Byrom v Inghams Enterprises Pty Limited and Spectrum Employment Services
[2008] NSWWCCPD 67
•27 June 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Byrom v Inghams Enterprises Pty Limited and Spectrum Employment Services [2008] NSWWCCPD 67 | |||||
| APPELLANT: | Norma Byrom | |||||
| FIRST RESPONDENT: | Inghams Enterprises Pty Limited | |||||
| SECOND RESPONDENT: | Spectrum Employment Services | |||||
| INSURER: | First Respondent – Self-insured | |||||
| Second Respondent – Employers Mutual Limited | ||||||
| FILE NUMBER: | WCC7088-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 17 December 2007 | |||||
| DATE OF APPEAL DECISION: | 27 June 2008 | |||||
| SUBJECT MATTER OF DECISION: | Proof of causation of injury; weight of expert evidence. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Walker Legal | ||||
| First Respondent: | Leigh Virtue & Assoc | |||||
| Second Respondent: | Edwards Michael Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. | Time for making appeal is extended to 15 January 2008. | ||||
| 2. | The decision of the Arbitrator dated 17 December 2007 is confirmed. | |||||
| 3. | No order as to costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
On 15 January 2008 Norma Byrom (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 December 2007.
The Respondents to the Appeal are Inghams Enterprises Pty Limited (‘the First Respondent’) and Spectrum Employment Services (‘the Second Respondent’).
The Appellant commenced employment with the Second Respondent (a labour hire company) as a Process Worker on 14 June 2004. Her duties concerned the preparation of meat products and were performed at the premises of the First Respondent. During her period of employment with the Second Respondent the Appellant claimed and was paid compensation benefits with respect to a right wrist injury sustained by her in the course of her work. Following a short absence from work the Appellant resumed normal duties. The Appellant’s employment with the Second Respondent ceased on 11 October 2004 on which date she commenced employment with the First Respondent.
It appears that the Appellant performed the same duties with each of the Respondents and it was stated by the Appellant that her job “…involved cutting meat. This was a lot of work with both hands. It is highly repetitive.”
The Appellant, on 29 December 2006 experienced pain and discomfort in both wrists and hands. The Appellant reported these matters to her Employer following which she was assigned to performance of light duties where she remained until a date in January 2007. The Appellant has been absent from work since that time.
Proceedings in the Commission were initially commenced against the First Respondent alone. Those proceedings which sought orders with respect to entitlement to compensation benefits were discontinued.
On 19 September 2007 an Application to Resolve a Dispute (ARD) against both Respondents was filed on behalf of the Appellant. That Application sought orders with respect to entitlement to weekly benefits and medical expenses. It was alleged in the ARD (Part 4- Injury Details) that the Appellant had suffered an injury on 29 December 2006 and as a result of the nature and conditions of her employment from 14 June 2004 to both her arms in the course of her employment with each of the Respondents.
The Appellant’s Application came before the Arbitrator for conciliation and arbitration on 7 November 2007. A Certificate of Determination issued on 17 December 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 December 2007 records the Arbitrator’s orders as follows:
“1. That there is an award to (sic) the First and Second Respondents in relation to the Applicant’s condition of bilateral carpal tunnel syndrome.
2. That there is no order as to costs.”
The Arbitrator’s Statement of Reasons for Decision (‘Reasons’) accompanied the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i) Whether the Arbitrator erred with respect to the manner of determining disputed matters of fact.
(ii) Whether the Arbitrator erred in the manner adopted to evaluate the evidence of the Appellant’s expert medical witnesses.
(iii) Whether the Arbitrator erred in taking into account irrelevant considerations when adjudicating factual disputes between the parties.
(iv) Whether the Arbitrator erred in concluding that the Appellant had failed to discharge the onus of proof.
The summary of the issues as set forth above is drawn from the Written Submissions furnished by the Appellant accompanying her Application for Leave to Appeal against Decision of Arbitrator and Supplementary Submissions furnished by the Appellant in correspondence from her Solicitor addressed to the Commission dated 13 May 2008.
The matters above summarised have been the subject of Submissions in Response by the Respondents in Written Submissions.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both the Appellant and the Second Respondent submit that this appeal can proceed to be determined on the basis of the documents presently before the Commission. The First Respondent in its Written Submissions which accompany its Notice of Opposition to the Appeal included the following submission:
“2.3 ON THE PAPERS
The Respondent is not yet able to say whether the matter can be determined on the papers save to indicate that if leave to appeal is refused or if the appeal itself is able to be refused without a hearing then no such hearing is required. If however it is considered that the appeal has any prospect at all of succeeding the Respondent to the appeal would then seek the opportunity of an oral hearing before a Presidential Member.”
