Bielecki v Rianthelle Pty Ltd t/as Belfora
[2008] NSWWCCPD 53
•21 May 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bielecki v Rianthelle Pty Ltd t/as Belflora [2008] NSWWCCPD 53
APPELLANT: Irene Bielecki
RESPONDENT: Rianthelle Pty Ltd t/as Belflora
INSURER:GIO General Limited
FILE NUMBER: WCC7505-07
DATE OF ARBITRATOR’S DECISION: 19 December 2007
DATE OF APPEAL DECISION: 21 May 2008
SUBJECT MATTER OF DECISION: Section 60 of the Workers Compensation Act 1987; claim for dental treatment alleged to have resulted from psychological injuries; whether employment must be a substantial contributing factor to the need for hospital and medical treatment; failure by Arbitrator to consider all bases on which the claim was made; section 352 Workplace Injury Management and Workers Compensation Act 1998; when does time to appeal start to run; extending time to appeal; fresh or additional evidence on appeal.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bale Boshev Lawyers
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Time to appeal is extended until 23 January 2008.
The Arbitrator’s decision of 19 December 2007 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Irene Bielecki (‘the Appellant Worker/Ms Bielecki’) is currently 36 years of age. She injured her neck, back and right arm in a car accident on 13 June 1997 whilst driving in the course of her employment for Rianthelle Pty Ltd t/as Belflora (‘the Respondent Employer/Belflora’). Her claim was accepted and her weekly compensation and medical expenses were paid voluntarily until September 2000. She settled her claim for lump sum compensation for her neck and right arm on 11 May 2000.
In an application filed in the Compensation Court of NSW in 2002 (No. 9215 of 2002), Ms Bielecki claimed lump sum compensation in respect of her back together with weekly compensation from September 2000. She also claimed that she sustained psychological injuries as a result the car accident.
In a decision delivered on 19 December 2003, Walker CCJ found that as a result of the car accident Ms Bielecki sustained a permanent impairment of her neck and back, a permanent loss of the efficient use of her right arm at or above the elbow, and recognised psychiatric conditions, namely, post-traumatic stress disorder and chronic panic disorder with agoraphobia. He awarded Ms Bielecki lump sum compensation for permanent back impairment and ‘pain and suffering’, together with weekly compensation at the maximum statutory rate for a single worker from 1 September 2000 to date and continuing, plus medical expenses, costs and interest on the arrears of weekly benefits.
In October 2003 and October 2005 Ms Bielecki underwent extensive dental treatment because of extreme dental decay, culminating in all her teeth being removed and upper and lower dentures being fitted.
By an Application for Interim Payment Direction dated 16 March 2006, Ms Bielecki lodged a claim under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act) in the Workers Compensation Commission (‘the Commission’) for the cost of her dental treatment.
In a decision dated 12 April 2006 Ms Robichaud, delegate for the Registrar, found that there was an insufficient nexus between the car accident in 1997 and Ms Bielecki’s dental problems and, therefore, that the dental problems did not arise out of or in the course of Ms Bielecki’s employment with the Respondent.
On 12 July 2007, Ms Bielecki filed an Application to Resolve a Dispute in the Commission, again seeking compensation under section 60 of the 1987 Act in respect of the same claim for dental treatment. At the teleconference, the Arbitrator indicated that the Ms Robichaud’s decision created an estoppel and, as a result, Ms Bielecki might lose her claim. Ms Bielecki discontinued this application in the middle of the teleconference so that her solicitor could research the estoppel issue.
By an Application to Resolve a Dispute (‘the Application’) filed with the Commission on 3 October 2007, Ms Bielecki seeks to recover the cost of her dental treatment in the sum of $4,186.00 said to have been reasonably necessary as a result of injury to her “teeth and gums” (see Part 4 of the Application) in the car accident on 13 June 1997. In fact, Ms Bielecki sustained no injury to her teeth and gums in the accident. At paragraph 23 of her statement of 7 March 2007, she attributed her dental treatment to a combination of vomiting and various medications she took as a result of her injuries resulting from the car accident in 1997.
