Clarke v Alkene Asbestos Removal Pty Limited
[2006] NSWWCCPD 84
•11 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Clarke v Alkene Asbestos Removal Pty Limited [2006] NSWWCCPD 84
APPELLANT: John Edward Clarke
RESPONDENT: Alkene Asbestos Removal Pty Limited
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC15489-04
DATE OF ARBITRATOR’S DECISION: 21 April 2005
DATE OF APPEAL DECISION: 11 May 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for section 40 assessment pursuant to the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Shead Lawyers
Respondent: Vandervords
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 21
April 2005 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
John Edward Clarke (‘Mr Clarke’) was employed by Alkene Asbestos Removal Ltd (‘Alkene’), as a roofer/labourer. In October 2000, he injured his right knee at work when he slipped and fell whilst walking on a roof. On 8 October 2001, he injured his left knee at work whilst climbing down a ladder. He subsequently underwent a number of operative procedures on both knees.
Apart from some brief work trials, Mr Clarke has remained off work since. He was paid weekly compensation at various rates pursuant to the provisions of the Workers Compensation Act, 1987 (‘the 1987 Act’) by Alkene’s insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) thereafter, up until 20 September 2004.
On 14 and 15 July 2004, Mr Clarke underwent “evaluation of his functional and vocational capabilities” at the Vocational Capacity Centre Pty Limited at the request of EMI. A report on the outcome of that assessment was issued on 3 August 2004 signed by David Verhagen, Physiotherapist. EMI then wrote to Mr Clarke on 6 August 2004 advising that as a consequence of the “… Section 40 assessment conducted by Vocational Capacity Centre dated 3/8/04 … you have the capacity to earn above your pre-injury wage in suitable employment [and] Section 40 will be reduced to Nil as of 20/9/04.”
Meanwhile, on 5 August 2004, Mr Clarke suffered an ‘aggravation’ of his left knee injury. He consulted Dr Christopher Minogue, his treating specialist, on 9 August 2004, and was certified unfit by Dr Minogue for any work from 9 August 2004 to 1 September 2004.
On 31 August 2004, Mr Clarke’s solicitors completed an ‘Application to Resolve a Dispute’ in the Commission seeking reinstatement of weekly benefits compensation from 20 September 2004 together with permanent impairment/pain and suffering compensation.
At a Teleconference on 15 December 2004, the Arbitrator listed the claim for weekly compensation for conciliation/arbitration hearing on 24 January 2005 and referred the claim for permanent impairment to Dr James Bodel, an ‘Approved Medical Specialist’, with the agreement of the parties. [Dr Bodel’s Medical Assessment Certificate issued on 4 April 2005, and that aspect of Mr Clarke’s claim was resolved by the parties at a Teleconference before another Arbitrator on 26 May 2005.]
The claim for weekly compensation proceeded to arbitration hearing on 24 January 2005. It was not until 21 April 2005 that a ‘Certificate of Determination’ with accompanying ‘Statement of Reasons’ issued.
The determination of the Arbitrator was as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of:
·$323 per week from 20 September to 29 September 2004 under s40 of the Workers Compensation Act 1987;
·$222 per week from 30 September 2004 to date and continuing under s40 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s costs as agreed or assessed. Pursuant to the Workers Compensation (General) Regulation dated 1995, Schedule 6, I certify this matter to be a complex matter.”
On 23 May 2005 Mr Clarke lodged an Application to ‘Appeal against Decision of Arbitrator’. Mr Clarke submits that the Arbitrator’s finding as to his capacity for work was against the weight of the evidence and that the Arbitrator’s interpretation of certain medical certificates and her misquoting of a passage from a doctor’s report constituted errors of fact. Mr Clarke also seeks to rely on “fresh evidence” being a number of medical certificates from his treatment specialist, Dr Minogue.
On 14 June 2005 Alkene filed a ‘Notice of Opposition to the Appeal’. Briefly, Alkene submits that the Arbitrator’s determination was consistent with the available evidence before her. Whilst conceding that the Arbitrator did misquote, it submits that “… the decision would not have been any different without the misquote.”
Alkene also submits that any “fresh evidence” should be rejected consistent with “… the demands of procedural fairness.”
LEAVE TO APPEAL
The appeal was initially lodged on 18 May 2005 within the time limits prescribed by section 352(4) of the Workplace Injury Management and Workers CompensationAct 1998 (‘the 1998 Act’). It was rejected by the Commission for failing to attach submissions on threshold issues and resubmitted and accepted by the Commission on 23 May 2005. However, it is noted that Mr Clarke did provide submissions on threshold issues, although not perhaps with such “full” details as is required by Rule 77(3)(b) of the Workers Compensation Commission Rules 2003 (‘the Rules’).
