Dagher v RET Enterprises Australia Pty Ltd
[2005] NSWWCCPD 50
•16 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dagher v RET Enterprises Australia Pty Ltd [2005] NSWWCCPD 50
APPELLANT: Andre Dagher
RESPONDENT: RET Enterprises Australia Pty Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC1803-04
DATE OF ARBITRATOR’S DECISION: 29 June 2004
DATE OF APPEAL DECISION: 16 June 2005
SUBJECT MATTER OF DECISION: Reliance on more than one medical report in a particular speciality; estoppel; failure to comply with the requirements of a Workplace Injury Management Plan.
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Stacks/ Goudkamp
Respondent: Church & Grace
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator, dated 29 June 2004, is revoked.
(2) The matter is remitted to the Registrar for allocation to another arbitrator and for determination in accordance with this decision.
(3) The Respondent is to pay the Appellant’s costs of the appeal.
(4) The costs of the original proceedings are referred to the next arbitrator.
BACKGROUND TO THE APPEAL
The appellant is Mr Andre Dagher (‘the Appellant’). He seeks leave to appeal a decision of the Workers Compensation Commission (‘the Commission’) constituted by an arbitrator (‘the Arbitrator’) made 29 June 2004. The Arbitrator dismissed the Appellant’s application for weekly payments of compensation for partial incapacity and payment for medical expenses.
The respondent to the appeal is Mr Dagher’s former employer, RET Enterprises Australia Pty Ltd (‘the Respondent’). The Respondent’s insurer is Employers Mutual Indemnity (Workers Compensation) Limited (‘the Insurer’). The Respondent opposes the appeal.
There is no dispute that the Appellant suffered an injury while working as an installer of Hebel internal walls for the Respondent at the construction site of the World Tower, Sydney on 7 February 2003. A Hebel panel which was being installed fell and struck the full length of the Appellant’s back, while he was bending over sawing another sheet. The Appellant continued work on the next day and thereafter, until 13 March 2003. He ceased work on that day and claimed workers compensation. Weekly payments were made to him until a date in April 2003 when payments to him were suspended by the insurer on the basis that he had unreasonably failed to comply with a requirement to participate in the development of an Injury Management Plan.
The Appellant applied to the Commission for the payment of weekly compensation by application registered 28 May 2003 (‘the first application’). The first application is not attached to the documents filed by the parties in this appeal. I have obtained from the Commission the file relating to the first application, WCC 10445-2003, and read the documents on that file filed by the parties, including the first application and reply. I do not consider that this prejudices the parties in these proceedings or requires any further submissions from them as the parties to each set of proceedings are identical and each party was represented by the same solicitors in each set of proceedings.
An arbitrator made an award in favour of the Appellant on the first application on 10 October 2003 (‘the first determination’). A copy of the first determination was attached to the application that lead to the decision, by a different arbitrator, which is the subject of this appeal. I will call that application ‘the second application’. The first determination provided for the payment of weekly compensation at the rate of $689.92 from 17 April 2003 to 18 September 2003, and at the rate of $535.93 thereafter. Payment was stated to be pursuant to “sections 36 and/or 38 of the Workers Compensation Act 1987.” Section 36 relates to payment for total incapacity, section 38 to payment while a worker who is partially incapacitated is seeking suitable employment. The period for payment was not time limited in the first determination itself. The first determination provided that payments were to continue “in accordance with the provisions of the Act.” The reasons for the first determination of the first application were not filed by either party to this appeal and do not appear on the file relating to the first application.
The Insurer wrote to the Appellant on 22 December 2003 advising that “On reviewing our file and medical information in our possession we advise that we no longer consider your injury at work to be a substantial contributing factor to your present condition and that you are fit for your pre-injury duties. Therefore, we advise that further liability has been denied.” The letter stated that weekly benefits would cease from 2 January 2004. The letter stated that the Insurer relied on two medical reports in reaching this decision, that of Dr Assem and that of Dr Stephen.
The Appellant filed the second application to the Commission in late January 2004. It was registered on 29 January 2004. The parties attended a telephone conference on 14 May 2004 and a conciliation conference/arbitration on 7 June 2004.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 29 June 2004 records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent
2. No order as to costs”
The Arbitrator found in relation to the credit worthiness of the Appellant “if motivated he is willing and able to increase his functional activities past the medical restrictions.” In relation to those medical restrictions she noted that the Appellant’s treating orthopaedic specialist, Dr Mahoney, said he would not rely on the restrictions stated in his report but would review them with the Appellant “to provide a more current status.” In relation to this she stated “I found that I was unimpressed with this as it appeared that Dr Mahoney was not forming his own view of the Applicant’s functional capacity but was relying solely on the Applicant’s stated limitations. The above pattern is one in which the medical restrictions are being driven by the Applicant’s attitude to work rather than actual injury or pain levels.”
