Coledale District Hospital v Harrison-Shaw
[2005] NSWWCCPD 139
•23 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coledale District Hospital v Harrison-Shaw [2005] NSW WCC PD 139
APPELLANT: Coledale District Hospital (Illawarra Area Health Service)
RESPONDENT: Sharon Harrison-Shaw
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 20076-03
DATE OF ARBITRATOR’S DECISION: 30 August 2004
DATE OF APPEAL DECISION: 23 November 2005
SUBJECT MATTER OF DECISION: Procedural fairness; determination of ‘preliminary issues’.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Turks Legal
Respondent: Lyons & Lyons, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator is
revoked.
2. The matter is referred to the Registrar
to remit to another Arbitrator to determine all issues in accordance with the reasons stated in this decision.
3. No order as to the costs of the Appeal.
BACKGROUND TO THE APPEAL
Sharon Harrison-Shaw (‘the Respondent Worker’), was employed by Coledale District Hospital, (‘the Appellant Employer’), as an enrolled nurse. She claims that on or about 22 April 1992 whilst lifting a patient with a wardsman, she sustained an injury to her lower back. She continued to work for the Appellant Employer and various other employers over subsequent years.
She lodged a claim for compensation in respect of the alleged injury in April 1992 against the Appellant Employer’s insurer on 15 August 2001. The insurer denied liability for the claim.
On 25 March 2002, the Respondent Worker lodged an Application for Determination in the former Compensation Court claiming weekly benefits, medical expenses and lump sum compensation as a result of that injury pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’). The proceedings were transferred to the Workers Compensation Commission on 4 December 2003.
On 9 February 2004, the Respondent Worker lodged an Application to Resolve a Dispute in the Commission seeking similar entitlements. The Appellant Employer lodged a reply on 1 March 2004. The Appellant Employer in its Reply, disputed whether the Respondent Worker was injured as alleged or at all and further, that the Respondent Worker was not entitled to recover compensation by reason of section 61(1) of the Work Place Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the former section 92 of the 1987 Act because she had failed to give notice of the alleged injury to the Appellant Employer, and failed to make a claim for compensation within six months after the injury.
The matter was listed for a teleconference on 10 May 2004. The Arbitrator determined that the issues of failure to give notice and late making of the claim, should be decided as preliminary issues before any further determination of the Application, including referral of a medical dispute to an Approved Medical Specialist.
At that teleconference, the parties agreed to the determination of these preliminary issues ‘on the papers’. Both parties, as directed, then filed written submissions on the issues noted by the Arbitrator.
A Certificate of Determination issued on 30 August 2005. Due to an administrative error on the part of the Commission, the Certificate was not issued to the parties until February 2005. The Arbitrator determined that “The Applicant is not barred from recovering compensation by section 61 of the 1998 Act or section 92 of the 1987 Act.” A Statement of Reasons for Determination, in accordance with Rule 73 of the Workers Compensation Rules 2003, accompanied the determination.
On 3 March 2005, the Appellant Employer lodged an Appeal Against Decision of Arbitrator. In summary, the Appellant Employer claims as follows:
“The Arbitrator erred in law and fact in finding:
(a)That the worker suffered a frank injury arising out of or in the course of her employment on or about 22 April 1992.
(b)That the worker had given notice of injury as required by section 61 of the 1998 Act (or its legislative predecessors);
(c)That the worker’s failure to make a claim within 6 months of the injury was occasioned by ignorance, mistake or other reasonable excuse;
(d)That the ‘interests of justice’ required that the worker be allowed to bring her claim out of time”.
LEAVE TO APPEAL
The Certificate of Determination issued on 30 August 2004, and was sent to the parties by the Commission under cover of a letter dated 11 January 2005. The appeal was lodged on 3 March 2005, apparently out of time. However, as the Appellant Employer rightly points out, that letter from the Commission clearly bears an incorrect date. The letter refers to correspondence received from the parties on 27 January 2005, so that it could not possibly have been sent on 11 January 2005.
The Appellant Employer claims that the letter was not received until 7 February 2005. That sequence of events is not disputed by the Respondent Worker.
Given the clear error in the Commission’s letter, I accept the Appellant Employer’s submission on this issue. It is impossible to determine upon what date the Certificate of Determination was sent to the parties and accordingly, I consider the circumstances are such that time should be extended pursuant to the provisions of Rule 77(8).
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
A Notice of Opposition to Appeal was filed by the Respondent Worker on 25 May 2005. The sealed Appeal documents were not returned to the Appellant Employer until 6 April 2005, and were served on the Respondent Worker the same day. Following a request for extension of time by the Respondent Worker, the Commission, in the circumstances, extended the time for lodgement of the Notice of Opposition until 6 May 2005.
No explanation has been provided by the Respondent Worker for the delay in lodging that document. The Respondent Worker submits that “… to extend the time for the making of the appeal without extending the time for filing a Notice of Opposition in Reply … would cause demonstrable and substantial injustice to the Respondent.”
Given the circumstances referred to in the paragraphs above, and in the absence of any evidence of prejudice to the Appellant Employer, I am prepared to admit that document.