Alkene submits that “no point is taken … as to the lateness of the Appeal as same had been lodged within time on 18.5.05 but was, according to the Appellant’s solicitor, incorrectly rejected by the Commission.”
I am satisfied that Mr Clarke’s submissions on “threshold issues” were adequate within the meaning of Rule 77(3) of the Rules such that the appeal was filed in time.
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Mr Clarke submits that the appeal is suitable for a determination on the papers. Alkene’s submissions are silent on this point. Having carefully read all the material before the Arbitrator, the transcript, and both parties’ detailed submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction No. 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
Section 352(6) of the 1998 Act provides that:
“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 procedure for the conduct of appeals is set out in Rule 77 of the Rules and in Practice Direction No. 6. That Practice Direction provides that:
“In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
In the present case, Mr Clarke annexed to his application two certificates from Dr Minogue dated 9 August 2004 and 18 August 2004 respectively. Those certificates stated that he was unfit for work. At the arbitration hearing, Mr Clarke sought and was granted leave (over objection by Alkene) to admit two further certificates, one dated 15 September 2004 and the second dated 12 January 2005. The transcript records Mr Clarke’s solicitor advising the Arbitrator that both certificates “… were received today …” i.e, 24 January 2005. The certificate dated 15 September 2004 stated that Mr Clarke was fit for suitable duties subject to a number of restrictions both as to the nature and duration of employment. The certificate dated 12 January 2005 again stated that Mr Clarke was fit for suitable duties “as previously advised”.
At paragraph 35 of the Arbitrator’s ‘Statement of Reasons’, she noted that:
“Dr Minogue saw the Applicant between the issuing of the September and January certificates … There is no evidence on whether he issued any certificates during this time. It may be, as the Applicant contends, that the words ‘as previously advised’ are a reference to the September 2004 restrictions. Equally, it is possible that further certificates were issued in this period, prescribing less onerous restrictions. A third possibility is that Dr Minogue was referring to the more general restrictions he recommended in January 2003. From the material before me, I have no way of knowing.”
The Arbitrator went on to state at paragraph 37: “I cannot be satisfied that during the period 30 September 2004 to 12 January 2005, Dr Minogue was of the view that the Applicant’s condition was such that the restrictions set out in the September certificate should continue.”
Mr Clarke now seeks to rely on three certificates in that intervening period dated 29 September 2004, 27 October 2004 and 1 December 2004 respectively. Those certificates each state that Mr Clarke is fit for suitable duties “as previously advised.” They were obtained by Mr Clarke’s solicitor by facsimile from Dr Minogue’s rooms on 3 May 2005.
It is Mr Clarke’s submission that these additional certificates, by ‘filling the gap’ for the period 30 September 2004 to 12 January 2005 referred to by the Arbitrator at paragraphs 35 and 37 of her ‘Statement of Reasons’, would confirm that Dr Minogue intended that the restrictions set out in the certificate of 15 September 2004 should continue to apply.
Whatever the impact this “fresh evidence” may have had on the outcome of the arbitration, is a separate issue, and not relevant to the question as to whether or not the evidence ought be admitted.
There is no explanation by Mr Clarke as to why these additional certificates were not obtained in proceedings before the Arbitrator in circumstances where the certificates dated 15 September 2004 and 12 January 2005 were obtained as a result of a telephone call to Dr Minogue’s rooms on the day of the arbitration hearing.
The admission of “fresh evidence” may only be permitted where it can be demonstrated that the new evidence “… could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence causes a substantial injustice …” [see Practice Direction No.6]
I am not satisfied that Mr Clarke has complied with the first requirement of Practice Direction No. 6 irrespective of any issue as to “substantial injustice”.
The Arbitrator, in the exercise of her discretion, permitted the filing of the two certificates obtained on the day of the hearing in the interests of justice to Mr Clarke. Similarly, the report of Dr Minogue dated 20 January 2005, four days prior to the arbitration hearing, was admitted. No report from Dr Minogue was ever included in the original application. As Alkene points out in its submissions “… the Appellant gave no indication of an intention to utilise any evidence from Dr Minogue when filing the ‘Application to Resolve a Dispute’ on 31 August 2004.”
