Bunnings Pty Limited (formerly BBC Hardware Limited) v Thiele
[2006] NSWWCCPD 255
•4 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bunnings Pty Limited (formerly BBC Hardware Limited) v Thiele [2006] NSWWCCPD 255
APPELLANT: Bunnings Pty Limited (formerly BBC Hardware Limited in the interests of QBE Workers Compensation (NSW) Limited.
RESPONDENT: Alan Dennis Thiele
INSURERS:i. QBE Workers Compensation (NSW) Limited on risk from 30 June 1987 to 30 June 2002.
ii.CGU Workers Compensation (NSW) Limited on risk from 30 June 2002 to 30 June 2003.
FILE NUMBER: WCC14384-04
DATE OF ARBITRATOR’S DECISION: 21 October 2005
DATE OF APPEAL DECISION: 4 October 2006
SUBJECT MATTER OF DECISION: Procedural Fairness; Application of section 350 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE Workers Compensation (NSW) Limited – QBE In- House Legal
Respondent Worker: Taperell Rutledge
Respondent Insurer: CGU Workers Compensation (NSW) Limited – Leitch Hasson Dent
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 21 October 2005 is confirmed.
2. The Appellant, Bunnings Pty Limited (formerly BBC Hardware Limited) in the interests of QBE Workers Compensation (NSW) Limited is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Alan Dennis Thiele (‘Mr Thiele’) was employed by Bunnings Pty Limited (formerly BBC Hardware Limited) (‘Bunnings’) initially as a salesman and subsequently as a store manager. He commenced employment on 24 October 1984, and ceased employment in January 2004.
In an ‘Application to Resolve a Dispute’ filed in the Commission on 30 August 2004, Mr Thiele claimed that in April 1999 in the course of his employment he injured his neck, and further, that as a result of the nature and conditions of his employment (dates unspecified) he suffered injuries to his back and legs. In his Application, Mr Thiele sought permanent impairment/pain and suffering compensation pursuant to the provisions of section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of the injuries described.
In his Application, Mr Thiele nominated the relevant insurers of Bunnings as QBE Workers Compensation (NSW) Limited (‘QBE’), on risk “from 1987 to 2002”, and also CGU Workers Compensation (NSW) Limited (‘CGU’), on risk “from 30/06/02 – 30/06/03”.
On 8 October 2004 CGU filed a ‘Reply’, listing as the issues in dispute, inter alia, whether Mr Thiele suffered any injury in the course of his employment subsequent to 1 July 2002.
On 22 October 2004, QBE filed a ‘Reply’. QBE noted its period of risk as between 30 June 1987 and 30 June 2002 and further, that “the injury recorded with QBE occurred on 4 May 2002 and as such, it would be appropriate to have the Applicant assessed under the WPI guidelines.” The issues in dispute were identified as follows:
“hExtent of impairment.
hExtent of pre-existing degenerative condition.
hLevel of whole permanent impairment assessment.
hQuantum.
hSection 9A.
hSection 68A.
hNature and conditions of employment and contributions between employers”.
A Teleconference was scheduled for 29 November 2004 to commence at 8:30am. QBE was not in attendance. The Arbitrator on that occasion proceeded to issue a detailed direction, noting the issues that were discussed as between Mr Thiele and CGU. Ultimately, the following directions were issued by the Arbitrator:
“1. The Application is amended so that the date of injury in respect to the nature and conditions claim is between 2.10.84 and 31.12.01 with a deemed date of injury of April 1999.
2. The first insurer CGU is excused from the proceedings.
3. The late Reply and attachments of the second insurer QBE are admitted and are to be included in those sent to the AMS, EXCEPT for the reports of Dr Vu which are for another person and are to be removed from the file and sent back to QBE.”
QBE claims that it never received the Arbitrator’s Direction dated 29 November 2004.
In accordance with the Direction dated 29 November 2004, the Arbitrator referred the assessment of permanent impairment to an ‘Approved Medical Specialist’ (‘AMS’), Dr James Bodel. Dr Bodel examined Mr Thiele on 21 June 2005, and his Medical Assessment Certificate (‘MAC’) apparently issued on the same date.
Notice of the appointment with Dr Bodel on 21 June 2005 was sent by letter dated 22 April 2005 to QBE. That letter was further sent by facsimile on 25 May 2005 to QBE.
The MAC of Dr Bodel was forwarded to all parties under cover of a letter from the Commission dated 6 July 2005.
On 6 July 2005, the Commission forwarded a copy of that Certificate to all parties, including QBE. That correspondence also contained information advising of a further Teleconference scheduled for 5 August 2005.
