reports. A number of ‘Directions to Produce’ were received from the Respondent Worker, and issued by the Commission, on the same day.
The parties agreed to have the matter referred to Dr Clarke, Approved Medical Specialist (‘AMS’) and, on 22 July 2003, he issued a Medical Assessment Certificate, which concluded that Mr Ramage had suffered an injury in the course of his employment at the abattoir. The incident that gave rise to the injury was, as Mr Ramage claimed, the inhalation of animal waste material from a pump.
On 8 August 2003, the Appellant Employer filed further written submissions and on 14 August 2003 the Respondent Worker did the same.
The Arbitrator held a conciliation and arbitration, in Tamworth, on 30 October 2003. She made a decision at the end of the arbitration and gave ex tempore reasons, which were recorded and later transcribed.
A Certificate of Determination, was issued on 3 November 2003. Attached to this Certificate was a document that purported to be a ‘Statement of Reasons’ for ‘Ex tempore Orders’. The attached document does not, in fact, contain any reasons for the decision but, largely, just repeats the orders recorded on the Certificate. This document states that ‘a sound recording of the reasons given is available to the parties’.
On 17 November 2003, the Appellant Employer wrote to the Commission (copy to the Respondent Worker’s legal representative), as follows:
We advise that we now seek the following:-
1. A replacement certificate, or statement, to correct an obvious error in the Certificate of Determination pursuant to Section 294 of the Workplace Injury Management and Workers Compensation Act 1998;
2. A reconsideration of the decision made by the Arbitrator in these proceedings pursuant to Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998.
The Respondent Worker replied on 18 November 2003, objecting to the above application.
On 1 December 2003, the Arbitrator wrote to the parties advising that the Appellant Employer’s application for reconsideration of the decision, pursuant to section 350 of the 1998 Act, was refused, and reminding them of the appeal provisions of the 1998 Act. No reference was made to the application to correct the Certificate of Determination pursuant to section 294 of the 1998 Act.
On 2 December 2003, the Appellant Employer’s legal representative again wrote to the Commission (copy to the Respondent Worker’s legal representative) repeating its request, of 17 November 2003, namely, that the Certificate of Determination be corrected pursuant to section 294 of the 1998 Act. No further correspondence was received from the Respondent Worker.
On 22 December 2003, an ‘Amended Certificate of Determination’ was issued, together with a ‘Statement to Correct Error Pursuant to s294 of the Workplace Injury Management and Workers Compensation Act 1998’. The Arbitrator set out the parties’ submissions and concluded that:
13.I agree with the Respondent that I have erred in the dates for s38 Workers Compensation Act 1987 weekly benefits in the Certificate of Determination dated 3rd November 2003 and that the Respondent had already been paid weekly benefits under s36 (WCA) for 24.6 weeks as at 11th December 2002. The Applicant was therefore only entitled under s36 (WCA) to a further 1 week and 2 days at his pre-injury earnings level which was agreed between the parties to the Arbitration as $535.60 per week.
14.Therefore from 12th December 2002 until 20th December 2002 (inclusive) the Applicant is entitled to be paid at the rate of $535.60 gross per week pursuant to s36 (WCA).
15.Because of the amendment to paragraph one of my Determination, it follows that paragraph 2 should be amended to reflect the change in dates. Therefore from 21st December 2002 to 21st June 2003 (26 weeks) the Applicant should be paid s38 (WCA) weekly benefits at the rate of $535.60 per week for the first 26 weeks, and then at 80% of his pre-injury earnings which is $428.48 per week until 30th June 2003.
16.My Certificate of Determination paragraphs 3,4,5,6, and 7 are to remain unchanged.
The amended paragraphs of the Certificate of Determination read as follows:
1. That the Respondent pay to the Applicant compensation pursuant to s36 Workers Compensation Act 1987 from 12th December 2003 (sic) until 20th December 2002 (inclusive) at the rate of $535.60 gross per week.
2. That the Respondent pay to the Applicant compensation pursuant to s38 Workers Compensation Act 1987 from 21st December 2002 to 21st June 2003 (26 weeks) at the rate of $535.60 per week.
3. That the Respondent pay to the Applicant compensation pursuant to s38 Workers Compensation Act 1987 from 22nd June 2003 to 1st July 2003 at the rate of 80% of the Applicant’s pre-injury earnings which is $428.48 per week.