A transcript of proceedings before the Arbitrator was not available to the parties at the time the First Respondent made the submission quoted immediately above. That transcript was furnished to the parties on or about 15 April 2008. Following receipt of that transcript the First Respondent furnished supplementary submissions with respect to the appeal and it is to be noted that the question of the Commission’s discretion to proceed ‘on the papers’ was not addressed therein.
A submission in form similar to that put on behalf of the First Respondent was considered by Deputy President Byron in Fletcher International Exports Pty Limited v Adams [2006] NSWWCCPD 11. It was there stated by the Deputy President:
“… The section does not contemplate that the commission will arrive at a decision that substantially determines the dispute, before deciding how it should proceed. Rather, the section requires the commission to be satisfied first, that it has sufficient information in order to exercise its functions, and then proceed to consider that information and determine the appeal ….” (at paragraph 17)
The provisions of section 354(6) of the 1998 Act grants to the Commission a discretion to proceed, in an appropriate case, “without holding any conference or formal hearing”. That discretion is enlivened in circumstances where the Commission “is satisfied that sufficient information has been supplied”. (See Fletcher International Exports Pty Limited v Barrow and Anor [2007] NSWCA 244 per Mason P (Santow JA and Tobias JA concurring) at paragraph 94.)
In the present matter there is before the Commission all that evidence which was before the Arbitrator, a transcript of proceedings conducted before him on 7 November 2007 (which records those submissions made on behalf of the parties), detailed Reasons for Decision furnished by the Arbitrator, together with submissions (both primary and supplementary) put on behalf of each of the parties to this appeal. In the circumstances, having regard to the submissions of the parties and to Practice Directions Numbers 1 and 6 I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
Section 352(4) of the 1998 Act provides that:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
The Appellant asserts in Part 2 of her Application to Appeal that same was lodged within 28 days of the Certificate of Determination furnished by the Arbitrator. The Second Respondent has elected to make no submissions with respect to the question of the time requirements of the 1998 Act whereas the First Respondent asserts at paragraph 2.1 of its Submissions accompanying its Notice of Opposition:
“2.1 TIME
The Appellant asserts that the appeal was lodged in time however the Respondent notes that the appeal was not received by the Commission until 15 January, 2008 and not registered by the Commission until 16 January, 2008. As the date of the Arbitrator’s decision was 17 December, 2007 the appeal has not been filed within the 28 days required.
As no reasons have been given for the late filing of the appeal and no special circumstances identified leave to appeal should therefore be refused.”
As noted above the Certificate of Determination issued by the Arbitrator bears the date 17 December 2007. The Appellant’s Application to Appeal bears the Commission’s seal and is dated 15 January 2008. It may be seen that the appeal has been “made” 29 days after the “making of the decision appealed against”.
Documents which are before the Commission include copies of electronic mail communications between the Commission’s Appeals Administration Officer and the Appellant’s Solicitors which relate to the question of “time” as prescribed by the 1998 Act and the question of compliance with the Workers Compensation Commission Rules 2006. It is clear that the Appeals Administration Officer, writing on behalf of the Registrar, indicated to the Appellant’s Solicitors by email dated 16 January 2008 that, having regard to a delay of one day concerning receipt by the Appellant’s Solicitors of the Arbitrator’s Certificate of Determination that the Commission treated the lodgment of the Appellant’s Application to Appeal as being within time as prescribed by the Act. It is reasonably clear that the advice communicated to the Appellant’s Solicitors in that email induced the Appellant to treat the Application to Appeal as being within time.
The question of entitlement to an extension of time in which to apply for leave to appeal is addressed by the Workers Compensation Commission Rules 2006 (‘Rules’). Rule 16.2 sub-clauses (11) and (12) provide as follows:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(12) A party who seeks an extension of time as referred to in subrule (11) must:
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The First Respondent asserts in its submission that, by reason of the late filing of the Appellant’s Application and the absence of identification of special circumstances, leave to appeal “should therefore be refused”. There is no argument put on behalf of the First Respondent that there is, in the circumstances, any prejudice by reason of the delay of one day concerning filing of the subject Application.
Having regard to all the circumstances, in particular the absence of any suggestion of prejudice and the very short period of delay in filing the subject Application I am of the view that, in exercise of the Commission’s discretion under Rule 1.6 sub-clause (2), the Appellant is to be granted dispensation with respect to compliance with the requirements of the Rules.