The Arbitrator continued immediately thereafter “I find that the weight of medical evidence from Dr Perla, Dr Miniter, Dr Assem and Dr Stephen in respect to the lack of objective signs both clinical and investigative favours the Respondent’s view that the injury is now largely resolved and certainly not limiting fitness for a wide range of work.” (emphasis added)
In relation to the issue of participation in an Injury Management Plan, the Arbitrator stated:
“I find that the Applicant has not satisfied the rehabilitation providers, Angela Campbell and Prue Hill as to his genuine attempts to return to work with the Respondent employer. The process of assessing and accommodating the Applicant’s restrictions appear [sic] to be professionally discharged. The reasons offered for not attending the return to work program convinced these health professionals that the Applicant was avoiding participating in a reasonable return to work plan
On being offered work from the Respondent employer after his resignation there, the Applicant could have returned to work to suitable duties. I have been unconvinced by the evidence led by the Applicant that the employer had been anything but accommodating to the Applicant’s needs. The employer’s letter of response to the Applicant’s letter of resignation is unusual in so far as it noted the Applicant’s hostility to what appears to be reasonable attempts to return him to work under the care of two separate and impartial rehabilitation providers. The providers gave evidence of the employers [sic] efforts to discharge their obligations to find suitable work.”
The Arbitrator continued with the statement “I find that on the balance, the Applicant has recovered from the injury and would, if motivated to do so, be able to return to work as a bricklayers [sic] labourer.” The next portion of her Reasons is headed “Summary”. In that she states as follows:
“In summary the resolution of the issues in dispute is as follows:
Weekly Benefits Claim:·On 07/02/2003, Mr Andre Dagher received an injury to his neck, back and wrist arising out of or in the course of his employment as a bricklayers [sic] labourer with RET Enterprises Australia Pty Ltd.
·Andre Dagher was partially incapacitated for work as a result of his injuries and received an award for compensation from 18/09/03 to date and continuing.
·Andre Dagher was assessed as fit for pre injury capacity in November 2003 and disentitled to weekly benefits as at 02/01/04.
·Andre Dagher is disentitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management in December 2003.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The documents before me consist of the following:
· All the documents before the Arbitrator
· The Arbitrator’s Determination and Statement of Reasons
· Transcript of the portions of the arbitration that were recorded
· Appeal, including submissions by the Appellant
· Submissions in reply by the Respondent
· The Commission file relating to the first application
Neither party seeks leave to adduce any fresh evidence.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of 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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
In the second application, which is the subject of this appeal, the Appellant sought the sum of $534.30 per week from 2 January 2004 and continuing. As at the date of the decision appealed against the amount in dispute was $13,891, which well exceeds the minimum level required by paragraph (a) of section 352(2) of the 1998 Act. In relation to paragraph (b), no amount was awarded on the application. A number of Commission decisions by Presidential members, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, have held that paragraph (b) is not applicable to appeals against decisions in which no award is made.
The Respondent opposes the grant of leave, but makes no submissions as to the reasons why leave should be refused. I find that the appeal satisfies the threshold requirements of section 352 and grant leave to appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
ISSUES, SUBMISSIONS AND FINDINGS
Section 352(5) of the 1998 Act states that “An appeal under this section is to be by way of review of the decision appealed against.” The section does not otherwise specify the basis or permitted grounds of appeal. Case law has established that the basis of appeal to the Commission from the decision of an Arbitrator is that the Arbitrator erred, whether by way of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The Appellant specifies his grounds of appeal in 24 numbered paragraphs. I will deal with each of these, and my findings, in turn. I note that neither party has referred me to any authorities for consideration.
Reliance on medical reports of Dr Miniter and Dr Perla
Paragraphs 1, 3, and 6 assert that the Arbitrator erred in allowing into evidence, and taking into account, medical reports of Dr Miniter and Dr Perla, on which the Respondent had indicated it did not rely. Paragraph 5 asserts that the Arbitrator erred by allowing evidence by a rehabilitation provider that she had been informed of an opinion by Dr Perla, given that the Respondent had indicated it did not rely on Dr Perla’s reports.
