Benjamin v Leisure Lawns & Gardens

[2007] NSWWCCPD 147

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Benjamin v Leisure Lawns & Gardens [2007] NSWWCCPD 147

APPELLANT:  Bradley Benjamin

RESPONDENT:  Leisure Lawns & Gardens

INSURER:GIO General Ltd

FILE NUMBER:  WCC16895-06

DATE OF ARBITRATOR’S DECISION:          16 February 2007

DATE OF APPEAL DECISION:  27 June 2007

SUBJECT MATTER OF DECISION:                Procedural fairness; treatment of the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      In person

Respondent:   Home Wilkinson Lowry Lawyers

ORDERS MADE ON APPEAL:  Leave to appeal is extended to 28 March 2007.

The decision of the Arbitrator dated 16 February 2007 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 28 March 2007, Bradley Benjamin sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 16 February 2007. The Respondent to the appeal is Leisure Lawns & Gardens (‘the employer’) and the employer’s workers compensation insurer is GIO General Ltd (‘GIO’).

1. Mr Benjamin was born on 9 March 1974 and is aged 33. He claimed that he injured his back on 6 April 1997 while carrying a masonry block when working for the employer as an apprentice landscaper. In about May 2005, Mr Benjamin’s then solicitors made a claim for weekly compensation on his behalf with GIO. On 21 September 2005, GIO declined liability on the ground that work was not a substantial contributing factor to the injury.

1. On 25 October 2006, the Commission registered Mr Benjamin’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation and compensation for permanent impairment and pain and suffering. On 15 November 2006, GIO filed its ‘Reply’. On 17 January 2007, an Arbitrator conducted a teleconference with the parties. On 14 February 2007, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. She gave her decision orally at the conclusion of the hearing in the terms set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 16 February 2007, records the Arbitrator’s orders as follows:

“1. Award for the Respondent with respect to the Applicant’s claim for weekly benefits compensation, section 60 expenses and lump sum compensation.

2. No order as to costs.”

1. In her Statement of Reasons given orally at the conclusion of the hearing, the Arbitrator reviewed the medical and other evidence before her. She noted that the primary issue for her to decide was “whether Mr Benjamin sustained a personal injury arising out of and in the course of his employment with the respondent” (transcript 14 February 2007, p 36). She accepted that Mr Benjamin’s last day of employment with the employer was in August 1995 and not in 1997 as he originally claimed, the employer having supplied a statement that Mr Benjamin ceased work there on 11 August 1995. Consequently, section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) did not apply, since it only applies to injuries received after 12 January 1997.

1. However, the Arbitrator said she was not satisfied on the balance of probabilities that Mr Benjamin sustained an injury to his back arising out of or in the course of his employment with the employer (transcript 14 February 2007, pp 36-37):

“There is no corroborative evidence, such as contemporaneous medical reports, no notice of injury, no claim form. The applicant did not seek medical attention until some eight years had elapsed. The applicant’s explanation is that he was waiting for his back to settle and that he did not want to destroy his career as a landscaper by admitting a back injury. Whilst this may be acceptable as a reason not to tell an employer initially, I do not accept that a person with as debilitating a back condition as the applicant claims he has would not seek medical attention. It is clear from the clinical records of Dr Kwok [Mr Benjamin’s general practitioner] that the applicant had been his patient since 1995 and had consulted him on many occasions regarding other not so serious matters. He had three consultations with Dr Kwok in 1995, three in 1997, three in 1998, 10 in 2001, yet there is no mention of any back condition until 2003. I find Mr Benjamin’s explanation for this implausible and I do not accept it.

I note Mr Benjamin’s submissions that the medical reports of four specialists prove the injury occurred at work. These specialists relied on a history provided to them by Mr Benjamin. Mr Benjamin said he was injured at work, and these doctors proceeded on this basis. This is not corroborative evidence of an injury occurring as alleged.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator accorded Mr Benjamin procedural fairness, and whether she erred in her treatment of the evidence. The parties’ submissions on these issues are discussed below.

ON THE PAPERS REVIEW

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

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

1. Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission 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. 

1. Neither party sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. First, with regard to section 352(2), Mr Benjamin is seeking weekly compensation and compensation for permanent impairment. There was no monetary award made by the Arbitrator, who made an award in favour of the employer. I am satisfied that the amount of compensation at issue is at least $5,000 and comprises the whole of the amount in issue, thereby satisfying section 352(2).

1. With regard to section 352(4) – the requirement for an appeal to be made within 28 days after the making of the decision appealed against, Mr Benjamin’s appeal, lodged on 28 March 2007, was not made within 28 days of the Arbitrator’s decision, which was made on 16 February 2007, the date on which the Certificate of Determination was issued by the Commission (rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’)). However, I note that Mr Benjamin lodged a first appeal on 7 March 2007, which was rejected by the Registrar by letter dated 9 March 2007 on the ground that Mr Benjamin had not complied with the Rules for the lodging of an application. By letter dated 16 March 2007, Mr Benjamin replied, seeking an extension of time, on the ground that he was seeking legal representation and that he did not receive the letter of 9 March 2007 until 15 March 2007, as he only checks his mailbox once a week because of his bad back.