It is not entirely clear what transpired at the Teleconference on 5 August 2005 however, an email to the Commission from the Arbitrator on that date states as follows:
“A rather unusual situation has arisen in that following the last T/conf on 29 November 2004 I made certain directions in the absence of QBE who did not participate and excused CGU who did participate. At the time, efforts were made to contact QBE and my Direction … so indicates. QBE is now stating they were available and that they did not receive a copy of the Direction nor referral to AMS to alert them of my referral in relation to date of injury. A MAC has been issued and QBE now wants to reconsider date of injury as they consider issues in relation to CGU being on risk remain.”
Following the Teleconference on 5 August 2005, a further Teleconference was scheduled for 12 August 2005. That was apparently again adjourned and a further Teleconference held on 24 August 2005.
On 18 August 2005, QBE filed an ‘Application for Reconsideration’ of the decision of the Arbitrator made following the Teleconference on 29 November 2004.
Following the Teleconference on 24 August 2005, a direction was issued dated 26 August 2005 in the following terms:
“1. That the Respondent in the interest of QBE have leave to join CGU Insurance to these proceedings.
2. The Respondent in the interests of QBE serve copies of all current proceedings on CGU.
3. That the Applicant file and serve a statement within fourteen (14) days.
4. That a further Teleconference be held at 2:30pm on Wednesday 14 September 2005.”
On 15 September 2005, QBE filed an ‘Application to Join a Party to Proceedings’. CGU was the party joined.
At a further Teleconference on 14 September 2005, CGU was directed to file a ‘Reply’ to QBE’s Application for Reconsideration, and the matter was set down for conciliation/arbitration hearing on 13 October 2005.
On 16 September 2005, Mr Thiele filed a statement in accordance with the Arbitrator’s direction.
On 30 September 2005, CGU filed a ‘Reply’ to QBE’s application to join it to the proceedings, listing as the “reasons disputing joinder request” as including, inter alia that Mr Thiele did not suffer any injury in the course of his employment with the Respondent during CGU’s period of risk, and further, that this issue was determined by the Arbitrator following the Teleconference on 29 November 2004.
The matter was listed for a conciliation/arbitration hearing on 13 October 2005 before a new Arbitrator. On 21 October 2005 the Arbitrator issued, incorrectly, a ‘Certificate of Determination – Consent Orders’. It is clear from a transcript of the proceedings on 13 October 2005 that there was no ‘consent’ to the Orders made, at least insofar as the claim for benefits pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) was concerned.
At the hearing on 13 October 2005, the Arbitrator rejected QBE’s application to join CGU, and declined to re-consider the Arbitrator’s determination following the Teleconference on 29 November 2004. The decision of the Arbitrator dated 21 October 2005 was as follows:
“1. That the Respondent pay the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987 of $12,000.00 in respect of 30% permanent impairment of the Applicant’s neck.
2. That the Respondent pay the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987 of $9,000.00 in respect of 15% permanent impairment of the Applicant’s back.
3. That the Respondent pay the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987 of $3,750.00 in respect of 5% permanent loss of use of the left leg at or above the knee.
4. That the Respondent pay the Applicant as lump sum compensation under section 67 of the Workers Compensation Act 1987 of $15,000.00 in respect of pain and suffering.
5. That the Respondent pay the Applicant’s costs as agreed or assessed.
6. That this matter be certified as complex.”
On 14 November 2005 QBE filed an ‘Appeal Against Decision of Arbitrator’. QBE submits that the Arbitrator denied it natural justice and procedural fairness, failed to deal with the Application for re-consideration on its merits and failed to give adequate reasons for his decision.
On 9 December 2005, CGU filed a ‘Notice of Opposition to Appeal’. Briefly, CGU submits that the decision of the Arbitrator on 29 November 2004 wherein the ambit of Mr Thiele’s claim was identified and CGU excused from the proceedings was appropriate, and not subject to appeal, and that the Arbitrator’s decision at the hearing on 13 October 2005 to refuse QBE’s application for re-consideration and confirm the previous Arbitrator’s decision of 29 November 2004 was proper. CGU disputes that QBE was denied procedural fairness for a number of reasons with which I will deal shortly.
On 5 December 2005, Mr Thiele also filed a ‘Notice of Opposition to Appeal’ essentially raising similar grounds to those raised by CGU. In short, Mr Thiele submits that the Arbitrator’s reasons, delivered ex-tempore, were sufficient to indicate the basis of his decision, and also disputes that QBE was at any time denied natural justice or procedural fairness.
LEAVE TO APPEAL
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was filed within the time limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
CGU submits that the matter is suitable for a determination ‘on the papers’. Both Mr Thiele and QBE submit that there should be an oral hearing.