In relation to this ground, the Respondent concedes that it withdrew the reports of Dr Miniter and Dr Perla and says they were not accepted as evidence by the Arbitrator. The Respondent submits that:
“the references to the reports of Dr Miniter in the Arbitrator’s Statement of Reasons for Decision constitute no more than a bare error on the face of the record and do not detract or invalidate the principal reasons stated for the decision…(the submissions on this point are then amplified)…It is also patently clear from the Arbitrator’s findings as to the Appellant’s credit and the Appellant’s medical evidence that the inclusion or exclusion of the reports of Dr Miniter would have made no effect on the outcome of the arbitration.”
In short, the Respondent concedes that the Arbitrator was in error in listing the reports as part of the evidence relied on by the Respondent, but says that she placed no real significance on them, and, in any event had other grounds for reaching her conclusion.
I consider that the Appellant has established this ground. The Arbitrator does not merely list the reports in question as part of the evidence. She includes reference to those doctors in the paragraph beginning “I find that the weight of medical evidence from Dr Perla, Dr Miniter, Dr Assem and Dr Stephen…favours the Respondent’s view...” (the full paragraph is set out earlier in these reasons). That paragraph appears in the section of her Reasons headed “Findings and Reasons”. It is true, as the Respondent asserts, that the Arbitrator did not refer in detail in any portion of her Reasons to the contents of any reports by Dr Perla or Dr Miniter and only sets out detail from the reports of Dr Assem and Dr Stephen. However, that could be because the reference to those reports follows the paragraph “The Respondent based its decision to deny liability on the 22/12/03 from the medical reports of Dr Assem and Dr Stephen.” In other words, it is possible that the Arbitrator was referring in detail to those reports because the Respondent had used them to justify terminating compensation.
The detailed reference to Drs Assem and Stephen is under the heading “The Respondent’s Evidence”, whereas the reference to the four doctors, including Drs Perla and Miniter, is under the heading “Findings and Reasons”. From this I conclude that the Arbitrator had regard to the reports in question in reaching her conclusions. Further, the Arbitrator specifically stated that the relevance of the evidence from the four named doctors was as to the “weight of medical evidence”. In reaching conclusions about “weight” sheer numbers of doctors making the same or similar assertions could easily play a role. It may be that it is for this reason, amongst others, that Clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’) provides that only one medical report in any particular speciality may be admitted on behalf of a party in proceedings on a claim. Drs Miniter and Stephen, and Drs Assem and Perla share the same speciality and the Respondent elected to rely solely on Drs Stephen and Assem.
The Respondent states that because of her views on the Appellant’s credit and his own medical evidence, the Arbitrator’s error in relying (which the Respondent does not concede she did) on the reports of Dr Miniter and Dr Perla was immaterial. I do not accept this. In my view it cannot be said that the Arbitrator would necessarily have reached the same conclusion in relation to the issue of incapacity independent of her error. Her reasons do make it clear, however, that there was an alternate and independent basis for her decision- that the Appellant had unreasonably failed to comply “with the requirements of workplace injury management in December 2003” (see the final dot point in the extract quoted earlier from her Summary). I will consider the significance of this alternative ground later in these reasons.
Failure of the Respondent to comply with Rule 68(2) Workers Compensation Rules 2003
This ground is set out in paragraph 2 of the Appellant’s submissions. It is a related ground. Rule 68(2) provides that where a party’s documents include more than one report in any particular medical speciality, the party must give a clear indication in writing with the documents as to which report will be relied on. It is common ground that the Respondent did not give this notice in relation to the reports of Drs Miniter and Stephen, nor in relation to the reports of Drs Perla and Assem.
I accept the Respondent’s submission that any prejudice to the Appellant by this omission was cured at the outset of the arbitration, when the Appellant took objection to the multiple reports and the Respondent withdrew the reports of Drs Miniter and Perla. The Appellant’s solicitor sought and was granted an adjournment of half an hour to obtain instructions from the Appellant in relation to some other contested evidence that was admitted (being evidence from the rehabilitation providers Ms Campbell and Ms Hill) but the Appellant’s solicitor did not indicate any prejudice arising from the withdrawal of the reports of Drs Miniter and Perla at a late stage. Nor has the Appellant indicated in the appeal how this conduct by the Respondent constitutes an error by the Arbitrator. This ground is not established.
Evidence of events prior to the determination of the first application: estoppel
The Appellant raises matters relating to the fact that there had already been a determination of an application by the Appellant, by a different arbitrator, in a number of paragraphs. In paragraph 4 of his submissions he argues that the Arbitrator was in error in allowing evidence from a rehabilitation provider, Ms Campbell, that related to events that had taken place prior to the first determination and had been the subject of findings in that determination. The Appellant asserts that by allowing this evidence the Arbitrator permitted a de facto appeal by the Respondent from the decision on the first application. In paragraph 8 the Appellant asserts that the findings of the first arbitrator created an estoppel in relation to sections 36 “and/or” section 38 of the 1987 Act “up to 10 October 2003” (this being the date of the first determination). Similarly, in paragraphs 7 and 15 the Appellant submits that the Arbitrator erred in reaching particular findings that were different to that of the first arbitrator on the same points.
