Basit v Haden FM t/as Resolve FM Pty Limited No 2
[2007] NSWWCCPD 170
•2 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Basit v Haden FM t/as Resolve FM Pty Limited No 2 [2007] NSWWCCPD 170
APPELLANT: Abdul Basit
RESPONDENT: Hayden FM t/as Resolve FM Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC6024-05
DATE OF ARBITRATOR’S DECISION: 19 February 2007
DATE OF APPEAL DECISION: 2 August 2007
SUBJECT MATTER OF DECISION: Reconsideration application; section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; procedural fairness; fresh evidence; estoppel
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McDonnell Schroder
Respondent: Ellison Tillyard Callanan
ORDERS MADE ON APPEAL: 1. The decision of the
Arbitrator dated 19 February 2007 is revoked.
2.The matter is remitted to the Arbitrator at first instance for reconsideration of the outstanding issues between the parties in accordance with these reasons.
3.Costs of the proceedings before the Arbitrator to date are reserved pending the outcome of the remitter.
4.The Respondent is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 March 2007, Abdul Basit (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 19 February 2007.
The Respondent to the appeal is Hayden FM t/as Resolve FM Pty Limited (‘the Respondent’).
The Appellant was born in Afghanistan on 12 April 1968 and came to Australia in 1999. The Appellant commenced employment with the Respondent on 2 February 2004 as a property officer. The Appellant claimed that on 8 March 2004, in the course of his employment with the Respondent, he was lifting a laundry basket containing household goods from the back of a van when he injured his back.
The Appellant ceased work, and has not resumed, except for an unsuccessful attempt to return to work on suitable duties on 12 March 2004.
The Appellant was paid compensation by the Respondent’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) up until 17 September 2004 when liability was declined.
On 22 April 2005, the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 17 September 2004 to date and continuing, together with medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
The parties attended a conciliation/arbitration hearing on 3 August 2005. The Appellant was legally represented at that hearing.
In a ‘Certificate of Determination’ dated 9 August 2005, the Arbitrator entered an award in favour of the Respondent in respect of all claims made by the Appellant.
On 16 August 2005, the Appellant filed an appeal against the Arbitrator’s determination of 9 August 2005. The Appellant was self-represented.
The matter was determined by Acting Deputy President Handley in a decision dated 6 March 2006. (See Basit v Hayden FM Pty Limited t/as Resolve FM [2006] NSWWCCPD 38).
Briefly, ADP Handley revoked clause 1 of the Arbitrator’s decision (being the claim for permanent impairment compensation), and confirmed the Arbitrator’s decision in relation to the Appellant’s claim for weekly benefits compensation and for medical and related expenses.
ADP Handley ordered that “… the issues of injury and permanent impairment are remitted to the Arbitrator for determination in accordance with the law”.
By letter dated 26 March 2006, the Appellant made an application to ADP Handley for reconsideration of his decision in relation to the claim for weekly compensation. On 27 March 2006, ADP Handley dismissed the Appellant’s Application for Reconsideration. (See Basit v Hayden FM Pty Limited t/as Resolve FM [2006] NSWWCCPD 38R). ADP Handley stated as follows (paragraph 5):
“Mr Basit has not given any substantive reason or other explanation as to why this part of the decision should be reconsidered. One possible reason for his request may be a misunderstanding as to the reasons for my confirming clause 2 of the Arbitrator’s determination. Essentially, the opinion I formed on a review of the matter was that there was sufficient evidence to support the Arbitrator’s finding that Mr Basit only suffered a minor aggravation of his pre-existing back condition in the incident at work on 8 March 2004 – a musculoligamentous strain – and that Mr Basit did not have an incapacity after 17 September 2004. Thus, Mr Basit had no ongoing entitlement to weekly compensation payments beyond that date.”
The parties attended a teleconference on 7 April 2006. The Appellant was again unrepresented. The parties agreed to refer the Appellant’s claim for permanent impairment compensation to an ‘Approved Medical Specialist’ (‘AMS’) to be selected by the Registrar.
On 1 June 2006, Dr Ross Mellick, AMS, completed a Medical Assessment Certificate (‘MAC’) in which he assessed the Appellant as suffering from an 8% permanent impairment of his back as a percentage of whole person impairment. No deduction was made for any pre-existing injury, condition or abnormality.
On 27 June 2006 the Respondent appealed the decision of the AMS. The appeal was dealt with by a Medical Appeal Panel who issued a new MAC on 15 November 2006 assessing 7% WPI. I note that the Appellant was legally represented at this appeal.
The matter was then referred back to the Arbitrator for determination of the outstanding issues. The Appellant had again sought reconsideration of the decision in relation to the claim for weekly compensation and medical expenses.
