Casey v Cullen Auto Group Pty Ltd
[2012] NSWWCCPD 7
•14 February 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 | ||||
| APPELLANT: | Francis Casey | ||||
| RESPONDENT: | Cullen Auto Group Pty Ltd | ||||
| INSURER: | Employers Mutual NSW Ltd | ||||
| FILE NUMBER: | A1-9446/10 | ||||
| ARBITRATOR: | Mr R Caddies | ||||
| DATE OF ARBITRATOR’S DECISION: | 31 August 2011 | ||||
| DATE OF APPEAL DECISION: | 14 February 2012 | ||||
| SUBJECT MATTER OF DECISION: | Appeals; effect of amendment of Certificate of Determination under slip rule; extension of time to appeal; fresh evidence or additional evidence on appeal; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; whether reconsideration power permits Presidential member to reconsider a decision by an Arbitrator; costs thrown away by adjournment of arbitration | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Walker Legal | |||
| Respondent: | Stephen Lee Legal | ||||
ORDERS MADE ON APPEAL: | 1. Time to appeal is extended until 5 October 2011. 2. Paragraphs 1 and 2 of the Certificate of Determination dated 31 August 2011, as amended on 7 September 2011, are confirmed. 3. Paragraph 3 of the Certificate of Determination dated 31 August 2011, as amended on 7 September 2011, is revoked and the following order made in its place: “3. The respondent employer is to pay the applicant worker’s costs and disbursements thrown away by the adjournment on 30 March 2011. The applicant’s professional costs are assessed at $1,100 with disbursements relating to travelling expenses for that day to be agreed or assessed.” 4. Each party is to pay his or its own costs of the appeal. | ||||
INTRODUCTION
This appeal concerns:
(a) the effect of an amendment of a Certificate of Determination under the slip rule and whether the amendment dates from the date of the original certificate or from the date of the amendment;
(b) extension of time to appeal;
(c) fresh evidence or additional evidence on appeal and the circumstances in which that evidence will be admitted on appeal;
(d) whether a Presidential member has power to reconsider an Arbitrator’s decision under s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(e) whether, in circumstances where an applicant worker has failed with his substantive claim for compensation, that applicant is entitled to costs thrown away by an adjournment because of the respondent’s failure to appear on an earlier date.
BACKGROUND
The appellant worker, Francis Casey, started work as a car salesman with the respondent employer, Cullen Auto Group Pty Ltd, in August 2007. He injured his back and knees in the course of his employment on 11 March 2008 when his chair collapsed, causing him to hyperextend his back and causing his knees to hit his desk. He had surgery to his back in the form of a laminectomy in April 2009, performed by Dr Spittaler, neurosurgeon, for which the respondent accepted liability.
On 17 November 2010, he lodged an Application to Resolve a Dispute in the Commission in which he claimed weekly compensation from 28 September 2010 to date, and $23,751.32 for proposed surgery in the form of a decompression and double fusion at L2/3 and L3/4. The respondent did not dispute that an incident happened on 11 March 2008, but disputed whether Mr Casey’s incapacity and need for further surgery resulted from that incident.
Following the arbitration hearing on 12 May 2011, the Arbitrator, in a reserved determination dated 31 August 2011, found against Mr Casey in respect of both claims. While the Arbitrator was satisfied that the proposed surgery was reasonably necessary, he was not satisfied that the need for the surgery, or any incapacity, resulted from the accepted incident on 11 March 2008.
The Commission issued a Certificate of Determination on 31 August 2011 in the following terms:
“The Commission determines:
1. Finding that the applicant’s need for further surgical treatment does not result from injury on 11 March 2008 in his course of his employment with the respondent.
2. Accordingly there will be an award for respondent.
3. I make no order as to costs.”
The Commission issued an Amended Certificate of Determination on 7 September 2011 under the slip rule in which “his” in paragraph 1 of the Certificate of Determination was deleted and “the” inserted. This document wrongly identified the “date of determination” to be 29 August 2011.
In an appeal lodged by fax on 5 October 2010 (wrongly date-stamped 6 October 2010), Mr Casey has appealed the Arbitrator’s decision.
PRELIMINARY MATTERS
Monetary threshold
It is not disputed that the monetary thresholds in s 352(2) the 1998 Act are satisfied.
Time
The appellant has submitted that the appeal was lodged within 28 days of the Amended Certificate of Determination and is within time. That is incorrect. An appeal must be made within 28 days after making the decision appealed against (s 352(4)), or within such extended time for making the appeal as may be ordered under Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules).
A decision is made when the Commission issues a certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act (Pt 16 r 16.2(2)). In the present case, the Commission issued a certificate as to the determination of the dispute on 31 August 2011, not 29 August 2011, as the Amended Certificate of Determination and the appellant’s submissions have suggested.
The Commission issued an amended Certificate of Determination under the slip rule on 7 September 2011. The amendment was one of form rather than substance and made no difference to the effect of the orders made. As amendments under the slip rule operate from the date of the original orders (Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) FCR 385), time commenced to run from 31 August 2011. Excluding that day from the 28 days allowed under s 352(4) (s 36 of the Interpretation Act 1987), the last day on which the appeal could have been lodged in time was 28 September 2011. The appeal was therefore lodged out of time.