A Commission Arbitrator heard the matter at Newcastle on 12 December 2007 when Ms Bielecki was cross-examined and the Arbitrator heard lengthy submissions from counsel representing each side. Counsel for Ms Bielecki argued that “the aetiology is two or threefold” (T30.10). He relied on “the role of medication” (T30.13) in causing Ms Bielecki to have a dry mouth (T30.32), poor “general dental hygiene” (T30.18) and vomiting (T30.39).
In a reserved decision delivered on 19 December 2007, the Arbitrator approached the matter on the basis that Ms Bielecki’s claim was “that her psychological condition had caused her to vomit regularly over a period of years with the result that her teeth had rotted, and she had contracted gum disease, which eventually necessitated the removal of all her teeth” (Statement of Reasons for Decision (‘Reasons’), paragraph 10). The Arbitrator’s decision dealt with this issue in detail and he concluded, “the contemporaneous material in this case simply does not corroborate her memory of events. Indeed, they contradict what she now remembers” (Reasons, paragraph 31). He did not accept Ms Bielecki’s recollection of when she started vomiting to be reliable (Reasons, paragraph 27) and did not accept the evidence of her treating psychiatrist, Dr Wade (Reasons, paragraph 20). As a result, he made an award for the Respondent Employer.
By an appeal initially filed on 17 January 2008, but rejected by the registry and re-filed on 23 January 2008, Ms Bielecki seeks leave to review the Arbitrator’s decision on the ground that he failed to consider other factors that allegedly caused or contributed to the decay of her teeth and, therefore, the need for her dental treatment.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ISSUES IN DISPUTE
The Appellant Worker’s submissions have incorrectly assumed that Ms Bielecki must prove that her employment was a substantial contributing factor to her dental decay and treatment (section 9A of the 1987 Act). That is not correct. Sub-section (1) of section 9A states:
“No compensation is payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury”.
Employment must be a substantial contributing factor to the “injury”, not the incapacity or loss resulting from the injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 (‘Rootsey’)). Walker CCJ found that Ms Bielecki sustained injuries to her neck, back, right arm and recognised psychiatric conditions, namely, post-traumatic stress disorder and chronic panic disorder with agoraphobia, arising out of and in the course of her employment with the Respondent Employer. Though the judge does not seem to have made a formal finding that employment was a substantial contributing factor to those injuries, there seems to be no issue that that was the case.
A worker may recover hospital and medical expenses under section 60 of the 1987 Act “If, as a result of an injury received by a worker, it is reasonably necessary that” any medical treatment (which includes treatment by a registered dentist (see section 59(a) of the 1987 Act)) be given. That is, to establish liability under section 60, three conditions must be satisfied:
a)that the worker received an injury to which employment was a substantial contributing factor;
b)that the relevant treatment or expense was “as a result of” that injury, and
c)that the treatment was “reasonably necessary”.
Points (a) and (c) were not in issue at the arbitration, but point (b) was. That was made clear by counsel for the Respondent Employer at T25.9 where he said:
“the applicant’s medical case has not established on the balance of probabilities that the need for dental treatment has arisen as a result of a motor vehicle accident.”
The Arbitrator’s decision dealt in detail with whether Ms Bielecki’s dental problems resulted from her vomiting and found against her on this issue. His conclusion on this issue is not challenged on appeal. Had such a challenge been made, I would have no hesitation in rejecting it as the evidence does not support a finding that the vomiting resulted from the found injuries or, if it did, that the dental treatment resulted from the vomiting. This finding follows regardless of whether one applies the substantial contributing factor test or the “as a result of” test.
Against this background, the Appellant Worker has identified the issues in dispute in the appeal to be whether the Arbitrator erred in:
(a)failing to consider the causative role of medication, taken by Ms Bielecki as a result of her injury, as a substantial contributing factor in the decay of her teeth (‘medication’);
(b)failing to consider Ms Bielecki’s loss of personal hygiene as a substantial contributing factor to the decay of her teeth (‘personal hygiene’);
(c)confining consideration of the Appellant Worker’s claim to the onset of vomiting when she relied on alternative causes, such as a dry mouth, loss of personal hygiene and the effect of her medication, all of which arose out of her physical and psychological injuries sustain in her accident on 13 June 1997 (‘dry mouth’), and
(d)making an award in favour of the Respondent Employer, based on an absence of a history of vomiting when the evidence supported other substantial contributing factors arising out of or in the course of Ms Bielecki’s employment causing the decay of her teeth (‘other substantial contributing factors’).