The parties attended a further conciliation/arbitration hearing on 1 February 2007. The Appellant was unrepresented. On that occasion, the Respondent accepted the assessment of the Medical Appeal Panel of 7% WPI such that the only issue that remained for determination by the Arbitrator was the Appellant’s further request for reconsideration. The Appellant’s request was contained in a number of handwritten documents and in a two page undated letter forwarded to the Commission by facsimile on 2 January 2007.
On 19 February 2007, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. The Application for Reconsideration is refused.
2.The Respondent is to pay to the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987, the sum of $8750.00 in respect of 7.0 per cent permanent impairment assessed as a percentage of whole person impairment as conclusively assessed by a Medical Appeal Panel on 15 November 2006.
3.I certify that this matter … is a complex matter …
4.The Respondent is to pay the Applicant’s costs as agreed or assessed up to and including 20 December 2006.”
It is from this decision that the Appellant now seeks leave to appeal.
On 1 May 2007 the Respondent filed a ‘Notice of Opposition to Appeal’. Briefly, the Respondent submits that no errors were made by the Arbitrator and that his decision ought be confirmed, and further, that the Appellant is estopped from pursuing a Reconsideration Application in relation to the claim for weekly benefits in light of the decision made by ADP Handley. In the alternative, the Respondent submits that if the appeal is allowed, then “… the Applicant’s claim in its entirety … be remitted to the Arbitrator for rehearing”. I will refer to these issues more fully below.
On 18 July 2007 the Appellant in person sent a facsimile to the Commission seeking expedition of the hearing of his appeal. This facsimile was received by me on 31 July 2007. A number of documents were attached in support of the expedition application. My decision was substantially completed on 31 July 2007 so that it is not necessary for me to deal with this application further.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The appeal was filed within the time prescribed by section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements in section 352(2)(a). No amount of compensation was awarded such that the threshold in section 352(2)(b) does not apply. (See Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. I have before me all the Commission files in relation to this matter, and the transcript of proceedings before the Arbitrator on 1 February 2007. Both parties have prepared detailed submissions on appeal. Having regard to Practice Directions numbers 1 and 6, 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.
THE ISSUES IN DISPUTE
The Appellant has identified two principal grounds of appeal as follows:
“1.The Appellant was denied natural justice and procedural fairness in two respects; firstly, in that the Arbitrator did not allow the Appellant to complete his submissions prior to the Arbitrator’s final determination of the matter and secondly, that since the Arbitrator had previously made a determination in the matter on 3 August 2005 and had “… formed an opinion on the Appellant’s case at first instance” it was “… a breach of natural justice for him to sit again on the same matter.”
2.In respect of the reconsideration application, the Arbitrator failed to take into account the “fresh evidence” of the AMS and the Medical Appeal Panel, and failed to provide any reasons for this alleged omission.”
The Respondent submits that the transcript reveals that the Appellant was afforded ample opportunity to make submissions to the Arbitrator. Further, it is the Respondent’s submission that there is no basis upon which to challenge the Arbitrator’s impartiality, particularly in circumstances where the 1998 Act makes provision for Arbitrators to reconsider their decisions.
In the Respondent’s submission, the Arbitrator took into account all of the “fresh evidence” submitted by the Appellant, together with the MAC of Dr Mellick and the Medical Appeal Panel report, and that his reasons were adequate in the circumstances.
The Respondent has raised a further issue in submissions, namely the question of estoppel. The Respondent submits that “the Applicant’s appeal to Deputy President Handley was in the same terms as the present appeal, save for the ‘new evidence’ of the AMS and the Medical Appeal Panel”. It is noted that ADP Handley had determined that the Arbitrator had not erred in his finding that the Appellant’s incapacity resulting from his injury had ceased by 17 September 2004, and confirmed the Arbitrator’s decision in this regard.
As a consequence, the Respondent submits, the present appeal is limited to the Arbitrator’s consideration and determination of the “fresh evidence”.
THE ARBITRATOR’S DETERMINATION AND REASONS
As the Arbitrator rightly pointed out, “this matter has a long history”. The Arbitrator then set out the history of the matter up to the hearing before him on 1 February 2007. In relation to that hearing, the Arbitrator said this (paragraph 17):
“I note that the Applicant was unrepresented at the hearing and had, prior to the Arbitration complained of his inability to attend any hearing because of the difficulty with sitting for long period [sic]. At the Applicant’s request the Commission provided a chair with a back support for his use. At the hearing a great deal of time was spent analysing the material referred to by the Applicant, much of which was not at the hearing and not in the Applicant’s possession as he ‘had sent it to the Commission’. The hearing ‘concluded’ after the Applicant advised he was unable to stay any longer because of pain.”