The ‘Amended Certificate of Determination’, issued to correct obvious error, itself contains an obvious error in the date in Order 1 (which should read December 2002, not 2003). The previous Orders, 1 and 2, are now Orders 1, 2 and 3 (above). The previous orders, which remained unchanged, are as follows:
3. That the Respondent pay to the Applicant compensation pursuant to s40 Workers Compensation Act 1987 from 2nd July 2003 to date at the rate of $255.60 per week, taking into consideration any earnings by the Applicant during the period from 1st July 2003 until 12th September 2003 at the Tamworth Country Music Festival and for the firm of removalists and adjusting the weekly rate as noted above accordingly.
4. That such s40 Workers Compensation Act 1987 weekly payments are to continue in accordance with the provisions of the Workers Compensation Act 1987.
5. That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
6. That the Respondent pay for any necessary tests as noted by the AMS, Dr Clarke, in his Medical Assessment Certificate, pursuant to s60 of the Workers Compensation Act 1987.
7. That the Respondent pay the Applicant’s expenses as agreed or assessed.
The Appellant Employer has withdrawn the appeal as it relates to the Respondent Worker’s section 40 claim, therefore Orders 3 and 4 above are no longer in dispute.
LEAVE
Leave to appeal was granted on 7 April 2004 on the basis that:
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act,
· At least 20% of the amount awarded in the decision appealed against (section 352(2)(b) of the 1998 Act), and
· The appeal was lodged within 28 days of the Arbitrator’s ‘Amended Certificate of Determination’ (section 352(4) of the 1998 Act).
REVIEW
The evidence and submissions that were before the Arbitrator are also before me on the appeal. I have also taken into account the written submissions on the appeal and the parties’ oral submissions, made at the hearing on 7 May 2004.
The No Evidence Error
The parties attended a conciliation conference where the Arbitrator used her best endeavours to bring them to a settlement of the dispute that was acceptable to all of them (as she was obliged to do pursuant to section 355 of the 1998 Act). As the parties were unable to reach a settlement the Arbitrator proceeded to arbitration, on the same day.
At the start of the arbitration proceedings, the Arbitrator, in accordance with the ‘Guideline for the Practice of Conciliation/Arbitration’ (‘the Guideline’), read onto the record a document she described as “a written-out statement of facts that I think are agreed facts”. This included details of how the injury was alleged to occur and the treatment that Mr Ramage received following the incident that gave rise to the injury. The Arbitrator then framed the Respondent Worker’s claim in terms of sections 38, 40 and 60 of the 1987 Act. The Arbitrator invited the parties’ representatives to comment on the ‘agreed’ facts as read. The extent to which agreement was actually obtained from the parties’ legal representatives is not clearly apparent from the transcript of the proceedings. The legal representatives did agree on the documents that were before the Arbitrator, but there was no discussion of what was, in effect, missing.
It is not disputed that the Respondent Worker did not file a statement with his original application nor gave oral evidence at the arbitration. It appears from the transcript of the arbitration that Mr Ramage gave evidence about the claim to the Arbitrator at some point in the proceedings, probably in the conciliation phase. The Arbitrator refers to “what the Applicant says” at different points in the transcript. It must be assumed that this is a reference to what Mr Ramage said during the conciliation phase of the proceedings, which is characterized by its informality, and its focus on efforts to bring the parties to an agreeable settlement.
The Appellant Employer submits that the Respondent Worker had failed to file evidence in support of his claim, in particular, that there was no evidence before the Arbitrator:
· of the extent of the Respondent Worker’s incapacity relative to the claim for payment of weekly benefits,
· of the Respondent Worker’s ability, if any, to earn in suitable employment,
· to support the claim of the Respondent Worker’s solicitor that the Respondent Worker was capable of earning $14 per hour,
· what the Respondent Worker had actually earned, if anything, in suitable employment, during the period for which workers compensation payments were claimed.
The Respondent Worker submits that the Arbitrator “determined the matter in reliance of the material served and on the submissions of both parties in accordance with the requirements of the Act and the Rules”.
The procedure in the Commission is governed by the 1998 Act, the Rules and Guidelines made pursuant to them. Section 354 of the 1998 Act provides as follows:
354 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.
(8)In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.