I am satisfied in the present exceptional circumstances, outlined above, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice. Accordingly I order, pursuant to rule 16.2 sub-clause (11) that time for making the appeal be extended to 15 January 2008.
The requirements of section 352(2) having been satisfied and having regard to the above mentioned order with respect to extension of time I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, 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.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction Number 6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
At paragraph 2.4 of the Appellant’s Application to Appeal it is expressly stated on behalf of the Appellant that leave was not sought to rely on fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against. Notwithstanding that notation there is before the Commission a document headed “Application to Admit Late Documents” which was filed with the Registry on 11 February 2008 by the Appellant’s Solicitors. Annexed to that document were a report of Dr Honner dated 25 January 2008, a Statement made by the Appellant dated 18 December 2007, a report of the United States Department of Health and Human Services dated July 1997 and correspondence dated 5 February 2008 from the Appellant’s Solicitors to the First Respondent’s Solicitors.
Correspondence dated 31 March 2008 from the Appellant’s Solicitors addressed to the Registrar contained the following statement:
“The fresh evidence of the applicant and Dr Honner post-dates the decision of (the Arbitrator). In submissions before the Arbitrator, the appellant worker relied on the repetitive nature of her work as well as the cold environment. The arbitrator found that the appellant worker had not discharged the onus of proof. We seek to rely on the fresh evidence in the interests of justice and as part of the review process.”
At paragraph 13 of the Appellant’s Supplementary Submissions dated 13 May 2008 the following reference to “fresh evidence” is made:
“13. In the alternative, the Appellant worker relies on fresh evidence by way of her Supplementary Statement which makes it clear beyond doubt that the work performed was in a cold environment.”
The First Respondent in its Supplementary Submissions dated 20 May 2008 opposes the admission of the material above mentioned which was annexed to the Appellant’s Application to Admit Late Documents.
It must be stated at the outset that the Appellant has failed to comply with the requirements of Practice Direction Number 6 with respect to the introduction of, what is said to be, fresh evidence. The procedure adopted by the Appellant with respect to that material is appropriate to an application for leave to adduce late evidence on hearing of an Application to Resolve a Dispute and in the present circumstances is misconceived.
The Appellant has not, other than in the course of submissions in support of the appeal generally, provided argument in support of the admission of the suggested new evidence. An examination of the documents which are the subject of that purported application does not suggest that, notwithstanding reasonable diligence, the material could not have been tendered in proceedings before the Arbitrator.
Failure on the part of the Appellant to comply with the procedural requirements relating to fresh evidence leads me to conclude that the application to adduce that material should, pursuant to Rule 1.6 (4), be struck out.
Having regard to all the circumstances, in particular having regard to the Appellant’s failure to comply with the statutory and procedural requirements earlier mentioned, I determine that the Appellant’s application to adduce the material annexed to the Application for Leave to Admit Late Evidence should, in accordance with the last mentioned Rule, be determined as being a nullity.
EVIDENCE AND SUBMISSIONS
As noted above there is before the Commission a transcript of proceedings conducted before the Arbitrator on 7 November 2007. That transcript (at page 1, lines 32 – 36) records that the Reply filed on behalf of the First Respondent, together with all those documents attached thereto were admitted in evidence at the hearing. There is no other record contained in that transcript as to the state of the evidence. I observe in passing that ideally, in compliance with the Commission’s Guideline for the Practice of Conciliation/Arbitration Process (November 2006) there should appear on the record a plainly stated summary of that evidence admitted before the Arbitrator. It is reasonably clear, having regard to the submissions made on behalf of each party as recorded in the transcript of proceedings as well as the content of submissions on this appeal that, in addition to the First Respondent’s Reply and attachments, the Arbitrator had before him the Appellant’s Application to Resolve a Dispute, together with all attachments as well as the Reply, together with all attachments filed on behalf of the Second Respondent on 10 October 2007.
The Appellant relied upon two short Statements made by her the first dated 2 February 2007 and the latter dated 4 June 2007. The Appellant’s description of her duties whilst employed by each of the Respondents is as stated in paragraph 6 of the first of those Statements:
“6. My job involved cutting meat. This was a lot of work with both hands. It is highly repetitive.”
