Byrom v Inghams Enterprises Pty Limited
[2009] NSWWCCPD 79
•14 July 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Reported Decision: Byrom v Inghams Enterprises Pty Ltd (2009) 8 DDCR 33 | ||||||
| CITATION: | Byrom v Inghams Enterprises Pty Limited and another [2009] NSWWCCPD 79 | |||||
| APPELLANT: | Norma Byrom | |||||
| FIRST RESPONDENT: SECOND RESPONDENT: | Inghams Enterprises Pty Limited Spectrum Employment Services | |||||
| INSURERS: | Self insured (First Respondent) | |||||
| Employers Mutual Limited (Second Respondent) | ||||||
| FILE NUMBER: | A2-7088/07 | |||||
| ARBITRATOR: | Mr M Oldfield | |||||
| DATE OF ARBITRATOR’S DECISION: | 18 March 2009 | |||||
| DATE OF APPEAL DECISION: | 14 July 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 350(3) Workplace Injury Management and Workers Compensation Act 1998: fresh evidence. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| REPRESENTATION: | Appellant: | Walker Legal | ||||
| First Respondent: | Leigh Virtue & Associates | |||||
| Second Respondent: | Edwards Michael Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator made 18 March 2009 refusing reconsideration of his award dated 17 December 2007 is confirmed. No order as to costs of this appeal. | |||||
BACKGROUND
The appellant alleges injury and resultant incapacity caused by her work as a process worker with both the respondents. The injury alleged is said to be the result of the “nature and conditions” of her employment with the respondents causing and/or aggravating bilateral carpel tunnel syndrome affecting both arms. The appellant has not worked since January 2007 by reason of the alleged incapacity. A dispute arose concerning her entitlement to compensation benefits and proceedings were commenced on 19 September 2007 in the Workers Compensation Commission (‘the Commission’) seeking appropriate orders.
The history of the proceedings since the date of commencement is as summarised hereunder:
17 December 2007: Certificate of Determination issued by an arbitrator recording the following orders:
“1. That there is an award to [sic] the First and Second Respondents in relation to the Applicant’s condition of bilateral carpel tunnel syndrome.
2.That there is no order as to costs.”
15 January 2008: The appellant filed an “Appeal against decision of Arbitrator”(‘the first appeal’).
27 June 2008: The Commission made the under mentioned orders with respect to the appeal:
“1. Time for making appeal is extended to 15 January 2008.
2. Decision of the Arbitrator dated 17 December 2007 is confirmed.
3. No order as to costs of this appeal.”
24 July 2008: The appellant filed a Notice of Intention to Appeal in the Supreme Court of NSW. The appellant elected not to proceed with that appeal and the Notice lapsed on 27 September 2008.
10 October 2008: Correspondence forwarded by the appellant’s solicitors to the Registrar of the Commission seeking reconsideration by the Arbitrator, pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), of his decision dated 17 December 2007.
18 March 2009: Decision by arbitrator made with respect to the reconsideration application in the following terms:
“That leave for processing the Application for Reconsideration lodged on behalf of the Applicant is declined.”
It may be seen that the Arbitrator refused the appellant’s application seeking reconsideration of his earlier determination.
On 15 April 2009 an application seeking leave to appeal against the Arbitrator’s decision made on 18 March 2009 was lodged with the Commission.
It is to be noted that the appellant during conduct of the first appeal, which was determined by me, sought leave to have “fresh evidence” admitted. Leave to adduce that evidence was refused.
In the course of submissions put concerning the Application for Reconsideration by the Arbitrator of his original determination, reliance was placed by the worker upon the same evidentiary material, referred to as “fresh evidence”, which was rejected on appeal. The Arbitrator declined to admit and consider that evidentiary material.
THE DECISION UNDER REVIEW
The decision of the Arbitrator refusing to reconsider his award made on 17 December 2007 is challenged on this appeal which is brought pursuant to section 352 of the 1998 Act.
Relief sought by the appellant as stated at Part B, 2.9 of the appeal application is as follows:
“1. Set aside the decision of Arbitrator Oldfield dated 18 March 2009.