Rule 16 of the Interim Workers Compensation Commission Rules 2001 (the equivalent, as of 1 July 2003, is Rule 38 of the Workers Compensation Commission Rules 2003) provides as follows:
38Material to be lodged with application
(1)For the purposes of section 290 of the 1998 Act, the applicant must lodge and serve with the application to resolve a dispute all information and documents on which the applicant proposes to rely and that are in the possession or control of the applicant at that time.
(2)Subject to subrules (3) - (5), an applicant may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the applicant has lodged and served with the application for dispute resolution, or, as the case may require, any response, in the proceedings, a statement revealing:
(i)the specific nature of the evidence, and
(ii)the reliance the applicant intends to place on the evidence, and
(iii)the reasons why the evidence is not available at the time of service, and
(iv)the time it is expected to be available, and
(b) the evidence is served on all other parties, and lodged, as soon as practicable after the evidence becomes available.
(3)The Commission may, for the avoidance of injustice, allow an applicant to introduce evidence that the applicant would otherwise be prevented from introducing because of the operation of subrule (2).
The Guideline aims to assist Arbitrators, parties and legal practitioners, in the conduct of Commission proceedings. It is published on the Commission’s internet site and widely available in hard copy. The Guideline provides that at conciliation the Arbitrator will:
. . . invite the applicant and respondent (including the worker personally) to make any offers of settlement or suggestions as to how the issues remaining in dispute might be resolved.
The Arbitrator will use some or all the following ways to assist discussions:•Identify issues and differences between the parties in relation to each.
•Review any agreements reached.
•Encourage parties to review the strengths and weaknesses of their positions based on the evidence.
•Identify the range of possible outcomes for each party based on the evidence.
•Identify barriers to agreement and explore how these might be overcome.
•Identify practical solutions.
•Facilitate realistic settlement offers.
•Identify the advantages of settlement and the risks of leaving the matter for determination by a third party.
•Allow parties to undertake private conferencing as between themselves and their legal representatives if that is deemed to be appropriate and productive.
•Assist parties to draft terms of settlement in accord with any agreement reached.
The Arbitrator will not engage in private discussions with one party and/or their legal representatives (see the Guideline at page 9).
Where a matter does not settle at the conciliation phase of the proceedings the Arbitrator will allow for a break, followed immediately by the arbitration phase. At the commencement of the arbitration, the Guideline provides, relevantly, that the Arbitrator must:
•Activate sound recording equipment and announce the matter number.
•Remind participants of the change in Arbitrator role from the conciliation conference.
•Put onto the record any facts and issues agreed during the conciliation phase.
•Establish whether there were any further matters agreed in the “break” before the arbitration commenced.
•Review and summarise the evidence “on the record”.
•Obtain the express concurrence from the parties as to the correctness of that summary.
•Remind the participants that, whilst not bound by the rules of evidence the Commission must bear in mind the following principles:
- evidence should be logical and probative,
- evidence should be relevant to the facts in issue and the issues in dispute,
- evidence based on speculation or unsubstantiated assumptions is unacceptable,
- unqualified opinions are unacceptable (Rule 70).
Parties will have an adequate opportunity to put their case to ensure procedural fairness (Rule 71(c)).
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).
The Guideline gives practical effect to the provisions of the 1998 Act and the Rules. In essence, it provides clear instruction on how Commission proceedings must be conducted, in order to comply with the principles of procedural fairness. The non-adversarial, technical and formal mandate in section 354 of the 1998 Act is facilitated by ensuring that Commission Arbitrators act consistently and fairly in the conduct of proceedings. Arbitrators have a statutory duty to first use their best endeavours to bring the parties to a settlement that is acceptable to them. They also have express statutory authority to proceed to determine a dispute, despite the fact that the Arbitrator may have acted as a conciliator in the same matter (section 355 of the 1998 Act).
A balance must be struck in order that the complex and dual role of an Arbitrator does not compromise the demands of fairness and justice in the determination of the instant case. This balance can be seen in the careful drafting of the procedural Rules and the Guideline, which work together to ensure that all of the Commission’s objectives are met. While the Commission represents a radical departure from the adversarial model of the traditional court system, its practices and procedures are not at large. An Arbitrator cannot, for example, exercise his, or her, wide discretion in an arbitrary or capricious way. It is essential to the protection of the rights of the parties, and to ensure a just and fair outcome, that the Rules and the Guidelines are given force and effect. Failure to do so may, as it has in this matter, lead the Arbitrator into error. In adhering to the Rules and the Guideline, the potentially competing objectives of the Commission, to be fair and just, as well as timely and economical and informal, are balanced to achieve the correct decision in the instant case.