The decision as to the admissibility of “late evidence” must also be made in the context of the objectives of the Commission, namely the duty to provide a fair, just and timely resolution of disputes. Justice and fairness must apply to both parties to the proceedings. As Alkene submitted:
“The rules give effect to those objectives and require the Applicant and Respondent to file relevant evidence, in support of, and in opposition to the claim, at the earliest time. The rules thereby ensure that both parties are aware of the other’s claims and are in a position, at the outset, or at least as soon as practicable, to try and resolve the issues in dispute between them.”
Alkene further submits that to allow the “fresh evidence” sought to be relied upon by Mr Clarke at this stage, more than 12 months after the arbitration:
“… is untenable in the context of the Commission’s Rules and statutory objectives. It ignores the nature of the Commission’s proceedings and the very fact that the Rules are explicitly designed to ensure that justice and fairness is occasioned to all parties.”
Justice and fairness to both parties would not be served by the admission of Mr Clarke’s “fresh evidence” at this stage, particularly where he has failed to adequately demonstrate that the evidence he now seeks to rely upon was not available at the time of the arbitration hearing.
Leave to admit “fresh evidence” is refused.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Weight of Evidence Issue’
The grounds of appeal are not entirely clear. Mr Clarke makes a number of submissions “in favour of review of the decision”. They include:
“The Arbitrator preferred Dr Christopher Minogue’s opinion as to work capacity. He is the worker’s Nominated Treating Doctor, although he was previously unknown to the worker and took on the nominated treating doctor role after the worker was referred to him by the insurer’s rehabilitation provider.”
The relevance of this submission is not readily apparent.
Mr Clarke goes on to list all the medical evidence of Dr Minogue before the Arbitrator and says that “a complete series of WorkCover Medical Certificates was unavailable to the worker at the date of the arbitration …” Again, this statement does not identify any ground of appeal nor identify any error by the Arbitrator.
Mr Clarke’s principal submission seems to be that the Arbitrator’s finding in paragraph 37 of her ‘Statement of Reasons’ that for the period 30 September 2004 to 12 January 2005 he was “… fit to work subject to the restrictions set out in Dr Minogue’s report of 20 January 2005 and in Mr Verhagen’s report on functional capacity” was against the weight of the evidence.
The evidence is clear that following the ‘fair-up’ of his left knee injury on 5 August 2004, Mr Clarke was certified totally unfit for work by Dr Minogue from 9 August 2004 to 1 September 2004. There is no evidence as to his status between 1 September 2004 and 15 September 2004 when the next certificate issued, but in any event, Mr Clarke was in receipt of weekly benefits up to 20 September 2004.
On 15 September 2004, Dr Minogue issued a certificate to the effect that Mr Clarke was fit for suitable duties from 15 September 2004 to 29 September 2004 for four hours per day, three days per week, avoiding repetitive lifting over two kilograms, sitting more than half an hour, travelling up to one hour, or walking or standing more than 10 minutes. He noted: “Very light bench assembly work (or similar) may be suitable”.
In the certificate dated 12 January 2005, Mr Clarke was again certified fit for suitable duties from 12 January 2005 to 15 March 2005 by Dr Minogue. He made no mention of the amount of hours or days Mr Clarke was fit for those duties. As to his capacity for lifting, walking etc, referred to in the preceding paragraph, he simply noted “as prev advised”.
In his detailed report dated 20 January 2005 addressed to Mr Clarke’s solicitors, Dr Minogue made reference to his “… most recent review on 12 January 2005” and then proceeded to write ten answers “in reply to your specific questions.” The solicitor’s letter to Dr Minogue was not in evidence however, at paragraph 9 of the report, Dr Minogue stated:
“His current fitness for work in other occupations is not entirely clear. He may not have been fit to work as a full-time truck driver or forklift driver on the open labour market as at 6.8.04, due to the left knee symptomatic exacerbation which reportedly commenced on or around 5.8.04. His subsequent progress has been somewhat disappointing, but he maybe able to cope with full-time suitable work in which he is able to avoid placing undue stress on his knees, including truck or forklift driving with avoidance of strenuous manual handling and prolonged ambulation, particularly over uneven terrain, as I originally advised. Ultimately his ability to cope with full-time or part-time suitable work will depend upon his ongoing level of symptomatology and knee joint biomechanical function.”