In support of an application to extend time to appeal, the appellant originally submitted:
“Should it be determined that the date of determination be 29 August 2011, the date of the original determination it is submitted that the material evidence became available on Friday 30 September 2011. Instructions were received at the first opportunity being 4 October 2011. Given the short time frame it is submitted that the granting of an extension of time would not prejudice the respondent in any demonstrable or substantial way. However, given the nature of the evidence the appellant would suffer substantial injustice in losing the right to seek leave to appeal.”
The reference to “material evidence” is (presumably) a reference to the fresh evidence or additional evidence the appellant seeks leave to file on appeal. That application is dealt with below.
As I found the appellant’s submissions unhelpful, I listed the matter for teleconference on 13 December 2011. Mr Hourigan, of counsel, represented the appellant and Mr Morgan, of counsel, represented the respondent. At the conclusion of that conference, I issued a timetable for further submissions dealing with the application to extend time to appeal, fresh evidence on appeal, and the proper identification of the grounds of appeal.
The appellant’s further submissions filed on 10 January 2012, prepared by Mr Hourigan, again submitted that time ran from the date of the Amended Certificate of Determination and that the appeal was filed in time. No authorities were cited in support of that submission and I reject it for the reasons set out at [11] above.
If it were determined that the appeal was filed out of time, Mr Hourigan submitted that there are exceptional circumstances that justify the extension of time, namely:
(a) to ensure that justice is achieved between the parties in so far as the determination as currently made is predicated upon incorrect and incomplete evidence for the reasons set out in the original submissions filed in support of the appeal;
(b) the extension of time will avoid demonstrable and substantial injustice in so far as the appellant will (if time to appeal is not extended) “lose the right to a determination upon correct and complete evidence and in circumstances where the appellant has no other rights in respect of those matters”;
(c) the consequences of the Arbitrator’s decision are “serious and fatal to the appellant’s right(s) under the Workers Compensation Act 1987” and warrant the extension of time;
(d) the delay was short and unlikely to prejudice the respondent in any demonstrable or substantial manner, and
(e) the appeal raises strongly arguable issues.
While I have real reservations as to the merit of the appellant’s submissions, which appear to have wrongly assumed that an appeal under s 352 is an automatic hearing de novo based on such further or additional evidence as the appellant wishes to tender, as the respondent has not opposed the extension of time application, and as there is no prejudice to the respondent and the delay involved is short, I am prepared, with extreme reluctance, to extend time to appeal until 5 October 2011.
ON THE PAPERS
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 Nos 1 and 6, the documents that are before me, and the submissions 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.
EVIDENCE AND ARBITRATOR’S REASONS
The appellant is now 62 years old. He had not been in full-time employment since he stopped work as the manager of the Transport and Communication Branch of the NSW Police in November 1992. On 14 November 1992, Mr Casey injured his neck when he fell in the course of his employment with the NSW Police. In August 1993, he was certified unfit to continue work with the NSW Police. He moved to Forster with his wife in 1994, where they ran an antique business for a couple of years. Mr Casey started work as a new and used car salesman with the respondent in August 2007.
He saw his general practitioner at Forster, Dr Ryan, on 17 May 2005, complaining of “chest ache from back for eight weeks constant”. A bone mineral density test on 31 May 2005 suggested that the femoral neck bone mineral density was in the osteopenic range and the lumbar spine was above the normal reference range. An x-ray of the lumbosacral spine dated 14 June 2005 revealed degenerative changes present, with osteophyte formation on the lumbar vertebral bodies. There was a slight mid-lumbar scoliosis convex to the left and slight narrowing of the L3/4 intervertebral disc space. The sacroiliac joint space appeared normal.
On 13 November 2006, Mr Casey saw Dr Ryan, complaining of “pain in his lower back, no radiation”, which had been present for eight weeks. A CT scan of the lumbosacral spine dated 14 November 2006 stated:
“L2-3: There is a slight generalised bulging of the disc. No localised protrusion is evident, the lateral recesses appear normal. Moderate degenerative changes are present in the posterior joints and there is slight narrowing of the spinal canal.
L3-4: There is some generalised bulging of the disc, this is more pronounced at the left postero-lateral aspect where there is some slight left postero-lateral broad based bulging at the left lateral recess. The right lateral recess appears normal. Moderate degenerative changes are present in the posterior joints and there is slight narrowing of the spinal canal”.
There was no disc abnormality at L1/2, L4/5 or L5/S1. There were minor degenerative changes in the posterior joints but no localised narrowing of the spinal canal.
Mr Casey started work with the respondent in August 2007.
On 20 September 2007, he saw Dr Ryan, complaining of three weeks of pain in his right lumbar spine radiating to the buttock. The doctor’s notes referred to a “numb feeling” but there was no other radiation and no focal signs.
A lumbar CT scan dated 27 September 2007 reported:
“Findings: The spinal sagittal alignment is preserved. There is multilevel mild to moderate degenerative arthritis, associated with disc bulge at multiple levels.
At L1/2, no significant canal or foraminal stenosis is noted.
At L2-3, There is moderate spinal canals stenosis from disc bulge and short pedicles. There is also bilateral moderate foraminal stenosis from osteophytosis and disc bulge.
At L3-4, there is a similar appearance with moderate spinal canal and bilateral foraminal stenosis.
At L4/5, there is a similar appearance with less marked spinal canal and foraminal stenosis.
At L5/S1, no significant canal or foraminal stenosis is noted.”