2. Award for the applicant on her claim for weekly payments and medical expenses”
ISSUES IN DISPUTE
The appellant has enumerated eight matters which are stated to be “grounds of appeal”. It appears that the following matters are raised by way of challenge to the Arbitrator’s refusal to exercise his discretion to reconsider his original award:
That the Arbitrator erred in the following respects:
(i)failure to adequately consider the issue of justice between the parties or the substantial merits of the appellant’s claim;
(ii)misapplying relevant principles of law to the task of reconsideration;
(iii)having regard to irrelevant considerations, namely section 352(6) of the 1998 Act and Practice Note 6 issued by the Commission concerning the appellant’s application to admit fresh evidence;
(iv)taking into account the earlier conduct of an appeal by the appellant pursuant to section 352 of the 1998 Act;
(v)wrongly taking into consideration the issue of “reasonable diligence” concerning the presentation of fresh evidence and its admission;
(vi)in determining that there had been delay in bringing the application for reconsideration;
(vii)in determining that the appellant’s application seeking reconsideration offended the principle of finality of litigation, and
(viii)in failing to make a true and correct decision having regard to proper application of law to the facts.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
The appeal was lodged within 28 days of the Arbitrator’s decision concerning the reconsideration application and accordingly the requirements of section 352(4) of the 1998 Act have been met.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before grant of leave to appeal may be made by the Commission.
The first respondent, whose submissions have been adopted by the second respondent, appears to dispute that the Arbitrator’s decision made 18 March 2009 refusing reconsideration of his earlier determination is a “decision” in respect of which an appeal lies. The basis of this assertion is that the Arbitrator’s original determination has been the subject of an appeal brought pursuant to section 352 of the 1998 Act and that such appeal failed.
Section 352(1) of the 1998 Act makes provision for an appeal to a Presidential member against a decision of an arbitrator. The term “decision” as it appears in that section includes those matters which appear in section 352(8) which provides as follows:
“(8) In this section, "decision" includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
The Arbitrator has recorded the outcome of the appellant’s application for reconsideration as follows:
“DECISION ON LEAVE FOR RECONSIDERATION:
That leave for processing the Application for Reconsideration lodged on behalf of the Applicant is declined.”
Whilst the form and manner of expression adopted by the Arbitrator in reaching the conclusion above quoted may be open to criticism, it is apparent that the Arbitrator had refused to exercise the discretion to review the original determination. Any such application may be brought by a party as of right having regard to the provisions of section 350(3) of the 1998 Act. Having regard to the terms of the relevant provision it is difficult to see the relevance of the term “leave” as adopted by the Arbitrator.
I am of the view that the Arbitrator’s refusal to exercise his discretion constitutes a “decision” within the meaning of section 352 and, having regard to the fact that the requirements of section 352(2) and (4) have been met and having regard to the subject matter of the appeal, leave should be granted to the appellant to bring this appeal and I so order. The arguments raised by the respondent concerning the sequence of events which have occurred in the course of these proceedings may be relevant to the merits of the appeal however, in my view, the suggestion that the Arbitrator’s decision is not one in respect of which an appeal lies must be rejected.
ADDITIONAL EVIDENCE
The appellant at Part A, 2.4 of her application brought with respect to this appeal states that there is no reliance upon fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the Arbitrator’s decision.
Notwithstanding that statement, the manner in which these proceedings have been conducted gives rise to a need to consider the correctness or otherwise of the Arbitrator’s rejection of the “fresh” evidence which the appellant sought to have admitted on, and which founded, the application for reconsideration.
That is so having regard to the nature of the relief sought by the appellant in this appeal, namely revocation of the Arbitrator’s original determination and substitution with an award in her favour. That need arises for two further reasons. Firstly, it has been determined on the first appeal that, having regard to the state of the evidence before the Arbitrator at first instance, the determination then made should be confirmed. Secondly the Arbitrator in the course of dealing with the reconsideration application refused to admit the same “fresh” evidence that was the subject of debate and rejected on the first appeal. It may be seen from the summary of the proceedings that both the Arbitrator and a Presidential member have rejected the appellant’s application with respect to the admission of the subject evidence and on each occasion the original determination of the Arbitrator has been confirmed. Much argument advanced on this appeal seeking to disturb the Arbitrator’s decision on the reconsideration application is founded upon an assumption that the evidence will be admitted.
The written submissions provided in support of the present appeal include argument that the Arbitrator wrongly excluded the “fresh” evidence at the time of his reconsideration. In those circumstances the question of the admissibility of that evidence, which is more fully addressed below, has again been raised by the appellant for the Commission’s consideration.
EVIDENCE
The evidence before the Commission comprises that which was adduced by the parties before the Arbitrator during the course of determining the dispute leading to his decision dated 17 December 2007. That evidence was identified and described in the course of my determination of the appellant’s first appeal made on 27 June 2008 (Byrom v Inghams Enterprises Pty Ltd and Spectrum Employment Services [2008] NSWWCCPD 67). That is to be found between paragraphs 44 and 51 of that determination and it is not intended to repeat those matters here. I note that no reference was made to a number of documents attached to the Reply filed on behalf of the first respondent which included correspondence between the solicitors on the record, a surveillance report dated 22 August 2007 and other material accompanying that Reply. Those documents not included in the summary had no direct relevance to the decision made by the Arbitrator nor to the issues to be determined on the first appeal. Those documents bear no direct relationship to the issues raised on this appeal.
