Castree v Jimari Pty Ltd
[2004] NSWWCCPD 69
•28 September 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Castree v Jimari Pty Ltd t/as Hazelbrook Post Office [2004] NSW WCC PD 69
APPELLANT: Corrina Louise Castree
RESPONDENT: Jimari Pty Ltd t/as Hazelbrook Post Office
INSURER:GIO Australia Workers Compensation
FILE NUMBER: WCC4618-02
DATE OF ARBITRATOR’S DECISION: 28 January 2004
DATE OF APPEAL DECISION: 28 September 2004
SUBJECT MATTER OF DECISION: Section 9A “substantial contributing factor”; adequacy of reasons; procedural fairness; rules of evidence.
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Appellant: Higgins & Higgins Lawyers
Respondent: Thompson Cooper Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
INTRODUCTION
On 20 February 2004 Corrina Louise Castree (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’), and made submissions, against the relevant decision of an Arbitrator, dated 28 January 2004, in which the Arbitrator rejected a claim by the Appellant for workers compensation benefits.
The Respondent to the Appeal is Jimari Pty Ltd t/as Hazelbrook Post Office (‘the Respondent’). The Respondent filed submissions in Reply to the appeal on 5 April 2004.
The appeal was referred to me for review on 28 April 2004.
On 1 May 2004, the Appellant filed an ‘Amended Application to Appeal Against Decision of Arbitrator’ and further submissions on 1 May 2004, and the Respondent filed submissions in Reply to the Amended Application on 10 May 2004.
BACKGROUND TO THE DECISION UNDER REVIEW
The Appellant filed an ‘Application to Resolve a Dispute’ in the Commission on 27 November 2002. The original application indicated that the dispute concerned a claim for weekly benefits compensation from 21 January 2001 “to date and continuing”, $14,000 in compensation for permanent impairment, plus pain and suffering, and a “general order” for medical expenses. The alleged injury was described in the application as a psychological injury and the date of injury was described as “17 July, 2000 to 21 January, 2001”.
A teleconference was held on 6 June 2003 at which the Arbitrator noted that no Reply had been filed in response to the Appellant’s Application. The Arbitrator declined to rescind the Registrar’s referral of the Appellant to an Approved Medical Specialist (AMS). The Arbitrator made the following directions:
1.Applicant granted leave to file and serve Amended Application within 14 days.
2.Respondent granted leave to file and serve Reply with 14 days of service of Amended Application.
3.Further teleconference to be convened for 15 July at 10am.
An ‘Amended Application to Resolve a Dispute’ was filed by the Appellant on 26 June 2003. The Amended Application withdrew the claim for compensation for permanent impairment and pain and suffering, but maintained the claims for weekly benefits and medical expenses.
The Respondent filed a ‘Reply to Application to Resolve a Dispute’ on 11 July 2003.
A second teleconference was held on 15 July 2003. The Arbitrator noted that he had before him copies of neither the Amended Application nor the Reply, but noted that “the parties agreed the matter should be referred to an AMS.”
On 19 November 2003 the Commission issued a Medical Assessment Certificate (MAC) prepared by an AMS, Dr Michael Prior.
On 24 November 2003, the Respondent wrote to the Commission stating: “The AMS makes no reference to the material being forwarded with the Reply…We would be grateful if you could ask the AMS whether he has reviewed this material as it is not referred to in his medical assessment certificate.” A file note by Commission staff, dated 5 December 2003 records that the solicitor for the Respondent was contacted by telephone and the Commission staff member “confirmed all docs were with AMS.”
At a third teleconference on 11 December 2003 the Arbitrator noted that “[t]he parties agreed that this matter could be determined on the papers after submissions are made”, and directed that:
1.Final submissions be filed and served by each party within 14 days of these orders.
2.This matter to be determined on the papers after 8 January 2004 [sic].
In response to these directions the Appellant filed written submissions dated 16 December 2003 and the Respondent filed written submissions dated 23 December 2003.
