Barbour v BHP Steel Pty Limited
[2004] NSWWCCPD 42
•13 July 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42
APPELLANT: Tarek Barbour
RESPONDENT: BHP Steel (JLA) Pty Limited
INSURER:BHP Steel (JLA) Pty Limited
FILE NUMBER: WCC 14092-2003
DATE OF ARBITRATOR’S DECISION: 2 February 2004
DATE OF APPEAL DECISION: 13 July 2004
SUBJECT MATTER OF DECISION: Admission of Late Evidence, Adequacy of Reasons for Arbitrator’s decision, Remittal to another Arbitrator.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the papers.
REPRESENTATION: Appellant: P K Simpson & Co.
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked.
The matter is remitted to a different Arbitrator to be determined afresh.
THE APPEAL
On 20 February 2004 Tarek Barbour (‘the Appellant/Mr Barbour’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision dated 2 February 2004.
The Respondent to the Appeal is BHP Steel (JLA) Pty Limited (‘the Respondent/BHP’).
The appeal concerns a decision by an Arbitrator that BHP was not liable to pay Mr Barbour workers compensation for injuries that he claimed to have suffered while working as a machine operator at BHP. Mr Barbour had claimed weekly payments of $900.00 per week from 23 January 2001 and continuing, and lump sum payments for permanent impairment and pain and suffering totalling $107,750.00, and medical expenses.
Mr Barbour has recently been diagnosed with a serious, terminal illness, and has requested that this appeal be expedited. This request was brought to my attention on 1 July 2004 and, as a result, I have proceeded to determine the appeal. The reasons are brief, reflecting the need to finalise this matter quickly.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding a conference or formal hearing, and that this is the appropriate course in the circumstances (Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
LEAVE TO APPEAL
As to the threshold issues, I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of 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), and
·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] NSW WCC PD 5).
Leave to appeal is granted.
FRESH EVIDENCE
Mr Barbour seeks to give new evidence in the appeal (section 352(6) of the 1998 Act) in the form of oral evidence by himself, with the assistance of an interpreter. Section 352(6) of the 1998 Act provides that, in an appeal, leave is required for the admission of fresh evidence or evidence in addition to that which was before the Arbitrator. The requirements of this section are addressed in the President’s Direction Number No. 6, which provides that a party seeking to rely upon new evidence in an appeal against an Arbitrator’s decision, must file with the Commission and serve on the other parties:
·“A statement attesting to the service of the new evidence on the other parties to the dispute,
·a brief outline of the new evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions as to why the new evidence should be admitted.”
The President’s Direction further provides that:
“In general, the Commission will allow new evidence to be given 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.”
The Appellant’s legal advisers have not complied with the requirements of Practice Direction No. 6. No outline of the oral evidence sought has been provided or served. It is difficult to understand why this has not been done, given that one of the Appellant’s complaints in the appeal is that the Arbitrator refused, on 22 December 2003, to allow the filing of a statement by Mr Barbour. It is now approximately twelve months since the original ‘Application to Resolve a Dispute’ was filed and a statement of the worker has still not been filed.
The Appellant’s submission as to why the evidence should be admitted on appeal relies upon the claim that “the Applicant was denied natural justice as the Arbitrator refused to allow the Applicant to file a Statement”. The submissions detail the medical evidence that was before the Arbitrator and his alleged error in refusing to allow the Appellant to file a written statement. The factors relevant to whether the oral evidence should now be admitted on the appeal clearly overlap those concerning whether the Arbitrator erred in not allowing the statement to be filed at first instance.
The jurisdiction of a Presidential member on appeal is to ‘review’ the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).
This application to give new evidence on appeal, by way of oral evidence from Mr Barbour, is refused. The reasons for refusal should become obvious in the context of the conclusions I have reached on the substantive issues, which are set out below.
ISSUES IN DISPUTE
The Appellant identifies the issues in dispute in the appeal as:
The Arbitrator erred in -
· Refusing leave for the worker to file a statement of evidence (‘the Statement Error’),
· The interpretation of sections 4, 9A, 15 and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘the Interpretation of the 1987 Act Error’),
· Failing to provide adequate reasons for the decision (‘the Reasons Error’),
· Making findings of fact that were against the weight of the evidence (‘the Evidence Error’).
The Respondent submits that the Arbitrator’s decision was fair and just in the circumstances and ought to be confirmed.