For the reasons stated above, the Appellant Worker’s reference to substantial contributing factor is misguided. To succeed, Ms Bielecki has to establish, on the balance of probabilities, that the dental treatment in question was reasonably necessary as a result of the injuries found by Walker CCJ.
The following additional issues also require determination, namely, whether:
a)the appeal can be determined on the papers;
b)the appeal was filed in time;
c)if the appeal was filed out of time, time to appeal should be extended, and
d)fresh evidence or additional evidence should be admitted on appeal.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management 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.”
Ms Bielecki submits that the “application [to seek leave to appeal] is not as full as had been hoped” due to the time difficulties caused by the Christmas Break and she seeks to supplement her written submissions with oral argument (see Appellant Worker’s Written Submissions filed 17 January 2008, paragraph 2.3). The Respondent submits that the Christmas Break is not a reasonable excuse for the Appellant Worker’s failure to provide detailed submissions, the same claim has been listed and dealt with in the Commission on three occasions, Ms Bielecki was given sufficient opportunity to make oral submissions at the Arbitration, and it is not necessary for the appeal to be heard with oral submissions.
By a Direction issued by me on 28 March 2008, the parties were directed to file further written submissions on the following issues:
“a)why time to appeal should be extended under Part 16 Rule 16.2(11) of the 2006 Rules;
b)if any fresh or additional evidence is sought to be relied upon on appeal, a copy of that evidence must be filed and served together with submissions setting out why the evidence should be admitted on appeal;
c)whether the thresholds in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 are satisfied, and
d)such further submissions on the merits of the appeal as are considered necessary.” (emphasis added)
The Appellant Worker’s submissions were to be filed and served on or before 4.30pm on Monday 14 April 2008 with the Respondent Employer to respond on or before 4.30pm on Monday 28 April 2008.
The Appellant Worker filed further submissions by facsimile on 14 April 2008 in which she made further brief submissions, but only in respect of the matters referred to in paragraphs (a), (b) and (c) listed in paragraph 28 above. In breach of the Commission’s Direction, these submissions were served on the Respondent Employer’s solicitor under covered of letter dated 15 April 2008. No excuse has been offered for the late service of the submissions. Non-compliance with a Commission Direction regarding service of the submissions is unacceptable and should not occur unless there are extenuating circumstances. No extenuating circumstances exist in the present matter. However, the delay in service of the submissions has not resulted in any prejudice to the Respondent Employer and I therefore extend time for service of the submissions until 15 April 2008.
Given that the Appellant Worker was invited to file additional submissions on “the merits of the appeal”, but has not done so, I do not believe an oral hearing is required in this matter. The parties made extensive submissions before the Arbitrator and a transcript of those submissions is before me.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me (including the transcript of the proceedings before the Arbitrator on 12 December 2007), and the submission by the Respondent Employer that the appeal can proceed to 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 TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Section 352(2) of the 1998 Act provides:
“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
b)at least 20% of the amount awarded in the decision appealed against.”
No award of compensation has been made in this matter but the Arbitrator’s finding will, if it stands, result in the Appellant Worker receiving no compensation and, therefore, the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
In respect of the first limb, the quantum of compensation claimed in the Application is $4,186.00 and that sum does not meet the $5,000.00 threshold in section 352(2)(a).
The Appellant Worker relies on the report of her dental surgeon, Dr Pepper, dated 28 February 2006, in which he stated that “The cost to rectify Ms Bielecki would be appropriately $30-40,000 for the replacement of upper and lower implant-supported dentures/bridges”. He considered Ms Bielecki’s prognosis to be “poor unless implant-retained dentures/bridges are constructed”. I infer, though it is by no means clear, that Dr Pepper is of the opinion that further dental treatment for Ms Bielecki is “reasonably necessary”. On the basis of this evidence, Ms Bielecki argues that the quantum of the claim exceeds the threshold imposed by section 352(2)(a).
Quoting Widdup v Hamilton [2006] NSWCCPD 258(‘Widdup’), the Respondent Employer contends that the Commission does not have the power or jurisdiction to make a declaration of liability for any proposed hospital and medical treatment under section 60 of the 1987 Act. Accordingly, the Commission only has the jurisdiction to determine liability in respect of the medical expenses of $4,186 that have been incurred and leave to appeal should be refused, as the threshold under section 352(2)(a) is not satisfied.