It will not always, or indeed commonly, be necessary for a worker to give oral evidence at an arbitration hearing. The Guideline, as set out above, recognizes this fact. However, the Guideline is premised upon compliance with the Rules, which require that a statement of evidence be filed if a party seeks to give oral evidence. Where a statement has been filed it will be entirely appropriate for the Arbitrator to summarise the evidence that is before him or her at the start of the arbitration, as the Guideline directs. No further evidence may then be given, or alternatively, there may be a request from the other party to test that evidence.
In the absence of the filing of a statement with the Application, leave must be granted before oral evidence is given in the proceedings before the Arbitrator. Oral evidence, if necessary, must be given on the record in the arbitration phase of the proceedings. So much is required by the Guideline, and is necessary to ensure the parties are aware of the evidence that is to be relied upon by the Arbitrator. The parties are then able to make submissions as to its probative value, relative to the other evidence before the Arbitrator.
In my view it is not fair, or reasonable, for an Arbitrator to rely upon his or her own summary of oral statements made by a worker in the conciliation phase of the Commission’s proceedings to support a decision on the worker’s claim. Conciliation is focused on informal and frank negotiations about the settlement of the dispute. Where a dispute is not settled by agreement the Arbitrator must make a determination according to law. This will involve a determination of matters of fact and law essential to establish an entitlement under the Workers Compensation Acts (the 1987 Act and the 1998 Act). While the Commission may inform itself as it thinks fit, it must also comply with the Rules, in particular, Rule 70, which provides that:
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.
The recording of the Arbitrator’s summary of the evidence and issues that he or she believes are agreed between the parties, at the beginning of the arbitration, is a procedural device for ensuring the integrity of the conciliation/arbitration process. It is not a substitute for ensuring logical and probative evidence is before the Arbitrator to enable a determination to be made as to the rights and liabilities of the parties.
There is a further, critical, reason for compliance with the Rules and the Guideline in relation to the record of the evidence that is before an Arbitrator. Where an appeal is filed, the absence of a statement, or record (transcript) of the worker’s evidence cannot always be remedied simply by allowing the worker to file a statement and/or to give oral evidence at the appeal. An appeal against a decision of an Arbitrator, to a Presidential Member, is by way of ‘review’ of the decision appealed against. The nature of this review has been discussed at length in earlier decisions of the Commission (see Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] WCC NSW PD 6; Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 4). The conduct of a review of the Arbitrator’s decision is not a hearing ‘de novo’. New evidence is not permitted unless it is demonstrated that the new evidence could not reasonably have been obtained and tendered in the proceedings before the Arbitrator (section 352(6) of the 1998 Act and Practice Direction No 6).
In my view the Appellant Employer in this matter is right to submit there was no logically probative evidence given by the Respondent Worker in support of his claim, and upon which the Arbitrator could have made her determination. As I have outlined above, it is not correct to suggest, as the Respondent Worker submits, that this matter was ‘conducted within the guidelines issued by the Commission and specifically s354 of the 1998 Act’.
Failure to make the decision on the basis of logically probative evidence is an error of law, and, in the circumstances of this case, the Arbitrator’s decision should be revoked. However, to allow the Respondent Worker to give evidence in the appeal, in effect fresh evidence, is not appropriate as it would, effectively, require the matter to be heard afresh. This is discussed further below.
The Reasons Error
An Arbitrator has a common law and statutory duty to provide adequate reasons for decision. Rule 73 provides as follows:
73Certificates of determination
(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.
It is not necessary, nor appropriate, for a Commission Arbitrator to give lengthy reasons for decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant judicial authority on the matters decided. Commission Arbitrators are encouraged to provide ex tempore reasons. The standard by which 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 proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (see section 367 of the 1998 Act, Objectives of Commission). This approach is equally applicable to the preparation of statements of reasons or the giving of oral reasons. At the same time, the reasons must be capable of adequately conveying to the parties the basis upon which the Arbitrator came to his or her decision.
In this matter the Arbitrator, in accordance with the Guideline, gave her reasons orally at the conclusion of the arbitration, and they were recorded. The document entitled ‘Statement of Reasons’ and attached to the Certificate of Determination dated 3 November 2003, seeks to comply with Rule 73 by incorporation of the transcript with the reasons.