The Respondent replies as follows. In relation to the central assertion of the Appellant (in paragraph 8) that the findings of the first arbitrator created an estoppel, the Respondent submits that “The findings and determination of the Arbitrator in no way contradict, overturn or invalidate the determination of (the first arbitrator)”. That is, the Respondent does not in its submissions on the appeal deny that the principle of estoppel could apply to bar re-litigation on an issue already determined in an earlier application. This is in contrast to the approach taken by the Respondent at the arbitration itself. The transcript records that the Appellant objected to the admission of the evidence of the rehabilitation provider, Ms Campbell, at that time on the basis of relevance, because her interactions with the Appellant all pre-dated the first arbitrator’s determination. The Respondent replied to the Arbitrator at that time:
“For a start, you need to consider whether you’re bound by some kind of estoppel from the findings of the Commission in October last year. There is, in my respectful submission, a solid argument that you’re not. The law of estoppel usually confines estoppel to a judgment of a court of record where reasons are given. I haven’t been blessed with the reasons of (the first arbitrator), who arbitrated the matter in October. I don’t know if there’s been a record of those reasons created.” (page 5 of the transcript)
In relation to the submissions of the Appellant that certain of the findings of the Arbitrator contradict the findings by the first arbitrator, the Respondent replies that “there is no evidence before either the Arbitrator or before the Commission on review that (the first arbitrator) found to the contrary.” (submissions in reply to paragraphs 7 and 15) The Respondent also asserts that the findings by the Arbitrator that are in question were open to her on the evidence.
In relation to the assertion that evidence should not have been admitted from the rehabilitation provider who only dealt with the Appellant prior to the first determination, the Respondent says that such evidence could be admitted for comparison purposes and as to the Appellant’s credit. The Respondent refers to similar submissions it put to the Arbitrator when the objection was taken at the arbitration.
Decision in relation to estoppel
My views in relation to these matters are as follows. It is clear that the principles of res judicata and issue estoppel can apply to decisions in relation to workers compensation (see Bruce v Grocon Limited [1995] NSWCC 10, (1995) 11 NSWCCR 247, and the decisions there cited, and Lambidis v Commissioner of Police (1995) 12 NSWCCR 225. I have discussed these decisions at length in Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43). In Bruce v Grocon Ltd, Neilson J. held that the principles of res judicata and issue estoppel applied to decisions of the Compensation Court of New South Wales (‘the Compensation Court’). In Lambidis, the Court of Appeal held that a determination of the Government and Related Employees Tribunal (‘GREAT’) created an estoppel in relation to an issue that then came before the Compensation Court. In Kuppers v NSW Fire Brigades [2005] NSWSC 193 Johnson J. recently confirmed that the determination of an issue by the Compensation Court will bind the parties in subsequent common law proceedings in relation to the same issue.
I am not aware of any reported decision as to whether or not a determination of the Commission can create an estoppel. However, by analogy with Lambidis, the arguments that it can would appear strong. In Lambidis the argument was specifically put that the determinations of administrative tribunals cannot give rise to an issue estoppel. Priestley J.A., with whom Powell J.A. agreed, dismissed this argument. He stated:
“Accordingly, where tribunals, even though called administrative tribunals, are legislatively empowered to decide the competing claims of parties in a way which has legal effect, and where, in making such decisions it is necessary for them to decide identifiable disputed issues, there seems to me to be strong reason why such issues once decided should be treated as having been set to rest between the disputants.” (page 243)
His Honour then stated that:
“Because, in my view, issue estoppel can arise from a determination of an administrative tribunal, the real issues in the present appeal become whether GREAT was both empowered to, and if so did, determine finally and conclusively the very issue that was in dispute in the appeal to the Compensation Court….The question whether an issue estoppel has been created will have to be answered, in the circumstances of each case, by reference to the powers and duties of the particular tribunal and what it has in fact done in the particular case. In some circumstances, the methodology of the tribunal may be relevant; for example, unless a tribunal has maintained adequate written records of its findings and decisions, it may not be possible to prove which issues it has conclusively determined.” (pages 243-244)
Thus Lambidis does not support the proposition advanced by the Respondent before the Arbitrator that the principles of estoppel are limited to courts of record. Given the functions of the Commission as set out in the 1998 Act and applying Lambidis I consider that determinations of an arbitrator of the Commission create an estoppel between the parties in relation to issues determined by the arbitrator. I refer in particular to sections 105(1) and 350(1) and (3) of the 1998 Act which provide as follows:
“Section 105
(1)Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.Section 350
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) (Not here relevant)
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”
In general terms, these sections make it clear that the Commission is “empowered to… determine finally and conclusively” issues relating to workers compensation between parties, this being the test from Lambidis. Lambidis also requires reference to the “methodology” of the tribunal in question, here the Commission, in particular as to the keeping of written records of decisions and findings. The Commission is required to issue a written certificate as to the determination of disputes, to which a brief statement is to be attached setting out the reasons for the determination (section 294 of the 1998 Act). I consider this supports my view that the principles of res judicata and issue estoppel apply to decisions of the Comission.