The Respondent Employer’s submission is misguided. The decision of Widdup concerns the Commission’s power to make a declaratory order for the payment of future medical expenses. The Appellant Worker does not seek such an order in the present matter. For the purpose of determining if the threshold in section 352(2)(a) is satisfied it is necessary to determine a different question, namely, if “the amount of compensation at issue on the appeal” is at least $5,000.00.
In Lilly v Tomago Aluminium Company Pty Ltd [2004] NSWWCCPD 33 the worker failed before the Arbitrator with his claim for medical expenses of $280.00. In seeking leave to appeal, the Commission granted leave for ‘fresh evidence’ to be filed that established the worker’s likely total medical expenses for a knee replacement operation were $15,000.00. That evidence satisfied the Deputy President that the compensation “at issue” satisfied the threshold in section 352(2)(a). This approach has been followed in several decisions including Olympic Fencing (NSW) Pty Ltd v Crossley [2007] NSWWCCPD 121 and Baptist Community Services – NSW & ACT v Abi-Arrage [2008] NSWWCCPD 16.
The principles applied in these authorities are applicable in the present matter. Though the evidence is far from ideal, it establishes that the potential cost of dental treatment for Ms Bielecki, if she were to succeed with her appeal, would exceed $5,000.00 and, on that basis, it meets the section 352(2)(a) threshold.
Time
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
The appeal was initially filed on 17 January 2008 when the registry rejected it because it was filed outside the 28-day period in section 352(4). It was re-filed on 23 January 2008.
The Appellant argues that the appeal was not lodged out of time on the grounds that:
a)there is a lack of clarity in relation to the time limit for appeals;
b)Rule 1.11.2 of the Uniform Civil Procedure Rules states, “if a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be accounted”, and
c)accordingly, the last day on which the appeal could be filed was 17 January 2008.
The Respondent Employer submits:
a)the decision was made on 19 December 2007, when the commission issued the Certificate of Determination (sections 352(4) and 294(1) of the 1998 Act);
b)applying section 36 (1) of the Interpretation Act 1987, time to appeal is calculated ‘exclusive of 19 December 2007’;
c)time to appeal runs from 20 December 2007; and
d)allowing 28 days from 20 December 2007 inclusive makes the last day to appeal 16 January 2008.
Is the appeal out of time? The issues argued by the Appellant Worker were considered and determined in Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 (‘Dennis’). For the following reasons, and, consistent with the reasoning in Dennis, it is my view that the appeal has been filed outside the 28 day period in section 352(4):
a)an appeal against an Arbitrator’s decision must be made within 28 days “after the making of the decision appealed against” (section 352(4));
b)an Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Part 16 Rule 16.2(2) Workers Compensation Commission Rules 2006 (‘the Rules’));
c)a certificate under section 294 (the ‘Certificate of Determination’) was issued in the present matter on 19 December 2007 and time under section 352 runs from that date;
d)applying section 36 of the Interpretation Act 1987 (or Rule 1.11.2 of the Uniform Civil Procedure Rules 2005), the “given date” for the reckoning of time under section 352 is 19 December 2007 and time to appeal is calculated “exclusive of that day” (emphasis added);
e)therefore, in the present matter, time runs from 20 December 2007. Allowing 28 days from 20 December 2007 (including 20 December 2007) means that the last day to appeal within time was 16 January 2008, and
f)it therefore follows that the appeal, having been filed on 17 January 2008, is out of time and cannot proceed unless time to appeal is extended.
An extension of time in which to appeal is governed by Rule 16.2(11) of the Rules, which provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In support of her application to extend the time to appeal, Ms Bielecki submits:
a)the lack of clarity in relation to time limits is an appropriate reason to extend time to appeal;
b)a significant part of the appeal period was during the Christmas holidays “when it would cause unfair prejudice to the Applicant” (Appellant Worker’s submissions 14 April 2008);
c)the time involved is “de minimus” in comparison to the prejudice Ms Bielecki will suffer if time is not extended;
d)justice demands that Ms Bielecki be given leave to appeal, and
e)there is no prejudice to the Respondent in extending the time to appeal.
