Blundell v Blundell and Associates Pty Limited
[2006] NSWWCCPD 341
•11 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Blundell v Blundell and Associates Pty Limited [2006] NSWWCCPD 341
APPELLANT: Paul Blundell
RESPONDENT: Blundell and Associates Pty Limited
INSURER: Allianz Workers Compensation (NSW) Limited
FILE NUMBER: WCC16406-05
DATE OF ARBITRATOR’S DECISION: 30 January 2006
DATE OF APPEAL DECISION: 11 December 2006
SUBJECT MATTER OF DECISION: Section 4 of the Workers Compensation Act 1987; Section 4 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING: On the papers.
REPRESENTATION: Appellant: Gerard Malouf & Partners
Respondent: Goldbergs
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated
30 January 2006 is confirmed, but for the reasons stated in this decision.
2. No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 20 February 2006 Paul Blundell (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 January 2006.
The Respondent to the Appeal is Blundell and Associates Pty Limited (‘the Respondent’).
The Appellant who was born on 5 September 1964, alleges that he sustained an injury on 28 November 1987 to his neck, back, left arm and right arm. It is alleged that the injury was sustained in the course of his employment at the Respondent’s premises and occurred as the Appellant was on a ladder carrying a box on his right shoulder. The Respondent Company was established by the Appellant’s grandfather and traded as an Insurance Brokerage Firm. The Appellant alleges that he commenced employment with the Respondent in 1982 and that his occupation was that of an Insurance Broker.
On 26 September 2005 an ‘Application to Resolve a Dispute’ was filed with the Commission on behalf of the Appellant by his Solicitors claiming weekly benefits compensation, medical hospital or related expenses and permanent impairment/pain and suffering lump sum compensation. It is common ground between the parties that the Appellant had earlier, both in the Commission and in the former Compensation Court of NSW, commenced a number of Applications seeking orders in respect of his entitlement to compensation benefits arising out of these alleged facts, each of which Applications were withdrawn by the Appellant before conclusion by way of determination.
On 17 October 2005 a ‘Reply to Application to Resolve a Dispute’ was filed on behalf of the Respondent in which twelve distinct items were raised as being “issues in dispute”. Included among those issues was the question as to “whether the Applicant was employed by the Respondent” and “whether the Applicant suffered any injury arising out of or in the course of employment (if so employed) with the Respondent”.
That dispute between the parties came before the Commission for determination by an Arbitrator on 30 January 2006. The Arbitrator was informed that the Appellant had discontinued his claim for weekly benefits. The Arbitrator, following submissions on behalf of each of the parties, delivered his determination and stated reasons for same on that day.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 February 2006 records the Arbitrator’s orders as follows:
“1.There is an award for the Respondent in respect of the Applicant’s claim of permanent impairment as a result of the incident on 28 November 1987.
2.There is an award for the Respondent, in relation to the Applicant’s claim for medical costs incurred pursuant to s.60 of the Workers Compensation Act 1987 arising from the incident on 28 November 1987.
3.I note that the Applicant advised that his claim for weekly compensation was discontinued.
4.There is no order as to costs.”
The Arbitrator’s Reasons for Determination (‘Reasons’) set out above were given and recorded at the hearing conducted before the Commission on 30 January 2006. A transcript of those proceedings and the Arbitrator’s ‘Reasons’ is before the Commission.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in failing to take into account matters stated in evidence by the Appellant.
(ii)Whether the Arbitrator erred in failing to take into account evidence of Beresford Blundell and Richard Blundell when determining the question as to whether the Appellant was a “worker” within the meaning of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
(iii) Whether the Arbitrator erred in denying the Appellant procedural fairness.
(iv)Whether the Arbitrator erred as to his determination of fact in rejecting the Appellant’s allegation of injury occurring on 28 November 1987.
(v)Whether the Arbitrator erred in failing to address the evidence of Sandra Walker.
(vi)Whether the Arbitrator erred in failing to exercise an “inquisitorial role” in the course of the hearing to elicit evidence relevant to the issue of “worker”.
(vii)Whether the Arbitrator erred in failing to state “any reason and/or proper reason” for his determination of the questions of “worker” and “injury”.
The summary above is taken from the matters raised on behalf of the Appellant in document headed “Submissions in Support of Appeal against Decision of Arbitrator” which is annexed to the Appellant’s Application with respect to this appeal.
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 the Appellant and the Respondent have agreed that both the Application for Leave to Appeal and the Appeal itself may be decided solely on the basis of the written Application and written Notice of Opposition lodged.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE AND SUBMISSIONS
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“-a schedule of the new evidence,
-a copy of the new evidence,-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
It is to be noted that the Appellant at paragraph 2.6 of his Application with respect to this appeal stated that he did not seek leave to rely on fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against (page 4 of Application). However on the last page of the Submissions in Support of the Appeal annexed to the Application immediately following the summary of the Appellant’s submissions the following appears:
“The Applicant seeks to rely on fresh evidence:
a. Updated statement of Mr. Paul Blundell
b. Transcript of Arbitration hearing of 30/01/2006
c. Clinical cards from Maroubra Medical Centre
d.Direction to produce was issued on Marboura [sic] Medical Centre, but not all documents were produced.
e.The evidence that is now sought to be adjust [sic] was not obtained prior to the Arbitration through no fault of the Applicant as the medical center [sic] failed to comply with the Directions to produce.”