At paragraph 18 he stated as follows:
“After the acceptance by the Respondent of liability for the Applicant’s back injury, which occurred at the hearing, the only issue that remained for determination was the Applicant’s request for reconsideration.”
The Arbitrator then considered the evidence and the submissions of both parties. He noted the four documents that the Appellant sought to rely upon as “fresh evidence” in support of his Application for Reconsideration (to which I will refer later). The Arbitrator made extensive reference to the decision of ADP Snell in Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 (‘Nan’).
At paragraphs 23 and 24, the Arbitrator looked at a number of authorities in relation to self represented litigants, noting at paragraph 24:
“However, the Applicant has the right to represent himself and despite the Applicant already raising the matter of reconsideration of a decision with respect to weekly compensation with Acting Deputy President Handley, in the interests of allowing the Applicant a fair hearing of his claim for both weekly compensation and medical expenses, I allowed the matter to proceed. The Respondent had already filed submissions dated 18 January 2007, in respect the issue of reconsideration.”
The Arbitrator went on at length to consider a number of authorities on the issue of reconsideration before concluding at paragraph 27 as follows:
“In the case of Maksoudian [Maksoudian v J Robins & Sons Pty Limited (1993) 9 NSWCCR 642] Bishop J set out two broad principles that must be satisfied if a reconsideration request is to be granted. First was that ‘fresh evidence’ be available which was not previously put before the Court at the time of the original proceedings, and second that if the fresh evidence had been available when the original proceedings were heard it would more likely than not have influenced the outcome of the proceedings …”
In applying these principles, the Arbitrator then considered the four documents submitted by the Appellant as ‘fresh evidence’ stating as follows (paragraph 28):
“(1)The first document, a report by Dr Victor Critoph, dated 9 February 2006, of a CT lumbar spine was in the view of Handley ADP, who considered the document previously, of little benefit as it added nothing to the Applicant’s medical evidence already before the Commission and therefore refused leave to admit the report.
(2)The second document, is a recent MRI study reported on by Dr John O’Rourke, dated 24 August 2006. Apart from this bare report identifying the current state of the Applicant’s back some two years after the date of injury, there is no accompanying medical opinion nor evidence about what has transpired to the Applicant since he sustained his work place injury.
(3)The third document was an MRI of the lumbar spine by Dr Peter Carr, dated 20 April 2004 … the report (showing a mild diffuse bulge) was also considered by Handley ADP in the appeal who refused leave to admit the report on the basis that it added nothing to the Applicant’s medical evidence already before the Commission.
(4)The fourth document was the Preplacement Health Evaluation undertaken for the Respondent before Mr Basit’s employment commenced. This report was admitted by Handley ADP as evidence in the appeal but he commented on it as follows:
‘26.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.’
27.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: Dorso lumbar 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.”
The Arbitrator then stated (paragraph 29):
“Of the four documents presented by the Applicant on which he hopes to rely, three were previously available and considered in the original arbitration hearing on 3 August 2005 or the appeal on 6 March 2006 and do not constitute ‘fresh evidence’. The fourth report, of Dr O’Rourke, was obtained by the Applicant subsequently and is therefore new evidence but of itself does nothing to indicate the Applicant’s condition resulting from the injury on 8 March 2006 in respect of his capacity for employment and therefore would not, I find, have influenced the outcome of the proceedings in respect of his claim for weekly compensation.”
The Arbitrator concluded as follows:
“(30)The comments of Handley ADP concerning the Preplacement Health Evaluation report, neatly summarises the difficulty the Applicant has in seeking a different outcome. The Applicant’s situation is that, he had a previous back injury for which he received extensive treatment but which he failed to disclose to those doctors that provided assessments in his claim in respect of the workplace injury he suffered on 8 March 2004. The medical notes of his treating general practitioner and reports of his earlier specialist and physiotherapist provide extensive evidence of his ongoing back problems with radiation of pain into the left leg over a long period. To the extent that he failed to disclose his earlier injury, later reports of the nature and extent of his impairment caused by the work place injury are incomplete and misleading. Also the manner in which the Applicant was injured on 8 March 2004 and the medical evaluation of its condition resulting from that injury was such that his incapacity for employment with the Respondent and therefore his entitlement to weekly compensation would have ceased after a period of rehabilitation and rest.
(31)Finally, though Mr Basit continues to complain of particular deficiencies in
the preparation of various medical reports and their presentation in his claim, I am satisfied that the overall weight of the evidence filed in this matter and extensively reviewed at the original hearing, in the appeal, in the reconsideration of the appeal decision and in the hearing of this reconsideration decision is overwhelmingly unfavourable to his claim for weekly compensation. It is in the public interest that litigation of this matter should not proceed indefinitely.”