The Arbitrator’s reasons appear at pages 13 –16 of the transcript of the Arbitration. The Arbitrator refers, without going into detail, “to the facts agreed upon and the claims”. The Arbitrator states:
With respect to section 4, I find that the applicant suffered an injury on 13 November 2001 which arose out of or in the course of his employment with the respondent.
The respondent has not tendered any evidence to demonstrate that the incident did not occur, and it seems to be agreed that there was an incident as described by the applicant which caused him to receive, firstly, assistance from the first aid person and eventually his GP and Tamworth Base Hospital, where he remained for some days undergoing treatment. The injury was significant enough for him to remain in hospital for some days.
The Arbitrator then considers the medical evidence filed by both parties and the evidence of the AMS, Dr Clarke. She states that she prefers the evidence of Doctors Stacey, O’Connor and Clarke in reaching the conclusion that the Respondent Worker’s injury was caused by the exposure to hazardous material at work and therefore arose out of or in the course of his employment, satisfying section 4 of the 1987 Act. She also relies upon these reports to find that the Respondent Worker suffered an ‘ongoing incapacity’. She then considers “the work situation”, and observes that “the applicant says he’s looked for work”. There is a reference to the Respondent Worker’s contract in relation to his termination of employment, but the contract is not in evidence before the Arbitrator. The Arbitrator then discusses section 60 medical expenses and states “it’s quite clear from medical report annotations that the applicant requires further care” and tests. She then makes her orders as set out in the Certificate of Determination that was later issued.
Following her reconsideration of the orders the Arbitrator issued, on 22 December 2003, a statement to accompany the ‘Amended Certificate of Determination’, but this addresses only the issues that were the subject of an application to correct an ‘obvious error’ in the original Certificate.
The Appellant Employer submits that “the arbitrator erred in failing to give any or any adequate reasons. The arbitrator erred to the extent that she relied upon or otherwise treated as evidence, matters raised or discussed other than at the arbitration and/or to the extent that she relied upon or accepted matters which were unsupported and/or unsubstantiated by evidence”.
The Respondent Worker submits that “[i]n the event of finding any inadequacy in the reasons for the decision of the Arbitrator, it is submitted as to the whole of the transcript that the transcript does not demonstrate that the Arbitrator failed to discharge or exercise the Arbitrator’s statutory duty to fairly and lawfully determine the matter or to follow s354 of the 1998 Act”.
To the extent that the Arbitrator relied upon statements made by the Respondent Worker during the conciliation, rather than evidence given by way of a statement or orally, on the record, I refer to my reasons above. These matters really go to the ‘no evidence’ ground of review rather than an argument about the adequacy of the reasons.
The Appellant Employer argues that the Arbitrator gave no reasons for finding that the Respondent Worker was looking for suitable employment, and for the subsequent determination of the amount of his entitlement to compensation pursuant to section 38 of the 1987 Act. In my view this conclusion is inescapable. The Arbitrator based her finding that Mr Ramage is looking for work on “what the applicant says [inaudible] that the applicant’s looking for employment within his capabilities and also in [inaudible]” (transcript page 15). While accepting the inadequacies of the transcript, this reasoning clearly does not comply with the requirements of Rule 73 (above).
The Arbitrator proceeded to make orders pursuant to section 38 of the 1987 Act. The lack of evidence to support the amount of the award is evidenced by the general order that “such weekly payments [are] to continue in accordance with the provisions of the Act and taking into consideration the earnings of Mr Ramage between 1 February 2003 and 12/9/2003 at the Tamworth Country Music Festival and the removalists, whose name I can’t recall, I‘m sorry”. It is understandable that the parties continued to be in dispute about the terms and effect of the orders following the determination.
The Arbitrator, having found that the employer was liable for existing medical expenses, ordered that “the respondent pay for the necessary tests as noted by the AMS, Dr Clarke, in his medical assessment certificate pursuant to section 60 of the Workers Compensation Act 1987”. The opinion of an AMS in this matter was not binding on the Arbitrator and formed only one part of the whole of the evidence that was before her. The Arbitrator has failed to give reasons for her reliance upon Dr Clarke and has not complied with Rule 73 in this regard.
The Arbitrator has not provided adequate reasons for her orders. In my view this inadequacy is such that it appears the Arbitrator has failed to determine the matter fairly and lawfully, and is, therefore, a sufficient ground to revoke the decision (YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002)).