The Arbitrator provided lengthy and detailed reasons for her determination. Under the heading “Extent of the Applicant’s Incapacity” she examined all the “evidence” before her. At paragraph 24 of her ‘Statement of Reasons’ she stated: “The consensus of medical opinion is that the Applicant is permanently unfit for his pre-injury duties.” She then goes on to refer to Dr Minogue’s reports and certificates, and makes reference to Alkene’s evidence at paragraphs 29 – 34 inclusive. At paragraph 29, she stated:
“Dr Silva examined the Applicant at the request of the Insurer in January 2004 … his diagnosis is in line with that made by Dr Minogue … in a more recent supplementary report (exhibit R1) [21 October 2004] he states that ‘those new symptoms would probably not prevent [the Applicant] from engaging in full-time duties as a truck and forklift driver’”.
[Dr Silva’s reference to “new symptoms” did not refer to the ‘flare-up’ in August 2004].
At paragraph 30, the Arbitrator made reference to Dr Hope’s report of 26 September 2002. He examined Mr Clarke at the request of EMI, and at that stage recommended restrictions on employment duties.
At paragraph 31, the Arbitrator refers to the Vocational Capacity Report prepared by Physiotherapist David Verhagen dated 3 August 2004 noting that “Mr Verhagen concluded that the Applicant was unfit for his pre-injury duties but was fit for fulltime, sedentary, semi-sedentary and light work.”
Under the heading “Findings and Conclusions”, at paragraph 33 the Arbitrator stated:
“Determining the extent of the Applicant’s current incapacity is complicated by the August 2004 flare-up in the Applicant’s left knee. The only expert whose opinion is before me and who has seen the Applicant since that incident is Dr Minogue.”
The Arbitrator was clearly cognizant of the limited weight of the reports of Drs Silva and Hope, and Mr Verhagen. At paragraph 34 she stated:
“It is the Applicant’s case, as I understand it, that as a result of this incident his condition has deteriorated and accordingly, any opinion about function or capacity conducted before August 2004 is of limited value. The most recent certificate issued by Dr Minogue, it is submitted, supports this proposition. It is asserted that the notation ‘as previously advised’ which appears in the section of the certificate dealing with restrictions, indicates that Dr Minogue intended that the restrictions set out in the earlier September certificate [15 September 2004] should continue to apply.”
Whilst I have referred to paragraphs 35 and 37 of the Arbitrator’s ‘Statement of Reasons’ in the context of the “fresh evidence” issue, it is appropriate to reproduce paragraphs 35, 36 and 37 again with reference to the ‘weight of evidence’ submission.
At paragraph 35, the Arbitrator stated:
“Dr Minogue saw the Applicant between the issuing of the September and January certificates … there is no evidence on whether he issued any certificates during this time. It may be, as the Applicant contends, that the words ‘as previously advised’ are a reference to the September 2004 restrictions. Equally, it is possible that further certificates were issued in this period, prescribing less onerous restrictions. A third possibility is that Dr Minogue was referring to the more general restrictions he recommended in January 2003. From the material before me, I have no way of knowing.”
At paragraph 36 she stated:
“The Applicant’s contention is at odds with Dr Minogue’s more detailed report of 20 January 2005. In that report, Dr Minogue states that while the Applicant may have been unable to work as a fulltime truck driver or forklift driver in August 2004, ‘he may now be able to cope with suitable fulltime work in which he is able to avoid placing undue stress on his knees’.”
At paragraph 37 she stated:
“I cannot be satisfied that during the period 30 September 2004 to 12 January 2005 Dr Minogue was of the view that the Applicant’s condition was such that the restrictions set out in the September certificate should continue. I proceed on the basis that for that period the Applicant has been fit to work subject to the restrictions set out in Dr Minogue’s report of 20 January 2005 and in Mr Verhagen’s report on functional capacity.”
The Arbitrator’s conclusion in paragraph 35 was consistent with the available evidence before her. As noted previously, there was no restriction as to the hours of work specified in Dr Minogue’s certificate dated 12 January 2005. The physical restrictions referred to in his report of 20 January 2005 were broadly similar to those referred to in the certificate of 15 September 2004.
Other aspects of Dr Minogue’s report of 20 January 2005 are also worth noting. He stated:
“Any disabilities consequent upon the injuries are currently not very clear, in terms of the level of disability. Non-medical factors may be influencing his current apparent level of disability, from my observations. On the objective evidence to date, his prognosis at least in the medium term appears likely to be quite good, with progressive osteoarthritis to be expected in both knees in the long term.”
Those observations are consistent with his opinion at paragraph 9 of his report to which I have earlier referred.
In summary then, the Arbitrator’s findings as to ‘incapacity’ were consistent with the weight of evidence before her and I can see no error in this aspect of her determination.