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Procedural Fairness’ Issue
The Appellant makes the following submission:
“The Arbitrator did not allow the Appellant to complete his submissions prior to the Arbitrator determining the matter … The Arbitrator states the following; the hearing ‘concluded’ after the Applicant advised he was unable to stay any longer because of the pain’. The use of inverted commas around the word ‘concluded’ acknowledges that the Arbitrator knew that the Arbitration had not been finalised and that the Appellant was in pain and could not continue. Instead of adjourning the matter to another date or making further orders the Arbitrator then determined the matter. This is simply a breach of natural justice and an example of procedural unfairness. This is, in our opinion, exacerbated by the fact that –
(a) The Arbitrator was forewarned of the Appellant’s back pain via the provision of a special chair;
and
(b) The Appellant was not legally represented and was not informed or was not cognizant of the ramifications of leaving the Arbitration Hearing.
(c) It was unfair for the Arbitrator to proceed with the hearing and arrive at a Determination in the absence of the Appellant.”
It is appropriate at this point to consider the transcript. At page 66 the Arbitrator said:
“Look, what I suggest I am going to do, I am going to take a 20 – minute break. I think I need to go back. The issue for me is: should I disturb my determination as of August 2005 on the basis that the information before me was somehow wrong?”
Further discussion took place between the Arbitrator and counsel and the solicitor for the Respondent. At page 67 the Arbitrator again indicated that he needed “… to go back to the transcript, which I haven’t had to date …” This exchange then took place:
“Arbitrator: Mr Basit, I am going to take a 20 minute break. Are you able to continue?
Applicant: No, I can’t. I am in pain. My condition is very worse. I have to go.
Arbitrator: Okay.
Counsel for the Respondent: Well, I don’t want to say anything further to you.
Arbitrator:Okay. Well, look I’ll just reserve and I’ll go back and I’ll produce a written decision …
Arbitrator:I don’t believe I need anything further. I really just want to deal with the issues being raised by Mr Basit. I’ve tried to go through them for him. He has raised an issue of significance. I can’t say, without going back to the transcript, the level of my reliance on that as opposed to other material. In memory – this is nearly two years ago – it was on the totality of the evidence. I will reserve this matter, consider what’s been put to me and produce a written determination in relation to the reconsideration …
Arbitrator: I’ll stop at this point?
Counsel for the Respondent: Yes.
Arbitrator:Okay. That’s fine. I don’t think there is anything I need there. Mr Basit, thank you for attending … I will go back and review the totality of what you have put to me. I have your submissions on reconsideration and you’ve raised this further point. I will go back and look at the transcript of that date.”
Further discussion then took place as to the ‘complexity’ of the matter.
At page 68 this exchange then took place:
“Arbitrator: I don’t know that I can allocate a new number. I think I can deal with it in orders. Mr Basit, anything further you want to note to me?
Applicant: No, that’s all.
Arbitrator:Okay. Thank you very much for attending, Sir, and I’ll have to now just deal with it.”
Nothing in the transcript suggests that the Appellant was not permitted to complete his submissions prior to the Arbitrator reaching his determination. In my view, the Arbitrator’s statement that “the hearing ‘concluded’ after the Applicant advised he was unable to stay any longer because of pain” was a little inappropriate, however, examination of the transcript reveals that this was not entirely the case. It is quite clear that the Appellant was asked if there was anything further he wished to put to the Arbitrator, to which he replied “No”.
It is perhaps unfortunate that the Arbitrator expressed himself in the manner he did in his ‘Statement of Reasons’, but taken in context, and in light of the transcript, I am not persuaded that the Appellant was denied procedural fairness or natural justice. It was clearly open to the Appellant to inform the Arbitrator if there was anything further he wished to put to him but felt unable to at the time because of his state of health. The Appellant’s complaint to the Commission as to his state of health was acknowledged by the provision of a suitable chair.
It is quite clear from the transcript that the Appellant advised the Arbitrator that he had nothing further to put to him. Moreover, the Arbitrator made it clear that he had heard the submissions from the parties and intended to reserve his decision until after the transcript was available.
In short, I cannot see that there was anything further the Arbitrator could have done or said to accommodate the Appellant and to ensure that he was accorded ‘procedural fairness’.
As to the Appellant’s lack of legal representation, as the Arbitrator noted, except for the original teleconference and hearing in August 2005, the Appellant “… has continued these proceedings, representing himself.” The Arbitrator noted the following (paragraph 23):
“Delays (and expense) has [sic] been occasioned because the Applicant has failed to serve documents on the Respondent, failed to keep possession of copies of documents he has filed or raised issues in these proceedings without notice. As Snell ADP noted in Nan, because the Applicant is self represented, it may well be appropriate to adopt a relatively benign attitude to such difficulties.”