The Sections 36 and 38 Error
The Appellant Employer submits that the Arbitrator erred in considering the Respondent Worker’s claim under section 38 of the 1987 Act. This section was not specifically ‘pleaded’ and the Appellant Employer was unfairly prejudiced by its consideration at the proceedings.
The Appellant Employer also submits that the actual award made under section 38 is defective in that an incorrect period is relied upon and the amount of the award is wrong. The Arbitrator refers, in the arbitration proceedings, to evidence of the Respondent Worker’s being in employment in February 2003, but the orders made do not make allowance for any employment at that time. The Appellant Employer submits that the Arbitrator also erred in failing to take account of payments already made to Mr Ramage, pursuant to section 36 of the 1987 Act.
The Respondent Worker submits that “the transcript indicates that the Arbitrator has considered all of the material placed before the Commission and accordingly has formed views and opinions regarding same, not least of which the restrictions and incapacities of the Respondent Worker with respect to entitlements under s38 and s40 of the 1987 Act”. The Respondent Worker’s submissions are silent as to the period and quantum of the award.
The dispute resolution system in the Commission is based upon the principle that “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) of early disclosure” (see the Guideline).Whether or not the worker ‘pleaded’ his claim in accordance with specific sections of the 1987 Act (sections 38 and 40 of the 1987 Act in this instance) does not restrict the Arbitrator in his or her determination of the whole of the dispute. The Commission is not a court and is not governed by strict rules of ‘pleading’. This issue was discussed in the matter of Far West Area Health Service v Radford [2003] NSW WCC PD 10, where I made the following observations:
In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties. The Act provides a comprehensive statutory scheme for the making of claims, substantiation of claims, acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues. The dispute resolution processes in the Workers Compensation Commission, including appeals, are the final step in this scheme. When the parties reach the Commission the issues that are in dispute between them should be clear. This is not to say that some issues will not assume greater significance than others in the proceedings, or that others may be resolved after the dispute is lodged in the Commission and before the Arbitrator must make a decision.
There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfill the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.
There was a vocational report in evidence (Kelly Pritchard Consultancy, 20 November 2002) that referred to the fact that Mr Ramage had been doing some volunteer work for the Rural Fire Service. Mr Ramage’s own evidence of his capacity to work and efforts to obtain suitable employment appears to arise from comments made by him in conciliation, the approach that should be taken to these comments is discussed above. While there was evidence of comparable earnings, $535.50, the Arbitrator did not state what she relied upon in coming to her decision.
The Appellant Employer’s submission as to the correctness of the period and quantum of the award made under section 38 are persuasive. There was no evidence before the Arbitrator of the Respondent Worker’s earnings during the relevant period. This fact is reflected in the terms of the orders that were made. In contrast, there was evidence before the Arbitrator of the payments already made to the Respondent Worker pursuant to section 36 of the 1987 Act. The amended orders issued after the decision was reconsidered purport to take into account the relevant statutory periods. However, it remains unclear from the reasons exactly how the Arbitrator calculated these periods and what evidence, if any she took into account in making her orders. It appears to have been conceded that the Respondent Worker did some paid work during this period, although to what extent and for what payment is not clear.
Ultimately, a Commission Arbitrator cannot make an award that grants a greater entitlement to a worker than would be conferred by the provisions of the Workers Compensation Acts. The legislation provides a comprehensive benefits scheme for injured workers. On balance, I am satisfied that the Arbitrator has erred in the application of the 1987 Act. The award appears inconsistent with the evidence that was before her of prior benefits and remaining entitlements. At least, it must be said that the determination is not supported by logically probative evidence given by the Respondent Worker. The Arbitrator, unsuccessfully, sought to correct the orders upon reconsideration.
The Arbitrator has erred in failing to properly apply sections 36 and 38 of the 1987 Act, failing to provide adequate reasons for the orders that she made pursuant to those sections, and, in my view, failing to base those orders on logically probative evidence.
The Reconsideration Error
The Arbitrator purported to ‘reconsider’ her award by the issue of an amended Certificate of Determination on 22 December 2003. The Appellant Employer submits that the Arbitrator failed to properly exercise the power of reconsideration, found in section 350 of the 1998 Act. The Respondent Worker is silent on this ground of appeal.