On 27 March 2006 the Appellant’s Solicitors filed with the Registry a document headed Application to Admit Late Documents. Attached to that document was a copy of the transcript of proceedings conducted before the Arbitrator on 30 January 2006.
The Respondent, in its Notice of Opposition to Appeal Against Decision of Arbitrator stated at paragraph 2.6 that it proposed to seek leave to rely upon new evidence. Attached to that document was a “Schedule of New Evidence” which listed the following:
“1. Transcript of Hearing on 30 January 2006.
2. Direction of Arbitrator … dated 5 December 2005.
3.Respondent’s Written Submissions in matter number 13705-04 dated 20 January 2005.
4.Letter from Goldbergs to Gerard Malouf & Partners dated 21 January 2005 serving Respondent’s Submissions.”
Copies of the documents enumerated above were attached to the Notice of Opposition.
With respect to the transcript of proceedings before the Arbitrator the parties have impliedly agreed that the document before the Commission represents a true record of those proceedings. Accordingly that transcript represents part of the record of proceedings before the Commission. In those circumstances, in my view, that transcript together with that material admitted into evidence by the Arbitrator at the hearing are before the Commission and need not be the subject of an application by the parties for inclusion as an evidentiary item.
With respect to the Appellant’s Application to admit “fresh evidence” it is to be noted that the Application is not accompanied by copies of the “Updated statement of Mr. Paul Blundell” nor by copies of “Clinical cards from Maroubra Medical Centre”. In short the Appellant has failed to comply with the Practice Direction above noted.
So far as the application concerning further evidence from the Appellant, and leaving aside for the moment the question of non compliance with the requirement to provide a copy of such statement, there is nothing put by the Appellant in support of the admission of such fresh evidence. The Appellant has also failed to demonstrate that such evidence could not reasonably have been obtained and tendered in proceedings before the Arbitrator, nor has the Appellant established that failure to allow such new evidence would cause a substantial injustice in the circumstances of this matter. I decline to grant leave to the Appellant to adduce evidence being updated statement of Mr Paul Blundell.
With respect to the Appellant’s application to adduce fresh evidence being “Clinical cards from Maroubra Medical Centre” it should be noted that records produced by that medical centre were annexed both to the Appellant’s original Application to Resolve a Dispute as well as the Respondent’s Reply to that Application. The Appellant has placed no material or argument before the Commission seeking to establish that the records produced at the hearing before the Arbitrator were not a full and complete record of that medical centre. The assertion by the Appellant in paragraph “e” noted above is not supported either by argument or documentary material and I am of the view that the Appellant has failed to demonstrate that any “new evidence” of that medical centre’s records could not reasonably have been obtained by the Appellant and tendered in proceedings before the Arbitrator and further the Appellant has failed to establish that failure to allow any such “new evidence” would cause a substantial injustice in the circumstances of this case.
With respect to the Respondent’s application for leave to adduce new evidence being the Direction of the Arbitrator dated 5 December 2005 I am of the view that that document, which forms part of the record of the Commission in these proceedings, is before the Commission and further that there is no requirement to seek leave to have the Direction admitted as an evidentiary item.
The Respondent in seeking to adduce fresh evidence as noted in “3” and “4” of the Schedule of New Evidence noted above argues that those documents are relevant to the state of knowledge of the Appellant concerning issues raised by the Respondent and the question as to whether the Appellant should be permitted to adduce fresh evidence. Having regard to my view as stated above as to the inadmissibility of fresh evidence as sought by the Appellant, I decline leave to the Respondent to adduce the written submissions and correspondence identified above.
EVIDENCE AND SUBMISSIONS
Each of the parties sought to rely upon a large volume of documentary material which, in the Applicant’s case, was attached to his original Application and in the case of the Respondent was attached to its Reply.
The transcript of proceedings before the Arbitrator does not reveal any record as to what material was received in evidence during the course of the hearing. At page 1 of that transcript the Appellant’s Counsel is recorded as stating:
“MR CAMPBELL: The documents the applicant wishes to rely upon are contained in the Application and there is some additional material that I seek to put into evidence, and that is mainly a bundle of tax returns.”
The transcript records discussion concerning material additional to that which was attached to the Appellant’s Application and I note that at page 2 (line 47) the tender of the additional material was withdrawn by Counsel.