I consider that the determination of the first arbitrator created an estoppel in respect of issues determined by him. The difficulty that arises is that, in this particular case, the detailed reasons for the determination were given orally, and have not been recorded in writing. From enquires I have made of the Registrar, it appears that the reasons for the determination were either not recorded, or recorded but not transcribed at the time, and the recording is no longer available. I consider this limits the extent to which it is possible to ascertain what issues were decided by the first arbitrator, but does not eliminate that possibility entirely. It is possible to ascertain from the determination itself the findings that must have been made on some central issues. I do not consider that the reference in Lambidis to written records of findings means that in the absence of written record of every finding no estoppel can apply; merely that the absence of written records of findings may limit the ambit of the estoppel.
The only independent record of what issues were determined is the Certificate of Determination. In that Certificate the orders are recorded as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $689.92 from 17 April 2003 to18 September 2003 and at the rate of $535.93 from 18 September 2003 to date under Sections 36 and/or 38 of the Workers Compensation Act 1987.
2. Such weekly payments to continue in accordance with the provisions of the Act.
3. The Respondent pay the costs of the Applicant as agreed or assessed.”
The Commission file relating to the first application contains a letter sent by the legal representatives for the Respondent to the legal representatives for the Appellant after this Certificate issued, dated 3 November 2003. In that letter the Respondent asserts that the first arbitrator erred in respect of the amount to be paid during “the first 26 weeks of incapacity, up until 18 September 2003”, and states that the employer will pay at what is asserted to be the correct (and lower) rate in respect of this period. The letter refers to the possibility of application under section 350(3) of the 1998 Act (set out above) if this assertion were to be disputed. The file does not record any such application. The letter asserts that the order was made for that period under section 38, although it is not clear from the Determination itself whether the order for the first period was based on section 38 or section 36.
Section 36 of the 1987 Act provides for payment of weekly compensation for total incapacity during the first 26 weeks of incapacity. The statutory basis for weekly payments of compensation for total incapacity after that time is section 37 of the 1987 Act. There is no reference to section 37 in the determination of the first application. Section 38 provides for weekly payment of compensation for partial incapacity but at the rate for total incapacity when the worker is not suitably employed but is seeking suitable employment. The maximum period for any such payment is 52 weeks. The statutory basis for continuing weekly payment for partial incapacity is section 40. There is no reference to section 40 in the determination of the first application. The determination provides for payment to specific dates (being 18 September 2003 and the date of the determination, 10 October 2003) at specific rates, but does not indicate with precision which section is relied on, or if both, which is relied on for which period. The determination also provides, in order 2, for payments to continue “in accordance with the provisions of the (1987) Act”.
The parties appear to have accepted that the first twenty-six weeks of incapacity expired on 18 September 2003. Thus any reliance on section 36 was exhausted by that point. It is not necessary to determine whether the first arbitrator considered the Appellant to be totally incapacitated (section 36) or only partially incapacitated but seeking suitable employment (section 38) up to that point as that time had already expired by the date of the first determination. There is no statutory basis for a finding of continuing total incapacity in the orders. From 18 September 2003 until the date of the orders the only statutory basis for the orders was section 38. This was also the only statutory basis for the continuing payment ordered in order 2. I conclude that the first arbitrator must have made a finding that the Appellant was partially incapacitated from 18 September 2003 as this is a pre-condition to an order under section 38. This finding could not have been limited in its application to the date of the determination, because the determination provided for continuing payment. However, in the absence of reference to section 40 the orders would at some time cease to have effect due to the time limit in section 38. Section 38(2) provides that the maximum period for compensation under the section is 52 weeks, although this may be constituted by a number of different periods (sub-section (1)) i.e the section may still have application longer than 52 weeks after incapacity commenced. It is possible that the application of section 38 did not commence until 18 September 2003, when any operation of section 36 must have been exhausted, in which case it may have continued to have application until 52 weeks thereafter, in September 2004, or even later.