Mr Thiele submits that:
“… Because of the history of the matter and questions as to the status of the Medical Assessment Certificate of Dr James Bodel issued 6 July 2005, the appeal should not be determined ‘on the papers’ but the parties should be allowed to present and expand on submissions at an oral hearing.”
QBE submits that there are a number of reasons why there should be an oral hearing, which include the following:
“hAn oral hearing will enable both parties to deal with the other’s competing submissions in a manner which is more satisfactory than exchanging written submissions in reply possibly on more than one occasion.
hQBE may have substantial liability in this matter … It is submitted that natural justice and procedural fairness dictate that in substantial matters which are taken on appeal an oral hearing should take place.
hQBE also submits that the Application for Reconsideration was based upon a denial of natural justice and a failure to afford QBE procedural fairness … in matters of this nature an oral hearing should take place.”
Section 354(6) of the 1998 Act provides that:
“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.”
The issues raised by QBE on appeal are straight forward and focus primarily on the issues of ‘natural justice’ and ‘procedural fairness’. QBE has provided detailed submissions on appeal. Similar detailed submissions accompanied QBE’s Application for Reconsideration which was before the Arbitrator. In addition, QBE was represented by counsel at the hearing before the Arbitrator on 13 October 2005, and the transcript records detailed submissions made by counsel, and indeed all parties, at that hearing.
Similarly, both CGU and Mr Thiele have provided detailed submissions on appeal in their respective Notices of Opposition.
I do not consider that the issues raised on appeal could be any better or further elucidated by oral argument.
There is no ‘Statement of Reasons’ accompanying the Arbitrator’s ‘Certificate of Determination’ however, the issues raised on appeal were the subject of ex-tempore decisions which are set out in the body of the transcript. It is noted that the transcript was forwarded to all parties by the Commission on 22 December 2005. No further submissions have been received by any party since that time.
Having carefully read the transcript, all the evidence before the Arbitrator, and the detailed submissions by all parties on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act, and in accordance with Practice Direction No 1, to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE ISSUES ON APPEAL
QBE lists five grounds of appeal as follows:
“1. The Arbitrator erred in law by denying QBE natural justice and failing to afford it procedural fairness.
2. The Arbitrator erred in law by failing to deal with the Application for reconsideration on its merits.
3. The Arbitrator erred in law in failing to give proper reasons for his decision.
4. The Arbitrator erred in law in failing to consider all of the objectives of the Commission as set out in s.367 of the 1998 Act.
5.The Arbitrator erred in law in failing to deal with the identified issues in logical sequence.”
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Natural Justice’ and ‘Procedural Fairness’ Issue
The purpose of the hearing before the Arbitrator on 13 October 2005 was effectively twofold: firstly, the Arbitrator was required to deal with the Application for Reconsideration of the determination issued on 29 November 2004 and secondly, depending on the outcome of that Application, to give effect to the findings of the MAC of Dr Bodel and to determine the amount of compensation payable to Mr Thiele pursuant to the provisions of section 67 of the 1987 Act.
QBE claims that because it was not in attendance at the Teleconference on 29 November 2004, it was denied procedural fairness and natural justice. Moreover, QBE maintains that a copy of the directions made on 29 November 2004 was not sent to it as a consequence of a “clerical oversight” in the Commission. That document was ultimately sent to QBE by facsimile on 12 August 2005.
It is appropriate for the purposes of this appeal to set out the terms of that direction in full. It states as follows:
“At the Teleconference held on 29 November 2004, to commence at 8:30am Telstra advised at 8:37am that QBE reception reported no-one was in the office yet, therefore the Teleconference proceeded in the absence of QBE.
The application whilst claiming a frank injury of April 1999, also claimed nature and conditions of employment, however no dates had been specified and the Application made no reference to WPI.
The application named two insurers CGU on risk from 30.6.02 and QBE on risk between 30.6.87 and 30.6.02.
The following issues were discussed.
The Applicant’s medico-legal report of Dr Scougall, states ‘his last day of pre-injury work was in November 2001. He had carried out five weeks of light work between February and March 2003. I believe any aggravation to pre-existing symptoms in the performance of his light work had been temporary. The last day of pre-injury work that could reasonably be held to contribute to his back lesions was therefore in November 2001.’
The medico-legal report for the first insurer CGU, of Dr Roth dated 24 September 2003 stated ‘Mr Thiele has suffered a permanent impairment related to the injuries which he sustained in April 1999 and November 2001. His injuries occurred prior to 1 January 2002 and it is therefore not appropriate to provide a whole person impairment evaluation.’
The Reply and medical evidence of the second insurer QBE contained (in addition to radiological reports, including those of an unrelated individual) medico-legal reports of Dr Wong dated 16 May 2002.