The transcript further records submissions firstly made on behalf of the Appellant followed by submissions on behalf of the Respondent. Those submissions address a great many of the individual documents which were annexed both to the Application and the Reply. As there is no record before the Commission as to what material was received in evidence in the course of the hearing before the Arbitrator and given the manner of conduct of the hearing, in particular those matters recorded during the course of submissions by the parties, I infer for the purposes of this appeal that all documentation attached to both the Application and the Reply were received in evidence before the Arbitrator. I note that that material includes copies of correspondence dated 22 May 2003 from the Appellant’s Solicitors to, firstly, the Respondent’s Insurer and the Respondent itself, as well as correspondence dated 2 November 1999 from the Appellant’s Solicitors to the Respondent. It is asserted by the Respondent that the last mentioned three items of correspondence “were not attached to the originating Application …” however a perusal of the Application filed with the Commission reveals that that correspondence is in fact included in the material attached to the Application. The Respondent’s objection to “report of Barry Blundell undated” is noted and no such document is in evidence before the Commission.
Documents relied upon by the Appellant include a Statement made by him on 7 June 2004. It is stated by the Appellant that he commenced employment with the Respondent in 1982 and that he was employed on a fulltime basis working Monday to Friday averaging 50 to 60 hours per week as an Insurance Broker. That work, for most of the duration of his employment, was conducted at 37 Oxford Street, Bondi Junction. The Appellant proceeded to describe his duties being normal office duties, preparation of insurance packages, arrangement of insurance schemes and reporting those activities to his elder brother Richard Blundell, his father Beresford (Barry) Blundell and, before his death, his grandfather James Blundell. The Appellant further stated that approximately 12 months “prior to the date of my accident” an attic was added to the Respondent’s building, access to which was gained by use of a ladder which folded out and down from the ceiling. The Appellant (at paragraph 21) states that he sustained an injury between 10.00am and 11.00am on Saturday, 28 November 1987. The Appellant stated that he had attended work in a fit and healthy state and was assisting his father and brother in placing archives and stationery boxes into the attic. During the course of this activity, whilst handling a box which was not heavy but awkward to handle, he felt a cracking sensation in his “vertebrae”. The Appellant states that he immediately lost balance and strength in his left hand which caused him to fall from the ladder and into his father’s arms. Following this incident the Appellant states that he recalled “feeling as if my neck had ‘frozen’”. The Appellant states that he “decided to leave the office earlier than I normally would” and that he visited Dr Raftos that afternoon. The Appellant states that Dr Raftos briefly examined his neck on that day and arranged to “see him the next day”. The Appellant states that during the second consultation he received a written referral from Dr Raftos to Sandra Walker, Physiotherapist of Maroubra Junction. The Appellant states that he underwent fourteen sessions of physiotherapy under the care of Ms Walker between November 1987 and July 1989. The Appellant states (paragraph 25) that the costs for physiotherapy were covered by MMI, the Respondent’s Workers Compensation Insurer. The Appellant proceeds in that Statement to describe the medical and other treatment he has undergone which included treatment by Dr Roger Rowe, Orthopaedic Surgeon.
Of significance in this appeal the Appellant in his Statement noted (at paragraph 44):
“44.Dr Rowe had referred to the x-ray taken in February 1987 (earache) as being the first x-ray I had undergone since the subject accident which was incorrect. From this point onwards every Doctor I liaised with noted that my injury had occurred in February 1987 as they naturally referred to the date listed on Dr Rowe’s medical report ….”
Attached to the original Application were two Statutory Declarations the first made by Beresford Richard Blundell, the Appellant’s father and the other by Richard James Blundell, the Appellant’s brother. Those Declarations confirm the matters alleged by the Appellant being the receipt of injury on 28 November 1987 at 37 Oxford Street, Bondi Junction, the Respondent’s office premises, whilst the three Blundell family members were boxing old files and papers for storage in the roof attic.
Attached to the original Application was a List of Payments compiled by Allianz Australia Insurance Limited (the corporate successor to Manufacturers Mutual Insurance Company Limited) dated 23 February 2004 which relates to payments made to or on behalf of the Appellant in respect to weekly payments and medical expenses. The total payments are noted as being $16,935.13. There is no notation on that document of the date of alleged injury. The claim number is noted as 880770740252.
Annexed to the original Application was a “Payment Reimbursement Schedule”, a document of four pages with handwritten notations, the stationery being that of MMI (the Respondent’s Workers Compensation Insurer). The employer is identified as the Respondent Company and the name of the insured worker is that of the Appellant. The claim number is identical to that which appears in the abovementioned “List of Payments” dated 23 February 2004. The “date of injury” appearing on each of the four pages is 28 November 1987 the nature of the injury being “neck, arm, shoulder” on the first of the sheets and “neck” on the other three pages. Two of the pages are dated 1 July 1998, one page is undated and the other is dated 30 September 1998. The Summary of Payments relates to “time lost”.
Attached to the original Application was a summary of “compensation related medical services rendered for Paul Blundell between 28 November 1987 and 9 March 2004” issued by the Health Insurance Commission.
A one page document headed “Report of Injury” addressed to MMI is attached to the original Application as was a document headed “Claim by Injured Worker to be Served upon Employer”.