In addition, reliance is place on the reasoning in Dennis in support of the application that time to appeal be extended, though precisely which part of the reasoning in that case is relied on is not identified.
The Respondent Employer objects to an extension of time to appeal on the grounds that:
a)there is no evidence of “exceptional circumstances” that justify an extension of time;
b)the same claim has been listed in the Commission on three occasions;
c)the history of the proceedings and the conduct of the Appellant Worker has resulted in significant costs to the WorkCover Scheme and the Respondent;
d)allowing the appeal to proceed would amount to an abuse of process;
e)the two previous determinations in favour of the Respondent Employer means the appeal has limited prospects of success on appeal;
f)allowing the appeal to proceed would cause significant costs and therefore, significant prejudice to the Respondent, and
g)leave to appeal should not be granted on the basis of Dennis.
The Respondent Employer’s submissions are misguided and unhelpful. The fact there have been previous determinations in this matter is not determinative of whether time to appeal should be extended.
Whilst I do not accept there is any lack of clarity in respect of calculating the time in which to appeal under section 352(4) of the 1998 Act, I find, for the following reasons, it is appropriate to extend time to appeal in this matter:
a)the fact that the appeal period fell within the Christmas/New Year holiday period clearly caused delay that would not have been faced if the decision had been delivered at a different time;
b)the appeal is only one day out of time;
c)the Appellant Worker’s solicitor acted promptly to re-file the appeal on 23 January 2008;
d)there is no prejudice to the Respondent Employer occasioned by that six day delay, and
e)prima facie, the Appellant Worker’s appeal raises points that are at least arguable in that it raises issues that were not considered or determined by the Arbitrator.
I extend time to appeal until 23 January 2008 and grant leave to appeal.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which states:
“(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.”
The question of the introduction of fresh evidence on appeal was considered by the Court of Appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, (2007) 4 DDCR 634 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely must be balanced against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).
The original appeal (filed on 17 January 2008) indicated that Ms Bielecki would seek to rely on the transcript of evidence given before Walker CCJ in her claim in the Compensation Court of NSW (proceedings No. 9215 of 2002) and the transcript of the proceedings in the Commission (presumably of the arbitration hearing at Newcastle on 12 December 2007), but neither document was available because of the Christmas vacation.
Under cover of a letter dated 5 February 2008, the Commission served a copy of the transcript of the arbitration hearing on both parties. The covering letter advised the parties that if they indicated that they had been unable to complete their submissions and/or grounds of appeal in the absence of the transcript, they were required to do so and serve all other parties in accordance with Practice Direction No 6. That Practice Direction states, among other things, that “Any supplementary submissions following receipt of the transcript must be lodged and served within 28 days of the date of the letter from the Registrar addressed to the party enclosing a copy of the transcript”. Neither party lodged any supplementary submissions dealing with issues arising from the transcript.
On 28 March 2008, I issued a Direction in the terms set out in paragraph [28] above directing, among other things, that if any fresh or additional evidence was sought to be relied upon on appeal, a copy of that evidence must be filed and served together with submissions setting out why the evidence should be admitted on appeal on or before 4.30pm on 14 April 2008. In a letter dated 14 April 2008, Ms Bielecki submitted that she would require a transcript of the evidence “in the Workers Compensation Court [sic, the Compensation Court of NSW]…because the Arbitrator appears to have made an assumption in relation to those proceedings which may or may not be correct”. In a letter dated 16 April 2008, Ms Bielecki submitted “It appears, on a close reading of the transcript in the Workers Compensation Commission, that he [the Arbitrator] made various findings in relation to the evidence given by the Applicant, when clearly he should not have done so in the absence of the transcript [from the Compensation Court proceedings]”. Precisely which findings the Arbitrator should not have made have not been identified. It was stated that the transcript of the Compensation Court proceedings was not yet available though no indication was given of what, if any, steps had been taken to obtain it and Ms Bielecki made no application for additional time to obtain the transcript.