The Applicant submitted that the application did not include any date of injury beyond 31 December 2001.
A further attempt was made to contact QBE at 9:00am, Telstra advised the following information was given: that Ms Diana Benk solicitor for QBE was on another Teleconference from 9:00am and would not be available, and that no other solicitor was available, that (QBE) had moved to new offices that day and the numbers had changed.
CGU sought to be excused from the proceedings as the date of injury and claim was clarified to precede their period of risk.
On the basis of the above and notwithstanding that the second insurer elected to have no-one participate in the Teleconference, I was satisfied that even had QBE provided the correct telephone number that the absence of any one available to take the call at 8:30am, and the unavailability from 9:00am of Ms Benk (the nominated person) or anyone else is that there was no injustice in proceeding, particularly in light of the Commission’s objectives.”
The Arbitrator then set out the formal directions to which I have referred in paragraph 6 hereof.
Annexed to QBE’s ‘Application for Re-consideration’ filed with the Commission on 18 August 2005, was a “witness statement” sworn by Ms Benk from QBE. She asserted, inter alia, that QBE’s offices were moved from 82 Pitt Street, Sydney to 68 Pitt Street, Sydney on 26 November 2004. That is three days prior to the Teleconference. Ms Benk further asserted that the matter was listed for Teleconference on 29 November 2004 and that “… at all times our office was aware of this Teleconference and were prepared to participate in same.” A diary entry for 29 November 2004 was attached confirming the Teleconference listed for 8:30am on Monday 29 November 2004. Ms Benk went on to assert that at all material times both another solicitor and herself were in the office from 8:20am on 29 November 2004 awaiting Teleconferences but that no-one contacted the office on that date.
I can certainly appreciate the difficulties which QBE may have encountered during the office move. Nonetheless, as Ms Benk asserts, she was well aware of the Teleconference scheduled for 8:30am on 29 November 2004. If, as she asserts, “at all times our office was aware of this Teleconference and were prepared to participate in same”, one is left to wonder why she, or indeed anyone else from QBE, failed to alert the Commission that no call had been received. Nothing in Ms Benk’s statement suggests that the Commission was alerted to the proposed change of office and apparently change of telephone number which I consider would have been prudent knowing that, according to the diary entry, a number of Teleconferences appear to have been listed on that day.
In its ‘Reply’ filed on 22 October 2004, QBE identified an apparent injury occurring in its period of risk on 4 May 2002. The other issues in dispute related to the nature and extent of any injury, and also included the statement “nature and conditions of employment and contributions between employers.” It was quite clear that no other employers were involved in the proceedings. In its ‘Reply’, QBE relied upon a report of Dr Wong dated 16 May 2002. The history recorded by Dr Wong is of some relevance to QBE’s assertions. He stated: “Mr Thiele stated that he had been experiencing recurrent neck pain in November 2001. He described insidious onset of symptoms. He further stated that 4 May 2002 was the date that he lodged the claim.” Dr Wong concluded that Mr Thiele suffered from significant degenerative changes in his neck caused by both constitutional factors and work activities and suggested that he may require surgical treatment.
The history taken by Dr Wong would suggest that any “injury” occurred in November 2001, but no claim was made until 4 May 2002. Indeed, Mr Thiele’s claim form, also annexed to the ‘Reply’, described the accident in the following terms “lifting heavy items over a period of years” and nominated the date of injury as “ongoing” and the date notice given as “November 01”.
Thus from an evidentiary point of view, the Arbitrator, at the Teleconference on 29 November 2004, had evidence from QBE in support of the ultimate determination to confine Mr Thiele’s ‘nature and conditions’ claim to the period 2 October 1984 to 31 December 2001.
As to QBE’s unavailability at the Teleconference, I dealt with this issue in Shoalwelding Pty Limited v Magin [2006] NSWWCCPD 75. The circumstances were not dissimilar to this case. In that case, QBE had failed to file a ‘Reply’ or attend a Teleconference. The issue of procedural fairness in these circumstances was dealt with at length by Deputy President Fleming in Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8 where she stated at paragraph 39:
“While the Commission is bound to give the parties an opportunity to present his or her case, it cannot force a party to take that opportunity. (Sullivan v Deputy Commissioner of Transport (1978) 28 ALR 323). Where, for example, an Arbitrator is satisfied that a Respondent is on notice of the application and aware that the matter is to be heard or determined on a particular date, it is not a denial of procedural fairness to proceed to make a determination on the matter.”
In the present case, I am satisfied that QBE were well aware of the date and time of the Teleconference. Whilst QBE claims that it had moved offices and apparently changed telephone numbers, in my view it was incumbent upon QBE to notify the Commission of its ‘change in circumstances’ in circumstances where it was aware of the scheduled time and date of the Teleconference.