The first arbitrator must also have made a finding that, at least as at the date of the arbitration, the Appellant was seeking suitable employment. This is also a pre-condition to an order under section 38, although the section itself envisages that this circumstance might change. If it did so, then it is unclear whether or not there would have been any basis for payment at the rate for partial incapacity in the absence of an underlying order under section 40. In summary, although there are difficulties in interpreting the order of the first arbitrator, it was on its face a continuing order based on a finding of partial incapacity for a period of time, which had not necessarily expired at the time the Respondent ceased payment in January 2004, less than three months after the first determination.
The issue that then arises, is whether or not the Respondent was entitled to cease payment under the earlier orders. The Respondent gave notice to the Appellant by letter dated 22 December 2003 that it would cease payment on 2 January 2004. The letter stated that notice was given under section 54 of the 1987 Act. The material relied on in reaching the decision to cease payments was said to be the medical reports provided by Dr Assem and Dr Stephen, both of whom examined the Appellant after the first determination and concluded that he was fit to perform his pre-injury duties. The notice does not refer to the alternative ground for cessation of payment that was advanced at the arbitration, being failure to comply with a return to work plan. The Respondent had put the Appellant on notice that payment could be suspended on this ground by letter dated 12 December 2003 and the Appellant’s solicitors replied by letter dated 18 December 2003 asserting that the proposed return to work was unreasonable. As this ground was not set out in the notice given under section 54 I conclude that it was not relied on at that time. Accordingly, the Respondent relied on recovery from partial incapacity, and not a failure of the Appellant to seek suitable employment as required by section 38(3), as the basis for ceasing to comply with the order under section 38.
The Respondent ceased payment after giving a section 54 notice rather than applying to the Commission for a change in the orders. The Respondent could have made application pursuant to section 55 of the 1987 Act, which provides for review of weekly payments of compensation because of a “change of circumstances” (for example, recovery from incapacity), or pursuant to section 350(3), which provides for reconsideration of a decision previously made by the Commission. On either application the onus of proof as to why the earlier decision should be changed would have been on the Respondent. The Respondent did not follow this course, however, and the Appellant filed his own application. The Appellant was put on notice by the Commission that this may not have been appropriate by letter dated 13 February 2004 from a delegate of the Registrar of the Commission to the Appellant’s solicitors, refusing the request by the Appellant for an interim payment direction from the Commission. The letter stated that the request was refused because the order of the first arbitrator for weekly payment made 10 October 2003 was expressed to be a continuing order and “an interim payment direction cannot be issued in relation to a matter, which the Commission has determined.” This letter referred the Appellant specifically to section 350, and section 350(3) and stated that “In the absence of an application to the Commission by the respondent under section 350(3), section 362 of the Act provides for recovery of any amount ordered to be paid by the Commission.”
It appears from the file relating to the first application that the solicitors for the Appellant had earlier considered recovery action under section 362, because by letter dated 30 December 2003 they sought from the Commission a certificate of the amount owing under section 362 of the 1998 Act, a precondition to seeking recovery under the first determination. The request was refused because it was not accompanied by the statutory declaration required by Rule 90 of the Workers Compensation Commission Rules 2003 (‘the Rules’). The Appellant apparently did not further seek to enforce the earlier order, but filed the second application. The Appellant did not make any submission to the Arbitrator or on this appeal that the Respondent’s actions in ceasing payment by notice rather than by making application to the Commission were inappropriate, and this matter was not raised by the Arbitrator although the letter from the Commission refusing the interim payment direction was before the Respondent and the Arbitrator by virtue of an Application to Admit Late Documents made 19 March 2004.
Similarly, while both parties and the Arbitrator were aware of the earlier determination, the Appellant did not raise the issue of estoppel specifically before the Arbitrator, the Respondent referred to it only briefly in its submissions, and the Arbitrator not at all in her Reasons. The issue has only been raised by the Appellant specifically in his submissions on the appeal, and even then only for the period to 10 October 2003. In my view, on the basis of the Certificate of Determination of the first arbitrator, the finding of partial incapacity which must have been made to ground the order for continuing payment did not cease to have effect on 10 October 2003. I will, however, determine this ground of appeal only on the limited basis asserted by the Appellant.