1. In his appeal lodged on 28 March 2007, Mr Benjamin said he had consulted solicitors and had been unable to obtain legal representation. He said it is vital his appeal is heard, as he was not represented at the hearing.

1. GIO contends that the Arbitrator afforded Mr Benjamin “every procedural fairness” and he had every opportunity to avail himself of the opportunity to seek legal advice prior to the determination of the matter in the course of the arbitration hearing. Moreover, having sought an extension of time for the appeal on the ground that would be seeking legal representation, he has apparently not sought legal representation in relation to the preparation of the appeal. GIO submits that leave should not be granted.

1. Rule 16.2(11) of the Rules provides that a Presidential Member may extend the time for making an appeal where the appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the appellant.

1. The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479, where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSWWCCPD 22, Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54, South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32.

1. I note that Mr Benjamin’s initial application, rejected by the Registrar, was lodged within the required 28 day period. I also note Mr Benjamin is unrepresented and states he sought an extension of time in order to seek legal representation, in which he now says he has been unsuccessful. I note GIO’s submission that Mr Benjamin has failed to make out any of the alleged grounds of appeal. However, in the light of Mr Benjamin being unrepresented and his effort to comply with the requirements of the legislation for the lodging of an appeal, and noting that both parties submit that the matter can be dealt with ‘on the papers’, I am satisfied that I should exercise my discretion to allow an extension of time for the lodging of the appeal to 28 March 2007. Accordingly, I grant leave to appeal.

SUBMISSIONS

1. Mr Benjamin says:

“I was extremely unhappy with the decision in my conference. The arbitrator showed disregard and refused to comprehend the medical facts. I had 4 specialist reports and 2 TDRs [‘Treating Doctor’s Reports’] proving I am totally incapacitated, I suffer severe back pain, my injury is significant and I was injured at work. They say I had a pars defect. I cannot provide any more evidence than this.”

1. Mr Benjamin states he did not file a claim immediately after he was injured because he hoped the pain would alleviate and he intended returning to work when this happened. When the pain did not alleviate, he could not return to work. A friend advised him to have an x-ray in 2003 which showed he had a pars defect. He states that specialists say this is enough reason for the back pain and it was suggested it might be worth his seeking compensation. The Arbitrator “flatly refused to accept this” and that his injury occurred at work while he was carrying a masonry block even though his specialists and 2 TDRs are satisfied that this is how his back injury occurred. Mr Benjamin submits that he meets the requirements of the 1987 Act – his back injury causes severe back pain and he is totally incapacitated and unable to work. This is supported by his medical reports. With regard to GIO’s reports, he contends Dr Ho’s report “was horribly wrong” and is contradicted by all of Mr Benjamin’s reports.

1. GIO submits that the Arbitrator made no appellable error. It notes that at the teleconference on 17 January 2007, the Arbitrator encouraged Mr Benjamin to seek legal representation. GIO submits the Arbitrator “was alive to the difficulties posed by the applicant’s determination to represent himself, and that she afforded him every procedural fairness in the hearing of the matter, going so far as to tell the applicant in detail the weaknesses of his case on the evidence before her”. The Arbitrator gave full consideration to the evidence before her and to Mr Benjamin’s statement and oral evidence. She considered Dr Ho’s report in conjunction with all the medical evidence relied on by the parties, and provided clear and logical reasons for her decision. GIO contends that Mr Benjamin’s medical evidence does not support his claim to have a pars defect, to be totally incapacitated for work and to have been injured at work, as the Arbitrator concluded in the reasons for her decision. Mr Benjamin confuses the history recorded by the specialists with opinion, clinical findings on examination and/or diagnoses. That the Arbitrator did not accept Mr Benjamin’s explanation for the delay in lodging his claim was open to her on the evidence.

DISCUSSION AND FINDINGS

1. 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 Benjamin 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] NSWWCCPD 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.

1. I have reviewed the transcripts of both the teleconference on 17 January 2007 and the arbitration hearing on 14 February 2007. I note that at the teleconference, the Arbitrator emphasised that the matter was not straightforward, pointed to the matters disputed by GIO, and encouraged Mr Benjamin to obtain legal representation (transcript 17 January 2007, pp 8-10, 23-25). I note that at the hearing, the Arbitrator asked Mr Benjamin questions to assist him in presenting his case and in giving evidence about relevant matters (for example, transcript 14 February 2007, pp 4-6, 10-12, 14-15). She also explained the course of the proceedings to him (for example, transcript 14 February 2007, pp 19, 24, 29). In my view, the transcripts suggest the Arbitrator took particular care to ensure as far as possible that Mr Benjamin understood the relative complexity of the proceedings, the nature of the process and what was expected of the parties, and facilitated the presentation of his evidence by asking him relevant questions. I am therefore satisfied that the Arbitrator took care to accord Mr Benjamin procedural fairness in these proceedings and that there was no denial of natural justice.

