Deadman v John A Gilbert Pty Limited t/as Kirklands Buslines
[2008] NSWWCCPD 105
•25 September 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Deadman v John A Gilbert Pty Limited t/as Kirklands Buslines [2008] NSWWCCPD 105 | |||||
| APPELLANT: | Paul Richard Deadman | |||||
| RESPONDENT: | John A Gilbert Pty Limited t/as Kirklands Buslines | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC243-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 6 May 2008 | |||||
| DATE OF APPEAL DECISION: | 25 September 2008 | |||||
| SUBJECT MATTER OF DECISION: | Extension of time to appeal; fresh evidence; desirability of sound recording procedural applications such as those to cross-examine; scope of ‘review’ pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998; credit issues where worker’s evidence inconsistent with medical records; application of Fox v Percy (2003) 214 CLR 118 to credit finding; weight of medical evidence – application of Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Bourke Love McCartney Young | ||||
| Respondent: | Moray & Agnew | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 6 May 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons. | |||||
| The Respondent Employer is to pay the Appellant Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 16 June 2008 Paul Richard Deadman (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 May 2008.
The Respondent to the Appeal is John A Gilbert Pty Limited t/as Kirklands Buslines (‘the Respondent Employer’).
The Appellant Worker is fifty years of age, and commenced working with the Respondent Employer as a mechanic and workshop manager on 11 April 2005. The position was full-time. He described himself as being in charge of seven mechanics, and other staff, looking after a fleet of seventy-four buses. He also carried out ‘hands on’ mechanical work.
On 29 July 2006 the Appellant Worker was working on a coach that had been raised on a hoist, approximately two metres above the ground. As he was leaving the coach, the Appellant Worker slipped and fell down the coach steps and then to the concrete floor, a distance of over two metres. On the way down he grabbed at one of the railings with his left hand, he says wrenching his “left arm/neck area”. He states he also “threw out my right arm to the railing”. He reported the injury, but did not initially take time off.
The Appellant Worker filled out a ‘Workcover – Register of Injuries’ on 29 July 2006, describing the nature of injury as “L knee + L shoulder”. The ‘First Report of Injury’ claim document is dated 1 August 2006, and describes the injury as “strained L knee & L shoulder”.
There was some interpersonal conflict in the workplace, which I need touch on only peripherally for the purposes of the current appeal. Difficulties had commenced prior to the incident of 29 July 2006, and continued as 2006 progressed.
On 5 October 2006 the Appellant Worker consulted Dr Drewitt Smith, general practitioner, for a “Coal Mine Workers’ Scheme Health Scheme” assessment. This was a general health assessment, apparently for use as a ‘pre-employment’ medical, in which the Appellant Worker filled out many questions about his health (‘the coal mine form’). He referred to some prior orthopaedic problems, including fractures of the left tibia, nose and thumb, an ulnar problem at the left elbow in 1995, and “Disc injury to L3/4 + 4/5” in 1994 in compensable circumstances. The history on this occasion made no mention of the injury of 29 July 2006, or any ongoing problems involving the left knee, neck, shoulders or left arm.
The conflict at work culminated in the Appellant Worker consulting Dr Drewitt Smith on 6 October 2006, when the doctor diagnosed “situational anxiety”. The Appellant Worker ceased work on that day. He continued to consult that medical practice throughout 2006 and the earlier part of 2007 about these symptoms.
A claim for compensation was made in respect of the psychological injury, and the Respondent Employer accepted provisional liability for absences up to 20 December 2006. On 8 August 2007 the Appellant Worker registered an Application to Resolve a Dispute in respect of ‘anxiety disorder’, claiming weekly payments from 20 December 2006 on a continuing basis. That matter resolved on 3 October 2007, by way of consent orders providing for payment of $800.00 per week from 20 December 2006 to 24 January 2007, with a consent award in favour of the Respondent Employer thereafter.
Meanwhile, the Appellant Worker attended at the Lismore Base Hospital on 29 October 2006. He complained of pain in the left shoulder radiating down to the elbow. The notes record a history of a “fall onto left hand following push” six weeks earlier, and a fall off scaffolding one week ago. An x-ray of the left shoulder demonstrated no abnormality.
He returned to Lismore Base Hospital on 31 October 2006, giving a history of numbness and paraesthesia since July 2006. He was given a referral to Dr Freihart, orthopaedic surgeon, and was told to see his general practitioner for follow up.