History of argument concerning admissibility of the “fresh’ evidence
As noted above at [20] the appellant, at the time application was made for reconsideration of the original determination, sought to have the Arbitrator rule as admissible certain documentary evidence which was described as fresh evidence. That material was identical to that which was rejected during the conduct of the first appeal.
It is in my view important to analyse the progress of the appellant’s claim before consideration is given to whether or not the fresh evidence was wrongly excluded on reconsideration.
The following is a summary of those proceedings:
1. The original application heard before the Arbitrator was determined in favour of the respondents. The Arbitrator’s decision was founded upon the evidence as summarised at [22] above. It was the appellant’s submission that the diagnosed condition of carpel tunnel syndrome was a disease and that the disease had been aggravated by her work conditions and that resultant incapacity was compensable. It was the arbitrator’s view, having regard to the state of that evidence, that the appellant had failed to discharge her onus with respect to proof of causation of the subject injury.
2. Having failed before the Arbitrator, an appeal was brought pursuant to section 352 of the 1998 Act. There was no indication at the time that appeal was initiated that the appellant sought to rely upon fresh evidence. Detail of any such fresh evidence must, in accordance with Rule 16.2(4)(c) of the Workers Compensation Commission Rules 2006 be included with or be attached to the application. An attempt to adduce fresh evidence was later made during the course of the appeal process and that application was refused. It is stated by the appellant that the fresh evidence was rejected “for technical reasons”. The reasons for such rejection are to be found at [39] to [42] of the reasons stated for the determination of the first appeal. That appeal was unsuccessful.
3. The appellant proceeded to seek reconsideration by the Arbitrator of his original determination. A renewed attempt was made by the appellant to have the “fresh” evidence admitted on that reconsideration application. The Arbitrator refused the application to admit the fresh evidence stating (at page 12 of his reasons):
“In respect to the new evidence that Ms Byrom seeks to now rely upon (being additional statement and additional expert opinion) such could have been obtained in my opinion with reasonable diligence and thus form part of the originating application. That is was not, is in my opinion offending against principle 5.”
Principle 5 was that which was stated by Roche DP in Samuel v Sebel Furniture Pty Limited [2006] NSWWCCPD 141 (‘Samuel’) (at [58]) which was as follows:
“5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’)”
4. The present appeal was instituted by the filing of the Application for leave on 15 April 2009. It will be observed from the discussion which follows that much of the argument is directed to challenging the Arbitrator’s refusal to admit the fresh evidence
It may be seen from the summary that I have attempted to outline above that it is the appellant’s main contention that an error has been committed by the Arbitrator in refusing to admit the fresh evidence. The detail of that argument is addressed below.
SUBMISSIONS AND DISCUSSION
The first ground relied upon by the appellant is founded upon an assertion that the Arbitrator failed to adequately consider the issue of justice between the parties and it is further suggested that the Arbitrator failed to consider the substantial merits of the case. That the Arbitrator had such a duty may not be questioned. To establish such failure would require, in my view, demonstration by the appellant of a plain disregard by the Arbitrator of his duty to adhere to the principles of natural justice which require that each party be afforded procedural fairness.
The submissions in support of this ground state, “Even under a narrow interpretation of the power to reconsider an award, it has been held that new evidence is to be admitted if it ‘would probably have an important influence on the result’… The Arbitrator at no stage considered what the result would have been if the evidence was admitted.” (Reference is made to the decision of CSR Limited and another v Bouwhuis (1991) 7 NSWCCR 233 (‘Bouwhuis’).
It may be seen that the appellant’s complaint was founded upon the manner in which the Arbitrator refused to admit the “new evidence”. The Arbitrator’s reasons for rejecting that evidence are to be found at page 8 of his reasons. The Arbitrator observed that the “fresh evidence” was not fresh nor was it “in accordance with the procedures outlined in Practice Direction No. 6”.
The appellant is correct in her submission that the Arbitrator “…at no stage considered what the result would have been if the evidence had been admitted.” One may safely assume that what was intended by so arguing is that there is no statement by the Arbitrator of his views as to the credibility of the evidence nor as to its probative value. Whilst there is no express statement concerning those matters nor is there any observation made by the Arbitrator as to the probability or otherwise that there would have been a different decision had the evidence been admitted it is clear that the Arbitrator has adopted the reasons expressed for the exclusion of the evidence at the first appeal. The decision to exclude the evidence was made at that time, in part, given there was no suggestion that, notwithstanding reasonable diligence, the material could not have been tendered in proceedings before the Arbitrator (at [40] of first appeal).
There were no submissions put before the Commission at the time of the first appeal that addressed the matters raised for the guidance of the parties in that Practice Direction namely as to whether:
· it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
· the evidence is credible;
· there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
· it is just to admit the evidence in all the circumstances of the individual case.”
