Coulter v Tanjo Pty Ltd

[2006] NSWWCCPD 14

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Coulter v Tanjo Pty Ltd [2006] NSWWCCPD 14

APPELLANT:  Jason Coulter

RESPONDENT:  Tanjo Pty Ltd

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 11526-04

DATE OF ARBITRATOR’S DECISION:          8 December 2004

DATE OF APPEAL DECISION:  3 February 2006

SUBJECT MATTER OF DECISION:                Procedural fairness

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: McCabbe Partners Lawyers

Respondent: Rankin Nathan Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 8 December 2004 is revoked and the matter is remitted to the Arbitrator for reconsideration.

The Respondent, Tanjo Pty Ltd, is to pay the Appellant, Mr Coulter’s costs in this appeal.

BACKGROUND TO THE APPEAL

1. On 24 December 2004, Jason Coulter sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 1 December 2004. The Respondent to the appeal is Tanjo Pty Ltd (‘Tanjo’).

1. Mr Coulter was born on 1 June 1970 and is aged 35. He was employed by Tanjo as a shearer in the Walcha district of NSW, where he lives. He claims to have suffered an injury to his left knee in 2002 and an injury to his back on 12 November 2002.

1. On 28 July 2004, the Commission registered Mr Coulter’s ‘Application to Resolve a Dispute’. The Application detailed three injuries:

   (1) “In early 2002, the Applicant was working for the Respondent when he dislocated his left patella and as a result had two days off work. The Applicant suffers recurrent subluxations of the left knee.”
   (2) On 12 November 2002, while lifting a fleece of wool, he suffered acute back pain with pain radiating down his left leg.
   (3) During the course of his employment by Tanjo between 3 May 2002 and 12 November 2002, he suffered injuries to his left knee and back as a result of the nature and conditions of his employment.

1. On 14 October 2004, the Arbitrator conducted a teleconference with the parties during the course of which it became apparent that a major area of contention was causation in respect of Mr Coulter’s left knee injury. The parties agreed that the Arbitrator should determine this issue on the papers before referring Mr Coulter to an Approved Medical Specialist for assessment. The Arbitrator subsequently made the following directions:

“1. That the Respondent file its reply by 21 October 2004.
2. That the issue of causation in respect of the leg injury be determined on the papers following the filing of the reply.
3. That subsequent to the determination of causation the Application be referred to Dr Bodel as Approved Medical Specialist.
4. BY CONSENT the unsigned statements of lay witnesses be used in the determination of causation.”

1. On 18 October 2004, Tanjo filed its ‘Reply’ and, on 1 November 2004, Mr Coulter’s solicitors filed written submissions. On 8 December 2004, the Arbitrator made the decision set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 8 December 2004, records the Arbitrator’s orders as follows:

“1. That the Applicant be referred to Dr Bodel an Approved Medical Specialist for assessment of his impairment as a result of the injury claimed to have occurred on 12 November 2002.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator found that although there was some evidence to support a finding that Mr Coulter had suffered an injury to the patella of his left knee in early 2002, there was a lack of any corroborating evidence that this injury occurred in the course of his employment or that his employment was a cause of the injury. The Arbitrator therefore concluded that Mr Coulter had not proved on the balance of probabilities that his employment was a contributing factor to the injury. Thus, the Arbitrator only referred Mr Coulter to the Approved Medical Specialist for assessment of the back injury that Mr Coulter claimed to have occurred on 12 November 2002.

ISSUES IN DISPUTE

1. The issue in dispute in this matter is whether Mr Coulter suffered an injury to his left knee in the course of his employment by Tanjo in 2002. In the appeal, Mr Coulter’s solicitors’ principal submission appears to be that the Arbitrator made an error of law by ignoring relevant material relating to an alleged injury to Mr Coulter’s left knee on 5 September 2002 and thereby denying Mr Coulter procedural fairness. Tanjo denies this and submits the only relevant issue for the Arbitrator to determine was whether Mr Coulter suffered an injury to his left knee in the course of his employment early in 2002, of which it submits there was no evidence to base a finding. The parties’ submissions are discussed more fully below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Mr Coulter’s solicitors submit that there should be an oral hearing so that Mr Coulter has the opportunity to give evidence. Tanjo submits that the matter can be dealt with ‘on the papers’. Having considered the matter, and having reviewed the documentary evidence, 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

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), Mr Coulter’s solicitors state the amount of compensation at issue is at least $7,500 being 100% of the award claimed in respect of the left knee. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.