Attached to the original Application was a copy of “1987 Income Tax Return” of Blundell and Associates Pty Limited, the Respondent Company. Schedule 26 to that Return included particulars of remuneration of Directors, Shareholders and Their Relatives. The Appellant’s name appears in that Schedule, his position is described as that of “Clerk”, average number of hours employed per week being 60 and salary noted at $23,065, superannuation payments are noted at $1,592.
Copies of a number of income tax records relating to the Appellant are also annexed to the original Application however, of significance there is no copy of a Return filed by the Appellant in respect of the year ending 30 June 1988. It is to be noted that there is a copy of 1989 Income Tax Return attached which at paragraph 9, which relates to a “previous or first return” has the notation “1988 Sydney”. That 1989 Return notes that the Appellant was employed by the Respondent Company as well as the Randwick Rugby Club Limited.
Attached to the original Application is a further document issued by the Health Insurance Commission which relates to medical services rendered for the Appellant between 26 February 1987 and 29 May 2003. The “date of injury” identified on that document is 26 February 1987.
Also attached to the original Application is a large volume of medical evidence being both reports from Practitioners and details of services rendered and, in some cases, copies of relevant clinical notes. A feature of the Appellant’s original Application is that it appears no effort has been taken to present the material in any orderly or logical form. In the circumstances I set out hereunder a brief summary of those documents which are attached as they appear, it being noted that the material above mentioned was attached in an apparently random fashion amongst the medical material relied upon by the Appellant.
The medical material relied upon by the Appellant included the following-
(i)Report 30 August 1999 by Dr Jim Blundell addressed to Appellant’s Solicitors relating to x-ray examination of the Appellant’s cervical spine taken 26 February 1987. Dr Blundell states that the subject x-rays were performed and reported upon by his former partners and Dr Blundell states that he had “no involvement in the examination”. The last paragraph of that report states “from memory I believe that the indication for the examination was earache, and it was not related to injury”.
(ii)The handwritten clinical records of the Maroubra Medical Practice. These documents appear to date from October 1991. Relevantly the records include radiological report by Dr J Blundell dated 1 March 1993 which indicated “narrowing of the C3/4 disc space, consistent with a disc lesion at this level”. A further notation is made “this has occurred since the previous examinations”.
Also accompanying those clinical notes is a copy report CT scan of the cervical spine dated 1 May 1996 issued by Bondi Junction Radiology and addressed to Dr R Rowe. That study indicated “moderate posterior disc bulging at C3/4, with slight anterior compression of the thecal sac at this level”. Also noted was “… a large broad based disc protrusion at the C4/5 level, slightly more pronounced on the right side, with considerable compression of the anterior aspect of the thecal sac. This is larger than on the previous examination of 2.3.90”.
(iii)Report of Douglas Coleman, Physiotherapist of 20 January 1998. This report records that the Appellant was referred by Dr P Raftos. The history is recorded- “He had sustained a cervical hyperextension injury while at work on 26 February, 1987 and had been receiving ongoing medical treatment for this condition”.
(iv)Medico-legal report of Dr Graham Mahony dated 6 March 2003 addressed to the Appellant’s Solicitors. That report makes reference to earlier examination and report dating back to August 1997. It is to be noted that the Appellant has not sought to rely on the earlier report of Dr Mahony nor is there any explanation as to why only part of the evidence of this medical witness is relied upon. Dr Mahony diagnoses “disc lesions at the C3/4 and mainly at the C4/5 and C5/6 levels in association with degenerate changes with nerve root irritation radiating to the shoulders and right hand …”. Dr Mahony proceeds to observe “it is consistent that the incident he described on 26 February 1987 has produced such lesions and aggravated degenerate changes in the cervical spine”.
(v)Report of Dr Paul Raftos of the Maroubra Medical Centre addressed to the Appellant’s Solicitors dated 17 September 1999. Dr Raftos records the relevant history as being “on 26 February 1987 Mr Blundell rang me complaining of severe pain in his neck. He had developed acute discomfort and spasm in the cervical paravertebral muscles bilaterally but more so on the right side … Mr Blundell described carrying a heavy box of files and papers up a ladder on his right shoulder into a storage area at work. As he was carrying a box upstairs on a ladder he would have been concentrating carefully on balancing so as to prevent himself from falling. He apparently looked up suddenly, hyper extending the cervical spine. With the box on his shoulder the cervical paravertebral muscles would have been on extension and flexed. He suddenly developed severe pain in his neck and was forced to drop the box.”
(vi)Two reports by Dr Roger Rowe, the first dated 10 March 1993 addressed to the Appellant’s former Solicitors, Messrs Camerons and a report dated 7 October 1997 addressed to the Appellant’s Solicitors. The first of those reports make reference in the first paragraph to an “earlier report”. That earlier report is not relied upon by the Appellant and no explanation has been given for the absence of part of this medical witness’ evidence. There is no clearly stated history in the first of those reports however in the 1997 report Dr Rowe records that he first saw the Appellant on 27 February 1990 at which time “he gave the history that on 26 February 1987 in the course of his work he was in the attic at his office standing on a ladder with a box on his shoulder when he looked up suddenly. This caused immediate pain in the neck …”. Dr Rowe proceeded later in the report to record “at the time of my assessment of him in February, 1990 he was concerned about episodes of neck pain that were still occurring three years after the injury”.