The Arbitrator went on to consider a number of authorities on this issue and in particular quoted from the remarks of Deputy President Byron in Smith v NSW Police Service [2004] NSWWCCPD 77 as follows:
“An unrepresented person will ordinarily be at disadvantage because of their lack of legal skill (Rjski v Scitec Corporation Limited [unreported] NSWCA 16 June 2986) (‘Rjski’). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjski; Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Health Care Network [unreported] SCT VIC 15 September 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjski). The relevant issues in dealing with unrepresented litigations were discussed in Reisner v Bratt [2004] NSWCA 22) …”
The Arbitrator noted at paragraph 24 the following:
“An unrepresented Applicant would appear to be better off seeking legal representation in the Workers Compensation Commission where restrictions apply (S341 of the 1988 [sic] Act) on Respondents recovering costs against them except under exceptional circumstances. However, the Applicant has the right to represent himself and despite the Applicant already raising the matter of reconsideration of a decision with respect to weekly compensation with Acting Deputy President Handley, in the interests of allowing the Applicant a fair hearing of his claim for both weekly compensation and medical expenses, I allowed the matter to proceed …”
Again, it is quite clear from the transcript that the Arbitrator was at all times cognizant of the Appellant’s “self represented” status. At page 47 of the transcript, the Arbitrator said this:
“Well, you know, Mr Basit, it surprises me why … you don’t seek representation in relation to some of these issues. If you sought representation, legal representation, you would be advised that you would most likely be able to file new claims if you have suffered deterioration or if you wish to raise again the issue of incapacity. The problem I have is that there should be finality, firstly. Secondly, procedurally, I believe I afforded you adequate opportunity to fix up your claim and include any further information that you needed to include so that you could put the best claim before me.
Applicant: Which I did today.
Arbitrator:Well, on the day that it was heard. You were legally represented. I gave you the opportunity to consult with your legal representative to determine whether you should proceed or should discontinue. You considered it but were very keen to pursue the matter to conclusion, and I dealt with it on the day. You now come back and say ‘well, look at the additional material I’ve got’.
Now, your claim is complicated factually and procedurally by what occurred when it went to an AMS. When it went to an AMS, apparently the medical evidence of prior injury contained in all the various medical notes apparently was not sent, that was the issue that caused the Respondent to seek to have the matter appealed …”
It is clear from the Arbitrator’s Statement of Reasons’ that he has indeed adopted a “relatively benign attitude” to the Appellant’s conduct of his proceedings.
I accept the Respondent’s submission that “… the Arbitrator successfully balanced the competing interests of the parties as set out in Smith v NSW Police Service [2004] NSWWCCPD 77” such that I am not persuaded that the Appellant has demonstrated any denial of procedural fairness or natural justice because of his self represented status in the conduct of the proceedings before the Arbitrator.
As to the Appellant’s complaint that it was “… unfair for the Arbitrator to proceed with the hearing and arrive at a determination in the absence of the Appellant”, it is common in the Commission for Arbitrators to reserve their decisions particularly in circumstances where oral evidence or submissions have been given and a transcript is required. This does not amount to a breach of natural justice or denial of procedural fairness.
I am of the same view in relation to the Appellant’s submission that the Arbitrator was not impartial. The matter was specifically remitted to the Arbitrator at first instance by ADP Handley. Again, it is noted that ADP Handley confirmed the Arbitrator’s decision in relation to the claim for weekly benefits and medical expenses. The issue remitted to the Arbitrator for further determination was essentially in relation to the claim for lump sum benefits. The Arbitrator took steps to refer the matter to an AMS, and the matter was set down for further hearing following completion of that process and the Medical Appeal Panel’s report. Prior to the matter being set down for hearing on 1 February 2007, the Appellant again sought reconsideration of the decision in relation to weekly compensation and medical expenses. Leaving aside for the moment the ‘estoppel’ issue, I can see no basis upon which the Appellant claims that it was “not proper” for the Arbitrator to determine “… the reconsideration under section 350(3)”. It must be remembered that the issues set down for hearing before the Arbitrator on 1 February 2007 related to the claim for permanent impairment compensation, but the Arbitrator permitted the Appellant to proceed with his “reconsideration” application and to introduce “fresh evidence” if he so chose. It seems to me that this course was adopted by the Arbitrator clearly with considerations of ‘natural justice’ in mind.
The Appellant has not provided any evidence to challenge the Arbitrator’s impartiality: the Arbitrator reconsidered and determined the matter in accordance with the direction from ADP Handley. No error has been demonstrated by the Arbitrator in this respect, and this ground of appeal thus fails.