I consider that the Appellant has established that the Arbitrator erred in the manner set out in paragraphs 4 and 8 of the appeal grounds. Paragraph 4 relates to the admission of evidence from Angela Campbell, who was a rehabilitation provider who only had dealings with the Appellant prior to the first determination. I accept the submission of the Respondent that this evidence could be given for comparison purposes and in relation to the Appellant’s credit, but only in relation to whether or not the Appellant was seeking suitable work after the first determination. The first arbitrator had determined that issue in relation to periods prior to 10 October 2003. The Statement of Reasons does not demonstrate, however, that the Arbitrator viewed Ms Campbell’s evidence only in this limited light. The Arbitrator stated:
“I find that the Applicant has not satisfied the rehabilitation providers, Angela Campbell and Prue Hill as to his genuine attempts to return to work with the Respondent employer. The process of assessing and accommodating the Applicant’s restrictions appear to be professionally discharged. The reasons offered for not attending the return to work program convinced these health professionals that the Applicant was avoiding participating in a reasonable return to work plan.”
The extracted portion refers to the provider who dealt with the Appellant prior to the first arbitration (Ms Campbell) and the provider who dealt with him after that determination (Ms Hill) without distinction, and fails to identify which return to work program is referred to, the program offered prior to the first determination (about which the first arbitrator had already made findings) or the further program offered after the first determination. The Statement goes on to refer to the further offer of work after the Appellant resigned (which occurred after the first determination) but that paragraph concludes “The providers gave evidence of the employers [sic] efforts to discharge their obligations to find suitable work” (emphasis added). These extracts establish in my view that the Arbitrator did not rely on Ms Campbell’s evidence solely for comparison or as to credit, and did not limit her findings as to the Appellant’s attempts to return to work to the period after the first determination as she was required to do.
In relation to the specific grounds of appeal in paragraphs 7 and 15, as stated there is no written record of what the first arbitrator found in relation to the Appellant seeking suitable work prior to the first determination. However, the first arbitrator must have found that the Appellant’s attempts were acceptable to make an order under section 38. It appears likely, then, that the Arbitrator was prohibited from making the findings set out in these paragraphs, as they relate to the period prior to the first determination. However, in the absence of a written record of the first arbitrator’s findings I cannot conclusively determine these grounds.
I will uphold this appeal on the basis that the Arbitrator failed to identify that the orders of the first arbitrator prevented the parties re-litigating issues determined by the first arbitrator, being incapacity and seeking suitable work, at least up until 10 October 2003. For the reasons set out below I will remit the application to another arbitrator for fresh determination. As stated above, I consider that there are strong grounds for arguing that the estoppel applied after 10 October 2003, as well, as the first determination was a continuing order. Further, while there may have been a factual basis for change in the orders it may be that the approach taken by the Respondent, in merely giving notice of cessation of payment rather than making application to the Commission, was not appropriate. This then raises issues as to which party should bear the onus of proof in relation to change to the orders. The parties and the next arbitrator should give consideration to these matters at the next arbitration.
Alternative ground for decision
As set out earlier, the Arbitrator had an alternative ground for her decision, expressed in the final dot point of her summary as follows: “Andre Dagher is disentitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management in December 2003”. I have considered whether the decision of the Arbitrator should be confirmed on this alternative basis, notwithstanding the appeal grounds that are established. This finding is not the subject of any direct criticism by the Appellant in his appeal, although paragraphs 19 and 20 of the appeal submissions assert that the Arbitrator reached the wrong conclusions from the evidence of the second rehabilitation provider, Ms Hill.
Ms Hill’s evidence was that she had prepared two return to work plans for the Respondent to facilitate a return to work by the Appellant, the first by report dated 22 October 2003 and the second by report dated 10 December 2003. The Appellant attended her office in relation to the preparation of the first plan and indicated he did not wish to return to work at the World Tower site because of the travelling time. He did not attend the next day at the World Tower site where information was obtained for the plan. The plan provided for the Appellant to return to work for the Respondent at the World Tower site on graduated duties from 27 October 2003. It is agreed that the Appellant did not return to work for the Respondent and resigned by letter dated 27 October 2003. The letter cited continuing “complications associated with (the work injury)” and “lack of suitable duties (i.e. within reasonable travelling distance) consistent with restrictions indicated by my treating doctors.” Whether or not the travelling distance was reasonable is in dispute. The letter also referred to “the lack of co-operative effort and support shown towards me by both my employers and insurer especially during the crucial phase of early rehabilitation.” The Respondent denies any such lack of co-operation or support.