1. With regard to the treatment of the evidence, I have examined the relevant medical evidence and reviewed the Arbitrator’s oral reasons in which she discusses the reports of an x-ray of Mr Benjamin’s lumbar spine dated 13 March 2003, a CT scan dated 20 March 2003, a bone scan dated 16 February 2006, an MRI dated 20 February 2006, and an x-ray dated 17 July 2006. The Arbitrator also discusses the reports provided by Mr Benjamin from Dr John Bentivoglio, Orthopaedic Surgeon, dated 31 January 2006, Dr Ross Mills, Occupational Physician, dated 31 January 2005, Dr Steven Ng, Occupational Physician, dated 12 July 2006, and Dr Medhat Guirgis, Orthopaedic Surgeon, dated 13 February 2006, together with the TDRs from Mr Benjamin’s general practitioner, Dr YC Kwok, dated 23 December 2004 and 12 September 2005. Further, she discusses the report provided by GIO from Dr YK Ho, Orthopaedic Surgeon, dated 16 September 2005, and Dr YC Kwok’s clinical notes concerning Mr Benjamin, in particular, those covering the years 1995 to 2003.

1. The Arbitrator identified the principal issue for her to determine as being whether Mr Benjamin suffered a personal injury arising out of or in the course of his employment (as required by section 4 of the 1987 Act). She found that the section 9A requirement that employment be a substantial contributing factor to the injury did not apply in Mr Benjamin’s case because the evidence indicated that the injury occurred in 1995, and not 1997 as Mr Benjamin claimed originally, and, therefore, the injury occurred before section 9A took effect. The Arbitrator said she was not satisfied on the balance of probabilities that the injury to Mr Benjamin’s back arose out of or occurred in the course of his employment. This was the basis for her finding that no compensation was payable to Mr Benjamin.

1. The Arbitrator noted there was no evidence, such as contemporaneous medical reports, a notification of injury or a claim form, to corroborate Mr Benjamin’s claim that he suffered an injury to his back in the course of his employment. Mr Benjamin’s evidence was that he did not notify his employer of his injury at the time that it occurred because (transcript 14 February 2007, p 6):

“if word got around that my back was badly injured, I mean, I would never get jobs for myself again ... I tried to keep it quiet. I put it off for as long as possible. I was contemplating a return to landscaping ...”

1. The Arbitrator found Mr Benjamin’s evidence implausible. She did not accept that a person with as debilitating a back condition as that claimed by him would not seek medical attention, noting it was clear from his general practitioner, Dr Kwok’s clinical records for the relevant period that Mr Benjamin consulted Dr Kwok on many occasions regarding other not so serious matters (transcript 14 February 2007, pp 36-37). The Arbitrator also commented on the medical evidence, noting that the history recorded by Mr Benjamin’s specialists was that which Mr Benjamin provided to them – their reports did not prove that the claimed injury occurred in the course of his employment.

1. I note that Mr Benjamin’s specialists did not, as he claims, say he had a pars defect. The only evidence of a pars defect is that of the x-ray report dated 13 March 2003, which states: “There is a suggestion of unilateral pars defect on the left.” All the other investigative reports appear to negate this suggestion. Of the specialists’ reports, Dr Bentivoglio (report dated 31 January 2005) refers to the reported “suggestion of a pars interarticularis defect on the left side at the L5 level”. Dr Mills (report dated 31 January 2005) refers to the “unilateral L5 pars defect, identified on x-rays” and states this “is unlikely to be of significance”. Dr Ng (report dated 12 July 2006 – although it would appear the date of the report is incorrect) noted that the CT scan of 17 July 2006, performed at his suggestion, shows “no evidence of pars interarticularis defect” (as stated by Dr Kenneth Cooke, Radiologist, in his report of that date). Dr Ng said in his opinion Mr Benjamin “has a chronic pain syndrome”. Dr Guirgis (report dated 13 February 2006) makes no reference to the possibility of a pars defect - although he recommends further investigative studies be made – and states that in his opinion Mr Benjamin suffers from “an underlying lower back disorder in which pain was predominantly influenced by pyschologic [sic] factors”.

1. Thus, having reviewed the Arbitrator’s statement of reasons for her decision and also the evidence before her, I am not satisfied that she made any error in the treatment of the evidence. Essentially, the problem faced by Mr Benjamin in these proceedings is that, other than his own evidence, there is no evidence to support his claim that he suffered an injury arising out of or in the course of his employment.

1. Mr Benjamin has failed to establish his grounds of appeal and, accordingly, the Arbitrator’s decision must be confirmed.

DECISION

1. The decision of the Arbitrator dated 16 February 2007 is confirmed.

COSTS

1. There is no order as to he costs of this appeal.

Robin Handley

Acting Deputy President  

27 June 2007

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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