(vii)Report of Dr Michael Stern dated 16 February 1998 being report on MRI cervical spine. Dr Stern records “IMPRESSION: small posterior protrusions at C3/4, C4/5 and C5/6 partly with associated spurring and indentation on the thecal sac as described more marked at C4/5 level”.
(viii)Report dated 22 March 1990 from Sandra Walker, Physiotherapist. Ms Walker records that the Appellant first presented to her practice on 30 November 1987 on referral from Dr Paul Raftos. The history given was “bilateral cervical spinal pain with associated paraesthesia in the left medial forearm and tips of the fingers. The patient reported this as a result of lifting a heavy box on his shoulder.” Ms Walker does not record in that report the date of the incident described by the Appellant.
(ix)Report relating to CT scan of the cervical spine signed by Dr Williams dated 2 March 1990. The comment of Dr Williams included “posterior disc protrusion at C4-5 centrally which could be causing some compression of the spinal chord at this level. No other abnormality could be found.”
(x)Report of CT scan of cervical spine by Dr J Blundell dated 26 February 2004. That report recorded disc bulging at C3/4 causing compression to the thecal sac as well as disc bulging or broad based disc protrusion at C4/5 and also at C5/6. That report is accompanied by a second report dated 26 February 2004 relating to examinations of cervical and thoracic spine. The first report is addressed to Dr Maloney of Maroubra and the second report is addressed to Dr Brandtman of Coogee.
(xi)Report dated 30 August 2004 from David Moor, Osteopath. Mr Moor records that the Appellant consulted on two occasions in 1994. No other information was available by reason of damage to patient records.
(xii)Report of Matthew Mison, Chiropractor, dated 11 May 1993. Mr Mison records that the Appellant “entered this clinic on 19th September 1991 complaining of sharp neck pain …”. Mr Mison went on to state “Mr Blundell described an incident at work on 26/2/87 when upon carrying a box on his right shoulder up a ladder he looked up and felt a sudden sharp pain in his neck.”
(xiii)Report by Dr L North of Bondi Junction Radiology with respect to “cervical spine with functional views”. Date of that study is recorded as being 26 February 1987 and includes the entry “no bone, joint or disc abnormality is seen”.
(xiv)The clinical records of Ms Sandra Walker. Those records include a letter received from MMI by Ms Walker enclosing a Medical Report Authority signed by the Appellant dated 9 May 1989. Of significance the nature of injury is recorded as “neck” and the date of injury is recorded as being 28 November 1997. The claim number 880770740252 is recorded on that Medical Report Authority.
The balance of the documentation attached to the Appellant’s original Application relates to particulars of medical and related treatment and quantum of the Appellant’s claim pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Respondent, in its Reply to the Appellant’s original Application, attached those documents described in Part 4.1 of the Reply. The first two documents are the form of “Report of Injury” addressed to MMI (three pages) which is unsigned as well as a copy of “Claim by Injured Worker to be served upon Employer” (unsigned). Each of those documents record the “date of injury” as being 28 November 1987. The second page of the “Report of Injury” has a stamp which notes “received 11 Jan 1988 Central Claims”.
Included in the attachments to the Reply were various medical reports and records including:
(i)Reports dated 26 October 1998 and 2 May 2002 from Dr SN Khan. The first of those reports record the date of the subject injury as being 28 November 1987. The second report notes the contents of a report of Dr Raftos and raises the question as to whether the correct date of the subject injury may be 26 February 1987.
(ii)Reports of Dr A Innes-Brown, Orthopaedic Surgeon dated 9 March 1999 and 29 April 2003. The earlier report records the date of the subject injury as being 28 November 1987. At page 2 of that report Dr Innes-Brown records:
“He said that in February 1987 he had been troubled with an earache and was sent to an ENT Specialist whose name he cannot recall, and that at that time x-rays of his neck were taken and these are dated 22 February 1987. He said that in error this date was given as the date of the injury for some time but that subsequently the date of 28 November 1987 for the accident was confirmed.”
(iii)The clinical records of Mr Matthew Mison which include a document headed “Patient History”. It is there noted:
“Complaint History 26/2/87 onset sudden sharp carrying box up a ladder C’s extended: lost grip in left hand ….”
(iv)Report of Dr Graham Mahony dated 25 August 1997 addressed to the Appellant’s Solicitors. As noted above this report did not form part of the evidence relied upon by the Appellant. The history taken by Dr Mahony with respect to the subject injury is as follows:
“On 26 February, 1987, he was carrying an awkward shaped box up an attic ladder. He intended to pass the box to a person in the attic and his father was standing beside the ladder. As he looked up to see the other person in order to pass him the box, he felt a pain in his neck and he noticed a weakness of his left hand. He fell from the ladder a distance of about 4 feet and his father stopped his fall.”