FRESH EVIDENCE

1. Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(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.”

1. Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

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.”

1. Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

1. Tanjo’s solicitors seek leave to introduce two documents as new evidence in the appeal: (1) a Direction by the Arbitrator dated 14 October 2004; and (2) a Direction by a different arbitrator in previous discontinued proceedings, dated 27 July 2004. In my view, the first document, being part of the pre-hearing proceedings in this matter, is already in evidence in these proceedings; indeed, I have already referred to it in paragraph 4, above.

1. Tanjo’s solicitors submit the second document was issued following a teleconference in the discontinued proceedings, and is evidence that Mr Coulter had notice of his general practitioner, Dr Tung Pham’s clinical notes and other documents relied upon by Tanjo in support of its contention that Mr Coulter injured his knee in a non-work-related accident in September 2002. In the light of this material, Mr Coulter had the opportunity to tailor his evidence and, therefore, little weight should be given to Mr Coulter’s statement signed on 30 August 2004 and to the unsigned supporting statement by Graham Kelly typed on 23 August 2004.

1. In my view, failure to allow the introduction of this new evidence will not cause Tanjo a substantial injustice. The role of the Presidential Member on an appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing and I do not intend to make any findings as to the weight that should be attached to the above statements. This is a matter for submissions on the remittal.

SUBMISSIONS

1. Mr Coulter’s solicitors submit the Arbitrator (1) made an error of law when he ignored relevant material, namely the solicitors’ submissions dated 28 October 2004, (2) made the wrong finding of fact when he found there was no evidence to support a finding that Mr Coulter suffered an injury to his left knee, (3) made a manifestly unreasonable decision by denying Mr Coulter entitlements for his left knee, and (4) denied Mr Coulter procedural fairness.

2. Tanjo’s solicitors submit the Arbitrator was only required to determine the issues raised in the ‘Application to Resolve a Dispute’ and ‘Reply’. There is no record of the Arbitrator granting leave to amend the Application to allow the date of injury to the left knee to be changed from early 2002 to approximately 5 September 2002. Tanjo submits there was no evidence on which the Arbitrator could base a finding that Mr Coulter had injured his knee in early 2002. Indeed, the evidence of Bruce Livingstone and Gordon Wall, and the clinical notes and report of Dr Pham dated 1 May 2003, support a conclusion that Mr Coulter injured his knee when he slipped on an embankment while carrying a case of beer on or about 15 September 2002. Tanjo submits little or no weight should be accorded to the statements of Mr Coulter signed on 30 August 2004 and of Mr Kelly typed on 23 August 2004 because these were made after Mr Coulter became aware of Dr Pham’s clinical notes, which raised questions about the date of the alleged injury.

1. Tanjo’s solicitors also submit that recovery of compensation for an injury to Mr Coulter’s left knee is barred by section 261(1) of the 1998 Act because he failed to make a claim for compensation within six months after the injury or accident happened.

DISCUSSION AND FINDINGS

1. As stated above, these appeal proceedings involve a review and not a rehearing. In this case, Mr Coulter’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. Section 354 governs procedure in Commission proceedings. Section 354(1) of the 1998 Act provides that proceedings before the Commission “are to be conducted with as little formality and technicality as the proper consideration of the matter permits”. Section 352(2) provides that the Commission is not bound by the rules of evidence, and section 354(3) requires the Commission “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.

1. Rule 17 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) permits the Commission to give leave to a party in Commission proceedings to amend a document filed by the party in the proceedings “if the Commission considers the amendment to be necessary for the avoidance of injustice”. Such amendment can be made at any stage in the proceedings and on such terms as the Commission thinks fit. An application for leave to amend documents after the matter has been referred to an arbitrator, must be in writing, fully set out the grounds for the application, and meet certain other requirements.