On 8 October 2007, Mr Casey’s pain had improved but he had some numbness in his right L1 dermatome
On 11 March 2008, the arms and back of the seat on the chair on which Mr Casey was sitting snapped off. Though he did not fall off the chair, his back and shoulders dropped to the floor behind the chair and his legs were pinned under his desk. Two co-workers helped Mr Casey off the floor. He went for a walk and returned to work. He was sore that night. He did not seek medical treatment because he did not think it was necessary. He believed the aches and pains he had would eventually subside. At some stage, Mr Casey (presumably in the months following the fall), “slowly and gradually” developed pain in his legs and back. He returned to using pain medication to relieve the aches, which he attributed to “aging and bodily deterioration”.
On 3 April 2008, Mr Casey saw Dr Ryan about wanting to stop smoking. Dr Ryan prescribed Champix (to assist with stopping smoking), Crestor (cholesterol medication) and temazepam (a sedative). Mr Casey saw Dr Ryan on 6 May 2008 in relation to a Champix maintenance pack tablet.
On 8 May 2008, Dr Ryan recorded that Mr Casey complained of his knees, low back, and that his hips were painful at night. Dr Ryan recorded “exam negative”. He added Panamax to the worker’s medications, and arranged for back and knee x-rays. The lumbar x-ray revealed a slight mid-lumbar scoliosis convex to the left, degenerative changes with osteophyte formation on the lumbar vertebral bodies, and a slight narrowing of the L2/3 and moderate narrowing of the L3/4 disc spaces. X-rays of the knees revealed minor degenerative changes in the right knee and moderate changes in the left knee.
Mr Casey saw Dr Ryan on 27 May 2008. The doctor recorded that the worker’s joints were unchanged and that he had osteoarthritis on x-ray. Dr Ryan did not take a history on either 8 May or 27 May of the worker’s fall at work on 11 March 2008. He arranged for investigations of the worker’s problem with transient global amnesia.
On 6 June 2008, Dr Laydon, a general practitioner at Dr Ryan’s practice, issued Mr Casey repeat prescriptions for Nexium (medication for reflux oesophagitis) and temazepam.
On 12 June 2008, Dr Ryan referred Mr Casey to Dr Louise Berghouse, consultant physician, who was seeing him for transient memory problems. In her report of 3 July 2008, Dr Berghouse recorded that Mr Casey “had a lot of headaches and pins and needles here and there following an accident in 1992”, but no new neurological symptoms. There were no abnormal findings on general and neurological examination, except his absent ankle jerks bilaterally. Dr Berghouse made no record of Mr Casey complaining about his low back.
On 28 August 2008, Dr Ryan recorded that Mr Casey complained of bad nocturnal pain in his left knee.
On 14 October 2008, Dr Ryan prescribed Celebrex, Crestor, Nexium and temazepam.
Mr Casey remained at work during the above period, but took two weeks off for holidays in October 2008.
On 30 October 2008, Mr Casey complained to Dr Ryan of significant “ongoing back pain” and that it was “catching at times” and radiating to the front thigh. There were no “alarming symptoms”. Dr Ryan thought it appropriate to get an opinion from Dr Spittaler, neurosurgeon.
On 4 November 2008, Mr Casey saw Dr Ryan, complaining of severe back pain all day and night. The pain was in the right lumbar spine and to the thigh. Reflexes in the right knee were poor and “weak L1”. There was a suggestion of a cauda equina syndrome with difficulty voiding. A CT scan was arranged.
A CT scan on 5 November 2008 revealed, among other things:
“L2/3: There is generalised bulging of the disc. There is a localised right posterolateral broad based protrusion of the disc. This is just below the level of the disc and is seen to be causing an impression on the thecal sac. Moderate degenerative changes are present in the posterior joints and there is moderate narrowing of the spinal canal.
L3/4: There is slight narrowing of the disc space. No disc protrusion is evident, lateral processes appear normal. Early degenerative changes are present in the posterior joint but there si [sic] no narrowing of the spinal canal.”
On 6 November 2008, Mr Casey was taken by ambulance to Manning Base Hospital, where he was admitted. The triage notes record:
“Male aged fifty-nine years, 2 months presents with Pain, Back pain for ~ 6/12 and not responding to Endone. CT yesterday but could not wait for results from GP. Numbness in right thigh, tingling in knee. Foot N/V intact but unable to wiggle toes. Cap return< 2 secs, warm.”
The attending medical officer at the hospital, Dr Rhys-Jones, recorded:
“Presentation: 59 yr old male w/ 6/12 progressively worsening lower back pain + (R) sided ‘sciatic pain’ w/ associated ↓ mobility ↓ sensation in (R) thigh + shooting pain.
GP currently investigating CT results pending
Today had been moving sand w/ wheel barrow
Now pain severe +++
Unable to move leg
BIBA”
At [18(gg)], the Arbitrator noted Mr Casey’s evidence in his statement of 12 May 2011 that the wheelbarrow incident occurred on 4 November 2008. This statement has assumed considerable importance in the appeal and is considered further below. The Arbitrator said:
“The question arises: what occurred between March 2008 and late October/early November 2008, given the repeated visits to his general practice, which I have listed, to bring about the disc prolapse at L2/3?”