The only submission put in relation to the “fresh” evidence at the time application was made to the Arbitrator for reconsideration is to be found in correspondence dated 10 October 2008 from the appellant’s solicitors addressed to the Registrar of the Commission. It is there stated:
“The Applicant seeks a re-consideration pursuant to s.350 (3) of the 1998 Act. The Applicant’s case is that her work and, in particular, the repetitive cutting of chickens caused or aggravated her carpel tunnel syndrome. The medical evidence treats as relevant the fact that she performed her work in a refrigerated environment. Her Statement did not specifically cover this point but, for the purpose of this proceeding, a Supplementary Statement dealing with it has been prepared. Further literature in relation to carpel tunnel syndrome and updated medical evidence has also been obtained on the relationship between her industrial environment and carpel tunnel syndrome.”
Given that the Arbitrator did not expressly deal with the question of “credibility” of the fresh or additional evidence nor with the question as to whether admission of that evidence would in all probability have an important influence on the outcome of the litigation it is proposed to examine the first two documents with a view to assessing those matters.
The first document is a further report of Dr Honner dated 25 January 2008 compiled at the request of the appellant’s solicitors. Dr Honner did not have the advantage of re-examining the appellant. Reliance was placed upon his clinical notes concerning his examination conducted in August 2007. Whilst there has been no suggestion, nor could there be, that the credibility of Dr Honner is in issue, it is my view that the probative value of that report is diminished having regard to the following matters. It is clear that Dr Honner was requested by the appellant’s solicitors to state his reasoning concerning his conclusion that her condition of bilateral carpel tunnel syndrome was partially due to underlying constitutional causes and partially due to her work at Inghams. With respect to the appellant’s work activities Dr Honner states (at page 2):
“The work related causation is reflected by the initial response to putting her on light duties when her symptoms settled down, but later recurred on light duties.
The work related causation is also reflected by her statement dated 18th December 2007 ‘that is, the pain was greater when I was working.’”
It may be seen that Dr Honner is relying (at page 2), in part, upon the content of the appellant’s statement which post dates his examination of her and provision of his first report. It is that statement, dated 18 December 2007, which forms part of the documents relied upon by way of fresh evidence before the Arbitrator on reconsideration. It is not material that Dr Honner had before him at the time he initially expressed his opinion as to aetiology of the diagnosed condition.
Dr Honner’s reliance upon “response to reduction in work activities” requires examination having regard to the content of the clinical notes of Dr Werry, the appellant’s general practitioner. It is recorded that, after the appellant ceased work in January 2007, she reported an increase in pain in her elbows and wrists to Dr Werry in March of that year. Persistence of that pain was recorded in April 2007 by Dr Werry and it was then reported by the appellant that the pain in the right arm extended to her shoulder. Some improvement was reported later in April 2007. The records in evidence do not extend beyond 23 April 2007.
It may be argued that the history as recorded by Dr Honner is unreliable in that he has recorded that the appellant’s “hands had remained much the same since December 2006” whereas Dr Werry’s notes record a worsening of symptoms four months after ceasing work. That worsening persisted it seems for some time.
The probative value and weight of Dr Honner’s evidence as found in his report dated 25 January 2008 is to be assessed having regard to the elaboration of what is said to be relevant history since he first expressed an opinion in 2007. That elaboration concerns the history of working with chickens and turkeys which were “mainly refrigerated or frozen”. That history is derived from the appellant’s statement made in December 2007.
The general tenor of Dr Honner’s opinion is to be found at page 2 of his report where he states:
“… bilateral carpel tunnel syndrome is very common in middle aged women, it can occur when they are working or not working, and in most cases is due to constitutional causes and only occasionally does the work activity play a part in the partial causation of the bilateral carpel tunnel syndrome.”
It is to be noted that Dr Honner at page 3 of his report expresses general agreement with the opinion expressed by Dr Stapleton, whose evidence was relied upon by the respondents. There is a difference of view between those two practitioners concerning contribution to causation of a carpel tunnel syndrome in some cases by reason of repetitive work in a cold environment. Dr Honner accepts the relationship whereas Dr Stapleton rejects the suggested causal relationship.
The second document is the appellant’s supplementary statement dated 18 December 2007. Matters of significance are as follows, “…I worked for eight hours per day and five days per week. Sometimes I worked overtime, as I did in December 2006. The chickens and turkeys were mainly refrigerated or frozen. The majority of my day was spent cutting chickens or turkeys. The room in which I worked was cold. I needed to wear three layers of clothing to stay warm. The work was repetitive. The work was cold on my hands and wrists.”