Nonetheless, it does seem clear that QBE were apparently not advised of the outcome of the Teleconference on 29 November 2004 nor of the directions issued by the Arbitrator until served by facsimile on 12 August 2005. There is nothing in QBE’s submissions as to what attempts, if any, it made to ascertain the outcome of the Teleconference on 29 November 2004 (of which it was clearly aware). In addition, QBE was served with the MAC Certificate of Dr Bodel on 6 July 2005. No attempt was made by QBE to appeal the MAC decision if it considered that it was based upon “incorrect criteria” or “demonstrable error” in line with the provisions of section 327 of the 1998 Act. It was only after the Teleconference of 5 August 2005 that QBE appears to have ‘sprung into action’ and filed its Application for Reconsideration on 18 August 2005.
There is no explanation by QBE for its failure to take any steps in the matter following the Teleconference on 29 November 2004, nor is it alleged that it did not receive the MAC issued by the Commission on 6 July 2005.
It is clear that QBE were alerted to the apparent outcome of the Teleconference on 29 November 2004 when the MAC was issued.
In its submissions, QBE states that:
“The Arbitrator should not have regarded as relevant the period of time in which QBE ‘did nothing to challenge the dates’ because the Registry had failed to forward the direction issued by the first Arbitrator on 29 November 2004 until 12 August 2005. Further, a witness statement was filed on behalf of QBE regarding what had occurred on 29 November 2004 when the Teleconference with the first Arbitrator took place”.
However, for the reasons stated above, the absence of a copy of the directions issued on 29 November 2004 was not in itself fatal to the conduct of the proceedings. QBE was aware of the time and place of the Teleconference, was aware of the MAC of Dr Bodel issued on 6 July 2005, and took no steps to either appeal the MAC or indeed contact the Commission as regards the outcome of the Teleconference on 29 November 2004 until the filing of the Application for Reconsideration on 18 August 2005.
It seems that QBE’s main concern is with the Arbitrator’s delineation of the ‘nature and conditions’ period following the Teleconference on 29 November 2004. Nonetheless, as I have said, QBE’s own medical evidence annexed to its ‘Reply’ was in line with the Arbitrator’s ultimate finding on this issue. Moreover, as counsel for CGU pointed out to the Arbitrator and again in its ‘Notice of Opposition’, “the Commission’s jurisdiction is ‘enlivened’ by the Applicant first making a claim for compensation and the Respondent then disputing that claim.” In other words, it is a decision for a worker to identify the nature and extent of any claim he wishes to bring.
In the present case, Mr Thiele elected to seek benefits as a consequence of the nature and conditions of employment from October 1984 to December 2001 and a ‘frank’ injury in April 1999. The AMS was directed to provide assessments of any impairment or loss of use of any limb or body part on the basis of the claim made. If an Arbitrator, or indeed an ‘Approved Medical Specialist’ considers that other factors, or another date of injury, may be relevant, a worker may well be unsuccessful in his claim or have it ‘limited’ depending on the nature of the evidence.
In the present case, QBE’s submissions before the Arbitrator were to the effect that Mr Thiele suffered from a ‘disease’ process, and the last relevant date of employment was January 2004, well within CGU’s period of risk. Nonetheless, the medical evidence, as the Arbitrator pointed out at the Teleconference on 29 November 2004, did not support that proposition, and the statement from Mr Thiele, albeit not filed with the Commission until September 2005, was to the effect that he developed significant symptoms in November 2001, had surgery to his neck in 2002 and remained off work until February 2003 when he performed “light duties” for two months, and remained off work until resuming selected duties in August 2003.
These however are all issues for Mr Thiele to consider in formulating his claim, and not a matter for QBE. Whilst QBE may well have wished to implicate CGU in the proceedings, that was a decision for Mr Thiele. The MAC issued as a consequence of that decision, and provided assessments on the basis of the claim as ultimately framed by the Arbitrator and forwarded to Dr Bodel.
I can see nothing in the conduct of the Arbitrator at first instance nor the directions issued following the Teleconference on 29 November 2004 that would indicate that QBE was denied natural justice or procedural fairness. There is nothing in QBE’s submissions on appeal to suggest that the Arbitrator who conducted the hearing on 13 October 2005 denied QBE ‘natural justice’ or ‘procedural fairness’. The submissions in that respect relate more to the Arbitrator’s determination in relation to QBE’s ‘Application for Re-consideration’. As was pointed out in a document titled “Advice Regarding Prospects on Appeal” attached to QBE’s appeal application;
“The argument raised by QBE in its submissions was primarily that the Determinations made at the Teleconference and the referral of the matter to the Approved Medial Specialist on the basis of the apparent findings of injury by the earlier Arbitrator constituted a denial of natural justice and a failure to afford QBE procedural fairness.”