On 28 January 2004 the Commission issued a Certificate of Determination, which records the Arbitrator’s orders as follows:
1.The Respondent is not liable for the Applicant’s claim for weekly compensation pursuant to s40 of the Workers Compensation Act 1987.
2.The Respondent is not liable for the payment of the Applicant’s claim under s60 of the Workers Compensation Act 1987.
3.That each Party pay its own costs.
The Arbitrator’s ‘Statement of Reasons for Decision’ (‘the Reasons’) was attached to the Certificate of Determination.
ON THE PAPERS REVIEW
I turn now to the appeal brought against that decision of the Arbitrator.
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.
The Appellant has submitted that the Application for Leave to Appeal and the substantive appeal should be determined on the papers. The Respondent does not object to this course.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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.
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, which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged on 20 February 2004, and, therefore, within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
The Appellant, having claimed weekly compensation from 21 January 2001 “to date and continuing” at a rate of $320 per week and a “general order” for medical expenses, now submits that the amount of compensation at issue in the appeal exceeds the $5,000 threshold in section 352(2)(a) of the 1998 Act. The Respondent agrees with this submission, and I find that this appeal involves in excess of $5,000 in compensation.
As no amount of compensation was awarded in the decision appealed against, section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
The threshold requirements of section 352 of the 1998 Act having been met, leave is granted for the Appellant to appeal against the decision of the Arbitrator, dated 28 January 2004.
SUBMISSIONS
The Appellant’s grounds of appeal allege the Arbitrator made a number of errors of law and fact. The Appellant’s submissions can be summarised as follows:
(i)The Arbitrator erred as his decision was against all the medical evidence.
(ii)The Arbitrator failed to place appropriate weight upon the MAC of the AMS.
(iii)The Arbitrator failed to give reasons for his findings in relation to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
(iv)The Arbitrator erred in not finding that the Respondent’s section 11A “Defence” was “unsupported, denied and irrelevant”.
(v)The Arbitrator “appears to have confused the issues in relation to [sections] 9A and 11A” of the 1987 Act.
(vi)The Arbitrator erred in law by failing to follow the principles laid down in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580.
(vii)The Arbitrator erred in failing to draw an inference in accordance with Jones v Dunkel (1959) 101 CLR 298 in relation to the Respondent’s failure to supply the report of Dr Frukacz.
In reply the Respondent has made a number of submissions, which can be summarised as follows:
(i)The “factual evidence” supported the Arbitrator’s decision that the Appellant’s employment was not a substantial contributing factor to her injury.
(ii)It is for the worker to establish that employment was a substantial contributing factor to the injury.
(iii)The Arbitrator gave the MAC of the AMS appropriate weight, as the Arbitrator did not accept the history on which the MAC was based.
(iv) “The Arbitrator’s reasons are very clear.”
(v)The Arbitrator did not err in relation to section 11A of the 1987 Act, nor did he confuse section 9A and 11A of the 1987 Act. As the Arbitrator found that employment was not a substantial contributing factor to the injury under section 9A, he did not need to consider section 11A of the 1987 Act.
(vi)The Arbitrator was not required to draw an inference in accordance with Jones v Dunkel (1959) 101 CLR 298. “It was not for the Respondent to supply medical reports if the Respondent chose not to do so.”
ISSUES IN DISPUTE
The issues in dispute in this appeal may be summarised and grouped as follows:
Section 9A Error
·Was the decision of the Arbitrator in relation to section 9A of the 1987 Act against the weight of the evidence?
·Was the Arbitrator entitled to find that work was not a substantial contributing factor to the injury when the Respondent did not provide medical evidence to support this view?
·Did the Arbitrator fail to give reasons or adequate reasons for his findings in relation to section 9A of the 1987 Act?
Section 11A Error
·Did the Arbitrator err in relation to not applying section 11A of the 1987 Act?
Procedural Fairness Error
·Did the Arbitrator err in failing to apply the rule in Browne v Dunn (1893) 6 R 67, in accordance with Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580?
·Did the Arbitrator err in failing to draw an inference in accordance with the principles of Jones v Dunkel (1959) 101 CLR 298?