DISCUSSION AND FINDINGS
History of the Proceedings before the Arbitrator
Mr Barbour’s legal representative, P K Simpson & Co, Solicitors, filed an Application to Resolve a Dispute in the Commission, on Mr Barbour’s behalf, on 28 August 2003. The application was registered in the Commission on 1 September 2003. The Application attached a number of medical reports: Dr Lowy, Occupational Physician; Dr Rao, Surgeon; Dr Matalani, Occupational Physician; Dr Stenning, Surgeon and Specialist in Musculoskeletal Medicine, and Dr Hampshire, Psychiatrist. Further medical evidence from Dr Guirgis, Orthopaedic Surgeon, was also filed.
The application did not comply with the requirements of the Workers Compensation Commission Rules 2003 (‘the Rules’) in that it did not include ‘all information and documents on which the applicant proposes to rely’ (Rule 38(1)); in particular, it did not include a statement of evidence of Mr Barbour.
Five ‘Directions for Production’ were issued by the Commission, at the request of Mr Barbour’s legal representative, returnable on 17 October 2003.
On 5 September 2003 the Commission received an unsigned and undated ‘Certificate of Service’ from the Appellant’s solicitor stating that the Application had been served on 27 August 2003.
BHP filed a Reply on 22 September 2003, attaching a number of documents including medical reports: Dr Smith, Surgeon; Dr Matheson Neurosurgeon, and Dr Lyons, Orthopaedic Surgeon. Five ‘Directions to Produce’ were issued at the request of BHP’s legal representative, returnable 17 October 2003. A Certificate of Service of the Reply was filed on 27 October 2003. Further evidence, as foreshadowed in the Reply, was filed on 24 November 2003. On 27 November 2003 the Respondent purportedly filed a surveillance video by G Kane & Associates Pty Limited. No copy of the surveillance video is on the Commission file and the Registrar advises that the ‘Arbitrator’s file’, which is intended to be a complete copy of the Commission file, cannot be located.
The dispute was referred to an Arbitrator who held a teleconference on 19 December 2003, attended by the legal representatives of both parties. The Commission file indicates that Mr Barbour attended and was assisted, by an interpreter in Arabic (Lebanese), provided by the Commission.
There is no record of what occurred at the telephone conference. On 22 December 2003 the Arbitrator issued, separately, a written ‘Direction’ and a written ‘Order’. The Direction granted leave to the Respondent to rely upon documents that had been identified in the Reply. I am not clear why this Direction was necessary, as it appears that the documents could have been admitted simply by operation of Rule 38(2). Further directions were made in relation to documents produced under ‘Directions to Produce’ and the Arbitrator set the matter down for a conciliation and arbitration conference.
The ‘Order’ refuses “the Applicant’s oral application for late filing and service of a statement by the Applicant as to the nature and conditions of his employment by the Respondent”. Short reasons for this Order are set out, as follows:
“1. The Respondent denied liability by letter dated 11th April 2002 specifically under section 9A of the Workers Compensation Act 1987 and the Applicant’s employment was not a substantial contributing factor in his injury. The Applicant and his advisers have been on notice of the section 9A issue since that time.
2.Section 290 of the 1998 Act and Rule 38 of the Workers Compensation Commission Rules 2003 require all information on which the applicant intends to rely to be filed with the application to resolve dispute in what is colloquially known as a ‘nature and conditions’ claim that should have included the applicant worker’s statement. The respondent has filed a number of statements and would be subject to considerable forensic prejudice if the applicant were to be allowed to file a statement at this stage of proceedings.”
Both parties filed further evidence in December 2003 (the Appellant) and January 2004 (the Respondent).
A conciliation and arbitration conference were held on 2 February 2004 and the Arbitrator gave an oral decision, which was recorded. A transcript of the arbitration proceedings and the reasons for decision are before me. For reasons unknown to me, the Certificate of Determination issued by the Commission is dated 17 February 2004 and refers to an Arbitration held on 17 February 2004. I note the statement of reasons itself is not dated, signed or stamped.
The whole of the Arbitrator’s reasons take up about three pages of the transcript (also inexplicably dated 17 February 2004). In giving his reasons the Arbitrator first briefly sets out his understanding of the nature of the claim. He then states that “the inquiry undertaken today is whether the Applicant’s employment is a substantial contributing factor to the injuries he complains of”. The Arbitrator describes Mr Barbour’s work tasks, by reference to statements of his supervisors and co-workers. The Arbitrator then discusses the medical evidence presented by both parties and concludes that “I am not persuaded that the Applicant’s employment was a substantial contributing factor”. Having been reminded that he did not address the worker’s claim under sections 15 and 16 of the 1987 Act, the Arbitrator briefly considers the medical evidence and concludes that there was no causal connection between the worker’s physical complaints and his employment. As a result he dismissed the worker’s claim.