The matters touched on by the appellant as above quoted serve to form a factual basis upon which the opinion of Dr Geoffrey Lyons, whose reports are in evidence, was based. In short the statement confirms Dr Lyons record of history as taken during the course of consultation. Should that statement find its way into evidence before the Commission the opinion of Dr Lyons is one to be considered along with the balance of the medical evidence concerning the relationship or otherwise between the appellant’s work and the causation and/or aggravation of her undoubted bilateral carpel tunnel syndrome. Having regard to the totality of the evidence, in particular the heavily qualified views expressed by Dr Honner, I do not accept that admission of the statement nor Dr Honner’s report would have in all probability an important influence on the outcome of the litigation. The Arbitrator was correct to refuse admission of the report and the statement. I have concluded , for reasons stated below, that rejection by the Arbitrator of the balance of the documents was not made in error.
The second ground raised on behalf of the appellant suggests that the Arbitrator misinterpreted the substantive law relevant to applications for reconsideration. I accept the appellant’s submission that the breadth of the discretion granted to the Commission by the terms of section 350(3) of the 1998 Act is very wide and that guidance can be obtained by reference to those authoritative statements of the appellate courts concerning the breadth and manner of exercise of the discretion granted by the former section 36(2) of the Workers Compensation Act 1926 (now repealed) and to the former Compensation Court by the former section 17(4) of the Compensation Court Act 1984 (now repealed).
The appellant’s assertion that the Arbitrator treated the discretion as being “purely procedural” cannot be accepted. Whilst it is correct, as submitted by the appellant, that the Arbitrator used the term “purely procedural” in the course of his reasons it appears that he was limiting that observation to the two procedural questions being the availability and breadth of a discretion to reconsider a previous decision and the meaning of the term “decision” as it is used in the subject section.
The appellant’s submissions under this head and her reliance on the various authorities cited cannot be criticised. There is no doubt that the discretion granted by section 350(3) is extremely wide and, as stated by the Court of Appeal, as noted in argument, “virtually without limit”. Notwithstanding the breadth of the discretion it is incumbent upon the appellant to lay the foundation for the proper exercise of that power to reconsider and, as the courts have earlier stated, there is a distinction to be drawn between the existence of the power and the occasion upon which such power is to be exercised. In the present case the reconsideration was sought upon the basis of further evidence. That further evidence was rejected by the Arbitrator as it had been rejected earlier on appeal. As stated below I am of the view that such rejection by the Arbitrator was a proper exercise of his discretion having regard to all the circumstances. There being no basis upon which review could be sought once such evidence was excluded it was inevitable that the application for reconsideration be refused. The appellant places reliance upon the decision of the Supreme Court in Hardaker v Wright and Bruce Ltd (1962) SR(NSW) 244 (‘Hardaker’). That decision confirms the significant breadth of the discretion granted concerning the power to reconsider a decision. It is to be noted that the decision of Owen and Walsh JJ adopted the following cautionary words stated by Street CJ in Hilliger v Hilliger (1952) 52 S R (NSW) at 108 (‘Hilliger’) relative to the exercise of the discretion:
“It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. The party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave the prescribed courts with the power of reviewing any decision in order to see that justice is done between the parties”.
It is suggested by the appellant that the Arbitrator in refusing to reconsider his original order failed to have proper regard to the substantive law and substantial merits. I express my reasons for concluding that the Arbitrator has had regard to relevant “substantive law” at [53]-[55] below. The Arbitrator has relied in part upon the summary of relevant principles which appear in Samuel. I have earlier expressed my agreement with those matters elucidated in the matter of Samuel during the course of my determination of the original appeal. Those principles were derived and expressed by Roche DP following a detailed review of relevant authority. Those matters are of guidance both in matters of appeal and reconsideration involving fresh evidence.
Concerning the suggestion made by the appellant that the Arbitrator has failed to have proper regard to the “substantial merits”, I conclude that the merits of the reconsideration application must necessarily be assessed having regard to the sole ground of that application namely the fresh or further evidence. I have addressed the content of Dr Honner’s report and the appellant’s supplementary statement above at [34]-[42]. There remains the “research material” which was presented both to the Commission and to the respondents under cover of the appellant’s solicitor’s letter addressed to the Registrar dated 7 February 2008. That research material is described as being a “report”, the author is described as “U.S. Department of Health and Human Services” and the date of the document is nominated as July 1997. That description was inaccurate. The appellant has provided no meaningful submissions concerning the content of the voluminous documents.
An examination of the documents under cover of that correspondence demonstrates that one is an “original article” entitled “When Exactly Can Carpel Tunnel Syndrome Be Considered Work-related?” the authors of which were Sonja Falkiner and Stuart Myers. Both authors are apparently attached to major hospitals in Sydney, Australia and it appears that the article was published sometime in 2002. That article addresses the available literature on carpel tunnel syndrome (CTS) as a work related disorder and the general comment is made that information is conflicting and, generally, of poor quality. It is noted that there are three studies which “convincingly” refuted the link between CTS and most types of work. Of significance the report includes the following statement:
“Another study found that for the right hands of long-standing poultry processors the risk of developing CTS (diagnosed on nerve conduction studies) was equal to that which would be expected due to ageing, and for matched controls the risk was even less.”