DISCUSSION AND FINDINGS
I have before me all of the evidence on the Commission file, including the evidence relied upon by the parties in the proceedings before the Arbitrator. Regrettably, I do not have before me the Arbitrator’s file.
Of particular relevance in determining this appeal are the following documents:
·the medical reports of Dr Parmegiani, dated 22 March 2002 and 26 April 2002,
·the Appellant’s statement, dated 4 October 2002,
·the statement of Mr James Hopwood, dated 2 September 2002,
·the statement of Ms Paula Garratt, dated 11 September 2002,
·the statement of Mr Brian Single, a ‘Licensed Private Inquiry Agent’, dated 30 September 2002, relating to a conversation with a Ms Patricia Bartle, and
·the MAC of the AMS, Dr Prior.
Section 9A Error
The Arbitrator found that the Appellant was not entitled to compensation, as the Appellant’s work was not a substantial contributing factor to her injury. The Appellant argues that the Arbitrator erred as this decision was against all the medical evidence. The Respondent argues that the “factual evidence” supported the Arbitrator’s decision.
Section 9A of the 1987 Act provides:
(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
(2)The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway at about the same t8ime or at the same stage of the worker’s life, if he or she had not been at work or had worked in that employment,
(e)the worker’s state of health before the injury and the existence or any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
Whether employment was a substantial contributing factor to a worker’s injury “is a matter for determination in the individual circumstances of each case” (McMahon v Anthony Lagana & Joseph Lavella t/as the Vessel ‘Nimble II’ [2003] NSW WCC PD 22). The onus is on the worker to prove a causal connection between the injury and the work that was required to be performed (Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632).
The Arbitrator considered section 9A of the 1987 Act and found:
“There is no doubt that the Applicant suffers from a major depressive disorder…On all of the evidence before me however, including the statements tendered by the Respondent, I am not satisfied that work was a substantial contributing factor” (Reasons at [39]).
The Arbitrator recognised that all of the medical evidence, being the reports of Drs Parmegiani and Prior, supported the view that the Appellant’s employment was a substantial contributing factor to the injury (Reasons at [34]). The Arbitrator, however, did not accept the findings of Drs Prior and Parmegiani on the basis that he did not accept the history on which these reports were based, being that provided by the Appellant.
As Deputy President Fleming recognised in Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 9:
“ Prior to considering the medical evidence it was incumbent upon the Arbitrator to satisfy herself as to a number of questions of fact relevant to the cause of the injury (Vescio v Top Form Concrete (1995) 13 NSWCCR 255). The history of events giving rise to the injury given to the doctors by the Applicant will obviously influence their medical opinion. Similarly the findings of the Arbitrator in relation to the factual history will influence her decision as to the weight she gives to that medical opinion.”
In not accepting the Appellant’s history of events giving rise to the injury, and the findings of Drs Parmegiani and Prior based on this history, the Arbitrator placed greater weight on the Respondent’s evidence, specifically the evidence of Mr Hopwood, Ms Garratt and Ms Bartle.
The Appellant’s statement suggested that her depression was caused from the stress she faced in her workplace, and, in particular, when her employment was terminated during a telephone call on 21 January 2001.
The statements of Mr Hopwood, Ms Garratt and Ms Bartle refuted the worker’s history of events leading to the injury. Mr Hopwood, Ms Garratt and Ms Bartle all denied that the workplace was stressful and that the Appellant had ever complained about stress in her employment. The statements all instead referred to the stress the Appellant had faced in her personal life. The statements of Mr Hopwood, Ms Garratt and Ms Bartle also cast doubt on whether the Appellant’s employment had been terminated.
It is the role of the Arbitrator to determine the relative weight to be placed on the evidence before him. It is not appropriate for a Presidential member on review to interfere with this determination unless the Arbitrator has applied the wrong legal test (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The Appellant raised a particular objection to the weight given to the report of Dr Prior, the AMS. Section 326 of the 1998 Act makes it clear that the MAC of Dr Davis was evidence, but not conclusive evidence, in the proceedings before the Arbitrator. It was the Arbitrator’s function and responsibility to determine the relative weight to be placed on the MAC.