The Arbitrator then referred to Mr Casey’s evidence that the wheelbarrow was made from plastic and had a long handle to move small pot plants. Mr Casey said it could be moved with one finger and only held about a spade and a half of sand. It was roughly 36 inches high, 24 inches deep and 18 inches wide. A diagram of the barrow is evidence and marked “A”. The Arbitrator said (at [18(ii)] that it seemed that “this event may have exacerbated [Mr Casey’s] symptoms and may have caused the prolapse to L2/3”.
The Arbitrator felt it important to observe that the visit to Dr Ryan on 30 October 2008 and the referral to Dr Spittaler both pre-dated the wheelbarrow incident. He added that Mr Casey said in his statement of 12 May 2011 that the wheelbarrow incident occurred on 4 November 2008 and therefore pre-dated the CT scan of 5 November 2008.
Dr Spittaler saw Mr Casey on 15 January 2009. He recorded the following history in a report to Dr Ryan of the same date:
“The patient had minimal lower back pain in the past but he injured himself in May [sic] when he was at work and a chair broke. He hyperextended his lumbar spine and this led to an increase in back and bilateral leg pain. The symptoms worsened about four months ago. The leg pain is predominantly in the anterior thighs and is worse with standing for periods and also with twisting”.
The Arbitrator correctly noted that Dr Spittaler had not been informed of Mr Casey’s previous back problems.
An MRI scan on 6 February 2009 revealed:
Report: There are generalised degenerative changes with moderate generalised disc space narrowing from the lower thoracic spine to L3/4 and mild desiccation at L4/5 and L5/S1. There is moderate anterior and lateral osteophyte formation at T12/L1, L1/2 and L2/3 and there is moderate facet joint arthropathy in the mid lumbar spine most pronounced at L2/3 and L3/4 with mild changes in the lower lumbar spine. Alignment is normal.
…
The changes at the individual levels are as follows:
L1/2: There is no significant abnormality at this level.
L2/3: There is a large left posterolateral disc herniation with an extruded disc fragment measuring 8mm AP, 11mm transverse with inferior extension of the craniocaudal length of 17mm. This is causing a moderate spinal canal stenosis with exclusion of the CSF from around the roots of the cauda equina and reduction in the AP diameter of the thecal sac to 7mm. This also extends in to the right neural exit foramen of L2 and there is some loss of definition [of] the L2 nerve root within the exit foramen indicating possible nerve root compression. There is also a moderate circumferential annulus bulge and osteophyte complex and moderate narrowing of the left neural exit foramen of L2.
…..”.
Dr Spittaler reviewed Mr Casey on 4 March 2009. He discussed with him a lumbar laminectomy and discectomy, which was likely to relieve his leg symptoms. Mr Casey decided to proceed with the surgery.
In a report to the insurer dated 27 March 2009, Dr Spittaler repeated the history he had recorded on 15 January 2009 and concluded that “the fall at work when the leg symptoms started is most likely the point at which the patient suffered the disc prolapse”. Mr Casey had surgery on 14 April 2009.
The Arbitrator said (at [18(nn)]) that Dr Spittaler’s history of when the leg symptoms started was incorrect.
On 1 April 2009, Dr Ryan reported to the insurer, setting out several of the attendances noted above. With regard to Mr Casey’s attendance on 4 November 2008, Dr Ryan said:
“On Thursday, November 4, 2008 [Mr Casey] had significant back pain all day and night right lumbar to the thigh he also had some significant loss of reflex is [sic] in his right knee and weakness in the L1 dermatome and there was a suggestion of Korda [sic] in [sic] equine syndrome with difficulty voiding. Scan was arranged. He subsequently ended up in hospital and was reviewed by myself on Thursday, November 13, 2008 he had been admitted with severe back pain. No particular therapy was undertaken the scan confirmed a prolapsed disc in the lumbar second and third disk [sic] space.
He remained on regular analgesia over the next few months until he saw Dr Spittaler at which point he had an MRI scan. It was here that he described on the 11th of March 2008 that he was leaning back of [sic] the chair at work and the chair fell to pieces and he hurt his back or at least the pain that he was suffering from suddenly got worse. When he was admitted to hospital it appeared that he did have some significant corda [sic] equine [sic] syndrome.
He did not unfortunately mention the accident until sometime after his pain had got worse and the suggestion that he needed surgery was made. He says that the incident was documented at work and if this is correct then I’m sure that his back pain has got worse because of the accident he had. And therefore is a legitimate reason for him to approach his work insurance.
The respondent relied on reports from two neurosurgeons, Dr Davies and Dr Matheson. I assume that the more recent reports from Dr Davies were obtained because of Dr Matheson’s retirement and that, for this reason, the appellant took no objection to the respondent relying on reports from two specialists.
The Arbitrator noted that both doctors had a “more complete picture as to [Mr Casey’s] presentation to treating doctors and the hospital records”. Their view was that Mr Casey probably suffered an aggravation of an underlying lumbar spondylosis as a result of the work injury on 11 March 2008 but, as Mr Casey continued his normal duties and did not seek medical attention for some time after that incident, it was not a significant aggravation. They felt that the subsequent back and leg symptoms related to underlying lumbar spondylosis.
In the absence of expert opinion from the appellant with a comprehensive history and explanation linking the problems as a matter of commonsense with the incident on 11 March 2008, the Arbitrator found the views of Dr Davies and Dr Matheson more convincing.