On 15 April 2008, my Acting Research Associate, Ning Dong, contacted the Appellant Worker’s solicitor’s office and enquired if their client still sought to rely on fresh evidence on appeal and drew their attention to the content of the Direction issued by the Commission on 28 March 2008. By letter dated 15 April 2008, Ms Bielecki’s solicitors served on the Commission, and on the solicitors for the Respondent Employer, a copy of the transcript of the arbitration hearing in the Commission held on 12 December 2007. This transcript had already been served by the Commission on the solicitors for each side under cover of letter dated 5 February 2008.
Practice Direction No 6 and Form 9 (Appeal Against Decision of Arbitrator) make it clear that when a party seeks to rely on fresh or additional evidence on appeal, that evidence must be attached to and served with the appeal. That was not done in this case and, notwithstanding the Direction issued by me on 28 March 2008, it has still not been done.
For the following reasons, I decline the Appellant Worker’s application to rely on the transcript of the evidence before Walker CCJ:
a)it has not been demonstrated that, with reasonable diligence, the transcript could not have been obtained for use at the arbitration;
b)no persuasive reason has been advanced as to why the transcript should be admitted on appeal or why it would be likely to result in a different conclusion if it were admitted. I am not satisfied that there is any reasonable likelihood (let alone a high degree of probability) that the presence of the transcript would lead to a different result;
c)the Appellant Worker has ignored Practice Direction No 6 in respect of the steps required to be taken when fresh or additional evidence is sought to be relied upon on appeal;
d)notwithstanding the Commission’s Direction of 28 March 2008, the Appellant Worker has still not provided a copy of the transcript nor indicated what, if any, steps have been taken to obtain it, and
e)I am not satisfied that the interests of justice require the transcript to be admitted on appeal.
SUBMISSIONS
The Appellant submits that the Arbitrator:
a)did not consider the evidence, “In particular, the findings in the report of Dr Nichols [a dentist qualified by the Respondent Employer], which include the potential role of a ‘dry mouth’ from the anti-depressant medication, which caused degenerative decaying in the teeth” (Appellant Worker’s submissions 17 January 2008, part 2.7, paragraph two);
b)failed to consider the Appellant’s loss of enthusiasm for self-care and hygiene as a result of her depression and its potential cause for tooth decay, and
c)failed to note the history of complaint to Dr. Preston of a dry mouth and distinguish the history of a dry mouth from the history of vomiting and failed to rely on Dr. Nichols’ opinion that it had or could have a role in causing decay.
The Respondent Employer submits:
a)the Arbitrator did consider the role of medication in paragraph 14 of his Reasons, but the relevant evidence did not support a conclusion that the medication Ms Bielecki took for her injuries caused the her tooth decay;
b)there is no evidence that the loss of personal hygiene was a result of the car accident in 1997. The Appellant Worker’s treating dentist, Dr Pepper, noted it was “impossible to distinguish the precise aetiology”;
c)there is no qualified opinion that Ms Bielecki’s dry mouth, loss of personal hygiene or medications were the cause of her tooth decay;
d)Dr Nichols concluded that the most significant factor in Ms Bielecki’s tooth decay was the medical and dental history before and post the accident, and that Ms Bielecki “would have lost her teeth regardless of any motor vehicle accident”;
e)Dr Preston did not provide any opinion on the causal link between a dry mouth and the tooth decay, and
f)the evidence supported a finding that Ms Bielecki had significant dental problems and vomited nearly daily prior to the car accident.
DISCUSSION AND FINDINGS
Medication
The evidence touching on the effect of medication on Ms Bielecki’s dental decay resulting from her injuries is found in her statements of 7 March 2006 and 3 September 2007, the report from her treating psychiatrist, Dr Wade, dated 5 October 2005, and the report of Dr Nichols, dental surgeon, qualified on behalf of the Respondent Employer, dated 16 July 2007. This issue is also touched on at page four of Walker CCJ’s decision where he said, referring to Ms Bielecki’s evidence, that “The tablets she takes have caused her teeth to decay”. The judge referred to no medical evidence in support of this statement and made no finding on this matter, as it was not an issue in dispute in the Compensation Court.
In her statement of 7 March 2006, Ms Bielecki ascribed her problem with her teeth to “a combination of vomiting and of all the different medications” she had been taking (paragraph 23). In the absence of any supporting medical opinion, this statement is no more than a lay opinion and, accordingly, is of no probative value (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, (2007) 4 DDCR 421).