The Appellant was then employed as a service station console operator for a relative for three weeks, when his position was terminated. His evidence was that thereafter he was actively looking for suitable work. The Respondent requested Ms Hill to prepare a further return to work plan after it obtained a report from Dr Assem that the Appellant could travel without restriction, although he should still recommence work on restricted duties. This report was dated 10 December 2003 and provided for a return to work at the World Tower site on graduated duties commencing 19 December 2003. The Appellant was advised by letter dated 12 December 2003 from the Insurer that unless he returned to work on 19 December 2003 his benefits would be suspended. The letter referred to sections 48 and 57 of the 1987 Act. As set out earlier, the solicitors for the Appellant wrote to the Insurer by letter dated 18 December 2003 asserting that the return to work request was unreasonable for a number of reasons, including that the Appellant had resigned.
The Appellant was required to attend a further doctor on behalf of the Respondent on 18 December 2003, Dr Stephen, who concluded that the Appellant was fit for pre-injury duties without restriction. The Insurer relied on medical grounds in the letter to the Appellant dated 22 December 2003 advising of termination of compensation payments- failure to comply with the return to work plan was not cited as a reason. At the arbitration the Respondent stated that its primary submission was that the Appellant is not partially incapacitated, but also submitted to the Arbitrator “if you do find him partial, then you need to consider the exercise of your discretion in respect of his inability or reluctance to accept offers of suitable employment from his employer.” (transcript, page 53).
The legislation dealing with this aspect of the case is contained in Chapter 3 of the 1998 Act, sections 41-59. This Chapter requires insurers to establish an injury management plan in the case of a work injury that is likely to lead to incapacity of more than 7 days, even if liability is denied. Section 47 requires an injured worker to participate and co-operate in the establishment of the plan and to comply with obligations imposed on the worker by the plan. Section 57 provides as follows:
“Section 57
(1)If a worker fails unreasonably to comply with a requirement of this Chapter after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).(2) A worker’s entitlement to weekly payments does not cease under this section until the insurer has given the worker written notice to that effect, together with a statement of the reasons for the entitlement ceasing and the action that the insurer considers the worker must take to be entitled to the resumption of weekly payments.
(3) The resumption of weekly payments does not entitle the worker to weekly payments for the period in respect of which the worker had no entitlement to weekly payments.”
I set out earlier in this decision the portions of the Arbitrator’s Statement of Reasons that relate to this basis for rejecting his claim. In my view they demonstrate a clear error in the application of the legislation. The Arbitrator states that the Appellant failed to satisfy the rehabilitation providers of his genuine attempts to return to work. That is not the test. It is the Arbitrator who must consider that the Appellant has unreasonably failed to comply with the requirements of the plan, not the rehabilitation providers. It is her discretion, not theirs. Further, the Statement of Reasons shows inadequate reference to and discussion of the grounds advanced by the Appellant as to why his refusal was not unreasonable. The letter from the solicitors for the Appellant setting out these grounds is not referred to at all, and nor are some of the grounds advanced in that letter. Had the Arbitrator properly considered all matters and formed the view that the failure to comply was unreasonable, then it would have been necessary to specify the period for which the Appellant was disentitled to payment. Section 57 does not provide for all liability to be extinguished by reason of a failure to comply with a plan. It provides for lack of entitlement “during any period that the failure continues”. There is no reference to a period in the Arbitrator’s determination.
For these reasons I consider that the Arbitrator has so erred in the exercise of her discretion under section 57 that it would be inappropriate to uphold the decision on that ground alone, given the other errors in relation to the medical evidence and estoppel I have found. The Appellant seeks an order in the terms of his application. I do not consider that appropriate given that there was substantial evidence before the Arbitrator which could have supported a decision in favour of the Respondent, had it been properly considered. I will remit the application for consideration by another arbitrator in accordance with this decision. This is an unfortunate result given the time delay since the Arbitrator’s decision, but I believe unavoidable. I will not remit the application to the original Arbitrator, because she has expressed views in relation to the Appellant’s credit, and the medical and other evidence and it would be preferable for all the evidence to be considered afresh.
Other grounds of appeal
As the application will be considered afresh it is not necessary to determine the other grounds advanced by the Appellant. These remaining grounds all relate to the conduct of the arbitration and the Arbitrator’s findings on the evidence.
DECISION
The decision of the Arbitrator dated 29 June 2004 is revoked. I remit the application to the Registrar for allocation to another arbitrator for determination in accordance with this decision.
COSTS
The Respondent should pay the Appellant’s costs of this appeal. The costs of the original proceedings are referred to the next arbitrator for determination at the next arbitration. If the decision of the next arbitrator is against the Appellant, then it may not be appropriate for the Appellant to recover his costs of either set of proceedings.
Robyn Lansdowne
Acting Deputy President
16 June 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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