The “Fresh Evidence” and “Adequacy of Reasons” Issue
The thrust of the Appellant’s submissions on this point is that the Arbitrator only took into account the “four documents” which the Appellant presented at the further hearing on 1 February 2007. The Appellant submits that the Arbitrator has failed to take into account the “fresh evidence” of the AMS, Dr Mellick, and his MAC of 1 June 2006 or the appeal panel decision of 15 November 2006. Neither of these documents were obviously available at the original arbitration hearing in August 2005, nor indeed were they available at the hearings before ADP Handley, and I accept that they constitute “fresh evidence”.
The Appellant accepts that the Arbitrator was correct in identifying the “two broad principles” that must be satisfied if a reconsideration is to be successful as set out by Bishop J in Maksoudian v J Robins & Sons Pty Limited (1993) 9 NSWCCR 642 to which I have referred previously. In short, there must be “fresh evidence” not previously available, and if that fresh evidence had been available at the original proceedings, it would more likely than not have influenced the outcome of the proceedings.
It is quite clear from the Arbitrator’s ‘Statement of Reasons’ that he considered the “four documents” sought to be relied upon by the Appellant as fresh evidence. No specific reference is made to either the MAC of Dr Mellick or to Medical Appeal Panel report however, the Arbitrator acknowledged the existence of that material at paragraphs 14 and 15.
Having accepted that this material was not available at the original hearing, the question to consider is whether that material would have altered or influenced the outcome of the proceedings.
The Appellant did not specifically seek to rely upon that material, but it was certainly considered by the Arbitrator as the transcript reveals. At pages 24 and 25, the Arbitrator discussed the AMS and the Medical Appeal Panel, and at pages 55 and 56, it is noted that the Appellant made submissions to the Arbitrator on Dr Mellick’s MAC. At page 56, the Arbitrator endeavoured to explain to the Appellant the role of an AMS as distinct from the function of an Arbitrator to determine issues such as injury and substantial contributing factor. The Arbitrator’s explanation was thorough and detailed.
It is clear from the transcript that considerable difficulties were experienced by the Arbitrator in the conduct of the proceedings. The Appellant frequently interjected, and lengthy discussion took place between the Arbitrator, counsel for the Respondent and the Appellant. The thrust of the Appellant’s submissions to the Arbitrator was that he ought accept the “four documents” that he now sought to rely upon, as providing evidence of incapacity, and considerable time was taken by the Arbitrator to explain to the Appellant that much of that material had been provided previously and had also been considered by ADP Handley.
The status of a MAC is defined in section 326 of the 1998 Act. A MAC is “conclusively presumed to be correct” in respect of the matters listed in section 326(1)(a) – (e), but it “does not equate to a determination of the dispute by the Commission” (see Jopa Pty Limited t/as Tricia’s Clip N Snip v Edenden [2004] NSWWCCPD 50). As I said in Issot v North Sydney Leagues Club Limited t/as Seagulls Club [2005] NSWWCCPD 38 at 56:
“The task of the AMS is medical, and is to resolve a medical dispute between the parties. Unless specifically requested, it is not the role of the AMS to determine whether injury occurred, or occurred in the course of employment or any other of the multiplicity of questions that can arise in determining ‘injury’ within the meaning of the 1987 Act”.
Issues of fact such as the nature and extent of any alleged incident or injury, the nature of the employment concerned, and issues such as “substantial contributing factor” are clearly in the domain of an Arbitrator.
Moreover, as the medical appeal panel pointed out in its ‘Statement of Reasons’ dated 15 November 2006, “the panel’s task is to conduct a review on the merits of the Approved Medical Specialist assessment. Though the power of review is far ranging, it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS Certificate is binding”.
It is clear from the totality of the medical evidence that the Appellant had significant back problems requiring treatment in the years prior to his injury with the Respondent on 8 March 2004.
The MAC of Dr Mellick dated 1 June 2006 made no reference to this condition under the heading “details of any previous or subsequent accidents, injuries or condition”. Nonetheless, Dr Mellick had before him radiological investigations carried out in 2001. Dr Mellick noted that the facts upon which his assessment was based were “the history which I have obtained, the findings on physical examination, and a consideration of the radiological data and other documentary evidence”.
The Respondent’s appeal against this MAC was successful. The appeal panel considered that Dr Mellick ought to have made reference to the Appellant’s prior medical condition and accordingly, issued a fresh certificate.
Dr Mellick was asked to assess whole person impairment. This he did. Nothing in his MAC of 1 June 2006 makes reference to the issue of incapacity. Under the heading “work history”, Dr Mellick noted the Appellant’s assertion that “… he has sought other employment but has not been able to find other suitable work”.
Similarly with the Medical Appeal Panel. As I said earlier, its task was simply to review the MAC of Dr Mellick, again, dealing with the issue of whole person impairment. Nothing in the Medical Appeal Panel report of 15 November 2006 addresses the issue of incapacity.