(v)Reports dated 26 February 1987 and 27 February 1990 from Bondi Junction Radiology. The first is a report by Dr North. The latter is a report by Dr J Blundell.
(vi)The clinical records of Dr A Wacher.
Attached to the Reply was a letter dated 4 April 2003 from the Appellant’s Solicitors to the Respondent’s Solicitors, together with enclosures. The material enclosed included business records of the Respondent Company which were in no way relevant to the subject claim.
The Appellant submits the Arbitrator has erred in failing to take into account matters stated in evidence by the Appellant which related to his allegation of attendance at work on the date of the alleged injury being 28 November 1987.
It is further submitted by the Appellant that the Arbitrator erred in failing to take into account evidence of Beresford Blundell and Richard Blundell when determining the question as to whether the Appellant was “at work on the alleged date”. The Appellant proceeds to argue that “in the absence of any adverse findings against the Applicant’s credit”, the Arbitrator erred in “not finding that he was a worker”.
It is submitted by the Appellant that the Arbitrator denied the Applicant procedural fairness. It is put by the Appellant that the Arbitrator had indicated that there was no direct evidence on that point however did not use the Commission’s inquisitorial power to elucidate the issue. It is put that the Arbitrator was in breach of “Rule 71 and the principles of procedural fairness”.
It is further submitted by the Appellant that the Arbitrator erred as to his determination of fact in rejecting the Appellant’s allegation of injury occurring on 28 November 1987. It is, in effect, put by the Appellant that such finding was against the evidence and the weight of the evidence.
It is submitted by the Appellant that the Arbitrator has erred in failing to take into account the evidence of Sandra Walker. It is put that the Arbitrator “did not give the proper consideration to this corroborative evidence. The Arbitrator was unfounded [sic] and did not provide reasons and/or any proper reason for his decisions in respect of injury.”
The Appellant further makes a general submission that the Arbitrator erred in failing to “provide any reason and/or proper reason for his decisions in respect of the issue of worker”.
The Respondent in its “Substantive Submissions” attached to its Notice of Opposition to the appeal seeks to refute those arguments raised by the Appellant and to support the conclusions reached by the Arbitrator as revealed in his Reasons. It is asserted by the Respondent that:
“The Appellant has failed to provide any objective evidence of employment and injury on 28 November 1987. Mr Beresford Blundell is the Applicant’s father, and Mr Richard Blundell is the Appellant’s brother which is relevant in according weight to their evidence.”
The Respondent proceeds to seek to highlight further deficiencies in the Appellant’s case as presented before the Arbitrator. It is further asserted that there was:
“ample logical and probative evidence before the Arbitrator to enable him to make a determination that, on the balance of probabilities, he could not be comfortably satisfied that the Appellant had made out a case that he had suffered an injury in the course of employment with the Respondent.”
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352(5) of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of the aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
As noted above the Appellant at the hearing before the Arbitrator discontinued his claim with respect to weekly payments. The transcript of proceedings indicates that there were discussions between the Arbitrator and the parties and the Arbitrator stated (at transcript page 1 line 30):
“I have been advised by Mr Campbell that the Applicant has discontinued his claim for weekly compensation, and I now am going to deal with the issues remaining to be determined, namely: one, whether the Applicant was a worker; two, whether the Applicant was injured on 28 November 1987 in the employ of the Respondent, the impairment and also a claim for medical expenses.”
The Arbitrator delivered his Reasons for Determination ex tempore immediately following submissions by the parties on the day of the conduct of arbitration. Those Reasons appear at page 35 line 10 and continue to page 37 line 30. At the outset of the delivery of his Reasons the Arbitrator stated that:
“It was determined or agreed at the start that the issues I had to determine were (a), firstly, whether you [sic] were a worker at the relevant time and (b) whether you [sic] suffered an injury of the nature of which you claim such that the matters should be dealt with by an Approved Medical Specialist who could make a determination of impairment. There is also the claim for medical expenses which we have discussed.”
It is a fact that neither party took exception at the hearing to the manner in which the Arbitrator stated the issues for determination. It should firstly be noted that the Respondent had put the Appellant to proof of his allegation that he was a “worker” within the meaning of section 4 of the 1998 Act. It is the Appellant’s argument that the Arbitrator failed in his obligation to state “any reason and/or proper reason” for his determination of this question. An obligation to give such reasons arises from Statute (section 294(2) of the 1998 Act) and by operation of the Commission Rules (rule 73 of Workers Compensation Commission Rules 2003 – which governed the conduct of proceedings at the date of Determination).
The Arbitrator’s Reasons do not, in my view, adequately crystallise the issues of fact and law that required a determination having regard to the manner in which the proceedings were conducted before the Commission by the parties. The Arbitrator was faced with a conflict in the evidence as to the date of a particular occurrence, namely an injury sustained by the Appellant to his neck whilst carrying boxes. In dealing with this conflict it is apparent that the Arbitrator has blurred the distinction between the question of “worker” and the question of the occurrence or otherwise of injury “arising out of or in the course of employment”. The question of the conflict as to date is addressed by the Arbitrator at page 36 line 7 to page 37 line 35:
“The Act provides that the applicant has an onus of proof
in this jurisdiction. It’s the balance of probability,
more likely than not, more than the toss of a coin. It’s
10not a high onus but it is an onus that must be achieved.