The article authored by Falkiner and Myers also includes detail of statistics concerning the incidence of CTS found in the context of “frozen food workers” whose work also involves repetition and load. Reference is also made to a study involving reported incidence of CTS among boners working in temperatures of below -4° centigrade handling meat at temperatures of -11° centigrade and using extremes of bilateral wrist motion and load. The figures cited in the article demonstrate that in those circumstances, the incidence of CTS (diagnosed utilising nerve conduction studies) was significantly higher than workers in other industries.
The conclusion reached by the authors of the article was as follows:
“Except in the case of work that involved very cold temperatures, possibly in conjunction with load and repetition, work is less likely than demographic and disease-related variables to cause CTS.”
The 1997 report referred to in the correspondence is entitled “Musculoskeletal Disorders and Workplace Factors: A critical review of epidemiologic evidence for work related musculoskeletal disorders of the neck, upper extremity and lower back”. The chapter which has been extracted and which the appellant sought to adduce is entitled “Carpel tunnel syndrome”. It is asserted in that chapter that there is strong evidence of a positive association between exposure to a combination of risk factors (for example force and repetition, force and posture) and CTS. Mention is made in that report to the high rates of CTS occurrence in occupations involving intensive manual exertion (for example meat packer, poultry processors, and automobile assembly workers). The appellant has made no effort in submissions to highlight any portion of the highly complex and detailed study that follows that general statement. The report addresses various factors ranging from postural variables through to exercise of force, vibration and repetitive hand motions. It appears that only one of the many studies (31 in all) which are summarised in that report (being by Chiang et al 1990) concerned study of highly repetitive work tasks during exposure to cold conditions. The technical data which appears in the report concerning that study has not been the subject of any particular submission or argument and it must be said that the probative value of the document is slight. No attempt has been made to bring to the attention of the medical experts the content of either the aforementioned article or the 1997 study. I conclude, that standing alone or read with the balance of the documents and evidentiary material, the content of both those documents does not have the potential to advance the appellant’s case and I do not consider that the interests of justice demand that the material be admitted into evidence. Accordingly I conclude again that the Arbitrator’s conclusion as to the question of the admissibility of this evidence was correct.
I address the question of need to exercise due diligence in obtaining and presenting relevant material at the original hearing below.
The third ground raised by the appellant suggests that, when considering the admissibility of the further evidence, the Arbitrator wrongly treated the provisions of section 352(6) and Practice Note No.6 as being relevant. I agree with the appellant’s suggestion that the provisions of section 352(6) are not in relevant to the question of admission of fresh evidence on reconsideration. It follows that Practice Direction No.6 is likewise irrelevant to the exercise of the discretion. The question remains as to whether reference to those matters constitutes an error which requires correction following review on this appeal.
The test to be applied concerning the admission of fresh evidence on a reconsideration application requires not only that the evidence be probative but that it be material that could not, with reasonable diligence, have been capable of presentation at the time of the original hearing. Overriding such considerations is the need to meet the demands of justice. I have dealt with the probative value of the subject material above and it must be said that none of the evidence which was rejected by the Arbitrator can properly be considered fresh evidence but rather “more evidence” as addressed by O’Meally J in Galea v Ralph Symons Pty Ltd (1989) 5 NSWCCR 192 (‘Galea’) (at 201). As was stated there by his Honour, “Even if it could properly be said that fresh evidence were now available the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing before Williams J and that if believed would be at least a determining factor in the outcome of the case.”
Whilst it may be that the Arbitrator has approached the question of admission of the subject evidence by erroneously referring to section 352(6) and the Practice Note his conclusion, in my view, was correct when the relevant general principles concerning admission of fresh evidence on a reconsideration application are applied including consideration of the need to ensure that justice is done.
In the fourth ground appearing in submissions the appellant suggests error on the part of the Arbitrator in concluding that a request for reconsideration following an unsuccessful appeal was inappropriate given that an appeal is the appropriate procedure to adopt seeking correction of errors of fact, law or discretion made by an arbitrator. Reliance is placed upon the decision in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412 (‘Schipp’). It is asserted that Schipp is authority for the proposition that, where both the appeal and reconsideration is available pursuant to the statute, failure to appeal is relevant to the exercise of the discretion.