The Statement Error
The Appellant submits that the Arbitrator erred in his Order of 22 December 2003, in refusing to allow a statement of Mr Barbour to be filed. In summary, the Appellant claims that the Arbitrator erred in refusing to allow the statement to be filed on the basis that the Respondent denied liability on the ground of section 9A of the 1987 Act. The Appellant claims that “ . . it was clear from the Applicant’s claim as presented to the Respondent before the commencement of proceedings and from the documentation that accompanied the Application to Resolve a Dispute that the Applicant’s claim was not one of a frank injury arising from a particular accident on a particular day. The material clearly indicates that the Applicant’s claim was of injury arising from physical activities performed at work over the years.”
In addition, the Appellant claims that on 22 December 2003, when the Arbitrator refused to allow the Appellant to file a statement late, both parties had further evidence to file and the conciliation and arbitration conference was not listed until February 2004. The Appellant denies any forensic disadvantage to the Respondent, in allowing the filing of a statement by Mr Barbour at that time.
The Respondent submits that the Appellant had every opportunity to file the statement prior to the teleconference on 19 December 2003. The Respondent submits that the statement would not, in any event, have added anything to the evidence before the Arbitrator.
Both parties refer to inadequacies in the transcript of the proceedings. The Appellant claims that only a small part of the proceedings were in fact recorded, and appear on the transcript.
Clearly the Appellant’s legal representative, in failing to lodge a statement by Mr Barbour with the Application, did not comply with the Rules. This is not an insignificant transgression. The Rules are there to guide the parties and must be complied with. An Arbitrator retains a discretion to dispense with the requirements of the Rules in the interests of fairness. The lack of a written statement by Mr Barbour is not necessarily the end of the matter, in relation to his evidence. Even if the Arbitrator determined to refuse to allow Mr Barbour to file a statement, it was open to him, if the evidence of Mr Barbour was essential to a fair determination of the dispute, to grant leave for him to give oral evidence, which would then have formed part of the transcript of the proceedings.
The reasons provided by the Arbitrator for refusing to allow the statement to be filed do not address the matters that should be considered where an application for late evidence is made. These matters were discussed in ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21. The President’s Practice Direction No. 9 also sets out matters that are relevant to an application to admit late documents, namely:
• “the submissions of the parties, including, if any, oral or written objections to the grant of leave,
• the effect, if any, on the timely resolution of the dispute,
• the extent of the prejudice to the other parties, if any, that would result from granting leave,
• the requirements of the Act and the Rules, and
• the objectives of the Commission.”
In the context of the claims that had been detailed in the Application it was, arguably, imperative that the Applicant file a statement, in order that the Arbitrator have evidence of the nature of his work and the nature of the alleged injury. The Arbitrator’s short reasons acknowledge as much. The prejudice to the worker in not allowing the statement to be filed is not expressly considered, nor is the effect that the failure to allow the worker’s evidence is likely to have on the fair determination of the dispute. Indeed it can be seen from the final decision that the Arbitrator, in the absence of oral evidence from Mr Barbour, was required to rely on evidence of less persuasive merit in order to make the necessary findings to support his final decision.
The application to file the worker’s statement was made nearly two months before the conciliation arbitration was listed. In the circumstances I do not appreciate what ‘considerable forensic prejudice’ flowed to the Respondent in allowing the statement to be filed. The fact that the Respondent denied the claim on a certain basis (Section 9A of the 1987 Act) (although not exclusively on this basis as the Arbitrator claims), does not explain why the worker’s statement should not be allowed to be filed late. In the circumstances of this case the refusal to allow the statement to be filed was unreasonable and unfair, and constituted an error of discretion by the Arbitrator.
The Evidence Error
Reading the whole of the documents in this matter, including the Arbitrator’s reasons for refusing to allow the statement to be filed and his final reasons, the Application and Reply, the evidence and submissions filed, and the submissions that appear on the transcript of 2 February 2004, it is difficult to reconcile the Arbitrator’s view of the dispute with that of the parties. The Arbitrator insists that this matter is almost exclusively concerned with the application of section 9A of the 1987 Act. Attention was given, in the Arbitrator’s reasons, to the claims against sections 15 and 16, as an afterthought. Yet both parties put ‘injury’ in issue (section 4 of the 1987 Act) and the extent of Mr Barbour’s incapacity and permanent impairment, if any. In addition, the claims made under sections 15 and 16 of the 1987 Act were not trivial.