The ‘Interpretation’ of the Medical Certificates Issue
This has been dealt with to some extent in the preceding paragraphs. Mr Clarke again submits, as he did before the Arbitrator, that Dr Minogue’s certification that he was fit for suitable duties “as previously advised” should be interpreted that all the restrictions set out in the certificate of 15 September 2004 should continue apparently indefinitely.
Mr Clarke submits that:
“During the period 30 September 2004 to 12 January 2005 Dr Minogue was of the view that the Applicant’s condition was such that the restrictions set out in the September certificate should continue. On each review date in the period he restated the restrictions ‘as previously advised’ and the referral back to the previously expressed restrictions can only logically refer to the details in the certificate dated 15 September 2004.”
Evidence as to “each review date” in certificate form was not before the Arbitrator. Reference was made by Dr Minogue in his report of 20 January 2005 to consultations with Mr Clarke on 29 September 2004, 27 October 2004, 1 December 2004 and 15 December 2004 but without any specific notation as to work capacity.
Mr Clarke’s submission that the restrictions “as previously advised” noted in the certificate dated 12 January 2005 “… can only logically refer to … the certificate dated 15 September 2004” is of course one interpretation of the meaning of those certificates. But as I have said, the certificate of 12 January 2005 was silent as to any restriction on fulltime work and was broadly consistent with the conclusions Dr Minogue reached in his report of 20 January 2005.
The Arbitrator’s conclusions were open to her given the limited evidence before her, and her interpretation of that evidence did not amount to an error of fact.
The ‘Misquote’ Issue
Dr Minogue’s opinion as to Mr Clarke’s capacity as set out in paragraph 9 of his report is set out in paragraph 41 hereof.
In paragraph 36 of her ‘Statement of Reasons’, the Arbitrator quoted Dr Minogue as follows: “He may now be able to cope with suitable fulltime work in which he is able to avoid placing undue stress on his knees.” The word “now” is, as both parties agree, a misquote. Mr Clarke merely submits that: “The Arbitrator erred in misquoting this section [of Dr Minogue’s report]” and then states that:
“… Dr Minogue did not express the view that the Applicant was fit for fulltime work of any kind during the period in dispute, 20 September 2004 to date and continuing. He did not commit himself to an opinion that the worker would ultimately be fit for even part-time suitable work.”
Dr Minogue certainly indicated that Mr Clarke “… may be able to cope with suitable fulltime work …” It was open to the Arbitrator to interpret Dr Minogue’s opinion as applicable as at the date of his report. In paragraph 26 of her ‘Statement of Reasons’, the Arbitrator was clearly aware of the correct passage when she quoted: “He may [now January 2005] be able to cope with fulltime, suitable work …” It may be, as Alkene points out in its submissions, that the Arbitrator bracketed the words “now January 2005” for “clarification purposes”. Her quotation certainly suggests that she was aware of the precise wording of Dr Minogue’s opinion and simply interpreted it as being his opinion at the time of writing.
Such an interpretation is not erroneous: it was clearly open to the Arbitrator. Moreover, as Alkene submits, “… this did not in any manner distort the doctor’s opinion. In other words, the Respondent contends that the decision would not have been any different without the misquote.”
Given that Dr Minogue’s report of 20 January 2005 coupled with his certificate of 12 January 2005 opined that Mr Clarke was “fit for suitable duties”, Alkene’s submission on this point has merit.
Mr Clarke submits that in light of this ‘misquote’ and the Arbitrator’s interpretation of Dr Minogue’s certificates, “the correct findings and award should be as found by the Arbitrator save that the award of weekly compensation under Section 40 should be $323.00 per week from 20 September 2004 to date and continuing.”
Whilst that conclusion was no doubt Mr Clarke’s aim, mere disagreement with the outcome of proceedings is not the basis for appeal. As Deputy President Fleming said in Falcon v Narellan Enterprises Pty Limited [2003] NSWWCC PD34 “where the parties are accorded procedural fairness” and the Arbitrator has taken “the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate on review by a Presidential Member to interfere with the Arbitrator’s decision.”
My power to revoke an Arbitrator’s decision pursuant to section 352(7) of the 1998 Act is exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error. (See Allesch v Maunz (2000) 203 CLR 172). I can see no such demonstrable error in the Arbitrator’s determination.
CONCLUSION
The Arbitrator’s decision reflected a proper exercise of her discretion as required by
the Rules and was supported by the available evidence before her such that there is no basis to justify revocation of her determination.
DECISION
The decision of the Arbitrator dated 21 April 2005 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
11 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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