Having already found that the Arbitrator erred in a number of respects, it is strictly unnecessary to consider in detail this ground of appeal. However, it is, in my view, important to point out that the power of reconsideration must, as with other Commission procedures, comply with the rules of procedural fairness. The parties must be given notice of the application for reconsideration, and given an opportunity to comment on it, prior to the Arbitrator exercising the power. It is not clear to me from the Commission file that this occurred in this matter.
Summary
In this matter the Arbitrator erred in:
·Making an award in favour of the Respondent Worker, in the absence of logically probative evidence to support that award,
·Failing to give adequate reasons for the decision, and
·Failing to properly apply sections 36, and 38 of the 1987 Act.
Future Course of the Proceedings
The nature of the errors made by the Arbitrator in this case make the task of review, on appeal, problematic. As discussed above, review by a Presidential Member is not intended to become a hearing de novo. The errors made by the Arbitrator in this matter are such that the decision cannot stand. At the same time it is not appropriate for all of the evidence to be heard afresh, on appeal.
The Appellant Employer is right to refer to the requirements of the Rules, and the poor state of the evidence in support of the Respondent Worker’s claim. However, in my view it would not be fair, or reasonable, on the evidence before me, to substitute a decision in favour of the Appellant Employer. Nor would it be reasonable to expect the Respondent Worker to discontinue the proceedings.
A Presidential Member does not currently have express power to refer a matter back to be reheard by another Arbitrator. The Workers Compensation Legislation Amendment Bill 2004, currently before the Legislative Assembly after its second reading, will, if passed, change this situation. However, errors of the kind made by the Arbitrator in this matter, namely, the failure to make a decision on the basis of logically probative evidence, failure to give adequate reasons, and failure to properly apply the law, are errors that go to jurisdiction. The High Court in Craig v State of South Australia (1995) 184 CLR 163, found that:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it (at 179).
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the High Court, McHugh, Gummow and Hayne JJ, with the concurrence of Gleeson CJ and Gaudron J, referred to the decision in Craig as follows:
`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive . . . What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it (at 351).
A denial of procedural fairness is also an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597: `A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all’.).
The result of jurisdictional error by a Tribunal may be, but is not necessarily always, that the decision is a nullity. Gleeson CJ, in Bhardwaj, said:
To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.'
Whether or not the decision that is affected by error is a nullity, will depend upon the express or implied intention of the particular statutory provisions that govern it (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55 (Gray, Downes and Kenny JJ)). This must be determined by considering the objects of the language, objects and purpose of the statute, and the consequences of finding the decision invalid and of no effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
In this matter the relevant legislation is the Workers Compensation Acts (the 1987 Act and the 1998 Act). The purpose of the legislation is, inter alia, to provide a statutory benefits scheme for workers compensation claims. It is intended that the scheme be a comprehensive statement of workers’ entitlements and employers’ liabilities in relation to these claims. Section 9(1) of the 1987 Act provides that: “A worker who has received an injury. . . shall receive compensation from the worker’s employer in accordance with this Act”. To this end, a decision that purports to determine those rights and liabilities on the basis of jurisdictional error, cannot be permitted to stand. The consequences of finding such a decision to be of no effect is that a dispute remains on foot before an Arbitrator and the applicant’s claim remains to be properly determined. Taking these factors into account it is my view that the effect of jurisdictional error by the Commission in making a decision under the Workers Compensation Acts is to nullify that decision and deprive it of any effect.
The original ‘Application to Resolve a Dispute’ remains on foot and the Registrar should now refer it to an Arbitrator.
I recommend the Registrar follow this course as a matter of urgency, as the parties have now been engaged in proceedings in the Commission since January 2003. It will be a matter for the Arbitrator to determine whether the parties should be given a further opportunity to file relevant evidence and submissions in support of their respective claims. If, in light of these reasons, the parties come to a settlement of the dispute, then the matter may be discontinued.
DECISION
The Arbitrator has failed to make a determination in accordance with the Workplace Injury Management and Workers Compensation Act 1988. The matter should be referred to the Registrar for allocation to an Arbitrator.
I recommend that the original dispute be referred to the Registrar for allocation to an Arbitrator.
COSTS OF THE APPEAL
The appeal has been successful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides as follows:
345 Costs 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.
The parties are urged to come to an agreement as to costs, taking the above provisions into consideration.
Dr Gabriel Fleming
Deputy President
8 June 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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