It was found in Schipp that the party seeking reconsideration who had failed to appeal an arguable error by the judge at first instance, and who permitted a delay of two years to elapse before proceeding with a reconsideration application, was open to criticism for failure to pursue that appeal. In the present matter the Arbitrator’s criticism of the appellant is founded upon the basis that the substantial issue agitated before the Commission on appeal related to the admission of further evidence. Having failed on appeal the Arbitrator was of the view that seeking reconsideration on the same basis as argued on appeal was inappropriate. It is not, as suggested by the appellant, the Arbitrator’s view that the conduct of the appeal was in some way improper and that the fact of its pursuit prior to the reconsideration application was inappropriate. The thrust of the Arbitrator’s reasoning was that institution of the reconsideration application was a duplication of the earlier unsuccessful challenge mounted on the appeal. These facts are readily distinguished from those that prevailed in the matter of Schipp where the Court of Appeal was considering the refusal of a judge of the Workers Compensation Commission to revoke an earlier order which refusal was made two years following the entry of the first order with there being no intervening challenge on appeal. On the relevant facts in Schipp it was arguable that an error of law had been committed by the judge at first instance when, at the hearing, he had refused leave to the applicant worker to withdraw his application. Those were the circumstance which prompted Samuels JA to make the observation as quoted at [4] of submissions put by the appellant.
The fifth ground raised on behalf of the appellant suggests error on the part of the Arbitrator “in treating as important that the fresh evidence be of a type that could not have been obtained with reasonable diligence and in finding that the applicant did not satisfy the requirement.”
Dealing with the first matter, that being the relevance of the requirement of due diligence, the observation may be made that the former Compensation Commission of NSW and the former Compensation Court of NSW had always expressed the intention to adhere to principles adopted and applied by the Supreme Court when addressing the question of the admission of fresh evidence (see discussion Mills Workers Compensation 2nd edition Butterworths 1979 at 417). The test was stated by Clark JA in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (‘Akins’). His Honour was considering “special grounds” which would permit admission of fresh or further evidence pursuant to section 75A of the Supreme Court Act 1970. There the following three conditions were said to be relevant:
(1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(2) the evidence must be such that there must be a high degree of probability that there would be a difference verdict, and
(3) the evidence must be credible.
Doubts have been raised as to the correctness of the formulation of relevant conditions as found in Akins (see Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 (‘Nowlan’)). It was stated in Nowlan by Heydon JA (as he then was) (with whom Mason P and Young CJ in Eq agreed):
“…even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?” (at [15])
I am of the opinion that the formulated conditions to be found in the decision of Akins and the rider found in Nowlan provides guidance to the Commission both in relation to the admission of fresh or further evidence pursuant to section 352(6) on appeal and upon consideration of admission of such evidence on reconsideration (section 350(3)). The Arbitrator was not satisfied that the first condition as stated in Akins had been met with respect to all the fresh or further evidence upon which the appellant sought to rely. That was but one matter taken into account by the Arbitrator concerning admissibility generally. Having regard to the nature of the evidence such a conclusion was inevitable.
Submissions in relation to this fifth ground are expressed in a somewhat random manner however it appears that the appellant’s complaint extends to a suggestion that the Commission has in some way failed to discharge its suggested role as “inquisitor”. That suggestion can be put to the side immediately by reference to what was stated by Roche DP in Goodwin v J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training [2008] NSWWCCPD 57. The suggested “inquisitorial” function of the Commission was addressed between [80] and [92]. I respectfully agree with what was stated at [90]:
“Since the decision of Edmonds, the Commission revised its ‘Guideline for the Practice of the Conciliation/Arbitration Process’ in April 2007 to delete the reference to Arbitrators being required to play ‘an inquisitorial role in resolving disputes’ and to state that they are ‘required to play a pro-active, non-adversarial role in resolving disputes’. Regardless of the wording of the Guideline, the obligation to prepare and present a case in the Commission rests with the parties concerned and their legal representatives.”
It appears to be suggested on behalf of the appellant that evidence concerning cold work conditions as appeared in the medical reports tendered at the hearing created, in some way, the shift of an evidentiary burden to the employer to refute those matters. That suggestion must be rejected. As was determined on the first appeal the matters recorded in the medical reports were unsupported by primary evidence and carried no weight. Moreover the absence of evidence providing proof of the assumptions made by the medical experts caused the opinions there expressed to have no probative value. This is not an appropriate argument to raise on a reconsideration application.
Ground six raised by the appellant makes complaint of error on the part of the Arbitrator “in finding that there was delay”. The interval between the Arbitrator’s determination in December 2007 and the lodging of the application for reconsideration in October 2008 is approximately ten months. In the interim, as pointed out by the appellant, an appeal had been brought in the Commission which was determined in June 2008. The Arbitrator has found that there has been “no adequate reasons offered by [the appellant] to account for the delay in bringing the application for reconsideration, whether it be either the ten weeks following the Deputy President’s determination, or the ten months that has elapsed since the giving of the original decision.”
