Basit v Haden FM Pty Ltd trading as Resolve FM
[2006] NSWWCCPD 38
•6 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Basit v Haden FM Pty Ltd t/as Resolve FM [2006] NSWWCCPD 38
APPELLANT: Abdul Basit
RESPONDENT: Haden FM Pty Ltd t/as Resolve FM
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 6024-05
DATE OF ARBITRATOR’S DECISION: 9 August 2005
DATE OF APPEAL DECISION: 6 March 2006
SUBJECT MATTER OF DECISION: Treatment of evidence, procedural fairness, referral to an Approved Medical Specialist
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Self-represented
Respondent: AO Ellison & Co, Solicitors
ORDERS MADE ON APPEAL: 1. Clause 1 of the Arbitrator’s decision dated 9 August 2005 is revoked and the issues of injury and permanent impairment are remitted to the Arbitrator for determination in accordance with the law.
2. Clauses 2, 3 and 5 of the Arbitrator’s decision are confirmed.
3. Clause 4 of the Arbitrator’s decision is revoked. A decision on the payment of costs is deferred pending the Arbitrator’s determination of outstanding issues.
4. The Respondent is to pay the Appellant, Mr Basit’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 16 August 2005, Abdul Basit sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 9 August 2005. The Respondent to the appeal is Haden FM Pty Ltd t/as Resolve FM (‘Haden’).
Mr Basit was born in Afghanistan on 12 April 1968 and is aged 37. He migrated to Australia in 1999 and is married with one dependent child. On 2 February 2004, Mr Basit commenced employment as a property officer with Haden. On 8 March 2004, he experienced back pain while lifting a laundry basket containing household goods. Next day, he consulted a general practitioner, Dr Pranesh Chanda, who prescribed analgesics and advised him to rest. On 12 March 2004, Mr Basit attempted a return to work on light duties but claims he was unable to tolerate the pain after a day. On 16 March 2004, he lodged a claim for workers compensation. The insurer, Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’), while initially accepting liability, declined further liability from 17 September 2004.
On 26 April 2005, the Commission registered Mr Basit’s ‘Application to Resolve a Dispute’ in respect of his claim for (1) weekly compensation from 17 September 2004 to date and continuing, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. Haden’s ‘Reply’ was received on 17 May 2005.
On 5 July 2005, the Arbitrator conducted a teleconference with the parties. On 3 August 2005, conciliation having been unsuccessful, he conducted an arbitration hearing, at the conclusion of which he gave an oral decision, in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 9 August 2005, records the Arbitrator’s orders as follows:
“1. There is an award for the Respondent in respect of the Applicant’s claim of permanent impairment as a result of the incident on 8 March 2004.
2. There is an award for the Respondent in respect of the Applicant’s claim for weekly compensation pursuant to s 40 of the Workers Compensation Act 1987, for the period from 17/9/04.
3. There is an award for the Respondent, in relation to the Applicant’s claim for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 from 17/9/04 to date.
4. There is no order as to costs.
5. This matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.”
In the statement of reasons for his decision given orally at the conclusion of the arbitration hearing, the Arbitrator found that prior to the incident on 8 March 2004, Mr Basit had suffered back pain with radiation to the left leg and ankle over a significant period of time, for which he had sought treatment. The Arbitrator referred to a CT scan of 18 July 2001 showing Mr Basit had a broad-based posterior bulge of the annulus at L4/5. The Arbitrator accepted that Mr Basit had suffered “an aggravation of his pre-existing condition” - a musculoligamentous strain - in the course of his employment, but found he had not received an injury that resulted in any permanent impairment of his back: the medical evidence indicated Mr Basit should have recovered within a short period of time after the incident (transcript pages 60 to 61).
The Arbitrator concluded that Mr Basit “suffered only a minor aggravation” and that no weekly compensation should be payable beyond 17 September 2004, by which date “the incapacity should be deemed to have ended” (transcript page 61). Thus, liability for payment of medical, hospital or related expenses also ceased from that date.