PROCEEDINGS AT THE ARBITRATION
The arbitration was held at Port Macquarie on 12 May 2011. Ms Dulhunty, of counsel, and a solicitor appeared for Mr Casey. Mr Morgan, of counsel, appeared for the respondent. At the start of the proceedings, the Arbitrator asked Ms Dulhunty what documents she was relying on. She replied that she was relying on the Application to Resolve a Dispute and Mr Casey’s “supplementary statement which is the subject of an Application for Late Documents” (T2.1). The statement tendered was dated 12 May 2011.
The statement of 12 May 2011 was not attached to an Application to Admit Late Documents (form 2C). However, Mr Casey’s solicitor had filed an Application to Admit Late Documents with the Commission in Sydney on 11 May 2011, which attached a statement from Mr Casey dated 21 April 2011. Neither Ms Dulhunty nor her solicitor referred the Arbitrator to the April statement or the Application to Admit Late Documents filed on 11 May 2011, which did not reach the Arbitrator.
The Arbitrator gave leave to Mr Morgan to cross-examine Mr Casey. The parties then made submissions, and the Arbitrator reserved his decision.
ISSUES IN DISPUTE
Regrettably, the Appeal Against Decision of Arbitrator filed on 5 October 2011 did not properly identify any grounds of appeal. The appellant’s solicitor, who appeared for the worker (with counsel) at the arbitration, submitted that the worker appealed “on the basis that new evidence had become available which has a material impact on the weight given to other evidence which was before the Arbitrator”.
The appeal then referred to certain fresh evidence or additional evidence, namely, a copy of a page said to be from the order book from Pacific Palms Landscape Supplies for the period 26 June 2008 – 30 November 2008 (the order book) and the statement from Mr Casey dated 21 April 2011 that had been attached to the Application to Admit Late Documents filed on 11 May 2011.
The order book reveals that Pacific Palms delivered two metres of sand to Mr Casey on 6 November 2008. This evidence was said to “support the fact that ‘the wheelbarrow incident’ occurred after the CT on 5 November 2008” and there was a “high degree of probability there would have been a different decision had the evidence been admitted at the arbitration”, because the Arbitrator would have had further evidence that the CT scan was taken prior to the wheelbarrow incident.
Without referring to the Arbitrator’s detailed reasoning, it was submitted that, given the weight the Arbitrator placed on the wheelbarrow incident, and the date on which it occurred, it was just to admit the order book into evidence.
In his statement of 21 April 2011, Mr Casey said he was using a wheelbarrow on 6 November 2008, not 4 November 2008, as he said in his statement of 12 May 2011 (see [42] and [44]) above). It was submitted that the statement from Mr Casey “should be reconsidered as it corrects the anomaly apparent in the Arbitrators [sic] determination between 4 November 2008 and 6 November 2008”.
It was argued that the reference to the wheelbarrow incident having happened on 6 November 2008 was consistent with the history given to Dr Matheson, which was “accepted by the Arbitrator”, and that it was just in all the circumstances to admit the statement, as it had been available to the respondent prior to the hearing “and the admission of the unsigned statement was an oversight”. The reference to the “unsigned statement” was a reference to the statement signed and dated 12 May 2011, which Ms Dulhunty tendered at the arbitration.
At the teleconference on 13 December 2011, I suggested that the evidence sought to be tendered on appeal was not fresh evidence but was always available. Mr Hourigan made the following submission in support of the application to rely on the fresh evidence (at T4.8):
“MR HOURIGAN: Well, in my respectful submission, it is fresh evidence because the documents were filed in the appropriate manner with the Tribunal. If the Tribunal is not capacitised [sic] to enable those documents to meet up with the court file prior to a hearing and then there was a mistake by the solicitor, and that is owned up to in the Appellant’s submissions, it simply must be something that ought be rectified. Otherwise injustice will occur and one would assume one of the primary concerns of the Tribunal is - of the Commission is to avoid that sort of thing. …”
I observed (at T5.14) that the appeal had not identified any proper grounds of appeal and I asked if the appellant intended doing so. Mr Hourigan responded (at T5.18):
“MR HOURIGAN: I can do so but it will be drawing from the material that is already set forth in Mr Walker’s submissions on behalf of the Appellant. That is there is a material error because of a mis-consideration [sic] of the date and there is an application for fresh evidence as previously averred to.
DEPUTY PRESIDENT: I don’t quite follow that at all. On the evidence available to the Arbitrator, what is the error you allege?
MR HOURIGAN: That he’s got the wrong date. He’s referred to the wrong date and it’s a material error.”
Mr Hourigan then stated that the Commission erred in not having the filed documents available and that was an error that could be corrected. The reference to the filed documents was a reference to the Application to Admit Late Documents filed on 11 May 2011. Ultimately, Mr Hourigan requested the opportunity to make further written submissions. I agreed with that request and set a timetable for those submissions, which were to deal with the three issues noted at [14] above, the issue of an oral hearing having been resolved.