Whilst it is clear from the transcript that considerable discussion took place between the Arbitrator and the Appellant as to the weight of the MAC, the fact remains that it was not addressed by the Arbitrator in his ‘Statement of Reasons’.
In my view, the task of the Arbitrator was to consider whether the Appeal Panel’s MAC of 7% WPI had any impact on the issue as to the Appellant’s capacity for employment. I am not persuaded that he adequately addressed this issue, notwithstanding his statement (paragraph 30) that “… later reports of the nature and extent of his impairment caused by the work place injury are incomplete and misleading.” This statement, whilst it may reflect the Arbitrator’s view as to the weight of the evidence, was insufficient in the context of his statutory obligation to provide adequate reasons for the basis of his decision. [See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56 and Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247].
Moreover, as Hodgson JA said in Ambulance Service of New South Walesv Daniel & Anor (2000) 19 NSWCCR 697 at 718:
“The judgment of the trial Judge made no reference to the material in (the doctor’s) report which could support the finding, nor did it indicate any reliance on the knowledge of the Compensation Court as a specialist tribunal. … In my opinion, having regard to the absence of any mention in the judgment of the possibly relevant expert evidence to which I have referred, and the absence of mention of the Court’s knowledge as a specialist tribunal, the matters actually referred to by the trial Judge do not amount to evidence capable of supporting the finding. The trial Judge may have taken into account the matters which he did not refer to; but this Court is left to speculate whether or not he did, and if so, how he took them into account.
…
In my opinion, if a judge’s reasons show that he or she made a finding of fact relying exclusively on material that could not as a matter of law support that finding, then although the reasons may be adequate, they will disclose an error of law.”
I am not convinced, as the Respondent submits:
“The Arbitrator has made it clear in paragraphs 30 and 31 that his original decision as to incapacity and entitlement to medical treatment, and his decision in relation to the review on 01/02/2007; were based upon the overall weight of evidence; which included a consideration of the opinions of Dr Mellick and the Medical Appeal Panel”.
I am left to speculate whether or not the Arbitrator took into account the opinions of Dr Mellick and the Appeal Panel.
The Arbitrator concluded that three of the four documents sought to be relied upon by the Appellant were not “fresh evidence” and that the MRI Scan of Dr O’Rourke dated 24 August 2006 “… of itself does nothing to indicate the Applicant’s condition resulting from injury on 8 March 2006 in respect of his capacity for employment …”
This decision was open to the Arbitrator on the evidence before him.
This evidence did not address the issue of incapacity. Whilst a finding of permanent impairment as a result of a work related injury is certainly a factor to consider in assessing any question of incapacity, the consequences of such a finding do not necessarily automatically imply incapacity. All it does, as the Appellant rightly points out, is “… establish that the Appellant injured his back at work on 8 March 2004 and such injury resulted in a 7% whole person impairment.” Moreover, I note that the Appellant did not specifically seek to rely upon the MAC and Medical Appeal Panel decision in his reconsideration application however, as I have said, as the transcript reveals, this material was clearly the subject of submissions by the Appellant to the Arbitrator.
The difficulty faced by the Arbitrator was that the “fresh evidence” constituted by the MAC and Appeal Panel, as with the “four documents” relied upon by the Appellant, did not of itself adequately address the issue of incapacity. This was to some extent alluded to by the Arbitrator at paragraph 30 of his ‘Statement of Reasons’ but as I have said, in my view he was required to adequately explain his acceptance or rejection of this “fresh evidence” on the issue of incapacity. At paragraph 21 he referred to the Respondent’s submissions in the following terms:
“The only other new evidence is the opinion of the AMS. Dr Mellick was of the view that the entirety of the Applicant’s back problems could be laid at the feet of an injury on 08/03/2004; as evidenced by his opinion that there was no contribution to the permanent impairment by any pre-existing condition. That opinion runs against the weight of medical evidence in the original arbitration, and was not supported by the Medical Review Panel.”
That however, is insufficient in terms of his obligations to which I have referred previously.
As to the adequacy of reasons issue raised by the Appellant, I have dealt with that aspect to some extent in the preceding paragraph. It is worth noting however as Deputy President Fleming said in Rocky at paragraph 12:
“To succeed in having the decision set aside the Employer must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise the statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21). The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6. To this end, the role of the Arbitrator within the informal and expeditious dispute resolution scheme offered by the Commission is relevant. The reasons of the Arbitrator should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259).”
In the present case, whilst I accept that the transcript reveals that the Arbitrator considered all the material before him, this consideration is not reflected in his ‘Statement of Reasons’ such that he has failed to exercise his statutory duty to fairly and lawfully determine the Application. His ultimate findings may well stand after proper consideration of the MAC and Appeal Panel findings, but it is that task the Arbitrator must first undertake before reaching a decision.