In the Reasons (at [39]) the Arbitrator said:
“There is no doubt that the Applicant suffers from a major depressive disorder … [but] I am not satisfied that work was a substantial contributing factor …. What I do have [before me] is a history of depression in the Applicant’s immediate family, some significant and tragic life events before and during the Applicant’s employment with the Respondent, and a history as provided by the Applicant which is not consistent with the statements of three individuals who appear to be frank in their recollections.”
I find no evidence to support the Appellant’s contention that the Arbitrator erred in the “weighting” of the evidence in relation to section 9A of the 1987 Act. The Arbitrator was entitled to exercise his discretion by placing greater weight on the statements of Mr Hopwood, Ms Garratt and Ms Bartle than on the statement of the Appellant and the medical reports, in view of his findings regarding the history of events leading to the alleged injury.
The Appellant has also submitted that “the facts for denial of liability need to be supported by the Respondent’s doctor.” This submission appears to suggest that the Arbitrator erred in not finding against the Respondent on the basis that the Respondent did not produce medical evidence to support the contention that the worker’s employment was not a substantial contributing factor to the injury. This submission must be rejected on the basis that the onus is on the Applicant to prove that employment was a substantial contributing factor to the injury, not on the Respondent to prove otherwise (Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632).
The Appellant has further submitted that the Arbitrator failed to provide adequate reasons for his decision in relation to section 9A of the 1987 Act.
An Arbitrator has both common law and statutory duties to provide reasons for his or her decision (Absolon v NSW TAFE [1999] NSWCA 311, section 294(2) of the 1998 Act, and Rule 73 of the Workers Compensation Commission Rules 2003). Although an Arbitrator is not required to provide lengthy reasons for every decision, the reasons must at least “explain to the parties why the Arbitrator has made the particular decision” (M & S Shipman v Matters [2003] NSW WCC PD 19.)
Although the Arbitrator did not expressly refer to section 9A(2) of the 1987 Act, he did consider a number of the matters outlined in section 9A(2) as relevant to determining whether the Appellant’s employment was a substantial contributing factor to the injury. All of the factors set out in section 9A(2) will not be relevant to every claim (see Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26).
The Arbitrator accepted the evidence of Ms Garratt and Ms Bartle (through Mr Single, a ‘Licensed Private Inquiry Agent’) that the workplace was not a stressful place to work (Reasons at [41] - see section 9A(2)(b)). The Arbitrator considered the history of depression in the Appellant’s family (Reasons at [39] - see section 9A(2)(e)) and found that there were “some significant and tragic life events before and during the Applicant’s employment” (Reasons at [39] - see section 9A(2)(f)), and concluded that these were the more likely causes of her stressed condition.
Although the Arbitrator’s reasons in relation to section 9A are brief, in my opinion they adequately explain why he made the decision he made.
I find no error by the Arbitrator in relation to section 9A of the 1987 Act.
Section 11A Error
The Appellant has submitted that the Arbitrator erred in that he “appears to have confused the issues in relation to section 9A and 11A” of the 1987 Act (amended Ground 5) and in not finding that the Respondent’s section 11A defence was “unsupported, denied and irrelevant.”
The Arbitrator denied the Appellant’s claim on the basis that no compensation was payable as the Appellant’s employment was not a substantial contributing factor to the injury. The Arbitrator, therefore, was not required to consider section 11A of the 1987 Act. As the Arbitrator correctly stated: “s 11A is not relevant to this dispute.”
This ground of appeal must, therefore, fail.
Procedural Fairness Error
Browne v Dunn
The Appellant has submitted that the Arbitrator erred by failing to follow the principles laid down in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (‘Margaronis’). The Respondent has not addressed this ground of appeal.
The Appellant has not elaborated on what principles from Margaronis the Arbitrator allegedly failed to follow but presumably is suggesting that the Arbitrator denied her fairness in relation to the evidence she gave in her statement, dated 4 October 2002.