In written submissions filed on 10 January 2012, Mr Hourigan made the following points:
(a) leave to rely on fresh evidence was sought because, firstly, it was not available and could not reasonably have been obtained by the appellant prior to the (arbitration) hearing, and, secondly, in so far as failure to grant leave would cause substantial injustice in the case;
(b) section 354, in so far as it states that the Commission is obliged to act according to equity, good conscience and the substantial merits of the case without regard to technicalities, warrants the granting of leave to rely on fresh evidence so as to avoid “demonstrable and substantial injustice” and to avoid the determination being made on incorrect and incomplete evidence;
(c) the statement of 21 April 2011, which said that the wheelbarrow incident occurred on 6 November 2008, was sought to be tendered in substitution for the “unsigned” statement, which wrongly stated that the incident occurred on 4 November 2008;
(d) the order book supports the appellant’s assertion in the 21 April 2011 statement that the sand was delivered on 6 November 2011;
(e) there is a distinction between “fresh evidence” and “evidence in substitution”, with a more flexible approach being taken to the admission of evidence in substitution (Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158 (Haider);
(f) it cannot be said that the appellant made a forensic decision not to rely upon the statement of 21 April 2011, or that he was using the arbitration as a “trial run” to see how things turned out and was now seeking to change his position;
(g) granting leave would not offend public interest in the finality of litigation, nor could it be said that the evidence sought to be admitted will add nothing to what was before the Arbitrator, and
(h) there is not likely to be any prejudice to the respondent, especially in so far as the respondent would have the opportunity, assuming that the matter is remitted to the Arbitrator for a rehearing, to explore the evidence as it considers appropriate.
The introduction of fresh evidence or evidence in addition to or substitution (fresh evidence) for the evidence at the arbitration is governed by s 352(6) of the 1998 Act, which states:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
This provision, which applies to Arbitrators’ decisions made after 1 February 2011, is in different terms to the provision considered by the Court of Appeal in Haider. The admission of fresh evidence on appeal is discretionary. Under s 352(6), the Commission is not to grant leave to a party to rely on fresh evidence on appeal unless it is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) failure to grant leave would cause substantial injustice in the case.
Consistent with the subsection and the principles discussed in Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) and Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 (Nowlan)), an applicant seeking leave to rely on fresh evidence (or evidence in substitution) must establish:
(a) that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b) that the evidence is such that there is a high degree of probability that there would be a different result;
(c) that the evidence is credible, or
(d) that, in the circumstances of the case, it is just to admit the evidence.
In the event that evidence sought to be tendered is evidence that was available to the party, or could reasonably have been obtained by the party, before the proceedings concerned before the Arbitrator, then, in addition to the matters identified at [70] above, it will be necessary to establish that the failure to grant leave to admit the evidence will cause “a substantial injustice in the case”.
Essentially, the power to admit fresh evidence (or evidence in substitution) on appeal exists to serve the demands of justice. In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ [1998] HCA 67; 197 CLR 172 (at [111]):
“Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
The appellant in the present case has failed to establish that the evidence sought to be tendered on appeal was not available to him, or could not reasonably have been obtained, prior to the arbitration on 12 May 2011. The order book clearly existed prior to the hearing, but the appellant has not explained what steps were taken to obtain it for use at the arbitration. Similarly, Mr Casey’s statement of 21 April 2011 was obviously available prior to the hearing and the submission to the contrary was patently wrong.
It is therefore necessary for Mr Casey to establish that the failure to grant leave to admit the evidence would “cause a substantial injustice in the case”. He has to establish that the fresh evidence would have produced a different result if it had been available at the arbitration. This requires a careful consideration of the issues before the Arbitrator and his reasons.
At the arbitration, Mr Morgan made it clear that the issue in dispute was causation (T6.22, T6.36 and T8.22) and he made submissions to that effect, arguing, among other things, that the Arbitrator would not accept Mr Casey’s medical experts because of their incomplete histories (T30.38 and T32.53). Counsel for Mr Casey addressed the causation issue by reference to the medical evidence (T38.46).
Mr Morgan also put to Mr Casey in cross-examination (at T14.22) that he told Dr Rhys-Jones on 6 November 2008 about moving sand with a wheelbarrow that day. Mr Casey agreed he had done something that aggravated his back (T14.39) and (the wheelbarrow incident) was the first thing that came to his mind (T14.46). Mr Morgan made no submissions about the wheelbarrow incident or about 4 November 2008 being a critical date. Ms Dulhunty made only a brief reference to the wheelbarrow incident, which she agreed occurred on 4 November 2008 (T36.19–35).
The Arbitrator correctly observed that Mr Casey said in his statement of 12 May 2011 that he moved the wheelbarrow on 4 November 2008. This observation was made while the Arbitrator was reviewing the evidence and setting out the relevant chronology. He also referred to Mr Casey’s evidence about the dimensions and capacity of the wheelbarrow and added, while still reviewing the evidence, “this event may have exacerbated [Mr Casey’s] symptoms and may have caused the prolapse to L2/3”. He made no finding that the wheelbarrow incident occurred on 4 November 2008, or that it caused Mr Casey’s back condition.
After his detailed review of the evidence, he then gave his reasons for rejecting Mr Casey’s claim. They were:
(a) the evidence from Dr Spittaler was flawed because he had an incorrect history of Mr Casey’s back symptoms before 11 March 2008 and of when his leg symptoms commenced after that date. Specifically, the evidence from Dr Ryan and Dr Berghouse indicated that Mr Casey was not experiencing referred leg pain following the incident of 11 March 2008;
(b) under cross-examination, Mr Casey was defensive of prior troubles and in respect of making records available to the insurer, but it was not necessary to draw any adverse conclusions on those matters, “given the other objective evidence” in the treating doctors’ records;
(c) on a commonsense evaluation of the causal chain, and given Mr Casey’s frequent visits to his general practitioner about many matters with an absence of complaint (of back or leg symptoms) (except for 8 May 2008 and 30 October 2008), he was not persuaded that Mr Casey’s presenting condition following the November 2008 incident and the need for surgery resulted from the incident on 11 March 2008, and
(d) though the proposed surgery was reasonably necessary treatment, Mr Casey had not made out his case on the balance of probabilities that his present condition, incapacity and need for further surgical treatment had resulted from any injury on 11 March 2008.