On the issue of medication, Ms Bielecki’s statement of 3 September 2007 merely recounts her recollection of a discussion she had with Dr Wade about the possible cause of the damage to her teeth. This evidence is, on its own, of no probative value.
Dr Wade’s opinion is set out in his report of 5 October 2005 where he said, at page one:
“In terms of the relationship to medications and the gum disease that can lead onto dental decay, certainly there is a history of the old fashioned medications that particularly have what are referred to as anti-cholinergic side effects. The only medications that Ms Bielecki has been on of this nature has been Anafranil (Clomipramine). She was only on this for a short period of time, the only other medication that may also have an anti-cholinergic effect that would cause the drying of the mouth, and leave her open to bacterial infection and decay would be the Rivotril (Clonazepam). She has not used this continuously or regularly for any amount of time that would relate to the dental decay.
It would appear that the dental decay is more related to physiological aspects of her psychological state…”
In light of this evidence, the Arbitrator correctly concluded that Dr Wade “discounted” the role of medication as a cause of the Appellant’s dental decay (Reasons, paragraph 14). However, the challenge on appeal is that this was not the only evidence touching on the issue of medication and its potential role in causing tooth decay.
Dr Nichols noted that Ms Bielecki had a long history of multiple medications, “many of which are known to cause Xerostomia (dry mouth) that increases the risk of dental disease” and that her “dental condition was further aggravated by acid gastric reflux and vomiting, known to cause dental erosion” (Dr Nichols’ report 16 July 2007, page four). Nevertheless, whilst conceding that the car accident may have aggravated her “probable serious pre-existing condition (of dental disease)”, he concluded that “Ms Bielecki would have lost her teeth regardless of any motor accident, and causation should be apportioned 0% to the motor vehicle accident” (page six). He added at page seven, that the dental treatment “was unrelated to the motor vehicle accident”. Under “Summary”, Dr Nichols said:
“Ms Bielecki has lost all of her teeth due to long term dental neglect aggravated by multiple medications and drug and alcohol abuse. It is not possible to say what effect the motor vehicle accident had on the current dental condition, but it is my opinion she would have lost all of her teeth regardless of any motor vehicle accident.”
In his report of 30 October 1997, Dr Nichols referred to the clinical notes from Dr Pepper and noted that they recorded:
·there were missing teeth and many fillings before the car accident;
·Ms Bielecki failed to attend many appointments;
·she needed further extractions before the car accident;
·she did not present for two years after the car accident when she required multiple extractions, and
·she continued to attend irregularly and cancel appointments.
Dr Nichols then restated the opinions set out in his report of 16 July 2007, adding that the clinical notes “confirmed” his earlier view.
The Arbitrator did not refer to or consider Dr Nichols’ evidence, and erred in failing to do so. However, given Dr Nichols’ ultimate conclusion on the issue of causation, the Arbitrator’s error is of no consequence as it has not affected the final outcome of the claim. Dr Nichols did not, in the end analysis, support Ms Bielecki’s claim that her dental treatment resulted from her injuries. In fact, her firmly rejected the claim.
Walker CCJ’s reference to Ms Bielecki’s medication causing her teeth to decay was not a finding by the court but merely a reference to Ms Bielecki’s evidence. Her opinion is not probative of the issue before the Commission and is not supported by the medical evidence in the case.
Dental Hygiene
The Arbitrator did consider Ms Bielecki’s alleged loss of dental hygiene, said to have resulted from her injuries. He expressly referred to page one of Dr Wade’s report of 5 October 2005 where the doctor said: -
“I’m aware that Ms Bielecki has had a very rapid deterioration in the state of her teeth in recent times, with much decay and gum disease and of the need for really all of her teeth to be removed. This in somebody who has been quite fastidious in their self-care in the past, including their dental hygiene.”
The Arbitrator referred to this evidence at paragraph 23 of his Reasons, where he said:
“Dr Wade also advanced the proposition extracted above that the Applicant had been quite fastidious in her self-care in the past, including her dental hygiene. This assertion on her behalf does not appear to be based on anything more than what the Applicant told him, and demonstrates a desire to assist her case beyond the bounds of a professional, impartial expert. Further, that assertion is not borne out by the evidence.” (emphasis included)
The Arbitrator’s statement discloses no error. Neither of Ms Bielecki’s statements made any mention of her dental hygiene either before or after the car accident, though in her oral evidence she said she always looked after her teeth prior to 1996 (T57.38). Questions about her dental hygiene after the car accident were objected to and disallowed (T57.58).
