Central Coast Area Health Service v Sully
[2004] NSWWCCPD 46
•29 July 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Central Coast Area Health Service (Gosford Hospital) v Sully [2004] NSWWCCPD 46
APPELLANT: Central Coast Area Health Service (Gosford Hospital)
RESPONDENT: Carolyn Sully
INSURER:New South Wales Treasury Managed Fund
FILE NUMBER: WCC 9528-2003
DATE OF ARBITRATOR’S DECISION: 13 October 2003
DATE OF APPEAL DECISION: 29 July 2004
SUBJECT MATTER OF DECISION: Misdirection as to the applicable law; failure properly to consider all of the evidence and weight of the evidence; whether decision based on logical and probative evidence and in compliance with Rule 73(1)(b) and (c).
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Hunt & Hunt Lawyers
Respondent: McClellands Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.
CONTENTS
BACKGROUND TO THE APPLICATION TO THE APPEAL PARAGRAPHS 1-17
DECISION UNDER REVIEW PARAGRAPHS 18-21
ON THE PAPERS REVIEW PARAGRAPHS 22-23
LEAVE TO APPEAL PARAGRAPHS 24-27
EVIDENCE AND SUBMISSIONS PARAGRAPHS 28-45
DISCUSSION AND FINDINGS PARAGRAPHS 46-58
DECISION PARAGRAPH 59
COSTS PARAGRAPH 60
OTHER PARAGRAPH 61
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 November 2003, Central Coast Area Health Service (Gosford Hospital) (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 October 2003. The Appellant Employer listed the grounds of appeal, including a statement that it may wish to file further grounds“as may become apparent once transcript of the evidence and judgement are available to the parties.”
The Respondent to the Appeal is Carolyn Sully (‘the Respondent Worker/Ms Sully’).
The Insurer is the New South Wales Treasury Managed Fund (‘the Insurer’).
On 11 November 2003 the Respondent Worker’s Solicitors contacted the Commission by email stating that they had been served with a copy of the ‘Appeal Against Decision of Arbitrator’ and requested that they be provided with a copy of the CD-ROM of the arbitration hearing, so that submissions in reply could be prepared.
By letter of 20 November 2003 the Solicitors for the Respondent Worker filed a Certificate of Service of the same date, indicating that ‘Objections to Appeal’ were served on the Appellant Employer’s Solicitors on 13 November 2003.
On 26 November 2003 the Respondent Worker’s Solicitors wrote to the Commission indicating the CD-ROM had not been received and again requested that it be supplied in order that the Respondent Worker could properly respond to the appeal.
By letter dated 8 December 2003 the Solicitors for the Respondent Worker again wrote to the Commission indicating that the CD-ROM had not been provided and requested that it be made available as a matter of urgency.
On 17 December 2003 the Respondent Worker’s Solicitors again wrote to the Commission stating that the Appellant Employer had provided scant submissions in support of the appeal, noting that it had reserved its right to file further submissions, but that none had been received. It was requested that the appeal should be struck out for want of prosecution and that the Arbitrator’s award should be confirmed. On the same date, the Solicitors for the Respondent Worker wrote a separate letter to the Commission indicating that they had now contacted the Commission on several occasions requesting a copy of the CD-ROM, stating that it had not been provided, and requesting again that it be provided as a matter of urgency. Alternatively, an explanation for the delay and an indication as to when it would be provided, was sought.
On 31 December 2003, the Commission forwarded a copy of the CD-ROM to both parties. In its letter to the Solicitors for the Appellant Employer, the Delegate of the Registrar wrote:
“Also please find enclosed a copy of Practice Direction No. 6 for your information.
The following matters have not been included with the appeal application:
1. Written submissions in support of the appeal.
2. A copy of authorities relied on to support the arguments (if any).
3. Written submissions on threshold issues, including the amount of compensation and the percentage of the amount awarded that are at issue in the appeal.
4. A statement as to whether the leave to appeal should be determined on the papers and if not, why not.
5. A statement as to whether the appeal itself should be determined on the papers and if not, why not.
6. A statement certifying service of the new evidence (if any) and the reasons why it was not given in the proceedings before the Arbitrator.
The above matters must be attended to by filing the relevant documents on or before Friday 9 January 2004. Failure to comply will result in the application being rejected.”
The Solicitors for the Appellant Employer wrote to the Commission by letter dated 13 January 2004, in the following terms:
“We have received copy correspondence from the solicitor for the Applicant Worker. A form of appeal was lodged on 7 November but the transcript became available after it was transcribed in our Newcastle office following the Christmas break on 12 January 2004.
Following receipt of transcript a formal document in the form of the WCC Form 9 was prepared and is lodged with this letter.
Submissions have been prepared in light of the transcript and those submissions and relevant authorities and a copy of transcript are attached to the appeal.
The issue in this matter, as is apparent from the transcript, was at all times the reinstatement of sick and holiday leave entitlements to the worker who has at no time been out of pocket. Therefore any delay in the provision of detailed submissions and appeal documents in the appropriate form can have had no adverse effect upon the Applicant Worker. The Respondent submits that the appeal should go forward so soon as a Presidential Member is available to deal with the appeal.
The Respondent is happy for the appeal to be dealt with ‘on the papers’ but should the Presidential Member seized of the appeal wish oral submissions on the matter or for further written submissions or submissions as to time the writer is available.
A copy of this letter has been forwarded to the solicitor for the Applicant Worker.”
No reason was given for the lodgement of the further copy of the document ‘Appeal Against Decision of Arbitrator’, which accompanied the submissions made.
By letter of 14 January 2004 the Delegate of the Registrar returned the sealed ‘Application – Appeal Against Decision of Arbitrator’ to the Appellant Employer and drew attention to Rule 77(4) of the Workers Compensation Commission Rules (‘the Rules’), which requires service of the Appeal Application on the other party within seven days of registration. A Certificate of Service was received on 22 January 2004 certifying that service of the document in fact, had been effected on 13 January 2004. However, I note that the original ‘Appeal Against Decision of Arbitrator’ contained a Certificate of Service of an unsealed copy on the Respondent Worker, but that the actual date of service had not been included. It is clear from the correspondence to the Commission from the Respondent Worker’s Solicitors that this initial document was in fact, received. It is further noted that the Commission did not raise the issue that the documents filed by the Appellant Employer, were not filed by 9 January 2004, in compliance with the direction given on 31 December 2003.
On 21 January 2004 the Delegate of the Registrar wrote to the Solicitors for the Appellant Employer stating, “Further to our telephone conversation, please find enclosed a copy of transcript as requested.”
Under cover of a letter of 3 February 2004 the Solicitors for the Respondent Worker provided a Certificate of Service of ‘Applicant’s Objections to Respondent’s Appeal’, indicating that service had been effected on 27 January 2004. However, this document was misplaced in the Commission and was not placed with the relevant file upon receipt.
The matter was first allocated to me on 12 February 2004. However, the original ‘Appeal Against Decision of Arbitrator’, the documents known as the ‘Arbitrator’s file’, some of the correspondence referred to above and the Certificate of Service referred to at paragraph 13 were not with the Commission file and could not be located at that time. The documents were found in due course and were provided to me at various times between 12 February 2004 and 18 June 2004.
On 31 May 2004 the Appeals Clerk wrote to the Solicitors for the Appellant Employer advising that a significant number of appeals were on hand in the Commission and that the matter had been allocated to me for consideration.
The progress and processing of this appeal have been unsatisfactory and include a number of failures to comply with the Rules and Practice Directions, including the requirement to make application to admit late documents. However, the Commission’s case management of this appeal has been largely responsible for the delays and lack of compliance by the parties, and has to some extent at least, frustrated them in their attempts to advance the matter in a timely manner. In particular, it was unreasonable to require that the Appellant Employer should comply, by 9 January 2004, with directions given on 31 December 2003. The appeal had been lodged on 10 November 2003 with no response from the Commission, until 31 December 2003, when the directions were given and the CD-ROM was provided. Having regard to the Commission’s undue delay in giving the directions and in providing the CD-ROM, the brief time stipulated for compliance was quite onerous, particularly at that time of the year. Both parties had made it clear to the Commission from the outset that they required the CD-ROM in order to complete, file and serve their submissions. Neither received a timely response of any kind from the Commission, and the progress of the appeal was substantially and unduly impeded by reason of administrative failure on the part of the Commission.
Failure to comply with the Rules and Practice Directions is a serious matter. Strict compliance is required in normal circumstances. However, it would be manifestly unfair and prejudicial to both parties to insist upon strict compliance in this matter. Rule 6(2) provides:
“(2)The Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.”
I have taken into account the submissions made by the Respondent Worker in relation to the apparent failure by the Appellant Employer to pursue the appeal and to comply with the Rules. The Respondent Worker would not have been aware of some of the circumstances that are outlined above when making those submissions. In all of the circumstances and in fairness to both parties, I consider that I ought to exercise my discretion to dispense with compliance with the requirements of the Rules, where non-compliance by either or both parties has occurred to date, and I do so, accordingly.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 13 October 2003 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly payments of compensation pursuant to section 36 of the Act from 23.10.01 to 04.11.01 and from 19.11.01 to 01.04.02 at the rate of $601.50 per week;
and pursuant to section 40 of the Act from 02.04.02 to 21.04.02 at the rate of $411.55 per week, from 22.04.02 to 20.05.02 at the rate of $348.24 per week, from 21.05.02 to 02.06.02 at the rate of $221.61 per week, from 03.06.02 to 30.06.02 at the rate of $284.92 per week, from 01.07.02 to 30.07.02 at the rate of $221.61 per week, and from 31.07.02 to 04.08.02 at the rate of $601.50 per week.
2.That the Respondent pay the Applicant’s section 60 of the Act medical expenses on production of accounts or receipts.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
The decision by the Arbitrator was made ex tempore and his reasons are set out in the transcript of the arbitration proceedings.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether the Arbitrator misdirected himself as to the law by considering whether or not the Respondent Worker’s employment was a “significant” contributing factor to the injury sustained, and whether he did not demonstrate an understanding of the applicable law.
·Whether the Arbitrator failed to properly consider all the evidence and the weight of the evidence; failed to base his decision on evidence that was logical and probative, including that, in part, he based his opinion on unqualified opinion, and that he did not demonstrate the reasoning processes that led him to his conclusions, as required by Rule 73(1)(b) and (c).
My findings and decision in relation to the issues raised about non-compliance with the Rules are set out in paragraph 17, above.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the 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.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against, as required by section 352(2)(a) and (b) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Respondent Worker had been employed at Gosford Hospital since March 1980. She said in her statement that she was working as a Receptionist/Ward Clerk in the Outpatients Clinic, in 2001. She was working full-time, being 76 hours per fortnight from Monday to Friday, earning approximately $619.50 gross per week. She said that there was no paid overtime but that she often worked longer hours if required. She stated that the workplace was very busy and that she had complained of a lack of staff to accommodate the workload. She claimed that in about April 2000 when at work, she suffered migraine-like headaches. She was diagnosed with migraine on that day. Leading up to October 2001, she said that she had been increasingly unable to cope with her work. In the days just prior to 23 October 2001 she said that she was feeling very tired and that she experienced a “funny feeling, like a heavy feeling, in my chest. It continued on for 20 minutes and did not subside.”She stated that she mentioned this to one of her colleagues and was subsequently directed by the Nursing Unit Manager to go to Accident and Emergency. She was placed in a bed and underwent a number of tests. She said that she remained in Accident and Emergency for four hours. Her blood pressure was found to be slightly elevated and she was given a certificate for two days’ absence from work.
On 25 October 2001 the Respondent Worker attended her treating doctor, Dr John Adams. She said that she was feeling a bit scared, tired and extremely sore in the head. Dr Adams certified her unfit for work until 5 November 2001 and arranged for a stress test and a Holter Monitor test in relation to her heart. She subsequently took leave from 5 November 2001 to 18 November 2001 and went on a holiday with her partner. When preparing to return to work on 19 November 2001 she said that she suddenly felt awful, the chest problem returned, she began to shake and that she could not maintain control. She did not return to work and tried to get an appointment with her doctor the next day. She saw Dr Chandra Mohan when her doctor was not available. She said that she was nauseous and was having chest problems. He sent her for a gall bladder test, but the results were negative. On 30 November 2001 she was diagnosed by Dr Natalie Cordowiner, as suffering from anxiety and depression, and was certified unfit for work until 2 April 2002. She was also referred to Ms Donna Symonds, Psychologist. Anti-depressant medication, Aropax, was prescribed for her. She lodged a claim for workers compensation on 9 January 2002.
The statement of the Respondent Worker, the other evidence that was before the Arbitrator, and the transcript of the proceedings before the Arbitrator, are before me in this appeal.
Submissions by the Appellant Employer
The Appellant Employer submits that throughout his reasons for determination, the Arbitrator misdirected himself by repeatedly considering whether or not the Respondent Worker’s employment was a “significant” contributing factor, and in so doing, he misdirected himself as to the applicable law. He submits, “Section 9A of the 1987 Act requires that the Applicant establish, on the balance of probabilities, that the employment concerned was a substantial contributing factor to the injury alleged. Whilst the transcript is deficient in a number of respects, the reasons of the Arbitrator refer to a significant contributing factor on seven occasions and to a substantial contributing factor on two occasions.” Attention is invited in particular to pages 23 and 24 of the transcript. It is claimed by the Appellant Employer that on the face of the Arbitrator’s decision, the Arbitrator has not merely made a “slip of the tongue” but has misdirected himself and has applied the wrong test.
The Appellant Employer submits that this distinction between substantial contributing factor and significant contributing factor “is no mere question of semantics”. The Appellant Employer submits that workers compensation legislation around Australia adopts various tests as threshold or elements which a worker must prove to establish an entitlement to compensation, and refers to the overview set out in the ‘Interim Report of the Productivity Commission into National Workers’ Compensation and Occupational Health and Safety Frameworks’, (‘the Productivity Commission Report/the Interim Report’) at pages 131-3. Referring to the Interim Report the Appellant Employer submits that by repeated reference to the word ‘significant’ in different contexts in his reasons for determination, the Arbitrator has clearly demonstrated a failure to apply the proper test.
The Appellant Employer submits that the Arbitrator erred in attaching more weight to the opinion of a general practitioner specialising in obstetrics and gynaecology who has seen the Respondent Worker frequently as opposed to the opinion of a specialist occupational physician. It is stated that “The relevance of the expert qualifications to the issue before this Commission, must be the determining factor.”The Appellant Employer submits that the approach adopted by the Arbitrator is akin to deciding in favour of the party, which calls the most witnesses.
Similarly, it is submitted that the Arbitrator has erred in preferring the view of the psychologist, Ms Symonds to the opinion of Dr Lee, a specialist psychiatrist. The Appellant Employer submits that to accept the diagnosis of a psychologist over a duly qualified medical practitioner with specialist qualifications in psychiatry, is an error and is an example of the acceptance of an unqualified opinion. The Appellant Employer cites R v Peisley (1990) 54 A Crim R 42 (‘Peisley’) “in which His Honour Mr Justice Wood, at 17, commented upon the value of evidence from psychologists compared with that of psychiatrists.”
The Appellant Employer refers to Rule 70 requiring that evidence should be logical and probative, and that by preferring the evidence as outlined above, the Arbitrator has demonstrated a lack of logic. The Appellant Employer goes on to say:
“This decision [Peisley] has been considered in one of the many cases in the long running Marsden defamation series. Attached is an extract only (in light of the length of the report) from the decision of the NSW Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (2002) NSWCA 419 [‘Marsden’]. The Respondent submits this reinforces the argument of the Respondent as to the weight to be attached to the evidence of Ms Symonds [sic].”
The Appellant Employer drew attention to the concluding comments of the Arbitrator “before going off the record” and in particular, to a concession by the Arbitrator that he was not experienced in delivering “extemporaneous judgments or decisions” and that he required a little time to make some notes “to make sure I don’t leave anything out.”
The Appellant Employer finally submits that the determination, on its face, “is flawed and fails to demonstrate that the Arbitrator has complied with Part 12 Rule 73(1)(b) and (c).”The Appellant Employer submits that the Commission should either certify that the Respondent Worker proved that employment was a significant contributing factor but failed to prove that it was a substantial contributing factor to the injury, or remit the matter for re-hearing before an Arbitrator.
Submissions by the Respondent Worker
The Respondent Worker made submissions dated 13 November 2003, and then on 27 January 2004 following receipt of the Appellant Employer’s final submissions. The first submissions, and the second submissions in part only, deal substantially with issues of non-compliance with the Rules and a failure on the part of the Appellant Worker to substantiate the grounds of appeal, and to properly pursue the appeal. The Respondent Worker indicated that it wished to make further submissions in response to any further grounds or submissions advanced by the Appellant Employer, and further indicated that no objections were offered to the question of leave to appeal, or the appeal itself, being dealt with on the papers. The preliminary and threshold submissions have been addressed and determined as above, and require no further comment by me.
The Respondent Worker submits that the Arbitrator made no error of law by reason of the fact that he used the word “significant” at times and the word “substantial” at other times, during the course of the proceedings. Both legal representatives used the correct terminology throughout, and the Arbitrator “…correctly referred to Mercer and himself referred to ‘substantial’ in his opening of the issues. So, it is submitted that his mistakes should be cured by the ‘slip rule’ as from the totality of the transcript it is clear that the arbitrator referred to the correct legal test but for some reason became slightly tongue twisted.” It is further submitted that the Arbitrator has not failed to exercise his statutory duty fairly and lawfully to determine the matter, as stated in Mayne Health Group trading as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 at 16. It is submitted that the Arbitrator in the instant matter, clearly weighed up other possible causative factors as recorded at pages 22-24 of the transcript, and correctly applied the relevant law.
It is further submitted that factual errors made in the confusion of the words “significant” and “substantial” or in paraphrasing relevant legislation do not amount to misdirection and are not errors of jurisdictional fact (Ayse Cakir v Western Sydney Area Health Service trading as Parramatta Linen Service [2004] NSW WCC PD 1 at 12). It is submitted that in the same case it was held that an error in making a finding of fact does not amount to an error of law, nor to a jurisdictional error that affects the status of the decision, unless the error made involves some misdirection as to the law, or the fact is a jurisdictional fact, the satisfaction of which is necessary prior to any exercise of the jurisdiction of the tribunal or court.
The Respondent Worker submits that in the consideration of the evidence and the weight to be attached to the evidence, it is entirely a matter for the Arbitrator and, in the absence of demonstrable error in arriving at the decision based on the evidence, the assessment should not be disturbed (Melissa Smith v St. Andrews Anglican Retirement Village [2003] NSW WCC PD 26 at 21-22). Moreover, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 is cited as authority for the proposition that a finding of fact relating to medical evidence is not a matter which can be considered in an application for leave to appeal, and in that case, it was held that an error of fact does not amount to an error of law or jurisdictional error, unless the fact is a jurisdictional fact.
The Respondent Worker further submits that it is open to an Arbitrator to give more weight to the reports of medical experts who had the opportunity to deal with a worker over a considerable period of time (Department of Education and Training v Cathryn Wendy Ingle [2003] NSW WCC PD 18). It is argued that the Arbitrator clearly preferred the reports of Dr Cordowiner, who had seen the Respondent Worker ten times, and the Psychologist Ms Symonds, who had seen the Respondent Worker seven times, over those of Dr Adams who had not seen her after 31 October 2001 and Dr Lee who saw her only once on 15 February 2002. The Respondent Worker goes on to say that the Arbitrator discounted Dr Adam’s report because it was relatively short and that there was some uncertainty expressed in his report about external factors (transcript page 21). The Arbitrator discounted Dr Lee’s views as set out at page 22 of the transcript. Dr Lee had found the Respondent Worker to be confused and not totally frank whereas the Arbitrator had observed her and found her to be a witness of good credit. Moreover, the Respondent Worker submits that Dr Lee speculated about alcohol abuse but no evidence as to this was led before the Arbitrator, she was not cross examined on this issue, and no submissions were made to the Arbitrator, in this regard.
It is submitted that the argument that the Psychologist’s opinion was preferred over the Psychiatrist’s opinion overlooks four points:
“firstly, the report of D. Symonds was admitted without objection; second, the appellant did not raise this argument before the arbitrator and cannot raise it at this stage for the first time; third, the diagnosis as to anxiety and depression and s.9A being satisfied was also made by the main treating doctor (Dr Cordowiner) and fourthly, the authorities relied upon by the respondent do not state that a psychologist cannot be preferred to a psychiatrist as to diagnosis (see Marsden paragraphs 1431 and 1432 wherein it is stated that a psychologist’s view is admissible but there may still be an argument as to weight).”
The Respondent Worker argues that a consideration of the weight of the evidence clearly favours Ms Symonds who went into all of the potential causes of the condition with her over seven consultations, while Dr Lee’s views were tentative and subject to later enquiries. In this regard it is submitted that the Arbitrator is correct when he says that Dr Lee’s views were speculative and “didn’t have all the information that we’ve had the benefit of having in front of us here” (transcript at page 22). Similarly, it is submitted that no submission was made to the Arbitrator that Dr Adam’s view was more weighty than Dr Cordowiner “who is clearly qualified as a medical practitioner to make a diagnosis of psychological injury within DSMIV.”
In conclusion, the Respondent Worker submits that the findings made and conclusions reached by the Arbitrator were open to him and no errors of law, jurisdictional fact or discretion, were made by him.
DISCUSSION AND FINDINGS
Application of the Law
The Appellant Employer submits that the Arbitrator misdirected himself as to the law by considering whether employment was a “significant” instead of a “substantial” contributing factor to the injury and that he did not demonstrate an understanding of the applicable law.
There is no dispute in this appeal as to whether the injury arose out of or in the course of Ms Sully’s employment. Further, there is no dispute in this appeal that employment was a contributing factor, and that there were other contributing factors of a personal nature involved. However, the Arbitrator views the personal issues as not being greatly significant. On reading the transcript of the proceedings before the Arbitrator there is no doubt that he uses the words “significant” and “substantial” loosely and interchangeably at various points, as alleged by the Appellant Employer. The use of the word “significant” is partly but not wholly, used by him in a relative sense, in his discussion of what were significant factors and what were not. For example at page 23 of the transcript he says, “So on the Applicant’s own evidence today I think confirmed the personal issues are not of great significance.” Just before that statement he states, “In light of the medical evidence which taken that into account still see the work as a significant factor.” Further down that page he says, “…then you have to weigh up whether the workplace remains a substantial contributing factor and I think that in this instance the work certainly is on all the evidence.”However he then goes on to say, “So weighing it all up, weighing the factors that are mentioned in the reports as being pertinent and also the judicial discussion about section 9A and how, what it means, what a significant contributing factor is. I find in terms of the law that while there are multiple factors the Applicant’s employment was a significant contributing factor in terms of the Act to her injury.”He then proceeds to use the word “significant” in his summary at page 24.
The various tests adopted as thresholds and elements that a worker must prove to establish an entitlement to an award of workers compensation varies from jurisdiction to jurisdiction across Australia, as pointed out by the Appellant Employer by reference to the Productivity Commission Report. The word “significant” is used in some of those jurisdictions. However, there is no evidence before me that the Arbitrator had in mind or was even aware of the tests that apply in any jurisdiction other than New South Wales. Notwithstanding that he did make repeated reference to the word “significant”, as claimed by the Appellant Employer, there is nothing that I can see to suggest that he was applying other than the test in section 9A of the 1987 Act. He clearly refers to this section and no other, in his findings on the issue. The Appellant Employer provides nothing more in support of his submission that “By repeated reference to the word ‘significant’ in different contexts in his reasons for his determination, the Arbitrator has clearly demonstrated a failure to apply the proper test.”The assertion is not crystallised by argument as to any alternative test that he may have applied in his alleged failure to apply the proper test, nor is it clear how the Arbitrator “demonstrated” this alleged failure, other than to use a wrong word.It is relevant that the Arbitrator also used the word “substantial” in the correct context in terms of the section: for example at the top of page 21 and on the fifth to last line at page 23. On my reading of the transcript, the Arbitrator has used the word “significant” in two different contexts, that is in a general, and relative or comparative sense, and also erroneously but in a particular sense, in lieu of the word “substantial” in specific reference to section 9A of the 1987 Act.
I agree with the submissions of the Respondent Worker set out above at paragraphs 39-41, for the reasons stated. It is not sufficient to show merely that a wrong word is used. The fact that the same word is used in different contexts is not conclusive on its own, of an error of law or misunderstanding of the law. It cannot be assumed, but must be shown that either there is an actual misdirection as to the law, or the fact is a jurisdictional fact that is a prerequisite to the exercise of the jurisdiction of the Commission (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135). The Appellant Employer has failed to demonstrate the existence of either, and consequently, this ground of appeal is not made out. The misuse of the word “significant” in a consideration of section 9A of the 1987 Act was also discussed in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26. In that case Deputy President Fleming stated at 13, “The reference to ‘significant’ rather than ‘substantial’ when considered in the context of the whole of the Reasons of the Arbitrator, was a ‘slip’, not an error of law or a misapplication of section 9A of the 1987 Act.” The same observation applies in the instant case.
While the ex tempore decision of the Arbitrator perhaps lacks some of the clarity and precision that may have been found in a written Statement of Reasons for Decision, I find that he did not misdirect himself as to the law and further, that he did not fail to demonstrate an understanding of the applicable law.
Whether decision based on unqualified opinion
The Appellant Employer cites the cases of Peisley and Marsden as authorities for the proposition that the Arbitrator was in error in preferring the view of a Psychologist, Ms Symonds, over the opinion of Dr Lee, Specialist Psychiatrist. In Peisley His Honour Wood J said at 18:
“I consider it necessary to observe once again that it is important that clinical psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of clinical psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry, and in the present case Mr Taylor’s opinion was entirely unsupported by the psychiatric opinion.”
This observation by Wood J neither expressly nor impliedly suggests that the opinion of a psychiatrist must always be preferred over that of a psychologist. Rather, his proposition is that a psychologist must not exceed the bounds of his or her field of expertise. On my reading of the evidence, the Arbitrator did not make the straight comparison suggested by the Appellant Employer, but regarded the report of Dr Lee, the Psychiatrist, as incomplete and equivocal. In other words, he gave consideration but little weight to it on its own merits and not necessarily and simply by comparison with the opinion of the Psychologist, Ms Symonds. Furthermore, the Arbitrator observed Ms Sully when she gave sworn evidence before him, regarded her as a credible witness, and discounted Dr Lee’s observation that she was not totally frank. In any event, there was never any evidence or submission put to the Arbitrator to the effect that Ms Symonds crossed the barrier of her expertise and consequently, he was entitled to take her opinion into account and give it due weight. The submission now made in this appeal that Ms Symonds’ view was an unqualified opinion was not raised in the proceedings before the Arbitrator, and was not an issue in those proceedings.
Peisley was cited in Marsden, where it is stated, inter alia, at 1430:
“It was said that it is appropriate for persons trained in the field of clinical psychology to give evidence of the results of the psychometric and other psychological testing, and to explain the relevance of the results and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders, but that it is ‘not…appropriate for them to enter into the field of psychiatry.’”
In Marsden the Supreme Court accepted that there existed “a full need to ensure that evidence is not received beyond an expert’s field of expertise” and recognised that, while the ability to express an opinion might reside in such an expert, the question of the weight to be attached to the evidence remains.
There was and is nothing before me, to demonstrate that the evidence provided by Ms Symonds ventured beyond her field of expertise or that the Arbitrator was in breach of Rule 70(d) in accepting that evidence. As with the opinion and comments of Dr Lee, they were considered by the Arbitrator on their own merits, in accordance with the reasons stated by him. I find that the Arbitrator did not base his opinion on unqualified opinion, in reaching his decision.
Weight of the evidence
The Arbitrator’s findings and reasons are set out in the transcript of the proceedings, at pages 20-24. He deals in detail with the evidence that was before him, including the medical evidence. The Appellant Employer submits that the Arbitrator’s approach “is akin to counting the number of witnesses for the Applicant and the number of witnesses for the Respondent and deciding in favour of the party which calls the most witnesses.” This is not borne out by an examination of the transcript and the analysis conducted by the Arbitrator. As already indicated, the Arbitrator found Psychiatrist Dr Lee’s opinion to be brief and equivocal, expressing a view as to the credibility of the Respondent Worker with which the Arbitrator did not agree after hearing sworn evidence from her. Dr Lee saw Ms Sully on one occasion, only. Similarly Dr Adams saw Ms Sully on two or three occasions, the last time being 31 October 2001. The Arbitrator considered that his report was brief and there was “some uncertainty expressed his report about the external factors, he’s not sure about those and I think that really qualifies the report to the extent where it does lose some weight.”Dr Cordowiner was her principal treating doctor and saw her on approximately ten occasions, having close and continuous contact with her. Again the Psychologist Ms D Symonds’ dealings with Ms Sully occurred over an extended period and consisted of some seven consultations. The Arbitrator expressed the view that her report “showed a depth of investigation”. A close examination of the transcript reveals that the Arbitrator has followed a logical line of reasoning in dealing with the evidence and in assessing the weight of the evidence. He dealt with the medical reports on their merits and weighed them as he was required to do. In this regard I reject the Appellant Employer’s submission that “The relevance of the expert qualifications to the issue before this Commission, must be the determinative factor.” The Arbitrator addressed the issue of the expertise behind the medical evidence before him, but properly went further and weighed up all of the evidence put forward on its own merits, and not only on the basis of who provided it.
In my opinion, the Arbitrator was not in breach of Rule 70, or 73 (1)(b) and (c) as submitted by the Appellant Employer. The ground that he did not understand the applicable law is not made out, as indicated above. Moreover, his decision and the reasons for that decision are set out adequately in the transcript, and are reasoned on the basis of logical and probative evidence.
The consideration of the evidence and the weight to be attached to the evidence is entirely a matter for the Arbitrator and, in the absence of demonstrable error in arriving at his decision based upon the evidence, the decision should not be disturbed. A Presidential Member has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing where the Presidential Member is dealing with the matter de novo and arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The review is by way of rehearing where the powers of the Presidential Member to revoke the decision and substitute a new decision in its place are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2002) 203 CLR 172).
I am satisfied that the Arbitrator’s decision in this matter is not affected by legal, factual or discretionary error and therefore, the appeal must fail.
DECISION
No error of law, fact or discretion has been made by the Arbitrator. The appeal is not allowed and the decision of the Arbitrator is confirmed.
COSTS
As the appeal has been unsuccessful, costs fall to be determined in accordance with section 345 of the 1998 Act. The Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal, as agreed or assessed.
OTHER
The attention of the Registrar is drawn to the administrative and case management deficiencies in this appeal in light of the statutory objectives of the Commission and the undue inconvenience occasioned to the parties.
Gary Byron
Deputy President
29 July 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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