The above analysis demonstrates that, though the Arbitrator said that the wheelbarrow incident “may” have caused the L2/3 disc prolapse, he did not base his conclusion on that incident. This was so regardless of when it occurred. He based his decision on an assessment of the objective evidence overall. Based on that assessment, he did not accept Mr Casey’s medical case and preferred the evidence from Dr Davies and Dr Matheson.
Neither Dr Davies nor Dr Matheson based his conclusion on the wheelbarrow incident. When asked about the significance of that incident, assuming that it occurred on 6 November 2008, Dr Matheson said that it was more likely than not that the primary problem was the degenerative condition of the worker’s back, and the incident of 6 November 2008 was “just another increase in pain that he experienced”. He added that he did not think that the incident on 11 March 2008 caused Mr Casey’s condition.
Dr Davies noted the hospital records for 6 November 2008, where it was noted that Mr Casey had been moving sand with a wheelbarrow that day and had severe pain and was unable to move his right leg. However, like Dr Matheson, he did not base his decision on that history. Rather, he concluded that any aggravation of Mr Casey’s spondylosis on 11 March 2008 resolved, and his ongoing symptoms, and need for surgery, related to his underlying spondylosis, not the fall at work.
The Arbitrator noted Mr Casey’s attendance on Dr Ryan on 4 November 2008, complaining of back pain, and the CT of 5 November 2008. He also noted Mr Casey’s assertion in his 12 May 2011 statement that the wheelbarrow incident occurred on 4 November 2008 and the hospital record (and Dr Matheson’s history) that it occurred on 6 November 2008. However, as I have noted above, contrary to the appellant’s submissions, the Arbitrator did not find that the wheelbarrow incident occurred on 4 November 2008, or that it caused Mr Casey’s condition. He accepted the opinions of Dr Davies and Dr Matheson, which were based on the accurate history. That conclusion was open to him and was not dependent on the date of the wheelbarrow incident.
I do not accept the appellant’s submission that it is “necessary that this matter be re-determined and the worker given the opportunity to have his evidence tested again given the weight the Arbitrator has given to his oral testimony”. While the Arbitrator referred to Mr Casey being defensive about his prior (back) troubles, he expressly stated that, given the objective evidence of the treating doctors, it was not necessary to draw any adverse conclusions and he did not do so.
It follows that the additional evidence Mr Casey has sought to tender on appeal would have made no difference to the outcome before the Arbitrator and there is no injustice if the evidence is excluded. Though this conclusion disposes of the substantive ground of appeal, I make the following observations about the appellant’s other submissions.
The argument that the fresh evidence must be admitted so the case can be determined according to its substantial merits is without merit. The Arbitrator determined the case according to its substantial merits after a detailed analysis of the evidence. The date of the wheelbarrow incident was not determinative of the outcome.
Adopting the most flexible approach to the introduction of fresh evidence (or evidence in substitution), namely, whether it is just to admit the evidence in all the circumstances, makes no difference to the result because I am comfortably satisfied, for the reasons outlined above, that the date of the wheelbarrow incident is not determinative of the outcome.
The submission that the appellant did not make a forensic decision not to rely on the 21 April 2011 statement is open to doubt. Ms Dulhunty tendered the 12 May 2011 statement at the arbitration after Mr Casey signed it that day. She then asked Mr Casey, on oath, if he wished to change anything in it and he replied no. Counsel made no enquiry about the Application to File Late Documents filed by Mr Casey’s solicitor with the Commission in Sydney on 11 May 2011, which had the 21 April 2011 statement attached to it, and made no application to tender that statement. There is no suggestion that, due to an oversight, counsel did not have the April statement.
Mr Hourigan’s submission at the teleconference on 13 December 2011 that the failure to tender the correct statement was partially because the Application to File Late Documents filed on 11 May 2011 in Sydney had not been forwarded to the Arbitrator in time for the arbitration in Port Macquarie on 12 May 2011 was surprising, to say the least. The obligation to prepare and file documents in time for the arbitration rests with the parties’ legal representatives. If a party seeks to rely on late documents, it must seek leave to do so.
Counsel made no application to rely on the 21 April 2011 statement. It was submitted in the appellant’s original submissions that, because the Application to File Late Documents filed on 11 May 2011 had not reached Port Macquarie by 12 May 2011, “an unsigned statement was provided” and that “draft copy contained the date error”. The problem with this submission is that the “unsigned” statement was signed by Mr Casey on 12 May 2011 and then tendered. There are no details of when the “draft statement” was prepared, by whom, or how it came to contain the error.
As a solicitor instructed counsel at the arbitration, it seems quite extraordinary that counsel tendered the 12 May 2011 statement by mistake, as has been submitted on appeal. The more plausible inference is that a decision was made to tender and rely on the 12 May 2011 statement. Regardless of whether the 12 May 2011 statement was tendered as a deliberate forensic decision, or because of an “oversight”, it makes no difference to the outcome. For the reasons explained above, I do not accept that the statement of 21 April 2011 adds anything decisive to the evidence before the Arbitrator that would have led to a different result.