Similar submissions were annexed to the Application for Reconsideration to which I have already referred.
For the reasons stated above, QBE has failed to demonstrate that it was denied ‘natural justice’ or ‘procedural fairness’ in the conduct of the proceedings at and following the Teleconference on 29 August 2004.
The ‘Application for Reconsideration’ Issue
The issues “requiring decision” in relation to QBE’s ‘Application for Re-consideration’ were identified at a Teleconference between all parties on 14 September 2005 as follows:
“1. Whether or not CGU should be joined back into the proceedings.
2. Whether the decision of the previous Arbitrator regarding date/s of injury should be reconsidered.
3. If the decision is reconsidered, what is or are the correct date/s of injury.
4. In the event that a different date of injury is arrived at, what is the status of the MAC.”
The transcript records the parties having some discussion as to which of these issues should be dealt with “first”. The parties had different views. Ultimately, the Arbitrator decided that the most “fundamental” question to determine was, in light of the Arbitrator’s decision of 29 November 2004, whether or not CGU should be joined to the proceedings. This issue the Arbitrator elected to determine first and heard submissions from all parties contained at pages 3 – 13 inclusive of the transcript. The Arbitrator ultimately ruled that the Application to effectively ‘re-join’ CGU to the proceedings was refused, and I will return to that aspect of the decision.
As to the ‘reconsideration’ issued, that was the subject of submissions by Counsel for Mr Thiele and Counsel for QBE set out at pages 13 – 17 inclusive of the transcript.
At page 17 of the transcript, the Arbitrator noted and thanked both parties for their submissions on that issue. He then stated:
“In making my decision, I have taken into account the provisions of section 350 of the 1998 Act, which gives the Commission power to reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.
I have heard arguments from both the Applicant and the Respondent. And the other matter that I need to take into account … are the objectives of the Commission as set out in section 367 of the 1998 Act … to provide a timely service ensuring that workers’ entitlements are paid promptly. That last objective of the Commission is uppermost probably in my mind in this particular matter. The matter proceeded to Teleconference before [the Arbitrator] in the absence of the Respondent in the interests of QBE. At some point in that Teleconference the ‘Application to Resolve a Dispute’ was amended to reflect a date of injury with regard to nature and conditions between 2 October … 1984 and 31 December 2001, with a deemed date of injury in April 1999. I take into account the great length of time during which QBE did nothing to challenge or contest those dates and, indeed, things moved forward even to the extent of the Applicant attending an Approved Medical Specialist, who has given us a Medical Assessment Certificate with those dates.
One of the matters with which I am also charged is shown in Rule 71 of the Workers Compensation Commission Rules in which I am joined:
To take such measures as are reasonably practicable to: (c) ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission.
I consider that to allow a reconsideration of [the Arbitrator’s] earlier directions would compromise the objectives of the Commission, and I don’t propose to allow that reconsideration to take place.”
It is clear that the Arbitrator took into account the submissions of both parties. Counsel for QBE had made detailed submissions on all of the issues identified for determination from pages 2 – 7 of the transcript and again at pages 12 and 13 of the transcript. In relation to the ‘reconsideration’ issue, counsel for QBE stated (page 15):“Well, I continue to rely upon the submissions that I referred you to earlier”. Counsel then went on to address the “wide terms” of section 350 of the 1998 Act, and made detailed submissions contained in pages 15 and 16 of the transcript.
In essence, Counsel’s submissions were to the effect that QBE was not afforded procedural fairness or natural justice at the Teleconference on 29 November 2004 and were not “given or afforded the right of making submissions. Neither were they afforded a conciliation and arbitration process at which this vital issue [date of injury] could have been the subject of evidence and submissions” (page 16 transcript). Counsel submitted that the Arbitrator’s finding as to the relevant dates of injury following the Teleconference on 29 November 2004 was “inappropriate” and that “the legislation provides for, in appropriate cases, decisions to be rescinded, and this is such a case”.
As opposed to that, Counsel for Mr Thiele made reference to the decision of His Honour Judge Walker of the former Compensation Court in Southern Tablelands Health Service v Solomon 19 NSWCCR 235 in relation to principles of ‘reconsideration’, those principles being contained in section 17(4) of the former Compensation Court Act. Counsel for Mr Thiele quoted as follows: “… Only in highly unusual circumstances where there is some manifest injustice to be remedied will the Court’s discretion be exercised to set aside a prior judgment of the Court …” and further “mistake or inadvertence by a parties’ legal adviser is an insufficient ground to permit the exercise of the discretion …” (page 16 transcript). Counsel for Mr Thiele opposed any reconsideration of the decision of the Arbitrator of 29 November 2004.
