Challita v Assetlink Services Pty Ltd

[2014] NSWWCCPD 9

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Challita v Assetlink Services Pty Ltd [2014] NSWWCCPD 9
APPELLANT:	Rita Challita
RESPONDENT:	Assetlink Services Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-10662/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	7 November 2013
DATE OF APPEAL DECISION:	27 February 2014
SUBJECT MATTER OF DECISION:	Appeal to Presidential member; absence of proper grounds of appeal; absence of proper submissions in support of appeal; unmeritorious appeal; s 352 of the Workplace Injury Management and Workers Compensation Act; Practice Direction No 6; purpose of supplementary submissions; delay in obtaining transcript; obligation on lawyers to take a note of proceedings
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gerard Malouf & Partners
Respondent:	HWL Ebsworth
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 7 November 2013 is confirmed. 2.     Each party is to pay her or its own costs of the appeal.

INTRODUCTION

1. This appeal purports to challenge an Arbitrator’s finding that the worker suffered no injury to her neck on or about 24 July 2008. The appeal is unsupported by any proper grounds or submissions and, for the reasons given below, the Arbitrator’s determination is confirmed.

BACKGROUND

1. The appellant worker, Rita Challita, has claimed lump sum compensation for an alleged injury to her neck and right shoulder that she says occurred in the course of her employment with the respondent, Assetlink Services Pty Ltd, on or about 24 July 2008. The respondent admitted liability for the injury to the right shoulder but disputed that Mrs Challita injured her neck.

2. Mrs Challita was a cleaner. In a statement dated 7 August 2012, she said she was cleaning walls in the course of her employment on 25 July 2008 when she felt severe pain in her right shoulder and “niggling pain in [her] neck and [her] back as well”. She said that she saw her general practitioner, Dr Sanaa Barich, the next day. Her main complaint was about her right shoulder, but she said she recalled telling Dr Barich of her neck and back.

3. Mrs Challita’s husband gave evidence, also in a statement dated 7 August 2012, that he recalled his wife complaining of severe pain in her right shoulder and niggling pain in her neck after a strenuous night of cleaning on 25 July 2008. He said that, over time, she continued to complain of “pain and problems to [sic] the neck, right shoulder and also her back”.

4. The clinical records from Dr Barich revealed that Mrs Challita attended on 25 July 2008 complaining of pain in her right shoulder blade and shortness of breath, but made no reference to any neck or back symptoms. She also attended on 2 August 2008 complaining of shortness of breath and pain in her right chest that radiated into her shoulder blade. The doctor injected the right shoulder with local anaesthetic.

5. Dr Barich took no history of any work injury until 27 November 2008. On that occasion, the doctor recorded that Mrs Challita had injured her right shoulder and right upper back at work on 25 July 2008. Again, there was no reference to any injury to the neck at work on 25 July 2008, but there were several references to prior problems with Mrs Challita’s back and neck.

6. In an extempore decision delivered on 4 November 2013, the Arbitrator said that he was not satisfied that Mrs Challita injured her neck in the circumstances alleged. The Commission issued a Certificate of Determination on 7 November 2012 in the following terms:

   “The determination of the Commission in this matter is as follows:

   1.     I find the applicant has failed to satisfy me that she injured her neck on or about 24 July 2008.

   2.     There will therefore be an award for the respondent in respect of the claim for the neck/cervical spine.

   3.     No order as to costs.”

7. Mrs Challita has appealed.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.”

2. 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.

ISSUES IN DISPUTE AND SUBMISSIONS

1. The alleged “grounds” of appeal have been so poorly drafted that it is appropriate to set them out exactly as they appear in the Application – Appeal Against Decision of Arbitrator (the Appeal Application):

   “i. The Arbitrator having considered that the worker’s statement and the statement of her husband cannot be considered as false or misleading [sic], the Arbitrator did not give consideration for [sic] the substantial facts set out in the statements based on the timing of when the statements were prepared.

   ii. The Arbitrator made a decision contrary to [sic] weight of evidence failing to give appropriate consideration to medical and factual evidence.”

2. In the submissions in support of the appeal, Mrs Challita’s solicitor, George Cham, said that the Arbitrator gave an oral determination and that a transcript had not been provided. He said that Mrs Challita:

   “would like the opportunity to review the full determination of the Arbitrator who was not satisfied that [she] had made a complaint of the neck injury soon after the date of injury of 24 July 2008 therefore, opining that there was no causal connection between the original injury and the cervical spine.

   It is respectively [sic] submitted on behalf of the Applicant that upon consideration of all available evidence including witness statement [sic], Applicant [sic] statement and medical opinion, the Arbitrator should have given a determination that there was a causal link of [sic] the original injury to the cervical spine.”

3. Mr Cham said that he would make further submissions in support of the appeal once a final transcript of the Arbitrator’s reasons became available “so as to stipulate with precision the errors of the Arbitrator”.

4. The Commission forwarded the transcript to both parties on 14 January 2014 and, on that date, set a new timetable for supplementary submissions, which were to be filed on or before 12 February 2014, and submissions in reply, which were to be filed on or before 19 February 2014.

5. On 19 February 2014, the respondent’s solicitor filed a Notice of Opposition with submissions in support.

6. By email dated 20 February 2014, Mr Cham advised the Commission that he had told the respondent’s solicitors that “no further submissions would be made”. In an email to the Commission dated 27 February 2014, Mr Cham confirmed that Mrs Challita had “no further submissions to make in [r]esponse to the Opposition of Appeal”.

ARBITRATOR’S REASONS

1. The Arbitrator did not doubt that Mrs Challita had developed problems with her neck, noting that CT scans of the cervical spine in April 2009 and December 2009 demonstrated degenerative changes. However, he was not satisfied that she had injured her neck at work. In summary, he did not accept her claim that she had hurt her neck at work because:

   (a)     Dr Barich’s notes contained no contemporaneous note of her injuring her neck at work on or about 24 July 2008;

   (b)     Mrs Challita first complained about her neck in December 2008, five months after the alleged injury, while still performing her normal duties;

   (c)     Mrs Challita’s complaint (of neck symptoms) was against a background of a neck condition that had “flared up from time to time” (T14.2) over the preceding years;

   (d)     the entry in Dr Barich’s notes for 27 November 2008, which the Arbitrator thought was significant, recorded that Mrs Challita had “got better but lately flared up” (T14.5), and

   (e)     of the time that elapsed between the incident and when Mr and Mrs Challita’s statements were written, he could not attach much weight to them.

DISCUSSION AND FINDINGS

1. An important preliminary matter requires comment in this case.

2. While Practice Direction No 6 makes provision for supplementary submissions to be lodged within 28 days of the date of the Registrar’s letter enclosing a copy of the transcript, it is not an acceptable practice to file an appeal with, in effect, no substantive submissions in support, pending receipt of the transcript. Such a step invariably requires, as occurred in this appeal, a fresh timetable for submissions, which results in an unnecessary delay in the resolution of the appeal and the matter generally.

3. Lawyers have a “responsibility to take a proper note of proceedings” (Allsop P in Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [14]). His Honour added that any confusion or lack of clarity about any aspect of a matter should be clarified by consultation between the lawyers involved. These comments were made in the context of an application to extend time to appeal against a decision made in the District Court, but they are equally applicable to proceedings in the Commission.

4. The purpose of Practice Direction No 6, which allows the filing of supplementary submissions upon receipt of the transcript, is to allow additional or complementary submissions, with appropriate references to the transcript, in support of submissions already made. It is not to allow the appellant to identify, for the first time, the grounds of appeal and the submissions in support. The respondent to the appeal is entitled to know, from the original Appeal Application, the grounds of appeal and the detailed submissions in support.

5. In the present matter, to accommodate the appellant’s request that she be allowed to file “further submissions” upon receipt of the transcript, the Commission issued a new timetable for submissions that required the appellant to file any supplementary submissions on or before 12 February 2014. The appellant’s solicitor did not comply with that timetable and did not advise the Commission until 20 February 2014 that he did not intend to file any further submissions. That was unacceptable and unsatisfactory.

6. Turning to the merits of the appeal, I note that the “grounds” of appeal are completely unsustainable and are unsupported by any reasoned argument or analysis. The first “ground” of appeal is virtually incomprehensible. I assume that it is complaint that, as the Arbitrator did not consider the evidence in the statements from Mrs Challita and her husband to be “false or misleading”, he erred in not considering the “substantial facts” in those statements. I reject that submission.

7. The Arbitrator gave careful consideration to the evidence from Mrs Challita and her husband. As that evidence was inconsistent with the evidence from the contemporaneous material from Dr Barich, and as the statements had been given four years after the event, the Arbitrator was unable to be satisfied that Mrs Challita injured her neck in the circumstances she alleged. Thus, she had failed to discharge the onus of proof. That finding was open on the evidence and disclosed no error.

8. The second “ground” of appeal is unsupported by any reference to the evidence or any reasoned argument. The Arbitrator considered the relevant evidence in detail and concluded that Mrs Challita had not discharged the onus. His decision was open to him and, rather than being contrary to the weight of the evidence, was consistent with it.

CONCLUSION

1. This appeal was completely without merit and had no prospect of success. The first “ground” of appeal was virtually unintelligible and clearly had not been checked before it was filed. Notwithstanding that the Commission allowed time for supplementary submissions, Mr Cham filed no submissions at all. Such conduct of an appeal treats the Commission with contempt and is unacceptable. If, after receipt of the transcript, the appellant did not wish to proceed with the appeal the appropriate course would have been to file an Election to Discontinue Proceedings (Form 14B).

2. Practitioners are reminded that the provision of legal services in an appeal that is without reasonable prospects of success is capable of amounting to unsatisfactory professional conduct or professional misconduct (Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60 [52]–[54]). As presented, the present appeal had no prospect of success and should not have been filed.

DECISION

1. The Arbitrator’s determination of 7 November 2013 is confirmed.

COSTS

1. Each party is to pay her or its own costs of the appeal.

Bill Roche
Deputy President

27 February 2014

I, KATHRYN CAMP, 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