The Appellant relied upon medical reports of Dr Geoffrey Lyons to whom she was referred for treatment by her General Practitioner, Dr Martyn Werry. Dr Lyons in his report of 23 January 2007 addressed to Dr Werry noted:
“… I understand this lady has been working as a process worker at Inghams Chickens since 2004. This work has involved repetitive activity with both hands with cold refrigerated chicken and turkey products. She noted the development of parasthesia in both hands, particularly the right hand, approximately two months ago. She was reviewed by Dr David Rail and nerve conduction studies did indeed demonstrate bilateral median nerve compression. …”
Later in his report Dr Lyons recorded:
“I feel in view her (sic) work related history, particularly in relation to the cold refrigerated nature of the product and repetitive activity with both hands, that it would not unreasonable (sic) to consider that work has caused or at least exacerbated the current symptomatology. …”
The Appellant also relied upon the opinion of Dr Richard Honner, Orthopaedic Surgeon as expressed in his report of 22 August 2007. Dr Honner recorded under the heading “History” that:
“… She stated that she was a process worker, and that she worked standing all day, using a knife, cutting meat and skin off turkeys, and said that this was performed in a cold room, but she did not know the temperature of the room.”
Dr Honner in that report expressed the opinion that the Appellant:
“has a slightly atypical carpal tunnel syndrome at each wrist …”.
Dr Honner proceeded to state under the heading “Causation”:
“Bilateral carpal tunnel syndromes are common in middle aged females, and are usually due to constitutional conditions.
In her particular case, I consider that her repetitive process work in cold conditions at Inghams did partially cause her bilateral carpal tunnel syndrome, and I basically agree with the causation described in Dr Lyons’ two reports dated 23 January 2007.
In summary then, I consider her bilateral carpal tunnel syndrome to be partially due to underlying constitutional causes, and partially due to her work at Inghams.”
The First Respondent relied upon the opinion of Dr Kim Edwards, Surgeon as expressed in his report of 31 May 2007 which was annexed to that Respondent’s Reply. Under the heading “History” Dr Edwards recorded:
“She was employed by Inghams for three years until January 2007, as a process worker. She said her job required her to carry out tasks such as removing the skin from birds, by holding them with one hand, cutting with a knife and calling (sic) the skin. She also had to remove fillets. She also worked on packing line. She said her work was mostly involved with cutting.”
Dr Edwards, following an examination of the Appellant stated under the heading “Opinion”:
“This lady is suffering from bilateral carpal tunnel syndrome.
The condition is of constitutional origin. It has not been caused, aggravated or accelerated by her employment. Her employment is not a substantial contributing factor to her carpal tunnel syndrome. She does not have a work related condition.”
The First Respondent also relied upon the opinion of Dr Murray Stapleton, Hand Plastic and Reconstructive Surgeon. Dr Stapleton recorded under the heading “Background” that:
“It is quite clear that the diagnosis of carpal tunnel syndrome that has been made by Dr Werry is correct.”
That report of Dr Stapleton does not contain any detail concerning the nature of the Appellant’s duties with the Respondents.
Dr Stapleton in his report addressed the question of “causation” of the Appellant’s condition as follows:
“The cause of Ms Byrom’s condition is a genetically pre-determined one. This is not a condition related to trauma nor to repetitive activities.
Her work has not caused nor aggravated the condition. To put that another way, she would have the problem to the same degree in my opinion whether she worked or whether she did not.”
A Reply filed on behalf of the Second Respondent on 10 October 2007 had attached a copy of medical certificate dated 10 August 2004 issued by Dr Werry stating that the Appellant was, as from 11 August 2004, fit for pre-injury duties following a work related injury received whilst working for the Second Respondent causing, as diagnosed by that Practitioner, extensor carpi ulnaris tendonitis.
Submissions put on behalf of each of the Respondents before the Arbitrator paid particular attention to the primary issue as to whether the Appellant had, on the evidence, established that she suffered injury within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’). It was not disputed by either Respondent that the Appellant at relevant times suffered the condition of bilateral carpal tunnel syndrome. The matter in dispute before the Arbitrator was the question as to causation of that diagnosed condition. Each of the parties addressed the Arbitrator with respect to other issues raised on the evidence including the relevance and application of section 9A of the 1987 Act as well as the question of quantum of any entitlement in circumstances where the Commission may have been satisfied that proof of injury in a relevant sense had been made out and that incapacity flowed therefrom. As noted above the Arbitrator determined that there be an award in favour of the First and Second Respondents. The Arbitrator’s determination was founded upon his conclusion that the Appellant had failed to discharge the onus upon her with respect to proof of causation of her undoubted carpal tunnel condition.