ON THE PAPERS REVIEW
The Appellant Employer submits that “because the appeal raises issues not the subject of many decided cases and involves questions fundamental to the approach to be taken to late claims, it may be appropriate for a hearing to take place”. The Respondent Worker is silent on this issue.
The Appellant Employer has provided detailed written submissions on appeal including a list of authorities upon which it relies. My task on appeal is concerned with claimed error, of law, fact and/or discretion, not with the hearing of evidence and determination of the matter at first instance.
Having carefully read the Arbitrator’s reasons, all of the evidence before him, and the submissions both before the Arbitrator and on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
There is no written record of the outcome of the teleconference on 10 May 2004 nor of directions apparently issued.
The Appellant Employer’s submissions to the Arbitrator dated 27 July 2004 state that “The Respondent makes these submissions in accordance with the directions made by the Arbitrator at the teleconference on 9 May 2004 [sic].” Those submissions list two issues: “Failure to Give Notice of Injury” and “Late Claim”. Correspondence from the Appellant Employer to the Registrar of the Commission dated 27 January 2005 regarding progress of the matter notes that “… a teleconference was held on 10/5/04 when the Arbitrator directed the parties to lodge submissions on the preliminary issue relating to the late making of the claim and he would make a decision ‘on the papers’.”
The Respondent Worker’s written submissions to the Arbitrator dated 14 July 2004 whilst stating that “The Applicant’s date of injury was on or about 22 April 2002” do not include any further submissions on the issue of ‘injury’ but deal with the issues of notice and the late making of the claim.
The Arbitrator, in paragraph 22 of his Statement of Reasons noted the “preliminary issue” raised by the Appellant Employer was that the Respondent Worker had failed to give notice of the alleged injury to the Appellant Employer and had failed to make a claim for compensation within six months after the alleged injury. In paragraph 23, he stated: “I determined that these preliminary issues should be decided before any further steps are taken in respect of the application …”
The material before me therefore confirms that the “preliminary issues” referred to by the Arbitrator were confined to the giving of notice and the late making of a claim.
SUBMISSIONS, EVIDENCE AND FINDINGS
The finding of ‘Frank Injury’ on or about 22 April 1992
The Certificate of Determination referred to earlier was confined to the issue of notice under section 61 of the 1998 Act or section 92 of the 1987 Act, which, as I said earlier, the Arbitrator had noted in his Statement of Reasons was the “preliminary issue” to be decided at the outset.
No formal finding of ‘injury’ within the meaning of section 4 of the 1987 Act or the same section in the 1998 Act was included in the Certificate of Determination.
However, under the heading “SUMMARY” in paragraph 51 of the Statement of Reasons, the Arbitrator stated:
“In summary, the resolution of the issues in dispute is as follows:
·On 22 April 1992, Margaret Harrison received an injury to her back arising out of or in the course of her employment as a nurse with the Coledale Hospital.
·Margaret Harrison’s employment was a substantial contributing factor to her injury…”
In paragraph 22 of the Statement of Reasons, the Arbitrator had identified the ‘preliminary issue’ to which I have referred. Then in paragraph 24, he states “the first questions are whether the Applicant did suffer an injury on 22 April 2002, and whether her employment was a substantial contributing factor to the injury.”
In paragraph 25 he states:
“On these questions, I accepted the Applicant’s evidence … of her statement … that sometime in April 1992, whilst lifting a patient at work, she felt sudden pain in her lower back. There is no evidence to contradict this account and I therefore determined that the Applicant did suffer an injury on 22 April 1992, and that her employment was a substantial contributing factor to the injury”.
This determination was clearly outside the scope of the issues acknowledged by the Arbitrator as ‘preliminary’, before further determination of the substantive claim. As the Appellant Employer points out in its submissions (paragraph 9) “The written submissions of the parties were limited to these issues… and the Arbitrator determined them on the papers without resort to a hearing.”
The Appellant Employer further submits that (paragraph 11):
“To make a determination of the issue of injury in these circumstances, constituted a denial of natural justice and procedural fairness. The employer was not given any notice that this issue was to be determined, no opportunity to make an application to cross-examine the worker and no opportunity to make submissions on the issue”.
As I said earlier, the Appellant Employer’s submissions to the Arbitrator did not address the issue of injury such that they did not include any material “to contradict” the account provided by the Respondent Worker.
The Respondent Worker, in its Notice of Opposition to the Appeal submits that it was necessary for the Arbitrator to make a determination of ‘injury’ since “… it would have been pointless for the Arbitrator to determine whether notice of an injury had been given without determining whether an injury had actually occurred.”
In National Engineering Pty Limited v Morton [2005] NSWWCC PD109 page 8, (Morton), I determined that “… commonsense suggests a determination of any ‘notice’ issue should precede any determination of ‘injury’ and any consequent incapacity or impairment”.
That case involved a claim against a number of employers and insurers. The Arbitrator had determined that the worker suffered a disease, and the last insurer liable to pay compensation. That insurer appealed, having disputed notice, date of injury and indeed injury per se.
The thrust of the Appellant’s submissions in that case, were that if the worker failed to satisfy the Commission that he was entitled to the benefit of certain discretionary matters referred to in section 61(2) of the 1998 Act, then the proceedings may well have been vitiated.