ISSUES IN DISPUTE
The grounds of appeal identified by Mr Basit raise issues of procedural fairness and whether the Arbitrator accorded proper weight to the medical evidence. Haden submits there is no basis to these grounds. The parties’ submissions are discussed more fully below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
Having regard to Practice Directions No.s 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, 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
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the issue of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I accept that the amount of compensation at issue in relation to weekly compensation, medical expenses and permanent impairment exceeds $5,000 and constitutes more than 20% of the amount claimed. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mr Basit seeks leave to admit four documents as fresh evidence. The first, a report by Dr Peter Carr, dated 20 April 2004, of a MRI lumbar spine, stating there is a “mild diffuse disc bulge at the L4/5 level”, is already in evidence, having been attached to the ‘Application to Resolve a Dispute’ by Mr Basit’s solicitor. The second is a further report of a MRI lumbar spine by Dr Carr of the same date that shows no abnormality. The third document is a report by Dr Victor Critoph, dated 9 February 2006, of a CT lumbar spine. Mr Basit has not made any submissions as to why the second and third reports should be admitted. In my view, they add nothing to the medical evidence already before the Commission and it would not cause Mr Basit a substantial injustice if they were not admitted. I therefore refuse leave to admit those reports.
The fourth document Mr Basit seeks leave to admit is the Preplacement Health Evaluation undertaken for Haden before Mr Basit’s employment commenced. Haden submits such pre-employment certification would not make any difference to Mr Basit’s case given the other pre-employment evidence already admitted. From comments made by Mr Basit during the course of the arbitration hearing, and in relation to his appeal, it is obvious that Mr Basit regards this as important evidence attesting to his being fit for work at the time of the commencement of his employment with Haden. This Evaluation was not available to Mr Basit at the time of the arbitration, having only very recently been provided to him. I will admit the document to ensure all evidence that Mr Basit considers important to his case is before the Commission.
SUBMISSIONS
Mr Basit submits he was not given the opportunity to put his case. Moreover, he did not want to proceed with his then solicitor representing him, and “had no chance to either discontinue or proceed”. Mr Basit also contends the Arbitrator placed too much weight on the report prepared for Allianz and gave insufficient weight to Dr Richard Deveridge’s report, and that the Arbitrator should have sent him for an impartial assessment by an Approved Medical Specialist.
Haden submits Mr Basit was given ample opportunity to consider his position, his legal representation and whether to proceed on the day of the arbitration. The Arbitrator gave proper weight to Dr Deveridges’s report and based his decision on all the evidence. As Deputy President Fleming stated in Edmondston v Hastings Council [2003] NSW WCC PD 38, it was entirely appropriate for the Arbitrator to determine the question of liability before referring Mr Basit to an Approved Medical Specialist for assessment.
EVIDENCE, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Basit must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40 should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
I have examined the transcript of the arbitration hearing and the discussion that took place between the Arbitrator, the two legal representatives and Mr Basit. Essentially, it seems that during the course of the conciliation or at the commencement of the arbitration hearing, Mr Basit became unhappy with the representation provided by the solicitor (an employed solicitor) who had represented him up until then. Mr Basit wanted the principal of the solicitor’s firm to represent him and for there to be an adjournment to permit this. The bone of contention appears to have been the Preplacement Health Evaluation that was not then available or in evidence but which Mr Basit wanted in evidence. After a lengthy discussion, the Arbitrator informed Mr Basit that he would not grant an adjournment, the parties all being present, the proceedings having progressed though the usual stages, and the Arbitrator not being satisfied that there were good reasons for not proceeding. The Arbitrator explained that Mr Basit had three options: (1) to proceed with his solicitor then present representing him; (2) to proceed representing himself; or (3) to discontinue the current proceedings and have the principal of the firm initiate new proceedings at a later time. Ultimately, Mr Basit decided to proceed with his solicitor then present representing him and without further evidence. I am not satisfied there was any procedural unfairness arising therefrom.
Mr Basit was not called to give evidence although his statement dated 20 April 2005 was before the Arbitrator. The Arbitrator denied Haden’s request to cross-examine Mr Basit. There was a lengthy discussion of the medical evidence, both that in relation to the period before and after the incident on 8 March 2004. That discussion included reference to the report by Dr Richard Deveridge, Surgeon, dated 3 February 2005. It seems clear that Dr Deveridge did not have access to any medical reports in relation to the period before the incident. He merely referred to a previous incident of low back pain four or five years ago and that Mr Basit told him it had settled “within a couple of months”.
The clinical notes produced by Mr Basit’s former general practitioner, Dr Louis Moussa, paint a very different picture. They reveal a history of low back pain with pain radiating to the left leg over a period of three years, including a report of a CT lumbar spine dated 18 July 2001 where at L4/5 there is “a broad based posterior bulge of the annulus producing some impingement upon the anterior thecal sac and lower exit foramina”, a referral to an orthopaedic surgeon at Westmead Hospital, a referral for physiotherapy and reports from two physiotherapists.
Having considered these earlier reports and the clinical notes of Dr Moussa, the Arbitrator stated (transcript page 59):
“It’s obvious from just the notations taken by the doctor that the applicant experienced ongoing significant back pain with radiation to the left leg and ankle over a significant period of time for which he sought treatment.”
Comparing the CT scans of 18 July 2001 and 20 April 2004, the Arbitrator concluded that the injury Mr Basit claimed to have suffered on 8 March 2004 “resulted in no greater impairment than that identified in the earlier report” (transcript page 60).
However, as mentioned in paragraph 6 above, the Arbitrator accepted that Mr Basit had suffered “an aggravation of his pre-existing condition” - a musculoligamentous strain - in the course of his employment. It is not clear whether, in terms of the definition of ‘injury’ in section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’), the Arbitrator considered this a frank injury or the aggravation of a ‘disease’ (section 4(b)(ii)). Nor did the Arbitrator consider whether Mr Basit’s employment with Haden was a ‘substantial contributing factor’ to the injury (section 9A of the 1987 Act). Furthermore, having made a finding that Mr Basit had suffered an injury in the course of his employment with Haden on 8 March 2004 and that (assuming section 9A was satisfied) Haden was liable for this injury, section 293(2) of the 1998 Act required the Registrar to refer that aspect of the dispute concerning the degree of permanent impairment to an Approved Medical Specialist for medical assessment, and to “defer determination of the dispute by the Commission pending the outcome of that medical assessment”. It is only with the benefit of that assessment that an arbitrator can, where appropriate, make a finding that the current degree of impairment is unchanged from that existing prior to the injury at issue. Thus, the Arbitrator made errors of law in his decision with regard to the issues of injury and permanent impairment.
Reflecting, nevertheless, on the treatment of the evidence by the Arbitrator, in my opinion, there is nothing to indicate that he did not accord proper weight to all the medical evidence, including that of Dr Deveridge.
With regard to the Preplacement Health Evaluation, I note the first part of the Evaluation form was completed by Mr Basit. He denied having “consulted a doctor in the past two years for reasons that may affect their [Mr Basit’s] work” and, relevantly, denied having suffered “pain, lumbago, ruptured disc, sciatica” in relation to his back, no time frame being specified in the question. It is clear from the evidence contained in Dr Moussa’s clinical notes that these answers were incorrect. For example, Dr Moussa records a consultation on 21 May 2003, noting “low back pain going down l [left] lower limb”, and on 4 July 2003, “still low back pain radiating to left leg”.
The second part of the Evaluation form was completed by Dr K Hamid, General Practitioner, on 28 January 2004. Relevantly, Dr Hamid answers ‘Yes’ to the following questions in relation to his physical examination of Mr Basit: dorsolumbar spine normal, flexion normal, extension normal, rotation normal, SLR left and SLR right. Given the answers provided by Mr Basit in the first part of the form, one assumes Dr Hamid would not have been alerted to the possibility of lower back pain, and his report is purely of a physical examination without recourse to the results of other clinical investigations or other medical reports. In the light of Dr Moussa’s clinical notes and the CT scan of 18 July 2001 attesting to Mr Basit having a pre-existing back condition, and to the specialist reports to this effect, little weight can be accorded to Dr Hamid’s findings on examination in relation to whether Mr Basit had a pre-existing back condition.
In conclusion, the Arbitrator having made errors of law in his decision in relation to Mr Basit’s claim for compensation for permanent impairment, as explained in paragraph 24 above, clauses 1 and 4 of the determination must be revoked. However, I am not satisfied that the Arbitrator made any error in relation to his finding that Mr Basit’s incapacity resulting from the injury had ceased by 17 September 2004, with the result that clauses 2 and 3 of the determination should be confirmed. In my view, clause 5 should also be confirmed. With regard to the revocation of clause 1, the appropriate course is to remit the issues of injury and permanent impairment to the Arbitrator for determination in accordance with the law. With regard to clause 4, a decision on the payment of costs should be deferred pending that determination.
DECISION
Clause 1 of the Arbitrator’s decision dated 9 August 2005 is revoked and the issues of injury and permanent impairment are remitted to the Arbitrator for determination in accordance with the law.
Clauses 2, 3 and 5 of the Arbitrator’s decision dated 9 August 2005 are confirmed.
Clause 4 of the Arbitrator’s decision dated 9 August 2005 is revoked. A decision on the payment of costs is deferred pending the Arbitrator’s determination of outstanding issues.
COSTS
The Respondent, Haden, is to pay the Appellant, Mr Basit’s costs in this appeal.
Robin Handley
Acting Deputy President
6 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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