He consulted the practice of Dr Drewitt Smith on 31 October 2006, this time seeing Dr Young. He gave a history of the fall at work in July 2006, describing bruising to his “left left (sic) and left shoulder”, and pins and needles in the little, middle and index fingers of the left hand, “on and off” since the July fall. That consultation also includes reference to having “massage 2 weeks ago” and seeing a chiropractor, matters of history to which it will be necessary to return.
Dr Freihart saw the Appellant Worker on about 2 November 2006, and was given a history of the fall in July 2006. Dr Freihart noted decreased sensation in the distribution of C6, and thought the Appellant Worker had “some compression of his C6 nerve root due to disc prolapse or degenerative change”. An MRI report of Dr Singh dated 1 December 2006 concluded there was “moderate left posterolateral disc protrusion causing some effacement of the thecal sac and moderate narrowing of the left neural foramen at C6-7”.
The Appellant Worker’s employment with the Respondent Employer was terminated on 31 January 2007.
The Appellant Worker commenced working with another employer, Dawson Street Auto, on 1 February 2007. He was “effectively in charge of the workshop”, with one to two mechanics and an apprentice working under him. He also carried out ‘hands on’ mechanical work. He worked significant amounts of overtime.
Dr Freihart carried out an arthroscopy to the Appellant Worker’s left knee on 7 February 2007. There was a tear of the posterior horn and body of the medial meniscus. The “knee was thoroughly washed out and a local anaesthetic injected”. It appears the Respondent Employer accepted liability for this procedure. The procedure was helpful, and there have been few complaints relating to the knee subsequently. The Appellant Worker carried on in the employ of Dawson Street Auto during 2007.
He returned to Dr Freihart on about 3 September 2007, with “his main concern now … pain in the right shoulder”. He told Dr Freihart he had landed on his right side in the incident of 29 July 2006, and that although his main pain initially had been left sided, this had settled, and the right side was now causing some trouble. An ultrasound demonstrated bursitis, but no rotator cuff tear. He was referred for physiotherapy and an injection into the right shoulder. The neck also continued to cause symptoms. The physiotherapist, Mr Hayward, in a report of 21 September 2007, commented that the Appellant Worker’s work continued to aggravate his neck, and suggested he should “consider an alternate vocation”. The cards from the practice of Dr Drewitt Smith record a consultation on 27 September 2007, the entry in part reading “Neck: Either put up with current symptoms or Stop the persistent aggravation by changing jobs.” Dr Freihart, on 5 October 2007 reported the Respondent Worker should limit himself to a thirty-eight hour week, not do overtime, and not work at or above shoulder height, having regard to both his neck and shoulder problems.
The Appellant Worker’s employment was terminated by Dawson Street Auto from 14 December 2007. He commenced working with O’Brien’s Glass from 21 January 2008 as a planner, essentially doing office and telephone work. He regards himself as physically unfit to return to work as a mechanic working ‘on the tools’.
The Appellant Worker’s solicitors made a claim for weekly compensation in respect of the orthopaedic complaints, by letter dated 7 December 2007. The claim is one pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) from 28 August 2007 to 14 December 2007 (relating to alleged loss of overtime), and section 38 thereafter (the letter predates commencement of the employment at O’Brien’s Glass).
The Respondent Employer’s insurer declined the weekly claim by way of a section 74 notice served under cover of a letter dated 24 December 2007. The ‘Matters in Dispute’ may be summarised as:
(i)the Appellant Worker did not injure his right arm or shoulder in his employment with the Respondent Employer;
(ii)section 9A is not satisfied in respect of any injury to the right arm or shoulder;
(iii)there is no incapacity;
(iv)any incapacity related to the Appellant Worker’s subsequent employment with Dawson Street Auto;
(v)there is no entitlement to weekly compensation, as there was a consent award in the employer’s favour in respect of periods after 24 January 2007, entered at the arbitration hearing on 25 September 2007, and
(vi)a statement dated 25 July 2007 provided by the Appellant Worker in the earlier proceedings was “false and misleading”.
The section 74 notice then set out ‘Reasons Liability is Disputed’, the substance of which were:
(i)the injuries claimed did not arise out of or in the course of employment with the Respondent Employer;
(ii)section 9A was not satisfied in respect of the injuries;
(iii)the injuries did not result in incapacity, and
(iv)information provided in the previous proceedings was false and misleading.
The document then sets out ‘Issues Relevant to the Matter in Dispute’. Matters referred to included the award for the employer on the ongoing component of the weekly claim in the earlier proceedings, histories to various practitioners (and in claim documents) that specified injury to the neck, left knee, and left shoulder and arm, but not right shoulder, and the history of a fall from scaffolding recorded in the Lismore Base Hospital notes.