On this appeal the Appellant submits that the Arbitrator erred in the manner by which he determined disputed matters of fact. An argument is advanced that error was demonstrated by reason of failure by the Arbitrator to observe that “he was not bound by the rules of evidence” (paragraph 1 of Appellant’s Written Submissions). It is further argued that error on the part of the Arbitrator was demonstrated by his failure to take “judicial notice” of certain facts. Reference is made to section 144 of the Evidence Act 1995. The Appellant in her Submissions proceeds to argue that proof concerning the Appellant’s “history of work in refrigerated environments” may be facilitated by acceptance of hearsay evidence relating to that subject (reference is made to sections 63 and 64 of the Evidence Act 1995).
The Appellant (in paragraph 2 of Written Submissions) seeks to advance an argument challenging the Arbitrator’s conclusion that the medical witnesses called on behalf of the Appellant had, with respect to the question of causation of her medical condition, expressed “bare conclusions”.
It is submitted on behalf of the Appellant (paragraph 3 of Written Submissions) that the Arbitrator had erred in the course of determining matters of fact by taking into account “irrelevant considerations”. The Appellant in that submission identifies those observations made by the Arbitrator at paragraph 30 of his Reasons where it was stated:
“30. It was never explained why Ms Byrom suffered from the carpal condition due to either or both cold environment and repetitive work practices when other women of the same age and subject to the same environment and work practices don’t. There was absolutely no evidence presented on that point.”
The Appellant in Supplementary Submissions dated 14 January 2008 (attached to Application to Appeal) seeks to argue that the Arbitrator erred “in failing to find that the Appellant performed repetitive work in a cold environment with the respondents”. This submission is stated to be taken “as part of ground 1”.
Those Supplementary Submissions include an assertion that “the Arbitrator erred in failing to find that the Appellant had discharged her onus of proof”. A number of authorities are cited by the Appellant which, it is said, relate to relevant principles concerning “onus of proof”.
The First Respondent has furnished “Submissions in Support” of its opposition to the appeal. Stated generally, it is submitted that the Appellant’s submissions, in part, are flawed by reason of an absence of any assertion as to “error of law, fact or discretion” on the part of the Arbitrator. The First Respondent in those submissions seeks to support the reasoning process demonstrated by the Reasons published by the Arbitrator and in particular seek to support the Arbitrator’s reliance upon those authorities cited by him in the course of those Reasons. It is disputed by the First Respondent that any relevant error was committed by the Arbitrator when observations at paragraph 30 of Reasons (quoted above at paragraph 55) were made. It is put that it may be inferred from the contents of that particular paragraph that the Arbitrator “preferred the expert evidence relied on by the Respondent Employer to that relied on by the Appellant Worker” and that such choice was “clearly open to him …”.
The First Respondent in Supplementary Submissions put on this appeal following receipt by it of the transcript of proceedings seeks to support the reasoning process adopted by the Arbitrator and his conclusions of fact. It is put in those Supplementary Submissions that failure by the Appellant to give evidence concerning “working in a cold environment” is relevant to both questions of the credit of the Appellant and to the question as to whether the Appellant “discharged the onus of proof …”.
Written Submissions were furnished in support of the Second Respondent’s Opposition to this appeal. Generally stated those Submissions seek to support the Arbitrator’s reasoning process and his ultimate conclusions of fact. Particular reference is made to Rule 15.2 of the Rules which concerns principles of procedure before the Commission and, in particular, matters to be addressed by the Commission “when informing itself on any matter”.
The Second Respondent in its Written Submissions pays particular attention to the question concerning the Arbitrator’s entitlement to take “judicial notice” of certain matters as asserted in argument on behalf of the Appellant. Reference is made to a number of authorities and to particular provisions of the Evidence Act 1995. The Second Respondent seeks to refute the arguments raised by the Appellant with respect to the relevance of section 63 and section 64 of the Act.
The Second Respondent in its Submissions proceeds to argue the correctness of the Arbitrator’s reliance upon those authorities cited by him in the course of Reasons. It is further asserted that matters raised in, what is described as, ground 3 of the Appellant’s Submissions are misleading.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Lourves & Ceiling Pty Limited vZheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
Before an examination is made of those matters raised on behalf of the Appellant challenging the Arbitrator’s determination, it is convenient to examine the Arbitrator’s Reasons to enable an understanding of those matters which led to him to conclude, as stated at paragraph 33 thereof, that which is the subject of complaint by the Appellant:
“33. …. I am of the view and satisfied that the onus has not been made out and the claim must fundamentally fail.”