It is difficult to reconcile the statement of the Arbitrator as above quoted with the known chronology. The interval between determination of the appeal and the commencement of the reconsideration application is closer to fifteen weeks than the ten weeks mentioned by the Arbitrator. The ten months mentioned by the Arbitrator is a fair approximation of the time lapse between original decision and the application for reconsideration. What is not clear from the Arbitrator’s reasons is whether he has treated the suggested delay as being determinative in his overall adjudication of the application to reconsider his original decision.
Having regard to all the relevant circumstances I do not consider that the effluxion of time between the Arbitrator’s original determination and the lodgement of the reconsideration application is of significance and the Arbitrator’s observations concerning suggested delay may be disregarded when considering the correctness or otherwise of the Arbitrator’s ultimate decision to refuse reconsideration.
The seventh ground raised on behalf of the appellant suggests error on the part of the Arbitrator in determining that the appellant’s application seeking reconsideration offended the principle of finality of litigation. The Arbitrator’s reasons concerning this subject are recorded at page 11 of his reasons. It is there stated, “…one of the reasons not to exercise discretion in favour of [the appellant] is the public interest that litigation should not proceed indefinitely. [The appellant’s] matter has already been through the Commission’s conciliation phase, the arbitration phase, the appeal process and now seeks [sic] further litigation by way of the reconsideration phase. The reconsideration phase does not end the litigation pathway. There is still ability to attempt to pursue the matter through the appeal process once again.”
What was foreseen by the Arbitrator has come about. This appeal has been brought against the Arbitrator’s decision to not reconsider his original award, the complaint being that fresh evidence was wrongfully rejected and that irrelevant considerations have been taken into account. In fact the reconsideration application and indeed this appeal both are directed to a reopening of the original matter as it was heard before the Arbitrator when it was determined that the appellant’s case was deficient.
The availability of an appeal process within the Commission and the existence of the Commission’s power to reconsider any decision made are not processes intended to afford a disappointed party a second opportunity to make out his or her case. In the case of appeals it is incumbent upon an appellant to satisfy the Commission of a need to scrutinise the decision to “decide whether the original decision is wrong or, as is often put in the context of administrative appeals on merits, must decide what is the true or correct view” (see State Transit Authority of NSW v Fritz Chemler [2007] NSWCA 249 per Spigelman CJ at [30]). In the case of reconsideration brought upon the suggested existence of fresh evidence, Bishop J in the matter of Maksoudian v J Robins and Sons Pty Ltd (1993) 9 NSWCCR 642 (‘Maksoudian’) has stated (at 645) concerning the former provisions:
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as "fresh evidence", namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: HardakervWright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v Hilliger (1952) 52 SR (NSW) 105.”
As was stated by Kirby P in Bouwhuis, “There is a tension between the need for finality of litigation and the urgent demands of fairness and justice in a particular case.”
In the present matter the material produced by the appellant which is described as fresh evidence does not, in my view, demonstrate that there is present an “ urgent demand for fairness and justice”. On the contrary it appears that both in relation to the first appeal and with respect to the reconsideration application the appellant has sought to reopen the hearing of her claim with a view to curing deficiencies in the evidence. Those attempts have been repeated on this appeal. In my view the public interest in achieving finality of litigation demands that the appellant’s argument on appeal be rejected. This is not a case where the Arbitrator has refused to entertain evidence that can truly be said to be fresh, that is material not available at the time of hearing and of such a character to be persuasive in support of an argument that justice had not been attained at the first hearing. Nor is it material that demonstrates that the original decision was made upon a false basis. With respect to the eighth ground raised on behalf of the appellant I reject the suggestion that the Arbitrator had failed to make a true and correct decision. The appeal is unsuccessful.
DECISION
The decision of the Arbitrator made 18 March 2009 refusing reconsideration of his award dated 17 December 2007 is confirmed.
COSTS
Each respondent seeks an order in its favour concerning costs of this appeal. The first respondent submits that the appeal has been brought without proper justification and the second respondent has submitted that the appeal is without merit and had no reasonable prospect of success and should not have been instituted. It is further argued that the proceeding is “frivolous or vexatious, fraudulent or made without proper justification” in terms of section 341 of the 1998 Act.
I am not satisfied that the conduct of this appeal was frivolous or vexatious or fraudulent on the part of the worker. Whilst I am troubled by the appellant’s election to attempt yet again to have the “fresh” evidence admitted I am not satisfied that such conduct constitutes the bringing of an appeal without proper justification. The provisions of section 341 of the 1998 Act grant a very broad discretion to the Commission concerning the making of costs orders. In the exercise of that discretion I decline to make an order for costs on this appeal.
Kevin O’Grady
Deputy President
14 July 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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