Dr Nichols’ history about Ms Bielecki’s dental hygiene is found at page four of his report where he recorded:
“Ms Bielecki was vague about her dental history, and admits she had not been a regular attender [sic] at the dentist before the motor vehicle accident (she could not remember any names of dentists she had seen), and had many fillings and lost some teeth when she did attend (in pain). Whilst she claims none of her attending doctors or dentists warned her of the risks to her dentition of taking certain medications (and her alleged vomiting), she continually blamed the medications and vomiting for her dental condition.” (emphasis added)
The emphasised part of the above quote highlights the fact that Ms Bielecki did not place a great deal of weight (if any) on an alleged lack of dental hygiene, as a result of her injuries, as a potential cause of her problem. The Arbitrator was clearly correct to observe that the claim that Ms Bielecki had been quite fastidious about her dental hygiene was “not borne out by the evidence”. Having regard to the whole of the evidence, the Arbitrator’s conclusion on this issue was open on the evidence and discloses no error.
Dry Mouth
In a report dated 18 February 2003, Dr Preston, recorded that Ms Bielecki complained of a dry mouth that she (Ms Bielecki) felt may have been related to her medication. The Arbitrator referred to this evidence at paragraph 21 of his Reasons but, as the Appellant Worker’s correctly submits, he did not distinguish between the history of a dry mouth from the history of vomiting, and failed to refer to Dr. Nichols’ opinion that a dry mouth had or could have a role in causing tooth decay.
Whilst Dr Nichols acknowledged that a dry mouth increases the risk of dental disease, his ultimate conclusion firmly rejected the Appellant Worker’s claim (see the discussion at paragraph [71] above). Therefore, whilst the Arbitrator erred in failing to distinguish between the history of a dry mouth and the history of vomiting and failed to consider whether Ms Bielecki’s dental treatment resulted from her dry mouth, those errors have not affected the outcome of the claim. Having carefully considered Dr Nichols’ evidence, I accept his conclusion that Ms Bielecki would have lost her teeth regardless of the car accident. This conclusion means that Ms Bielecki’s claim must fail, as she has not established that her treatment has resulted from her injuries.
Other Contributing Factors
Other than the matters dealt with above – medication, dental hygiene and dry mouth – and the issue of vomiting which is not challenged on appeal, Ms Bielecki has identified no other relevant factors (either on appeal or before the Arbitrator) that support her claim and/or indicate error by the Arbitrator.
A review of the evidence does not provide any other basis on which the Appellant Worker’s claim might be supported. The evidence from her treating dentist, Dr Pepper, is unhelpful. In his report of 28 February 2006, he stated that he saw Ms Bielecki on 12 August 2003 when her history was one of severe dental pain from heavily decayed teeth and that “Ms Bielecki mentioned a history of vomiting in association with anxiety and depression”. On the question of causation, Dr Pepper said at page two:
“The cause of Ms Bielecki’s decay could have been caused by excessive vomiting, high-sugar diet, or a combination of both. It is impossible to distinguish the precise aetiology.”
The Arbitrator rightly discounted a connection between the need for the dental treatment and the vomiting. It is not argued that, if Ms Bielecki had a high sugar diet (which is not established by the evidence), that such a diet resulted from the car accident. As a result, Dr Pepper’s report provides no support for a claim that Ms Bielecki’s treatment was reasonably necessary “as a result of” her work injuries.
CONCLUSION
To the extent that the Arbitrator erred in not considering, or considering adequately, the relevance of medication, personal hygiene and dry mouth as potential causes of Ms Bielecki’s dental decay, and in not referring to Dr Nichols’ evidence, his failure has not affected the outcome of the case and it is therefore of no consequence. Having reviewed all of the evidence, I am firmly of the view that Ms Bielecki’s need for the claimed dental treatment has not resulted from her work injuries and that her claim therefore must fail.
DECISION
The Arbitrator’s decision of 19 December 2007 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
21 May 2008
I, EMMA LETHBRIGDE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
50
21
0