Whilst many of the “issues to be decided” were the subject of ‘over lapping’ submissions by all parties, the Arbitrator’s determination reflected an acknowledgment of all parties’ submissions. He was clearly aware of the issues. Both Counsel for CGU and Mr Thiele had made submissions on the issue of the ‘delay’ in any action by QBE between the Teleconference on 29 November 2004 and the Teleconference on 5 August 2005. The Arbitrator was required to determine the matter bearing in mind the objectives of the Commission, and his decision reflected that process.
I am not satisfied that QBE has demonstrated any failure by the Arbitrator to deal with the ‘Application for Re-consideration’ on its merits.
The ‘Adequacy of Reasons’ Issue
It is clear law that a failure to provide adequate reasons for a decision constitutes an error of law (see Soulemezis v (Dudley) Holdings Pty Limited [1987] NSWLR 247) (‘Soulemezis’). Commission Arbitrators have a statutory obligation to provide adequate reasons for a decision. Nonetheless, the Commission is not a court and its objectives are to provide a fair and cost effective process for resolution of disputes between parties. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits.
As Deputy President Fleming said in Mayne Health Group v Sarah Sandford [2002] NSWWCCPD 6:
“The content of ‘Statements of Reasons’ for decision reflect this process and should not on review be ‘construed minutely and finely’ with an eye keenly attuned to the perception of error … to succeed on the ground of inadequacy of reasons it must be established that not only are the reasons inadequate but that the inadequacies sufficiently demonstrate that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the Application.”
Nonetheless, as Mahoney JA said in Soulemezis:
“A Judge is not required to make a finding in respect of every fact leading to the final conclusion of fact … nevertheless, a judge must distinguish between the essentials and the peripherals … reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted … it is necessary that the essential grounds upon which the decision rests should be articulated.”
In the present case, the Arbitrator’s decision was given ex tempore and is contained in the transcript. So too does the transcript contain lengthy submissions by both parties on the issues the subject of the Arbitrator’s determination.
In my view, the Arbitrator adequately set out the “essential grounds” upon which his decision on the reconsideration issue was concerned. Similarly, his decision to refuse QBE’s application to rejoin CGU to the proceedings was as a result of his hearing “each of the arguments” (see page 13 transcript). As I said earlier, all parties made submissions on this issue contained in pages 2 – 13 of the transcript. Counsel for Mr Thiele had pointed out that Mr Thiele “didn’t demur with a closing off the injury as at December 2001 …” and that any proposed rejoinder of CGU “… would significantly prejudice the Applicant in terms of this Application …”
Counsel for CGU pertinently pointed out that, at the Teleconference on 29 November 2004, Mr Thiele’s Application was amended and that then effectively constituted the claim that was forwarded for determination by an ‘AMS. As Counsel for CGU pointed out (page 8 transcript): “The Applicant has not sought to bring me back, that is, CGU, back into the proceedings. The only way that I can come back into the proceedings is if the Applicant sought to re-amend the Application in some way …”
Counsel for CGU further noted that (page 9 transcript):
“If the Applicant, for example, is not wholly successful, and QBE can argue that part of his injury, for example is due to injuries after 31 December 2001, well, so be it. This is the Workers Compensation Act, its not a common law claim, and the Applicant can regroup and bring a further application, if necessary.”
CGU’s principal submission was that the Commission had no jurisdiction to grant QBE’s application for the joinder of another insurer, as opposed to another employer and further, that the terms of reference that were provided to the AMS resulted in a conclusive MAC in accordance with section 326 of the 1998 Act.
At page 11 of the transcript, counsel for CGU submitted:
“If it turns out that your determination says, ‘I am not satisfied that the Applicant was injured completely in that period’ or ‘that all his injuries happened after that period’, the Applicant’s rights are not cut off. His rights remain intact and he brings another application, no doubt, and he brings it against [QBE] after January 2002 and [CGU] after June 2002.”
It was also submitted that QBE had failed to raise the issue of “disease” in its ‘Reply’.
The Arbitrator’s determination demonstrated that he had taken into consideration all of the parties’ submissions. It was clear from his various comments to the parties throughout their submissions that his ultimate determination (page 13 transcript) reflected his view that “I largely agree with the arguments of [CGU’s counsel] in this matter.”
In all these circumstances, I am not persuaded that QBE has demonstrated that the Arbitrator failed to provide adequate reasons for his decisions or indeed to set out the “essential grounds” upon which the decisions were based.