The Arbitrator, at paragraph 9 of Reasons, records his perception of those issues in dispute between the parties and it was there noted:
“ISSUES IN DISPUTE
9. The issues in dispute are:
·Whether Ms Byrom’s condition of bi-lateral carpal tunnel syndrome was an injury to which s4 of the Workers Compensation Act 1997 (the ‘1987 Act’) applies?
·If so, is the First or Second Respondent liable in accordance with s9 of the 1987 Act?
·Is (sic) so, was the employment a substantial contributing factor to the injury in accordance with s9A of the 1987 Act?”
The Arbitrator in his Reasons proceeded to deal with the first mentioned issue and a detailed narration and analysis of both the relevant lay evidence and expert evidence appears at paragraphs 10 – 24 inclusive of his Reasons. At paragraph 13 the Arbitrator appears to have blurred the distinction between the separate issues of “causation” and that of “substantial contributing factor” (Section 9A of the 1987 Act) however no point is taken by the Appellant with respect to those statements. In all the circumstances I do not consider those observations by the Arbitrator give rise to any need for review.
The Arbitrator proceeded to state his “findings and reasons”. It was noted (at paragraph 25 of Reasons):
“25. There is overwhelming evidence that Ms Byrom suffers from bi-lateral carpal tunnel syndrome which I accept.”
The Arbitrator proceeded to address the evidence of the Appellant, Dr Lyons and Dr Honner and noted what I may term, for present purposes, shortcomings in the evidence of each of those witnesses.
The Arbitrator (at paragraph 31 of Reasons) rejected, properly in my view, a very general and non-specific submission put on behalf of the Appellant (as recorded at page 14, lines 53 ‑ 57 of transcript) which suggested that antecedent decisions of the Compensation Court of NSW and this Commission concerning claims which relate to incapacity resulting from carpal tunnel syndrome were in some way binding upon the Arbitrator when addressing the question of causation of such condition.
The Arbitrator proceeded to cite the decision of Deputy President Roche in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 (‘Rikaloski’). It was the Arbitrator’s approach to evaluation of the evidence before him in the present matter to apply the principles as stated and discussed in Rikaloski. It was stated by the Arbitrator (at paragraph 33 of Reasons):
“33. …. In view of the principles espoused in Rikaloski above and the lack by Ms Byrom and her specialist doctors in furnishing any criteria enabling evaluation of the expert doctors’ opinions about causation, I am of the view and satisfied that the onus has not been made out and the claim must fundamentally fail.”
Having regard to his determination of the first issue as stated between the parties the Arbitrator noted that there was “no need to address the remaining two issues” and proceeded to enter an award in favour of the First and Second Respondents.
As noted above the Application to Appeal filed herein has, what is described as, “Grounds of Appeal and Submissions in Support”. The first of those “grounds” is expressed as follows:
“(1) The Arbitrator erred in deciding (by implication) that he could not make findings of fact in relation to facts not contained in the Applicant’s Statements.”
It is thereafter stated that the “error” alluded to appears at paragraph 28 of the Arbitrator’s Reasons where it was stated:
“28. There is no evidence whatsoever or mentioned at all in the Statements of Ms Byrom about working in a cold environment. There is no concession from Inghams that the work Ms Byrom was doing was in a cold environment.”
This suggested “ground” of appeal lacks, in my view, precision however having regard to the submissions which follow, which are in narrative form, it appears that the Appellant’s complaint is that the Arbitrator has erred both as to his conclusions of fact and his application of what is said to be relevant principle.
It was the Arbitrator’s ultimate conclusion that the Appellant had failed to discharge the “onus” upon her to prove that she had sustained injury in the course of her employment within the meaning of the 1987 Act. The expert medical witnesses relied upon by the Appellant had each made reference to features of the Appellant’s work taken, it may be inferred, by way of history from the Appellant. Dr Lyons refers to work that “has involved repetitive activity with both hands with cold refrigerated chicken and turkey products” and Dr Honner noted that the Appellant “… stated that she was a process worker, and that she worked standing all day, using a knife, cutting meat and skin off turkeys, and said that this was performed in a cold room, but she did not know the temperature of the room”.
The only evidence given before the Arbitrator by the Appellant as to her work conditions has been noted above at paragraph 44. It is clear from the Arbitrator’s Reasons that the absence of any evidence of cold conditions other than that recorded by the Doctors as, it seems, part of their history taking, led to his conclusion that there was insufficient evidence to discharge the burden upon the Appellant to prove a causal nexus between her work and the condition.