In Margaronis the Court of Appeal considered the rule in Browne v Dunn (1893) 6 R 67. Kirby P, Waddell A-JA and Samuels A-JA agreeing, stated:
“The practical rule of fairness enshrined in the Browne v Dunn principle required that the suggested contradictions in the worker’s history should have been put to the worker before they were used as a basis not of challenging the opinions resting on them but of challenging the truth of the worker’s evidence…procedural fairness required that he should have drawn the suggested inconsistencies which were troubling him to the notice of the worker or of counsel.”
It has been useful in deciding this appeal to consider the practicalities of applying the Margaronis principles as they were encountered by the trial Judge and the Court of Appeal in the later case of Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
In Re Minister for Immigration and Multicultural Affairs; Ex parte s154/2002 [2003] HCA 60 (“S154”) the High Court considered the application of the rule in Browne v Dunn to the Refugee Review Tribunal. Gummow and Heydon JJ, Gleeson CJ agreeing, stated:
“In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness.”
The High Court held that the rule in Browne v Dunn had no application to proceedings in the Tribunal involved in S154, as the Migration Act 1958 (Cth) provided that the rules of evidence did not apply to that Tribunal.
The High Court also noted in S154 that the application of Browne v Dunn would be problematic in a tribunal where the proceedings were of an inquisitorial, rather than an adversarial nature, but that decision does not relieve this Commission of its duty to afford procedural fairness to parties before it, even though section 354 of the 1998 Act requires proceedings to be conducted in the Commission with as little formality and technicality as the proper consideration of the matter permits (See also discussion in Muin v Refugee Review Tribunal (2002)190 ALR 601).
The statements of Mr Hopwood, Ms Garratt and Ms Bartle were attached to the Respondent’s ‘Reply to Application to Resolve a Dispute’ and were served on the Appellant. A brief perusal of these statements reveals that the Respondent’s Reply clearly disputed a number of aspects of the Appellant’s version of events leading to the injury.
The Appellant was given an opportunity to respond to the version of events asserted by the Respondent at the teleconference and was given a further opportunity when the Arbitrator granted leave for the Appellant and Respondent to file final written submissions. The evidence before me indicates that the Appellant consented to the matter being determined on the papers by the Arbitrator, and there is no evidence of any request for the Appellant Worker to provide further evidence in response to the Reply (in accordance with Rule 41 of the Workers Compensation Commission Rules 2003). There is also no evidence that the Appellant Worker sought leave to give oral evidence at any time in the proceedings before the Arbitrator.
As I have stated above, the Arbitrator did not accept the Appellant’s evidence regarding the history of events leading up to the injury, preferring the evidence of Mr Hopwood, Ms Garratt and Ms Bartle on this issue. As there is absolutely no evidence that the Arbitrator denied the Appellant any opportunity to deal with the evidence filed in the Commission against her version of events, this ground of appeal must fail.
Jones v Dunkel
The Appellant has submitted that the Arbitrator erred in failing to draw an inference in accordance with Jones v Dunkel (1959) 101 CLR 298. The Appellant maintains that the Arbitrator should have drawn such an inference in relation to the Respondent’s failure to supply the report of Dr Frukacz, who examined the Applicant on 30 September 2002.
The Respondent has submitted that it had no obligation to provide the report of Dr Frukacz, and the Arbitrator was not entitled to draw any inference from its failure to do so. I agree with the Respondent’s submissions on this issue, and note how difficult it is to sustain a Jones v Dunkel argument in a tribunal where there are statutory restrictions on the number of medical reports upon which a party may rely.
DECISION
The Appellant has failed to establish any errors of fact, law or discretion in the decision of the Arbitrator. I, therefore, confirm the decision of the Arbitrator, dated 28 January 2004.
COSTS
This appeal has been unsuccessful. The parties have not made submissions regarding the costs of the appeal and are urged to come to an agreement in accordance with section 345 of the 1998 Act.
Justice Terry Sheahan
President
28 September 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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