The ‘Objectives of the Commission’ Issue
QBE submits that “the Arbitrator erred in law in failing to consider all of the objectives of the Commission as set out in section 367 of the 1998 Act.
Section 367 is in the following terms:
“(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts;
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that worker’s entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.”
No particulars have been provided by QBE in its submissions as to which of the “objectives” of the Commission, or indeed any of them, the Arbitrator failed to consider. True, the Arbitrator made reference to section 367 at page 17 of the transcript but clearly only as to what he regarded as the relevant aspects of that section. It was hardly opportune or appropriate for the Arbitrator to consider, for example, section 367(1)(d).
It is appropriate for an Arbitrator to refer to relevant aspects of the legislation. This the Arbitrator did.
It must be remembered that an appeal as defined in section 352 of the 1998 Act is by way of review, where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by some legal, factual or discretionary error (see Allesch v Maunz [2000] 203 CLR 172).
QBE’s submissions on this issue are not entirely clear. It claims that “the Arbitrator has failed to properly interpret the provisions of sections 350 and 367 of the 1998 Act”. It sets out the provisions of section 367(1)(a), (e) and (f) as relevant. QBE goes on to submit that “the Arbitrator should not have regarded as relevant the period of time in which QBE ‘did nothing to challenge the dates’ because the Registry had failed to forward the direction issued by the First Arbitrator on 29 November 2004 until 12 August 2005.”
QBE submits further that:
“The Arbitrator further fell into error when he failed to give consideration regarding the reason why there was a delay between the referral to the AMS (Dr Bodel). The referral is dated 29 November 2004 and the examination took place on 21 June 2005. The reason for this delay is not known but it was not occasioned by QBE”.
The relevance of all these submissions on the issue concerned is not entirely clear. The Arbitrator’s reference to the ‘delay’ of QBE related more to the fact that QBE, being aware of the Teleconference on 29 November 2004, took no further steps to pursue the claim, even after it was served with the MAC on 6 July 2005. Nowhere is it suggested that the delay between the referral and appointment with Dr Bodel was occasioned by QBE.
None of the matters raised by QBE indicate any error by the Arbitrator in either his “interpretation” or “consideration” of the objective of the Commission.
The Logical Sequence of the Issues.
QBE submits that:
“the Arbitrator erred in law when he did not deal with the identified issues in logical sequence. CGU had been effectively excluded and excused from the proceedings by reason of the decision of the first Arbitrator. It was only if the decision was reconsidered that CGU would be a relevant party to the proceedings.”
This issue was dealt with by the Arbitrator at page 3 of the transcript. The Arbitrator stated: “The first … matter I propose to deal with is QBE’s application to join CGU to the proceedings.” Counsel for QBE took issue with this and maintained that the first issue to be determined should be whether or not the Arbitrator’s decision of 29 November 2004 should be reconsidered. The Arbitrator, after further discussion then confirmed his initial decision, and proceeded to hear submissions on QBE’s application to join CGU.
The issues, although related, were nonetheless distinct. As Mr Thiele points out in his submissions, “the Arbitrator was entitled to deal with the identified issues and the sequence in which he chose notwithstanding submissions from the parties to the contrary …” This is entirely appropriate. I cannot see any basis upon which QBE asserts that the Arbitrator made an error of law in the manner of his determination. The Arbitrator dealt with the “identified issues” and the sequence in which he did so was appropriate, given that CGU had been excused from the proceedings by the Arbitrator following a Teleconference on 29 November 2004.
I cannot see any error by the Arbitrator on this issue.
CONCLUSION
Whilst QBE may be dissatisfied with the outcome of the Teleconference on 29 November 2004 at which it did not attend, nothing in the conduct of the Arbitrator on that occasion demonstrates that QBE was denied either ‘natural justice’ or ‘procedural fairness’. Whilst I accept QBE’s submission that it did not actively either fail or refuse to participate in that Teleconference, the evidence is quite clear that it was well aware of the time and date of the Teleconference, and was aware of possible problems as a result of an office move some three days or so prior. In my view, it was encumbant upon QBE to take all necessary steps to participate in that conference.
Notwithstanding QBE’s failure to participate, the evidence before the Arbitrator, contained in QBE’s ‘Reply’, supported the Arbitrator’s determination on the particular issue of the relevant dates of injury.
Nothing in the Arbitrator’s conduct of the proceedings at the arbitral hearing on 13 October 2005 as evidenced by the transcript indicates that the Arbitrator failed to fairly deal with QBE’s Application for Reconsideration. The Arbitrator properly took into account the objectives of the Commission, and provided adequate reasons for his decision.
DECISION
The decision of the Arbitrator dated 21 October 2005 is confirmed.
COSTS
QBE is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
4 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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