An analysis of the Appellant’s submissions with respect to this “ground” is rendered difficult by reason of the following misstatement made on her behalf:
“The Arbitrator therefore erred in failing to find the Appellant did not work in cold environment (sic) during her employment with the Respondents.”
This is a clear misstatement of the findings of the Arbitrator. The Arbitrator, when evaluating the expert medical evidence relied upon by the Appellant, has clearly (at paragraph 28 of Reasons) taken into account the absence of any evidence of the Appellant with respect to cold or refrigerated conditions at her workplace. It is also clear that the Arbitrator was of the view that, having regard to the state of the evidence, the expressions of opinion made by the Appellant’s medical witnesses as to “causation” of the condition of carpal tunnel syndrome were “bare conclusions” and insufficient to persuade him as to their correctness.
Before attempting further analysis of the Arbitrator’s reasoning process it is important, in my view, to note what was said by McColl JA (with whom Giles JA and Tobias JA concurred) in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (“Edmonds”) (at paragraphs 127-131):
“127. While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence “based on speculation or unsubstantiated assumption is unacceptable” and that “unqualified opinions are unacceptable”.
128. Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:
“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.
129. Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing)
130. In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
“… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
131. This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. …”
I note in passing that the relevant rule in the present context is Rule15.2 of Workers Compensation Commission Rules 2006 which replaced, in similar form, rule 70 above mentioned by her Honour.
Whilst it is clear that the Commission is not bound by the rules of evidence (section 354(2) of the 1998 Act) it is clear, having regard to the terms of Rule 15.2 and having regard to the observations of McColl JA cited above, that a proper approach to evidentiary material by the Commission would entail reasonable and appropriate regard to established principle concerning questions of admissibility and weight of evidence.
It is clear that the absence of evidence from the Appellant concerning work conditions was of fundamental significance when the Arbitrator came to assess the weight, if any, to be attached to the expert medical evidence concerning the question of “causation”. The reports of those witnesses had been admitted into evidence including that material recorded by the Doctors as to work conditions. Having regard to the legislative framework governing the functions of the Commission it was a matter for the Arbitrator to determine what, if any, weight should be attached to that evidence. It is my view that the Arbitrator’s approach to the evaluation of the evidence before him was guided by, and in conformity with, relevant principles of the general law. The history as recorded by the Appellant’s medical witnesses concerning work conditions were separate and distinct from the record made by those witnesses of the Appellant’s bodily symptoms at relevant times. The absence of evidence from the Appellant as to those work conditions may properly be perceived by the Arbitrator as a failure by the Appellant to completely establish the factual basis upon which those witnesses’ medical opinions are based. (See Ramsay v Watson (1961) 108 CLR 642 per the Court).
It appears that the Appellant’s complaint is that the Arbitrator failed to make a finding of fact that she worked at relevant times in a cold environment. The only evidence on that issue is to be found in the recorded histories in the reports compiled by the medical witnesses. I am of the opinion that the Arbitrator was, given the state of the evidence generally, entitled to give no weight to that unconfirmed evidence. The Arbitrator’s conclusion as to the weight of the medical witnesses’ opinion based upon such unconfirmed material was likewise, in my view, open to him and such conclusions were reached after application of appropriate principle.
The Appellant complains that “the Arbitrator does not observe that he was not bound by the rules of evidence”. I do not consider that any such omission demonstrates error in any relevant sense.
It appears to be suggested that it was open to the Arbitrator to take judicial notice of certain matters contended on behalf of the Appellant. Reference is made to section 144 of the Evidence Act 1995. That Act, in my opinion, has no application to proceedings before the Commission (see section 4 Evidence Act 1995). Whilst it may be appropriate that the Commission has regard to the provisions of that Act in the course of adjudication of factual disputes it is in my view not strictly bound by its provisions. In the present context I do not accept the Appellant’s submission that any relevant fact in dispute between the parties could be characterised as matters of common knowledge in the sense addressed by the provisions of section 144 of that Act.
Reliance is placed by the Appellant in her submissions upon sections 63 and 64 of the Evidence Act 1995. Leaving aside my view as to the application of the provisions of that Act as expressed above I am of the view that those provisions have no relevance to the present case and the state of evidence before the Arbitrator.