1. In Mr Coulter’s case, it does not appear that Mr Coulter’s solicitors made any formal written application to amend the ‘Application to Resolve a Dispute’ by changing the date of injury in respect of Mr Coulter’s left knee from early 2002 to September 2002. Mr Coulter’s solicitors state that, at the teleconference, leave was sought and granted to change the date of injury to approximately 5 September 2002. Tanjo’s solicitors state they have no record of such leave being granted and the Direction by the Arbitrator dated 14 October 2004 makes no reference to this.

1. I note that in his Statement of Reasons, the Arbitrator says, “The Application is in respect of an injury in early 2002 and there has been no application to amend the Application.” He makes no reference to any application for leave being made at the teleconference, nor does he refer to written submissions by Mr Coulter’s solicitors, dated 28 October 2004, received by the Commission on 1 November 2004, a copy of which was forwarded to the Arbitrator on 2 November 2004. On page 2 of these submissions, under the heading “Applicant’s Evidence”, the solicitors stated: “The Applicant submits that the injury occurred on the 05.09.2002 or the following week on the 12.09.2002.”

1. I note that by ‘Application to Admit Late Documents’ filed on 11 October 2004, Mr Coulter’s solicitors had sought leave to admit late evidence comprising a “Supplementary Factual and Liability Summary Report”, with attachments (including a statement by Mr Coulter signed on 30 August 2004 and an unsigned statement by Mr Kelly typed on 23 August 2004), prepared by St George Registration and Investigation Services Pty Ltd. This was forwarded to the Arbitrator by fax on 13 October 2004, on the day before the teleconference. It appears the Arbitrator granted leave because, in his Statement of Reasons, he referred to these documents being part of the documentary evidence before him. The Arbitrator also referred to Mr Coulter’s statement giving “considerable detail of a frank injury on 5 September 2002 to his knee”.

1. In my view, even if there had been no proper written application for leave to amend the ‘Application to Resolve a Dispute’, it should have been obvious to the Arbitrator that the matter was not going to be resolved satisfactorily by the determination he made with regard to the alleged injury to Mr Coulter’s knee in early 2002, without dealing with the alleged injury in September 2002. I also note that in his Application, Mr Coulter alleged having suffered injuries to his left knee and back as a result of his employment by Tanjo between 3 May 2002 and 12 November 2002.

1. In my view, on receipt of Mr Coulter’s solicitors’ submissions dated 28 October 2004, in the light of Mr Coulter’s statement signed on 30 August 2004 detailing an injury to his knee on 5 September 2002 while in Tanjo’s employment, and bearing in mind the third injury alleged in the Application, the appropriate course would have been for the Arbitrator to arrange another teleconference with the parties to discuss his concerns and how the parties wished to proceed in order to bring the dispute to an early resolution.

1. As noted above, section 354(3) of the 1998 Act requires the Commission “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. Subject to clear and express statutory modification, the Commission is also bound by the common law rules of procedural fairness. In my view, by failing to discuss his procedural concerns with the parties, the Arbitrator failed to exercise his discretion fairly and lawfully and thereby made an error of law.

1. I note Tanjo’s reservations about the weight to be accorded to Mr Coulter’s statement signed on 30 August 2004 and to Mr Kelly’s unsigned statement. My preference would be for Mr Coulter to give oral evidence at a hearing so that alleged inconsistencies in his evidence, and between his evidence and that of other witnesses, can be fully explored. In the absence of an agreed statement of facts by the parties, the issue of causation in relation to the injury to Mr Coulter’s knee would most appropriately be dealt with at an oral hearing.

1. I also note Tanjo’s submission that recovery of compensation for an injury to Mr Coulter’s left knee is barred by section 261(1) of the 1998 Act because he failed to make a claim for compensation within six months after the injury or accident happened. In my view, this is a matter that should be dealt with on the remittal.

DECISION

1. The decision of the Arbitrator dated 8 December 2004 is revoked and the matter is remitted to the Arbitrator for reconsideration.

COSTS

1. The Respondent, Tanjo Pty Ltd, is to pay the Appellant, Mr Coulter’s costs in this appeal.

Robin Handley

Acting Deputy President  

3 February 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE