Dapto Leagues Club Ltd v O'Brien
[2006] NSWWCCPD 89
•17 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dapto Leagues Club Ltd v O’Brien [2006] NSWWCCPD 89
APPELLANT: Dapto Leagues Club Ltd
RESPONDENT: Tracy O’Brien
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC15058-04
DATE OF ARBITRATOR’S DECISION: 1 March 2005
DATE OF APPEAL DECISION: 17 May 2006
SUBJECT MATTER OF DECISION: Procedural fairness; refusal to allow adjournment; credit; partial or total incapacity; section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Diana Benk
Respondent: Andrew Fegent & Co CMC Lawyers
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator's decision of 1 March 2005 is revoked and the following order made:
“The matter is remitted back to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine whether the Respondent Worker's entitlement to weekly compensation is under section 40 or under section 37 of the Workers Compensation Act 1987, and, if that entitlement is found to be under section 40, to assess the quantum of an award under that section.”
Paragraphs two and three of the Arbitrator's decision of 1 March 2005 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal.
BACKGROUND TO THE APPEAL
On 29 March 2005 Dapto Leagues Club Ltd (‘the Appellant Employer/the Club’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 March 2005.
The Respondent to the Appeal is Tracy O’Brien (‘the Respondent Worker/Mrs O’Brien’).
The Respondent Worker was born on 20 November 1963 and started work as a part time bar attendant with the Club on 26 November 2000. She worked about 20 hours per week though her hours fluctuated according to demand and her average weekly earnings were agreed at $331per week.
In 1990 she injured her back and neck in a motor vehicle accident. Her back injury deteriorated in about 1995 and in September 2001 she under went a laminectomy at the L5/S1 level. She returned to work with the Appellant Employer about eight weeks after that surgery feeling a lot better and was able to continue her usual duties but with the help of panadeine forte.
In about July 2002 she experienced an increase in back and leg pain while gardening at home. As a result of that increase in pain she rested for a few weeks. Her pain decreased to a manageable level and she was able to continue her usual duties until her work accident in January 2003.
On 24 January 2003 Mrs O'Brien slipped and fell at work in the Appellant Employer’s kitchen sustaining further injury to her low back with pain down her left leg and in her left hip. She ultimately ceased work and made a claim for compensation which was initially accepted with provisional weekly benefits being made until 30 April.2004.
In her Application to Resolve a Dispute ('the Application') filed on 23 September 2004 Mrs O'Brien sought weekly compensation from 30 April 2004 to date and continuing for herself and her dependent daughter (Christine Fitzsimmons born on 28 January 1987). She also sought lump sum compensation in respect of 12% whole person impairment.
Her claim was heard in Arbitration in the Commission on 27 January 2005 and determined in a decision delivered in her favour on 1 March 2005. The Appellant Employer now appeals from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 January 2006 records the Arbitrator’s orders as follows:
“1.that the Respondent pay the Applicant weekly compensation at the rate of $281 from 1 May 2003 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act:
2.that the Respondent pay the Applicant’s section 60 [sic] of the Workers Compensation Act 1987 expenses on production of accounts or receipts;
3.that the Respondent pay the Applicant’s costs as agreed or assessed. This matter has been certified as complex for the purposes of item 4.10 as there were significant issues relating to pre existing problems.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator was in error in:
(a)failing to determine a figure pursuant to section 40(2)(b) of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘The Section 40 Error’);
(b)finding the Respondent Worker's earnings in some suitable employment pursuant to section 40(2)(b) were nil (‘The Section 40 Error’);
(c)denying the Appellant Employer procedural fairness and or natural justice by refusing an application for adjournment (‘Procedural Fairness’);
(d)finding that the Respondent Worker sustained a recurrent disc prolapse as a result of the accident on 24 January 2003 (‘The Medical Issue’), and
(e)in accepting the Respondent Worker to be a witness of good credit (‘The Credit Issue’).
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The appeal seeks to challenge the whole of the award made in favour of the Respondent Worker and therefore the threshold in section 352(2) is also met.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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.”
Both parties submit that the appeal should proceed by way of oral hearing. The Appellant Employer's submissions state that the Arbitration was dealt with on the papers by the Arbitrator. That is not correct. Lengthy oral evidence was given at the Arbitration hearing. Several other submissions are made on this issue that do not appear to relate to this appeal. For example, it is submitted that the Arbitrator failed to comply with rule 73 of the Workers Compensation Commission Rules 2003 ('the Rules') but this point is not raised as a ground of appeal in the main submissions.
It is submitted that “normally parties to a review procedure should be entitled to be heard orally” and this accords with the “fundamental principle of ‘fairness’”. No authority is cited for this proposition. Each party has made detailed written submissions on the relevant issues and I have carefully considered those submissions.
Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, 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.
FRESH EVIDENCE
The Appellant Employer seeks to issue a Direction for Production (‘Direction’) requiring production of the clinical notes of Dr Davies and to then tender the documents produced by Dr Davies as fresh evidence on the appeal.
At the Arbitration hearing the Appellant Employer sought an adjournment to issue a Direction on Dr Davies and that application was refused. The appeal raises an issue of denial of procedural fairness and natural justice because of that refusal. Therefore, there is currently no ‘fresh evidence’ to consider on the appeal and the application is refused.
It is not appropriate on a ‘review’ to seek to issue a further Direction for Production. A review is not a hearing de novo. As was discussed by Deputy President Fleming in McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22 (‘McMahon’), it was not the intention of the legislature to allow appeals to effectively become a full second hearing of the dispute.
Granting an application to issue a Direction to Dr Davies on an appeal would turn the review into a ‘full second hearing’, the very thing the legislation seeks to prevent. Merely issuing the Direction would not take the matter any further. Once the notes were produced it may then be necessary for there to be further cross examination or for the notes to be shown to other doctors for comment. If that happened the appeal would cease to be a ‘review’ and would become a full second hearing. Therefore, the application to issue a Direction to Dr Davies is refused.
SUBMISSIONS AND FINDINGS
The Section 40 Error
The first and second grounds of appeal raise the same issue, namely, that the Arbitrator failed to determine a figure under section 40(2)(b) of the 1987 Act, or erred in finding that figure to be nil. This subsection requires an Arbitrator to determine what an injured worker is earning or is able to earn in suitable employment in his or her injured state. Before the subsection becomes relevant it is necessary for a finding to be made as to whether the relevant incapacity is total or partial.
Before determining this issue it is necessary to consider the Arbitrator's findings in some detail. At paragraph 46 the Arbitrator quite properly set out the Respondent Worker's work experience and interests. Having left school at the end of year 10 Mrs O'Brien’s past work included modelling when she was aged 17, work as a bar attendant (as she was doing with the Appellant Employer when she was injured), and work as a waitress and kitchen hand. Her interests included painting and making lead light ornaments. It was correctly recorded that the Respondent Worker's occupational history involved “mostly physical work”. Efforts by Mrs O'Brien to retrain herself by undertaking a computer course (after the work injury) were unsuccessful because of her inability to sit for prolong periods. It was also noted that the Respondent Worker is dependent on MS Contin and Valium to manage her symptoms and that those medications could “potentially inhibit employment opportunities”.
After setting out these facts the Arbitrator:
· agreed with the submission made by the Respondent Worker's counsel that his client had a “limited capacity for work” (Reasons at paragraph 46);
· accepted Dr Pell’s evidence that the Respondent Worker was “unfit to undertake any employment” (Reasons at paragraph 46);
· found that she was not satisfied that the Respondent Worker was “able to seriously manage any work in her condition” (Reasons paragraph 46);
· found that the Respondent Worker already had a partial incapacity as a result of a previous back injury which resulted in surgery (Reasons at paragraph 47), and
· “accordingly” found that any incapacity “flowing from the fall would be in the nature of a partial incapacity” (Reasons at paragraph 47).
Earnings but for the injury (section 40(2)(a)) were agreed at $331.00 per week. This figure was calculated as an average of the Respondent Worker's earnings over several months immediately prior to her injury.
The Arbitrator then noted at paragraph 49 of her Reasons:
“Accordingly, I find that the Applicant would have been earning $331 per week but for her injury. I have already found that Mrs O'Brien is unfit for any employment and would not be able to earn anything. The figure therefore applying the formula is $331 per week.” (emphasis added)
The ‘formula’ referred to by the Arbitrator is the formula set out in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527.
The next step taken was to apply the section 40 ‘discretion’ because of the Respondent Worker’s “significant pre existing condition” (Reasons paragraph 50). It was submitted that the Respondent Worker had been taking a significant quantity of painkillers prior to her fall and it therefore would only have been a matter of time before she was unable to continue her pre injury level of work. The Arbitrator was mindful that in the months leading up to the accident Mrs O'Brien had been working only about 20 hours per week (about her normal average number of hours pre injury) and that her pre injury earnings reflected her pre existing back problems. The Arbitrator then held that it was appropriate to reduce the sum of $331.00 per week to take account of the high level of medication being taken and the impact that may have on her “long term ability to work as well as the natural degeneration process following the laminectomy” (Reasons at paragraph 50). Therefore, in the exercise of her discretion the Arbitrator reduced the sum of $331.00 by $50.00 and made an award under section 40 of the 1987 Act in the sum of $281 per week from 1 May 2003 to date and continuing.
The Appellant Employer submits that the Arbitrator was in error in that she failed to make a finding of the Respondent Worker's ability to earn as required by section 40(2)(b). I agree that an error has been made, but considering the factual findings set out above, I do not agree that the error is the one suggested by the Appellant Employer. In my opinion the error is that the Arbitrator has made an award that is inconsistent with the factual finding made. After accepting the evidence of Dr Pell and finding that Mrs O'Brien was not “able to seriously manage any work in her condition” (paragraph 46 of the Reasons) and was “unfit for any employment and would not be able to earn anything” (paragraph 49 of the Reasons) a finding of partial incapacity under section 40 was not open and was an error of law.
In Hope v Bathurst City Council (1980) 144 CLR 1 (‘Hope’) at 7 Mason J, as he then was, noted:
“Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.”
After referring to Hope Justice Hodgson held in Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697 at 710:
“However, where, as in this case, a statute uses words according to their common understanding, generally the application of the statute to the facts will itself be a question of fact: in such cases, a question of law will arise only if there is a question as to the correctness of the test stated by the tribunal, or if the tribunal finds primary facts which could not fall within the terms of the statute”.
In the present case the ‘primary facts’ found by the Arbitrator could not fall within the terms of section 40 and in making an award under that section the Arbitrator was in error.
If I am wrong on whether the issue raised involves an error of law, it is my view that the Arbitrator has misused her discretion in making an award under section 40 when the factual findings supported an award of total incapacity.
The Arbitrator's use of the word “accordingly” immediately after referring to the fact that the Respondent Worker had a pre existing partial incapacity and was taking significant quantities of panadeine forte before her accident seems to have influenced the Arbitrator to conclude that notwithstanding her findings to the contrary, Mrs O'Brien was only entitled to an award under section 40. The Respondent Worker's pre existing medical condition was a very important issue in the case and it warranted close consideration and analysis but, once it was decided that employment was a substantial contributing factor to her injury, the question of whether the Respondent Worker was partially or totally unfit for work was to be determined on the evidence that dealt with that issue. That evidence included the evidence of Dr Pell and the Respondent Worker which the Arbitrator accepted.
The fact that the Respondent Worker had a serious pre existing back condition was not determinative of whether her post accident incapacity was partial or total. The existence of the pre existing back problems was reflected in the Respondent Worker’s very modest earnings under section 40(2)(a) of $331.00 per week. That figure took into account that Mrs O'Brien only worked part time and had one pay period on 15 July 2002 when her earnings were slightly down because of an exacerbation in her back symptoms in the middle of 2002. If it was determined as a question of fact that the Respondent Worker was unable to perform any meaningful work as a result of the work accident then the only correct conclusion was an award of total incapacity.
The question of total incapacity was considered by the Court of Appeal in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213 where Justice Mahony said:
“In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such.
It is concerned with the capacity to do work of a particular kind or kinds in the context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is highly or partially incapacitated and to what extent, the Court will not ordinarily be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not as it were spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is in my opinion, a more practical exercise. It involves the assessment of a capacity “for work”, having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which would permit him to do work in the relevant labour market.”
Whilst I believe that, given the factual findings made, an award of total incapacity should have been made, it may well be that it was not made because of the submissions made by the Respondent Worker's counsel at the Arbitration hearing. It was submitted on behalf of Mrs O'Brien that she was only entitled to an award under section 40. Whilst an Arbitrator is not bound to accept such a submission if he or she believes the appropriate finding is one of total incapacity, it would have been a denial of procedural fairness to find total incapacity in the light of such a concession without first alerting the Appellant Employer to the possibility of such an award (see Wrigley Co Pty Ltd v Holland (2002) 23 NSWCCR 463).
The Appellant Employer also challenges the section 40 finding on the grounds that the Arbitrator was in error in accepting the opinion of Dr Pell. This issue is dealt with below under ‘The Medical Issue’.
Therefore, whilst I believe the Arbitrator was in error on this issue and whilst I have power on a review to substitute a new decision in place of the award made, it is not appropriate that I do so in this case as the Appellant Employer would be unfairly prejudiced by such a course.
Procedural Fairness
The Appellant Employer challenges the Arbitrator's decision refusing its application for an adjournment and a request for leave to issue a Direction for Production on Dr Davies. The Reasons state at paragraph 36 that the application was refused because the Arbitrator was “satisfied as to the Applicant’s credit” and she felt she had “sufficient information” before her to make a decision.
The complaint is that the adjournment issue came up during cross examination and if the Arbitrator was already ‘satisfied as to the Applicant’s credit’, then she had pre judged the case because the evidence was incomplete. In submissions on appeal the Appellant Employer states that further submissions would be made on this point when the transcript was available. The transcript was forwarded to the parties on 5 May 2005 but no further submissions have been received on this or any other issue.
The transcript reveals that the adjournment issue was raised at page 37(well into the cross examination) and decided at page 47 with the Arbitrator ruling as follows:
“Arbitrator: “But I am not going to grant the adjournment.
Mr Harris: Okay.
Arbitrator: And the reason is I think that we’re here today to deal with the matter. The request for particulars is vague and it doesn’t really specify really [sic] – but I think it also – I think—
Mr Harris: Sure
Arbitrator: --the questions beforehand, [sic] the three questions, could be suggestive that you’re looking at a certain period. I’m just not prepared to grant the adjournment. I’m going to deal with the matter today.”
The ‘request for particulars’ referred to was tendered in evidence before the Arbitrator. The letter was dated 13 October and was addressed to the Respondent Worker's solicitors. It asked:
“5. Who was the first medical practitioner the Applicant saw after the alleged injury? Provide name and address.
6. Provide names and addresses of all treating medical practitioners, and details as to treatment.”
The Respondent Worker's solicitors replied in a letter dated 4 November 2005 by providing the details of Drs Phipps, Pell and Mahfouz. All of these doctors had treated the Respondent Worker before and after the accident.
The Appellant Employer argues that since the Respondent Worker's credit was in issue and in view of certain inconsistencies in some of the medical histories it was ‘essential’ to its proper defence of the claim that the adjournment be granted and the Direction be issued to Dr Davies.
The question of whether or not an adjournment should be granted always involves the exercise of an Arbitrator's discretion. That discretion must be exercised lawfully having regard to relevant matters.
A helpful review of the authorities on adjournments was conducted by Judge Burke in Moombalene Local Aboriginal Land Council v Dailey (1998) 16 NSWCCR 469 (‘Dailey’) at paragraphs [25] to [32]:
“25 Firstly, proceedings before the Court, coming on for hearing by the usual processes, should be heard and determined at the time and place fixed for hearing. (See the litany of cases cited in the comment on Pt34, r4 of the NSW Supreme Court Rules 1970.)
26 Secondly, where there is a proper basis for such an application and refusal would seriously prejudice the party seeking adjournment and not prejudice the other party, then adjournment should ordinarily be granted: Watson v Watson (1968) 70 SR 203; Jordan v Smart [1961] NSWR 735.
27 Thirdly, a party is expected to take reasonable steps to prepare and present his case at the time and place appointed: Ord v Ord [1923] 2 KB 432; Dick v Piller [1943] 1 KB 497; Pennings v TA Field Pty Ltd (1990) 6 NSWCCR 271.
28 Fourthly, where the period of adjournment sought is only very short the Court will usually be much more relaxed--or be corrected on appeal: Carryer v Kelly [1969] 2 NSWR 769.
29 Fifthly, where the matter has proceeded to judgment after wrongful refusal of adjournment, the evidence thereby excluded must be shown to be material to the resolution of disputed issues to warrant further hearing: GIO v Best, NSWCA, No. 40525/91, 2 June 1992, unreported.
30 Sixthly, the proper administration of justice ordinarily requires that the parties should be afforded the opportunity to present their respective cases.
31 Seventhly, an appellate tribunal will be very reluctant to interfere with the exercise of the discretion to grant or refuse adjournment at first instance: Thornberry v R (1995) 69 ALJR 777--itself a case of such appeal being successful.
32 It is fairly clear that not all these principles are capable of application at the same time. There is clear tension between some of the stated precepts. The Court is always faced with the problem of establishing a balance between competing demands and arriving at a resolution that adequately weighs the impact of these contrary factors in arriving at a resolution in any particular matter.”
The issue of adjournments has also been considered in a number of cases in the High Court. In particular, in Sali v SPC Ltd (1993) (‘Sali’) 116 ALR 625 at 628-9 Brennan, Deane and McHugh JJ said:
"In Maxwell v Keun [[1928] 1 KB 645, at 650, 657, 658] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. [See, for example, Walker v Walker [1967] 1 WLR 3276, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 5, at 580-9]. Moreover the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action [Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569]. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.”
The above principles must be read in the light of the legislation, rules and Practice Directions which govern proceedings in the Commission. In particular the provisions of section 354 of the 1998 Act are relevant:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
Practice Direction No 2 of the Workers Compensation Commission’s Practice Directions is also relevant. It emphasises the objectives of the Commission and, in particular, the duty to provide a timely and effective resolution service. It adds that:
“The Commission will not adjourn any proceedings unless it is demonstrated that one or more parties would suffer a substantial injustice if the adjournment in not granted.”
The Practice Direction adds that the Commission has the discretion to grant an adjournment, “other than in accordance with this Direction, where procedural fairness in the instant case requires it”.
With the above provisions and authorities in mind in the present case I note the following:
(a)the Appellant Employer was ready to proceed at the hearing and was unaware of the existence of Dr Davies notes until well into cross examination;
(b)there was a proper and reasonable basis for the adjournment application made by the Appellant Employer;
(c)the adjournment would not have seriously prejudiced the Respondent Worker and her counsel did not suggest otherwise;
(d)the Appellant Employer had taken reasonable steps to prepare the case for hearing by requesting particulars and issuing Directions for Production to all of the identified treating doctors;
(e)it is not know exactly how long the adjourned period would have been, but I am prepared to assume that the documents could have been obtained within a matter of weeks, and
(f)the notes sought were relevant to the issues to be determined by the Arbitrator.
The above factors weigh heavily in favour of granting an adjournment application in such circumstances as the present but I am mindful of the seventh point made by Judge Burke in Dailey, namely, that an appellate court will be very reluctant to interfere with the exercise of discretion to grant or refuse an adjournment at first instance. I also note point two made by Judge Burke about the refusal to grant an adjournment causing serious prejudice to the party seeking the adjournment if it is not granted. Practice Note 2 refers to “substantial injustice”.
The Respondent Worker submits that:
(a)the Arbitrator’s statement that she had sufficient information before her to make a decision about the connection between the fall and the incapacity alleged indicates compliance with the requirements of section 354(3) which modifies the common law rules of procedural fairness;
(b)Dr Davies name was not provided in the particulars sought but that did not matter because one of his reports (dated 28 July 2004) was produced by the doctors who had been served with a Direction to Produce. Therefore his particulars could have been ascertained by perusing those notes when they were produced to the Commission in October 2004, and
(c)in addition, a letter was written by Dr Poulos to Dr Davies on 20 August 2001 indicating Dr Davies’ involvement in the Respondent Worker's treatment at that time.
In cross examination at the Arbitration hearing the Respondent Worker agreed that she had seen Dr Davies in the six months before her accident (but no other doctors in that period) and he had given her scripts for panadeine forte. If she had “any other major problems” (see transcript at page 25) she would see her general practitioner. Whilst Dr Davies is described as a psychiatrist on his letter head Mrs O'Brien also described him as “my pain management doctor” (see transcript at page 25). She then adds at page 25-26 of the transcript:
“Q.Who was your GP for the last six months of 2002?
A.I didn’t really need a GP for the last six months of 2002. I wasn’t having any problems.
Q.Well, you saw Dr Davies?
A. Yeah, but I wasn’t having problems. The panadeine forte was working.
Occasionally [inaudible] things weren’t great in my life and, you know, I talked to him about the personal side.”
This evidence was most relevant on the adjournment application. The Arbitrator was entitled to take into account the above evidence at the time it was given in deciding whether to grant the adjournment which was later sought. If that evidence was accepted then relevance of Dr Davies to the proceedings was greatly diminished. That is particularly so when one considers the fact that the parties had access to clinical notes from the Respondent Worker's two treating general practitioner’s from about October 2004. Neither of those doctors had entries for the Respondent Worker in the six months before the work accident. The notes produced were not deficient (Dr Phipps’ notes are conveniently paginated and no pages are missing) so it was not unreasonable for the Arbitrator to accept the Respondent Worker's evidence on this point. Mrs O'Brien’s evidence that things were not too bad in the six months up to her work accident is also corroborated by the fact that she continued in her usual work for the Appellant Employer doing about 20 hours per week in that period. That evidence was confirmed in the wage records tendered by the Appellant Employer. No evidence was called by the Appellant Employer to suggest that the Respondent Worker was making any particular complaints about her back in that six month period. If later evidence came to light to undermine the Respondent Worker the application for adjournment could have been renewed. At page 52 of the transcript the Arbitrator asked Mr Harris, counsel for the Appellant Employer, whether he was reapplying for an adjournment and he said ‘no’.
The rules of natural justice have been considered by the courts on many occasions. In Muin v Refugee Tribunal [2002] HCA 30 Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
In my opinion the Appellant Employer had every reasonable opportunity to deal with the issues adverse to its interests. A perusal of the clinical records produced would have shown the existence of Dr Davies and, if it was thought appropriate, a Direction could have been served on him well before the hearing date.
I do not believe the Arbitrator's ruling at page 47 of the transcript involved a ‘prejudgment’ of the matter. The reference to the Respondent Worker's credit appears in the written Reasons after all of the evidence was concluded. It is really a confirmation of the ruling made at page 47 for an additional reason. However the reference to having “sufficient information before me to make a decision” was not appropriate on an adjournment application. The reference to ‘sufficient information’ is a reference to section 354(6) of the 1998 Act. That subsection deals with the situation where an Arbitrator or Deputy President is determining whether a matter can be determined ‘on the papers’ without the need for an oral hearing. It does not address the question of an adjournment of an oral hearing. The adjournment issue is dealt with in Practice Direction No 2 and by reference to the general principles of procedural fairness.
Whilst I think that the Arbitrator's reasoning indicates a failure to take into account all of the matters set out in the above authorities and in Practice Direction No 2, on review I believe the Arbitrator was entitled to refuse the adjournment application in the exercise of her discretion. Taking into account all of the above matters and the whole of the evidence I have formed the view that the Arbitrator's decision to refuse to grant the adjournment in the present case was appropriate because the refusal did not result in a serious prejudice or substantial injustice to the Appellant Employer.
The Medical Issue
The Appellant Employer challenges the Arbitrator's decision on the ground that the history on which Dr Pell based his opinion was incorrect. In his report of 21 June 2004 Dr Pell states on page 2:
“The surgery in 2001 was successful in that she lost her back pain and leg pain and there was no recurrence of this until the fall in January 2003. She was working full time after that surgery.”
It is submitted that the above statement is inaccurate in the following respects:
(a)the Respondent Worker's back pain and leg pain returned about four months after the surgery according to the history recorded by Dr Poulos in his report of 5 July 2002 (the Respondent Worker says six months);
(b)the Respondent Worker did not return to full time employment but only to her previous part time position, and
(c)the Respondent Worker experienced episodes of pain in the period between the surgery and her work accident which required her to get two scripts of endone and regular scripts for panadeine forte.
Dr Pell also reported on 20 February 2003 to Dr Phipps that the Respondent Worker had “been coping quite well and had returned to work”. The report doesn’t expressly say it but the clear inference is that the ‘coping quite well’ is a reference to coping well after the 2001 surgery. The doctor then adds “she had a fall at work some three weeks ago and since then has had a marked exacerbation of back pain and left sided sciatica” down the thigh and left leg into the left foot. She rested without much benefit and when attempting housework the week before she required admission to hospital. She had commenced on endone and panadeine forte for the day. It was noted that Mrs O'Brien walked with a limp. Neither this report nor the report of 21 June 2004 from Dr Pell has a history of the mid 2002 back problems.
However it was common ground the Respondent Worker did speak to Dr Pell over the phone in mid 2002 and that he arranged a further MRI scan. In his report to Dr Poulos on 29 July 2002 Dr Pell notes that he reviewed that MRI scan (dated 2 July 2002) which showed the previous laminectomy at the lumbar sacral level. In addition it showed “a small residual disc” at the L5/S1 level which was nothing like the large postero lateral protrusion present before surgery in 2001. He also noted that the July 2002 MRI showed minor disc bulging at L4/5 and L3/4 with some epidural fibrosis around the left S1 nerve root. He thought no further surgery was required and he added that he had spoken to the Respondent Worker by phone and recommended a left S1 peri-radicular cortisone injection. That injection was never done because the pain settled to a manageable level.
The Arbitrator found that the Respondent Worker “did not conceal her pre existing condition, laminectomy or flare up in June/July 2002” (see Reasons at paragraph 37). The Appellant Employer challenges this finding on the grounds that Dr Pell’s history in his report of 21 June 2004 is inaccurate.
In my view the inaccuracies in Dr Pell’s report of 21 June 2004 give the Appellant Employer little help. Dr Pell did know about the flare up in pain in mid 2002 because he arranged for a further MRI scan which he reviewed and commented on. He also spoke to Mrs O'Brien about her condition. We do not know if Dr Pell knew about the Respondent Worker taking endone in mid 2002 but in my view that does not undermine the doctor’s opinion. Apart from that brief period on endone no different treatment was given to the Respondent Work. Given that the wage records corroborate the Respondent Worker's evidence of very little (if any) time away from work in mid 2002 because of this flare up, it is difficult to see why anyone would place great weight on the 2002 pain.
What is more important is that Dr Pell reviews the “previous MRI scans” and gives his considered opinion about the significance of the findings in them in a report of 24 February 2004 to Dr Phipps. His opinion was:
“I reviewed her previous MRI scans; MRI done post previous surgery but before the fall when there was a stir up of pain, showed broad based bulge at lumbar sacral level without significant nerve root compression. MRI scan done following fall [sic] shows central and left sided postero-lateral disc protrusion which could have nerve root compression.” (emphasis added)
The MRI scan “done post previous surgery but before the fall when there was a stir up of pain” is the scan of 2 July 2002. This statement shows clearly that Dr Pell was aware of the ‘stir up of pain’ in mid 2002 and that he did not consider it to have resulted in any serious or significant damage. In these circumstances the omission of the 2002 ‘stir up of pain’ from the report of 21 June 2004 was not in my opinion of any significance to the doctor’s conclusion because he did not think the event was of any great moment. This assessment is consistent with the Respondent Worker's evidence that her symptoms in mid 2002 returned to their previous level within weeks.
In his report of 21 June 2004 Dr Pell concluded under diagnosis on page two:
· she has a recurrent lumbar sacral disc prolapse the result of the accident of 24 January 2003 when she slipped at the Dapto Leagues Club;
· there is radiological confirmation of an MRI done prior to this fall (the July 2002 MRI) which showed broad based disc bulging at the lumbar scaral level and MRI scan done after the fall which shows postero-lateral disc protrusion towards the left side;
· she walks with a limp;
· there is weakness in her foot, and
· she is unable to work.
The above opinions were open to Dr Pell and were based mainly on his review of the pre and post accident MRI scans but also on the Respondent Worker's symptoms when he saw her I in February 2003. As the only neurosurgeon in the case the Arbitrator was entitled to give his opinion considerable weight.
On the question of the Respondent Worker returning to full time work Dr Pell also notes on page one of his 21 June 2004 report that Mrs O'Brien was able “to return to work at the Dapto Leagues Club” after her surgery. That statement was correct. In my view it is of no consequence that the doctor later refers to full time work.
The Appellant Employer relies on Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-4 (‘Makita’) in which Justice Heydon stated that so far as an experts opinion is based on ‘assumed’ or ‘accepted’ facts, they must be proved. His Honour also said at 731-2:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.”
Judge Armitage also considered the above cases in Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76 where he stated:
“In Paric at the above reference, Samuels JA refers to the situation where facts stated in an expert’s report do not completely correspond to the facts proved at trial, and held that where there is a ‘fair climate’ for the acceptance of the expert’s opinion, this may occur, notwithstanding the discrepancy just referred to, relying on various authorities which his Honour cited from America and elsewhere. His Honour said that this question is essentially one of fact and degree.”
In my opinion the facts proved in the present case provide a ‘fair climate’ for the acceptance of Dr Pell’s opinion. He was the Respondent Worker's treating neurosurgeon. He treated Mrs O'Brien before and after her work accident and was aware of a ‘stir up of pain’ in mid 2002. The Respondent Worker gave evidence that her symptoms were much worse after her work accident. That evidence was corroborated by the findings on examination by Dr Phipps on 25 January 2003 and by Dr Pell in February 2003. In these circumstances the acceptance of Dr Pell’s evidence was a question of fact for the Arbitrator and I do not believe her acceptance of his opinion involved any error.
The Credit Issue
The Arbitrator found the Respondent Worker to be a witness of truth (see Reasons at paragraph 37). The Appellant Employer challenges this finding on four grounds:
(a)Mrs O'Brien’s evidence about her mid 2002 symptoms was “severely understated” (‘Understatement of Symptoms’);
(b)she failed to disclose in her statements or to three doctors that she took endone in mid 2002 (‘Endone’);
(c)Dr Pell did not have a proper history (‘Dr Pell’s History’);
(d)the Respondent Worker's presentation in the surveillance was in sharp contrast to her presentation to several medical practitioners (‘The Surveillance’), and
(e)the Respondent Worker's assertion that her pain was worse after the activities shown in the surveillance contrasted with the clinical notes of Dr Phipps which state “pain is no different” (‘The Post Surveillance Symptoms’).
The role of a Presidential Member in reviewing a finding of credit was considered by the Commission in Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10 where Deputy President Fleming said at [39]
“The function of a Presidential Member on review of an Arbitrator’s findings based on credit is to ensure the decision is not affected by demonstrable mistake or misapprehension about relevant facts and that the ‘value and importance’ of the advantage of the Arbitrator has not been misused (State Rail v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588).”
(a) Understatement of Symptoms
I don’t agree that the Respondent Worker understated her mid 2002 symptoms. In her statement of 10 September 2003 she said:
“My back did get sore about 6 months after the operation which led me to undergoing a further MRI. I reduced my hours at work and the pain in my back seemed to settle down.”
In her second statement (undated but apparently given in 2004) she adds:
“In July 2002 I was gardening at home and my back got sore. I had some left leg pain. I spoke to Dr Pell on the phone who advised me to have an MRI which I did. I rested for two weeks or so and the pain went away completely.”
It is true that Dr Searle and Dr Harvey-Sutton do not have histories of the 2002 flare up in their reports of 30 March 2004 and 22 June 2004 respectively. However when the Respondent Worker was cross examined about this at page 31 of the transcript she said I told them “I had a flare up” (line 43) and then she added:
“I told them that I had a bit too much [sic] and that I started suffering pain from them [sic] again, and they said, ‘Was it investigated?’ I said, ‘Yes. An MRI was done.’ They said, ‘Was there any further damage?’ and I said, ‘No’, and they said, ‘And did it settle down, Tracy, when you took this advice home?’ And I said, ‘Yes’, and they said, ‘And everything was fine then and was back to normal as usual?’ and I said, ‘Yes.’ They said, ‘Your medication wasn’t changed after that?’ I said, ‘No’.”
We know that the doctors were aware of the July 2002 MRI scan because they comment on it.
In respect of Dr Mills’ report of 22 July 2003 he records at page two:
“In August 2002 she had a worsening of back pain whilst weeding and gardening at home. This was treated with rest with her symptoms returning to base line within a week. At the time she describes having had a telephone consultation with Dr Pell, with subsequently having an MRI of her lumbosacral spine performed in approximately August 2002.”
Before the Arbitrator the Respondent Worker gave evidence about the mid 2002 symptoms at page five line 50. That evidence was of speaking to Dr Pell over the phone. His advice was to take things more slowly and if it didn’t settle he would do an epidural injection. That was never done because the symptoms did settle. In addition, at page 22 line 21 the Respondent Worker's evidence was that she “took the advice of Dr Pell and had that rest, everything went back to normal”. By normal she meant normal for her because she still had back pain and was still taking panadeine forte but she could walk “sprightly and everything was fine” (transcript page 22 line 32).
This evidence can be tested (in part) by looking at the wage records tendered by the Appellant Employer. They show that the Respondent Worker worked every week in June and July 2002 but her hours fluctuated in a similar pattern to that shown in the first half of 2002, save for the week of 22 July 2002 when she only worked 10 hours and 15 minutes. In my opinion the wage records support the conclusion that the Respondent Worker’s problems in mid 2002 were not particularly severe or disabling. This point was made by the Arbitrator during submissions by Mr Harris at page 66 line 15 of the transcript where she said:
“Well, it supports what the applicant says about the flare up, that it wasn’t – it didn’t significantly impact on her ability to carry out her normal work and the life [sic] activities.”
In addition the Respondent Worker's evidence is corroborated by her non attendance on either of her treating general practitioner’s in the six months before the work accident. As I have noted earlier in this decision, the notes are not deficient but are silent about attendances in that period because there were none.
Considering the evidence as a whole I do not believe the Respondent Worker understated her mid 2002 symptoms or that she attempted to mislead the medical witnesses to advance her case. If her evidence about returning to normal after the 2002 flare up was untrue the Appellant Employer was in an ideal position to challenge it by calling employees who worked with Mrs O'Brien to say that she was not coping and was having greater difficulties with her duties than previously. No evidence was called from the Respondent Worker's co-workers.
(b) Endone
On the issue of taking endone in mid 2002 it is true that several doctors do not have that history. The evidence from the Respondent Worker was that she took endone in mid 2002 for “about three or four weeks” (transcript page five line 56) and then went back to her original medication because the “pain went away” (transcript page six line seven). In cross examination it was put to the Respondent Worker that she got one script of endone from Dr Poulos and one from Dr Mahouz. That was not denied (transcript page 20 line 27). It is unclear exactly how long Mrs O'Brien used endone at this stage but Dr Poulos states in his report of 5 July 2002 that his script for endone was for 20 tablets only “to be used for breakthrough pain over the next week”. It is not know how many endone tablets were prescribed by Dr Mahouz but I see no reason to reject the Respondent Worker's evidence that she only took endone for only a few weeks in mid 2002.
In circumstances where her pain returned to its previous level within weeks without any serious disruption to her life style or work pattern it is not surprising that Mrs O'Brien did not tell some doctors about the short period on endone in mid 2002. I do not believe this issue impacts adversely on her credit.
(c) Dr Pell’s History
I do not believe that Dr Pell’s history in his report of 21 June 2004 impacts on the Respondent Worker's credit. Dr Pell’s evidence is dealt with in detail above.
(d) The Surveillance
The Respondent Worker's presentation in the surveillance was quite different to her presentation to a number of the medical witnesses. The submission made on behalf of the Appellant Employer is that the free movements shown in the surveillance such as “repetitive bending, walking quickly, full forward flexion” contrasts with the Respondent Worker having very little range of movement when examined by the doctors. Specific reference is made to her presentation to Dr Pell (21 June 2004), Dr Searle (30 March 2004) and Dr Mills (8 September 2004). The point is also made that the Respondent Worker did not make any reference to the work at the stall in December 2003 until she became aware of the fact that surveillance existed.
This submission has some merit but its weight is considerably diminished when one considers the whole of the evidence.
The surveillance was shown to Dr Searle who reported on it on 24 January 2005. In that report he noted that the film showed the Respondent Worker bending “apparently reasonably freely at times”. The doctor also refers to the Respondent Worker's second statement where she says at page four:
“Unfortunately the children didn’t stay around the stall the whole time and disappeared and I had to do a lot of things on my own. I had to take 6 endone during the space of that day which was over about 7 or 8 hours and I normally take 8 over 24 hours. During this time I also took 4, 5 milligram, [sic] valium tablets, which was about twice my normal dosage at that time…I was able to drive home but I vomited as soon as I got home due to the endone.”
Dr Searle then comments that:
“Without significant analgesia I believe she would not have been able to perform the activities I observed on the video, but if her statement is correct it is necessary to bear in mind that with sufficient narcotic medication anybody can tolerate virtually any amount of pain and appear to carry out normal activities without restriction.”
The surveillance was also seen by Dr Harvey-Sutton who reported on it on 18 January 2005. The doctor made the following comments about it:
· it showed the Respondent Worker walking and favouring her left leg;
· it showed no heavy lifting;
· whilst it showed bending, the Respondent Worker did not work in awkward postures and did not repetitively bend or twist her back, and
· it (taken with the Respondent Worker's second statement) did not alter the doctor’s diagnosis or prognosis.
The doctor felt that the level of medication taken by Mrs O'Brien would have significantly eased her pain allowing her to maintain her attendance at the market, sitting and standing. In view of the surveillance evidence the doctor assessed the Respondent Worker to be fit to perform some duties of a bar attendant but only for two to three hours for up to three times per week. The doctor added that it was appropriate for the Respondent Worker to be active, “including attending markets and having social interaction, or else her symptomatic condition is likely to materially deteriorate”.
For the Appellant Employer the surveillance was commented on by Dr Jones in his report of 5 February 2004 (wrongly dated 5 February 2003). He thought the Respondent Worker's activities in the surveillance were inconsistent with her presentation to him in October 2003. On the basis of the surveillance he thought the Respondent Worker should have been able to work in her old job as a bar attendant. Dr Jones did not have the benefit of seeing the Respondent Worker's second statement and presumably was not aware of the medication she took on the day of the surveillance. It should be noted that Dr Jones’ report of 24 October 2003 was not tendered to the Arbitrator.
Dr Mills also commented on the surveillance in his report of 19 January 2004. He thought the surveillance showed that any injury sustained by the Respondent Worker had resolved and she was fit for her pre injury duties. Dr Mills did not have the benefit of seeing the Respondent Worker's second statement.
The Arbitrator was entitled to consider all of the above evidence in assessing the impact of the surveillance on the Respondent Worker's credit. She concluded that the surveillance did not discredit the Respondent Worker (see Reasons at paragraph 39). The Arbitrator was entitled to accept and did accept Mrs O'Brien’s evidence that she was heavily medicated on the day of the surveillance and that the effect of the medication was such that the activities in the surveillance were not representative of her true capacity. The Arbitrator also noted that the surveillance showed Mrs O'Brien walking with a limp, holding herself awkwardly, and bending her knees when she bent over to pick up her bag. All of these findings were open to the Arbitrator and I can see no error in her approach to this issue. There has been no demonstrable mistake or misapprehension of the facts by the Arbitrator.
(e) The Post Surveillance Symptoms
The submission made on this point is that the Respondent Worker's statement that her symptoms were worse after the activities shown in the surveillance (see Respondent Worker's second statement at page four) is in conflict with the clinical notes of Dr Phipps.
The surveillance was conducted of the Respondent Worker's activities at the Berry Country Market on 7 December 2003. On 13 December 2003 she attended on Dr Phipps who noted “had epidural [but] didn’t work” and then “pain is no different”. Dr Pell also had a history of the epidural injection and that it gave no benefit.
In cross examination on this issue at page 44 line 34 of the transcript it was put to the Respondent Worker that she told Dr Phipps on 13 December 2003 that the pain was “no different from what it was at the previous appointment”. Her answer was
“No, he meant about the epidural. He was asking me about the epidural specifically. That was his main concern.”
The Respondent Worker then added:
“The epidural, because he told me when I got it done in September it would take up to three months for it to take full effect, and he said to me when I went in that time and I complained that I shouldn’t have done the stall, he said, ‘Well, you shouldn’t have done it,no. It wasn’t a good idea,’ but he gave me a [inaudible] but he said, ‘Obviously it wasn’t a good idea.’ He said, ‘My main concern is did the epidural help you out [inaudible]?’ I said, ‘No’. That was his main concern at the date.”
Dr Phipps has no note about the activities at the stall on 7 December 2003 but that does not mean that it was not discussed when he saw the Respondent Worker on 13 December 2003. I do not believe this issue discredits Mrs O'Brien. It is reasonable that she would have had an increase in symptoms after 7 December 2003. The fact that the general practitioner does not have a note of it in circumstances where the discussion clearly focused on the epidural injection is unsurprising and of no great consequence.
FORMAL ORDERS
The end result is that whilst the Arbitrator was in error in making an award under section 40 when her findings supported an award for total incapacity under section 37, there has been no error that invalidates the findings in favour of the Respondent Worker on the issue of injury on 24 January 2003 and whether employment was a substantial contributing factor to the injury. For the reasons noted above, the issue of incapacity should be reassessed by the Arbitrator in a further hearing at which each side is at liberty to tender updated medical evidence on the issue of incapacity.
DECISION
Paragraph one of the Arbitrator's decision of 1 March 2005 is revoked and the following order made:
“The matter is remitted back to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine whether the Respondent Worker's entitlement to weekly compensation is under section 40 or under section 37 of the Workers Compensation Act 1987, and, if that entitlement is found to be under section 40 to assess the quantum of an award under that section.”
Paragraphs two and three of the Arbitrator's decision of 1 March 2005 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker's costs of this appeal.
Bill Roche
Acting Deputy President
17 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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