It is put on behalf of the Appellant that the Arbitrator erred “in deciding (by implication) that the opinions in relation to causation in the reports of the Appellant’s experts were “bare conclusions” ”. The “implication” referred to by the Appellant appears to be founded upon the contents of paragraph 33 of the Arbitrator’s Reasons. (Quoted above at paragraph 72).
The Arbitrator when evaluating the evidence before him, in particular the evidence of the expert medical witnesses, properly in my view made reference to the decision of Deputy President Roche in Rikaloski. It is clear that both Dr Lyons and Dr Honner relied in part in reaching their conclusions as to causation or, more correctly stated, “aggravation” of the Appellant’s medical condition upon the matters recorded in the reports concerning work conditions. Those matters were not confirmed in other evidence and it is my view, given the absence of further detail or exposition, that it was open to the Arbitrator to find that each of those witnesses’ opinions were “bare conclusions” in the sense addressed in the authorities cited in Rikaloski.
It is put on behalf of the Appellant that the “Arbitrator erred in taking into account an irrelevant consideration”. This submission is founded upon the Arbitrator’s observations at paragraph 30 of Reasons:
“30. It was never explained why Ms Byrom suffered from the carpal condition due to either or both cold environment and repetitive work practices when other women of the same age and subject to the same environment and work practices don’t. There was absolutely no evidence presented on that point.”
It was put in argument that the Arbitrator “found that the Applicant must explain why the Applicant suffered from carpal tunnel syndrome and other people of the same age and gender did not”. I accept the Second Respondent’s submission that the Appellant’s argument with respect to this “ground” misconstrues the Arbitrator’s observations. It is my view that the matters mentioned by the Arbitrator at paragraph 30 of his Reasons represent an amplification of his view that there was little substance to the expert medical opinion and that the conclusions reached by both witnesses were “bare conclusions”. Whilst it may be argued that a requirement for the presence of such evidence is inappropriate and that the absence of same is irrelevant I am not persuaded that the Arbitrator’s observation constitutes an error in any relevant sense concerning his ultimate conclusion as to the Appellant’s failure to meet the required standard of proof.
The Appellant, under cover of correspondence dated 13 May 2008, provided Supplementary Submissions following receipt of the transcript. I respectfully agree with the submission made on behalf of the First Respondent that those Supplementary Submissions make no reference at all to the transcript and in my view appear largely to reiterate matters which have been agitated in the primary submissions put on this appeal. Reliance is placed by the Appellant upon the decision of Bodney v Bennell [2008] FCAFC 63 (‘Bodney’). In the present case there was before the Arbitrator evidence as to the work conditions experienced by the Appellant. It remained a question for the Arbitrator as to what weight was to be attached to such evidence. Leaving aside any argument concerning the relevance and application of the Rules of Evidence and the Evidence Act 1995 such a view concerning the determination of weight to be accorded to that evidence is confirmed by the Court in Bodney (at paragraph 91).
The transcript recorded that the First Respondent did not press an application to cross-examine the Appellant at the hearing before the Arbitrator. It is put on behalf of the Appellant in Supplementary Submissions that in “withdrawing its application” to cross-examine, the First Respondent should be taken as admitting “that Inghams was not able to put to the Worker factual material contrary to the history taken by Dr Lyons”. This submission is not further developed and it is my view that no such admission may be inferred.
It is put on behalf of the Appellant that, having regard to the decision of Deputy President Roche in Electrolux Home Products Pty Limited v Osborne [2007] NSWWCCPD 94 (‘Osborne’) the evidence of Dr Edwards and Dr Stapleton should carry no weight. The Commission in the matter of Osborne was concerned, as in the present case, with the question of causation of carpal tunnel syndrome. There was in that matter a wealth of evidence both lay and medical before the Commission as to work conditions and “causation”. That matter, as with the present, required determination upon the proven facts. The Arbitrator in the present case had no need to express a preference for the Respondents’ evidence over that of the Appellant’s given his finding with respect to the weight of the evidence in the Appellant’s case. Whilst the Arbitrator made reference to the clear conflict between the medical witnesses, his process of reasoning reveals that he was not satisfied, having regard to the content of the Appellant’s case, that the onus had been discharged and that the Appellant’s claim must therefore fail. I reject the Appellant’s argument concerning the suggested manner of evaluating the evidence of Drs Edwards and Stapleton.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 17 December 2007 is confirmed.
COSTS
No order as to costs of this appeal.
KEVIN O’GRADY
Acting Deputy President
27 June 2008
I, EMMA LETHBIRDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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