Last, the question of prejudice to the respondent does not arise because the evidence sought to be tendered makes no difference to the outcome. There is no basis for putting the respondent to the expense and inconvenience of a second arbitration.
The application to rely on fresh evidence (or evidence in substitution) is refused. As the appellant has identified no other ground of appeal, the appeal must fail.
OTHER MATTERS
Reconsideration
In the alternative, Mr Hourigan sought leave to reconsider the Arbitrator’s decision under s 350(3) of the 1998 Act. He said that, in addition to his other submissions, the existence of the discretion in s 350(3) is “predicated upon the Commission’s duty to do justice between the parties having regard to the substantial merits of the case”.
Section 350 provides:
“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The application for reconsideration is misconceived. The situation is covered by the maxim expressum facit cessare tacitum (what is expressed makes what is implied to cease). Where a particular procedure is designated to achieve something, other procedures are excluded (Statutory Interpretation in Australia, 7th ed, D C Pearce and R Geddes, LexisNexis, 2011, at [4.34]).
In Anthony Horden & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, Gavan Duffy and Dixon JJ said:
“When the Legislature explicitly gives a power by a particular provision which prescribed the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”
In R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529, Dixon J said (at 550):
“an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.”
In the present matter, the legislation has enacted a specific method and procedure for challenging Arbitrators’ decisions. That method is by way of an appeal to a Presidential member under s 352. Such an appeal is limited to the determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion. It is not open to avoid the express provisions of s 352 by relying on the general reconsideration power in s 350(3).
The reconsideration power permits an Arbitrator or Presidential member, in the appropriate case, to reconsider his or her previous decisions. It is not an additional power by which a Presidential member may review an Arbitrator’s decision. That is clear from the words in s 350(1), which expressly provide that “[e]xcept as otherwise provided by this Act, a decision of the Commission … is final and binding on the parties”. The 1998 Act provides a method for challenging Arbitrators’ decisions in s 352 and nowhere else.
The application for reconsideration is refused.
Costs
The appellant has also challenged the Arbitrator’s costs order. The matter had originally been listed for arbitration in Taree on 30 March 2011, when the worker and his legal advisers appeared, but the respondent did not. The matter was listed for arbitration on 19 April 2011. That date was vacated by consent and the matter was ultimately heard on 12 May 2011. At the arbitration, Mr Casey’s counsel raised the question of costs thrown away by the respondent’s failure to appear on 30 March 2011 (T40.49), but the Arbitrator did not deal with it. That was an error.
Though a party is not permitted to appeal a costs order under s 352, because costs are not compensation, if the appeal is otherwise properly before a Presidential member, he or she may also determine any costs orders (Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; Wheeler v Somerfield [1966] 2 QB 94). It follows that, as the present appeal is otherwise properly before me on a substantive matter, the appellant is entitled to argue the question of costs of 30 March 2011.
The respondent has not challenged the Commission’s power to determine the costs question, but has submitted that costs follow the event and the appellant has advanced no basis for departure from that rule. It submitted that the appellant’s claim was doomed to fail because he had failed to establish a causal link between the incident at work and the claimed injury.
The respondent’s submissions have misunderstood the appellant’s challenge to the costs order. The appellant does not seek an order for costs of the arbitration proceedings generally, but seeks the costs thrown away because of the respondent’s non-appearance on 30 March 2011 and the need for a further hearing date to be allocated. The Arbitrator made no order that those costs were dependent on the outcome of the case.
The respondent has advanced no reason why the appellant is not entitled to recover those costs. The appellant was ready to proceed on 30 March 2011 but the matter did not proceed because of the respondent’s non-appearance. The appellant is entitled to costs thrown away because the respondent did not appear.
Under s 341 of the 1998 Act, the Commission has full power to determine by whom, to whom and to what extent costs are to be paid. There is no specific provision for “costs of the day” where a matter is adjourned through the fault of the respondent employer. However, bearing in mind that the appellant had retained counsel, who had to travel to Taree for the aborted hearing, in the exercise of my discretion I assess professional costs thrown away by the adjournment to be $1,100, plus travelling expenses as agreed or assessed.
This decision applies to the particular circumstances in this case. If the appellant had succeeded, he would have recovered a costs order in the usual way. That order would not have included the costs of 30 March 2011 unless the Commission ordered that the proceedings on 30 March 2011 were to be treated as “separate resolutions” (see Sch 6 Pt 9 of the Workers Compensation Regulation 2010). In circumstances where the same relief was claimed in the same proceedings, it is difficult to see how the proceedings on 30 March 2011 could be classified as “separate resolutions”.
As to costs of the appeal, as the appellant has failed in his substantive grounds of appeal, the proper order is that each side pay his or its own costs of the appeal.
DECISION
Time to appeal is extended until 5 October 2011.
Paragraphs 1 and 2 of the Certificate of Determination dated 31 August 2011, as amended on 7 September 2011, are confirmed.
Paragraph 3 of the Certificate of Determination dated 31 August 2011, as amended on 7 September 2011, is revoked and the following order made in its place:
“3. The respondent employer is to pay the applicant worker’s costs and disbursements thrown away by the adjournment on 30 March 2011. The applicant’s professional costs are assessed at $1,100 with disbursements relating to travelling expenses for that day to be agreed or assessed.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
14 February 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
8
9
0