You’ve had a considerable period of time, I gather, to
fix up this application, and Mr Stiles puts to me that
you, as a person in the insurance industry, would know
what’s involved in lodging an insurance-related claim and
15 the material that you’d need to lodge to pursue it
properly.
This matter has even been before this Commission
previously, and I’m told that the Arbitrators in that
20 time made similar comments, that the material before them
was insufficient to allow them to properly determine the
matters that need to be proved. Mr Campbell, on your
behalf, tells me that I should draw inferences on the
material, but I don’t accept that. I believe I should
25 have the evidence before me that will prove to me either
(a) that you were an employee at some relevant time,
being either February or November 1987.Your statement, which we examined earlier, seems to hint
30 at it but I don’t believe truly says what it should say.
Your legal adviser would tell you that in this
jurisdiction you must file your material in support of
your claim at the start. You can’t come along later and
try and fix it up. There is no statement here that says35 to me that you were at work at the time you were injured
in either February, which you don’t claim to be the date,
but every doctor says is, or November 1987.If I accept the date of 28 November, which would seem to
40 be likely on the basis of what you want to argue in terms
of seeing Dr Raftos, it’s unexplained to me why in your
statement you say you were employed on a full-time basis
Monday to Friday but are injured on a Saturday. Now, of
course, any inference can be drawn about why you were45 there, and given this is a company, a proprietary
company, owned by members of your family, one could
assume that you were there to assist, but whether you
were there as a worker is not in your statement. It
should be in your statement. It’s a very simple thing to50 state: “I was attending work on the Saturday for this
reason. I was instructed to by the managing director, who
happened to be my father, or required to assist,” but
there is nothing, only I am asked to draw an inference.55 However, I think it’s more likely that you were injured
on 26 February. That is the date that every single doctor
has recorded as the date of injury. In fact, on
26 February, or shortly thereafter, investigations were
undertaken of the cervical spine. However, on the latter
date of 28 November the only thing that appears to have
happened was either an acupuncture on the day or a
referral the date after for massage. Neither of those5 activities would seem to attest to a significant injury
of the nature that you claim to have suffered.So if I accept that you were employed in February, then
there would be a conflict with the date that you say you
10 were injured. If I accept the date of November, there’s
conflict in respect of the dates when all your medical
evidence supports injury. So either you fail to establish
employment but establish injury or you establish
employment but fail to establish injury. To me, you fall15 between the cracks. I don’t see how I can, doing the best
I should be able to do with the material before me, that
I can properly find that you suffered an injury on the
day that you claim.20 Now, I think that it’s unsatisfactory that I be asked to
do it on the basis of an inference when there’s clearly a
lot of material here before us that’s been produced at
various times.25 So, in summary, I’m not satisfied on the evidence before
me on the balance of probabilities that you suffered –
that, firstly, you were employed at the date you say you
were employed or if you were employed on that date that
you suffered injury, the injury of the nature that you30 say you suffered on that date. In either case, therefore,
my award is for the respondent on the basis of your claim
for permanent impairment as a result of an injury which
you say you suffered on 28 November 1987 when employed by
the respondent, Blundell & Associates Pty Limited. Costs,35 gentlemen?”
As noted above there was considerable evidence before the Commission relating to the question as to whether the Appellant was a “worker”. The Arbitrator’s failure to crystallise the issue and refer to the pertinent evidence constitutes, in my view, an error of law and that such necessitates review in accordance with section 352 of the 1998 Act and a determination as to whether the decision should be confirmed or revoked and a new decision made in its place, or whether the matter is to be remitted to the Arbitrator for determination in accordance with any appropriate direction.
Was the Appellant a Worker?
It is correct, as pointed out by the Respondent, that there is no material before the Commission relating to payment of wages to the Appellant during the relevant year, namely 1987 and into the financial year ending 1988. This deficiency in the Appellant’s case is not explained. Notwithstanding this deficiency there is a deal of evidence supporting the existence of an employer/worker relationship between the Respondent and the Appellant at the relevant time. That material includes:
(a)The Statements of Beresford Blundell and Richard Blundell.
(b)The Statement of the Appellant.
(c)The incomplete document held by MMI relating to the Appellant’s claim which indicated that his employment with the Respondent commenced “1981 – 82?”.
(d)The 1987 Income Tax Return (copy) filed by the Respondent Company which states details of the Appellant’s employment as a Clerk and payment of salary or wages during that particular year.
Despite the unexplained absence of relevant records it is my view that there was abundant evidence before the Arbitrator to establish that the Appellant had been engaged by the Respondent Company as a worker some time in 1981 or 1982 and that that employment persisted during the years 1987 and 1988. I reach this conclusion without having any regard to implied admissions that may be drawn from the evidence concerning payment by the Workers Compensation Insurer to and on behalf of the Appellant.