In the context of that case, the determination of ‘notice’ did amount to a condition precedent in the determination of ‘injury’.
However, in the present case, where a specific frank injury had been alleged, and in circumstances where the was clearly a dispute on the issue of ‘injury’, in my opinion the issues of ‘injury’ and ‘notice’ were so inextricably bound that it was essential for the Arbitrator to make a determination as to whether or not the Respondent Worker had suffered an ‘injury’ within the meaning of section 4 of both the 1987 and 1998 Acts prior to any determination as to whether notice of that frank injury had been given.
Whilst there was evidence before the Arbitrator on which his ultimate determination in favour of the Respondent Worker on the issues of notice and lateness of the claim could be founded, there was considerable material which contradicted the Respondent Worker’s assertions as to ‘injury’. For example, contemporaneous medical treatment notes from Coledale Hospital which were before the Arbitrator, noted the Respondent Worker’s history as “… a dull ache that got worse with prolonged sitting and making beds….” which was said to have commenced “… a couple of months ago …” increasing without stated cause “… over the last couple of weeks …”. The notes confirm the first attendance for treatment was on 22 April 1992. No reference is contained in the notes to any specific incident as described by the Respondent Worker.
As the Appellant Employer submits:
“The Arbitrator’s approach suggests that he confused the issue of whether there had been an injury (which was not then a matter for his determination) with the issue of whether it was properly reported.”
In contrast to the finding of ‘frank injury’, the Arbitrator does appear to acknowledge the limited nature of his determination. In paragraph 48 of his Statement of Reasons, he states:
“On balance, I am not satisfied that any perceived prejudice to the Respondent’s ability to properly investigate the Applicant’s claim outweighs the interest of the Applicant in having her claim presented and tested (my emphasis), and if found to be so entitled, to recover compensation”.
This statement suggests that the Arbitrator acknowledged that there were various issues in the Respondent Worker’s claim that ought be tested.
In my opinion, in making a finding of frank injury, the Arbitrator has failed to determine only the issue that was the subject of his earlier direction, and has exceeded the limitations on the nature of his determination as notified and agreed to by the parties. This amounts to an error of law.
The Appellant Employer submits that this constitutes a denial of natural justice and procedural fairness in the conduct of the matter. I agree with this submission.
As Deputy President Fleming said in Seymour v West Sydney Area Health Service [2004] NSWWCC PD 18 (page 4):
“The content of procedural fairness will depend upon the nature of the decision under review … The Commission is bound by general law principles of procedural fairness and by the statutory provisions governing its procedure. The 1998 Act expressly modifies the content of procedural fairness as it applies to the Commission”.
Section 354 of the 1998 Act sets out procedure before the Commission.
Deputy President Fleming then went on to say (page 5):
“The parties were entitled to rely upon the Arbitrator’s directions in relation to the ongoing conduct of this matter … There has been a denial of procedural fairness in the determination of the substantive matter by the Arbitrator. A denial of procedural fairness is an error law and a ground upon which a decision may be revoked.”
THE OTHER GROUNDS OF APPEAL
The Appellant Employer submits that the Arbitrator’s finding of fact that the Respondent Worker did give notice of injury within the meaning of section 61 of the 1998 Act was against the weight of evidence, and that the Arbitrator effectively reversed the onus of proof on this issue.
As to the finding that the Respondent Worker’s failure to make a claim within six months of the injury was occasioned by ignorance, mistake or other reasonable excuse, the Appellant Employer again submits that there was no evidence on this issue and further, that the Arbitrator failed to give any reasons or identify any evidence upon which these findings were based.
The Appellant Employer provided lengthy submissions on the ‘interests of justice’ issue. In summary, the Appellant Employer submits that:
“… the Arbitrator has given too much weight to the fact that the Worker has an interest in having her case determined and too little weight to the actual and presumed prejudice occasioned to the Employer if this be allowed to occur, such that the discretion has miscarried”.
Having determined that the Arbitrator’s decision is flawed as to his determination on the issue of ‘injury’, it is not necessary for me to proceed with a determination on the other grounds of appeal raised by the Appellant Employer.
CONCLUSION
By proceeding to determine that the Respondent Worker had suffered a frank injury on 22 April 1992, and that her employment with the Appellant Employer was a substantial contributing factor to this injury, the Arbitrator has exceeded the limitations of the ‘preliminary issues’ he directed be determined at the outset.
This amounts to denial of procedural fairness and constitutes an error of law.
I am of the opinion that the nature of the error made by the Arbitrator in this case is such that his decision cannot stand. It is not possible on the material before me to substitute my own decision as is provided for by section 352(8) of the 1998 Act, particularly in light of the absence of submissions by the parties on the issue of ‘injury’.
DECISION
(a) The decision of the Arbitrator dated 30 August 2004 is revoked.
(b)The matter is referred to the Registrar to remit to another Arbitrator to determine all issues in accordance with the reasons stated in this decision.
COSTS
I make no order as to the costs of the appeal.
Deborah Moore
Acting Deputy President
23 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH ROBYN MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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