Proceedings in the Commission are not governed by pleadings, as they are in the courts (Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10). It is not appropriate for parties in the Commission to seek to have disputes cosseted in technical rules that result in a failure to determine the real issues (section 354 of the 1998 Act). Parties are not restricted to issues strictly ‘pleaded’. Nor, as the Workers Compensation Acts (the 1987 Act and the 1998 Act) currently stand, is a Respondent in the Commission restricted to relying only on the reasons for which liability for a claim was initially refused.
An application to the Commission should seek to detail the facts of the claim, as it was made upon the employer, and understood by the employer and the insurer prior to coming to the Commission. To insist on strict categorization of the dispute as to only a ‘pleaded’ frank injury, or a ‘pleaded’ nature and conditions claim, is to impose an artificial technicality on workers compensation disputes that is clearly not intended in the objectives of the Commission (section 367 of the 1998 Act). This is not to say that parties should be at large to raise matters not genuinely in issue between them, or to pursue the ‘element of surprise’ in the advancement of their claims in the Commission. Ultimately Commission proceedings must be governed by the principles of procedural fairness. This includes giving a party notice of the case against it and the opportunity to respond, within the reasonable application of the procedural limitations and expectations placed upon the parties by the legislation and the Commission’s Rules.
It appears, from the limited transcript and reasons before me in this matter, that the substantive issues in this dispute were not permitted by the Arbitrator to be articulated and have not been addressed in the evidence and in the reasons. On the documents before me the claim was clearly not restricted to the issue of ‘substantial contributing factor’. The evidence of the worker was critical to a number of issues, including “injury arising out of or in the course of employment” (Section 4 of the 1987 Act).
The relevance and weight to be given to the medical evidence was also critical to a range of issues, including incapacity and permanent impairment. The Workers Compensation Regulation 2003 (‘the Regulation’), Clause 43, provides that only one medical report from a particular specialty may be admitted on behalf of a party to proceedings in the Commission. In this matter the Arbitrator, in his reasons, has made no reference to the limitation on specialist evidence contained in the Regulations. Ultimately it is not clear to me exactly what evidence was before the Arbitrator. The surveillance video and Arbitrator file cannot now be located by the Registrar and the video is not referred to in the reasons.
There is no record that the Arbitrator considered whether to grant the worker leave to give oral evidence. This is not a matter where, despite the fact that there was no record of the worker’s evidence, the parties have accepted the facts in dispute as given in evidence by the worker at the conciliation stage of proceedings (Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7). In this matter there was no evidence from the worker as to matters that the Arbitrator needed to decide. It can be seen from a reading of the transcript of reasons that the Arbitrator relied upon the evidence of Mr Barbour’s supervisor and colleagues in order to decide exactly what duties Mr Barbour performed. Similarly, the evidence of the indices of injury were gleaned from secondary sources with the Arbitrator extracting the necessary details of the nature of Mr Barbour’s employment and the onset of his alleged incapacity by reference to the history set out in the various medical reports. In the absence of Mr Barbour’s evidence on critical issues I do not see how the Arbitrator could proceed to fairly conduct the arbitration (Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31).
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 Arbitrator has erred in failing to properly determine in the dispute in accordance with Rule 70.
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.
The giving of adequate ex tempore reasons in appropriate cases in the Commission is to be applauded. This gives the parties a timely resolution of their dispute. However the reasons must still comply with Rule 73. The reasons in this matter fall well short of the requirements of Rule 73. As stated above, the issues in dispute were not properly articulated. The findings that were material and relevant to the ultimate determination were also not clearly articulated. The relevant legislation was not explained and no legal principles clearly emerge from the brief reasons. The determination of the worker’s claims under sections 15 and 16 were dealt with peremptorily.
The Arbitrator has erred in failing to provide adequate reasons for the decision.
The Interpretation of the 1987 Act Error
Having found that the Arbitrator has made a number of errors in the decision it is not necessary to determine whether or not he has also erred in the substantive application of sections 4, 9A, 15 and 16 of the 1987 Act.
The Workers Compensation Legislation Amendment Act 2004, effective 9 July 2004, amended section 352 of the 1998 Act to allow for a Presidential Member, on review, to remit a matter to an Arbitrator. In my view this matter should be referred to the Registrar for allocation to a different Arbitrator so that the substantive issues may be resolved. In that circumstance I do not propose to comment on the substantive issues and leave them for arbitral determination.
DECISION
The decision of the Arbitrator, dated 2 February 2004, is revoked. The matter is remitted to a different Arbitrator to be determined afresh.
Dr Gabriel Fleming
Acting President
13 July 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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