Did the Appellant sustain “injury” as alleged?
To succeed before the Commission the Appellant must establish that he suffered injury on the 28 November 1987 being a “personal injury arising out of or in the course of employment”.
It was the Appellant’s case that he was injured on a Saturday morning at the Respondent’s premises whilst he, his father and his brother were occupied in storing stationery and records. That such activity is outside his normal hours of work is, in my view, of no consequence when determining the question as to whether an injury which may then have occurred “arose out of or in the course of” his employment. It is perfectly plain that there is no evidence before the Commission that contradicts those circumstances. That a worker in the position of the Appellant may be required to attend outside normal working hours for such a purpose is both commonplace and to be expected in day to day conduct of businesses. It is thus clear that the circumstances of the alleged injury, subject to proof, were such as to be capable of satisfying the requirements of section 4 of the 1987 Act.
The difficulty confronting the Appellant is that his case is that such injury occurred on 28 November 1987. That assertion is contradicted by a vast array of evidence constituted by recorded histories noted by Treating Practitioners and notes made contemporaneously with the Appellant’s attendance on those Practitioners. I note in passing that the proof of a particular date in the context of these disputed facts is of great significance having regard to the legislative changes which took place on 30 June 1987.
In support of his contention that the subject injury occurred in November of 1987 the Appellant has his own evidence, that of his father and brother, the contents of the incomplete documents of MMI and the “Authority” sent by MMI to Ms Walker seeking a report. As against that material the history as recorded by Dr Raftos, Dr Rowe, Dr Mahony, the Physiotherapist Mr Coleman and Mr Mison,Chiropractor, is that the Appellant sustained injury on 26 February 1987. Given that conflict I respectfully agree with the Arbitrator’s conclusion that the Appellant has failed to discharge his onus with respect to the issue as to whether injury occurred as alleged on 28 November 1987. I reach this conclusion having particular regard to the Appellant’s attempt to explain the conflict as to history. As noted above the Appellant asserts that the genesis of the “error” was a suggested misstatement as to the date by Dr Rowe. There are but two reports by Dr Rowe in evidence before the Commission, the first being 10 March 1993 and the other being 7 October 1997. It is clear from the report of 10 March 1993 that Dr Rowe provided an “earlier report” (see paragraph one of report 10/3/93). It is established on the evidence that Dr Rowe’s first consultation by the Appellant occurred on 27 February 1990. What is not before the Commission is that earlier report of Dr Rowe, and the absence of that report is not explained. I further note that the 1993 report does not contain a history with respect to the alleged injury. It is not until Dr Rowe compiled his report of 7 October 1997 that any reference to x-rays of the neck taken in February of 1987 was made. It can thus be seen that the earliest evidence of conflicting material in Dr Rowe’s reports occurs in October of 1997 a date well after the suggested errors made by a number of the other Treating Practitioners. In my view failure to adduce evidence as to the content of Dr Rowe’s earliest report deprives the Appellant’s “explanation” of any persuasive value.
Having regard to the evidence in its totality and in particular having regard to the absence of those items of evidence noted above and an absence of explanation for same, I am of the view that the Appellant has failed to establish, on the probabilities, that he sustained injury arising out of or in the course of his employment on the date alleged by him being 28 November 1987.
DISPOSITION OF APPEAL
The Arbitrator’s error as above noted has necessitated a review of the evidence and the questions of fact and law raised thereby. In the circumstances it is unnecessary to deal with the balance of the Appellant’s arguments seeking such review.
Having regard to the circumstances of this case I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal are corrected without the need to remit the matter for further consideration by the Arbitrator.
Having regard to my conclusions above stated, I determine that the Arbitrator erred in his finding on the question of “worker” found at page 37 line 25:
“So, in summary, I’m not satisfied on the evidence before me on the balance of probabilities that you suffered – that, firstly, you were employed at the date you say you were employed or if you were employed on that date that you suffered injury, the injury of the nature that you say you suffered on that date.”
Having regard to my findings as set forth above I find that the Appellant was during the year 1987 a “worker” of the Respondent within the meaning of the 1998 Act.
I confirm the Arbitrator’s finding (at page 37 line 15) that the Appellant had failed to establish that he suffered “injury” on 28 November 1987.
I confirm the Arbitrator’s entry of an award in favour of the Respondent. The appeal is unsuccessful.
DECISION
The decision of the Arbitrator on 30 January 2006 (date of Determination 1 February 2006) is confirmed, but for the reasons stated in this decision.
COSTS
The Respondent in its Notice of Opposition seeks an order that the Appellant pay the Respondent’s costs of this appeal. I note that an application for costs against the Appellant at the hearing before the Arbitrator was refused after argument. There are no submissions presented by the Respondent in support of the present application.
I am not satisfied that the matters specified by section 112(3) of the 1998 Act have been established in support of the costs application and in those circumstances I decline to make such order.
I make no order as to costs in the appeal.
Kevin O’Grady
Acting Deputy President 11 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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