The Estoppel Issue
The power of the Commission to reconsider any matter that has been dealt with by it has been the subject of numerous decisions to which the Arbitrator referred to in some detail in paragraphs 25 and 26 of his ‘Statement of Reasons’. In short, section 350(3) of the 1998 Act confers on the Commission a wide discretion to reconsider its previous decisions, but it must be exercised fairly with due regard to a number of relevant considerations such as delay, the public interest in the finality of litigation, and the circumstances surrounding the consideration of “new evidence”. In summary, as Deputy President Roche said in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at 58:
“The Commission has a duty to due justice between the parties according to the substantial merits of the case …”
I have already determined that the MAC and Appeal Panel Decision constituted fresh evidence, not available at earlier hearings. There is no evidence of delay or lack of diligence on the part of the Appellant in presenting this evidence. It emerged as a consequence of ADP Handley’s determination and subsequent referral by the Arbitrator to an AMS. These factors favour the exercise of the reconsideration power in the circumstances of this particular case.
The Respondent submits that the Appellant is estopped from seeking reconsideration of the award in relation to weekly benefits because of the prior determination of ADP Handley. The Respondent quite properly points out:
“It would be inappropriate for the Commission to entertain an appeal on the matters already dealt with by Deputy President Handley. If the Applicant had a grievance in relation to that decision then he has failed to appeal the decision … within sufficient time”.
An earlier award, the subject of a reconsideration application will inevitably create an issue estoppel, however, if a party were to rely upon this, the power of reconsideration becomes effectively inoperative.
As Neilson J as he then was said in Bruce v Grocon (1995) 11 NSWCCR 247 in relation to the reconsideration provisions in the Compensation Court Act 1984:
“Of course, the doctrine of res judicata meaning cause of action estoppel, and also the doctrine of issue estoppel can have no application in a claim for reconsideration pursuant to s.17(4). It is to overcome such principles that the power of reconsideration exists …”
The Arbitrator’s determination on the “four documents” relied upon by the Appellant was, as I have said, appropriate in the circumstances.
The evidence of the MAC of Dr Mellick dated 1 June 2006 and the Appeal Panel decision of 15 November 2006 is sufficient to enliven the reconsideration powers under s 350(3) of the 1998 Act and the Arbitrator's refusal to reconsider the Appellant’s claim in the light of this “fresh evidence” constitutes an error of law such that his decision must be revoked.
A number of issues may arise between the parties as a consequence of my decision such that it is appropriate to remit the matter to the Arbitrator at first instance for reconsideration of the outstanding issues between the parties.
It is not appropriate for me to reconsider the claim and substitute my own decision as is permitted by section 352(7) of the 1998 Act since there is insufficient evidence from the parties as to the impact of this fresh evidence on any entitlements the Appellant may pursue.
CONCLUSION
There is no evidence that the Arbitrator was not impartial, nor that he denied the Appellant procedural fairness in the conduct of the proceedings on 1 February 2007.
The Arbitrator erred in his failure to properly consider the “fresh evidence” of the MAC of Dr Mellick dated 1 June 2006 and the Appeal Panel decision of 15 November 2006 in the Appellant’s reconsideration application.
There has been no error by the Arbitrator in his findings and determination in relation to the “four documents” relied upon by the Appellant in support of his reconsideration application.
In the circumstances, the appropriate course is to remit the matter to the Arbitrator at first instance for reconsideration of this evidence in relation to the outstanding claims the subject of the Arbitration hearing on 1 February 2007.
DECISION
The decision of the Arbitrator dated 19 February 2007 is revoked.
The matter is remitted to the Arbitrator at first instance for reconsideration of the outstanding issues between the parties in accordance with these reasons.
COSTS
The Respondent submits that:
“In light of the previous appeals in this matter, the outcome of those appeals and the fact that the same issues keep being raised by the Applicant, the Respondent submits that this appeal has been brought frivolously, vexatiously or without proper justification. The Respondent therefore seeks an order that the Applicant pay its costs in respect of this appeal.”
Whilst I accept the Respondent’s submissions to a degree, particularly the fact that the “reconsideration” issue was already the subject of a determination by ADP Handley, that was not, as the Respondent accepts, the sole issue in the proceedings. There was clearly an issue as to the impact of the MAC of Dr Mellick and the Medical Appeal Panel decision on the “reconsideration” issue, notwithstanding that it was not the principal material relied upon by the Appellant.
In all the circumstances, given that the Appellant succeeded on appeal the appropriate order ought be: “The Respondent is to pay the costs of the appeal.”
Costs of the proceedings before the Arbitrator to date are reserved pending the outcome of the remitter.
Deborah Moore
Acting Deputy President
2 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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