The Appellant Worker’s submissions on this appeal state the Respondent Employer had accepted injury to the left shoulder and neck, and paid treatment costs in respect of such injury, up to the time of the arbitration hearing on 11 April 2008. This assertion is not contradicted by material lodged by the Respondent Employer in opposition to the appeal.
The Appellant Worker registered another Application to Resolve a Dispute (‘the Application’) on 17 January 2008.
The matter came to conciliation/arbitration hearing on 11 April 2008. Both parties were legally represented. The Appellant Worker’s Application to Appeal records:
“At the hearing, despite the objections by the Appellant’s Solicitor, the Respondent’s Counsel raised issues and put questions to the Appellant concerning the injury which occurred on 29 July, 2006 to the Appellant’s neck and left shoulder, and raised issue concerning an alleged second injury sustained by the Appellant some time shortly prior to 29 October, 2006.”
This is clarified in a letter dated 18 August 2008 from the Appellant Worker’s solicitors, a copy of which was forwarded to the Respondent Employer’s solicitors, and with which they have not taken issue (at least on a factual basis). The letter deals with why the transcript does not include a passage along the lines described in the preceding paragraph. It says that during the conciliation phase (which was not sound recorded) of the conciliation/arbitration hearing, the “Appellant’s solicitor submitted that the Respondent’s Counsel should not be permitted to cross-examine the Applicant on matters that were not placed in issue in the Section 74 Notice”. It continues “The Arbitrator overruled that submission and stated that any prejudice to the Application (sic) could be overcome by making submissions.”
The Respondent Employer’s counsel cross-examined the Appellant Worker at the arbitration hearing. Propositions about which the Appellant Worker was cross-examined (he did not accede to all of them) included:
(i)the original ‘register of injuries’ referred to injury to the left knee and left shoulder;
(ii)the first medical treatment for the injuries sustained on 29 July 2006 was on 29 October 2006 (the first consultation at Lismore Base Hospital);
(iii)the coal mine form does not refer to the injury of 29 July 2006;
(iv)when consulting Dr Drewitt Smith’s practice in October 2006 (about the psychological problems), the orthopaedic injuries were not mentioned;
(v)at Lismore Base Hospital on 29 October 2006, a history was given of injury six weeks previously, followed by a fall from scaffolding one week previously;
(vi)the Appellant Worker had carried out his full duties from 29 July 2006 to 6 October 2006 (when he ceased due to the psychological problems);
(vii)the Appellant Worker’s statement dated 25 July 2007 (related to the psychological claim) mentioned some of the other orthopaedic injuries, but not the right shoulder;
(viii)the Appellant Worker had not mentioned the right shoulder to a doctor until “July or August 2007”, and
(ix)the Appellant Worker worked long hours, sixty to seventy per week, with the later employer, Dawson Street Auto.
At one point the cross-examiner put the following proposition:
“Q. …to make it clear, Mr Deadman, what I’m suggesting to you is that you didn’t suffer any injury at all on 29 July 2006, that any incident that occurred at the time was minor and that any problem that subsequently developed in your left knee or your left arm or shoulder occurred as a result of the incident with the scaffolding in October 2006. Do you agree or disagree with that?
A. I disagree with that. Have a look at how the accident happened. I fell four metres on to concrete.”
After cross-examination of the worker, the arbitrator heard addresses, and reserved his decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 May 2008 records the Arbitrator’s orders as follows:
“1. Award for the Respondent in respect of the claim for weekly benefits compensation.”
The Certificate of Determination was accompanied by a Statement of Reasons (‘the reasons’). The arbitrator identified the issues before him in the following fashion:
“6. The Applicant now claims that because of alleged injuries he sustained on 29 July 2006 to his neck and shoulders he was unable to carry out the employment at Dawson Street Auto and has had to find more sedentary work for which he receives less pay and that he is entitled to weekly benefits compensation pursuant to Section 40 being the difference between what he would have been earning at Dawson Street Auto but for the injuries and his current rate of pay with O’Brien Glass.
7. The Respondent denies liability and that the Applicant sustained injury as alleged or that the Applicant has any ongoing partial incapacity as a consequence of any injury sustained on 29 July 2006 and as set out in its denial of liability in a Statutory Notice under Section 74 which was attached to the application and to the reply.
8. The Applicant alleged that his right shoulder and neck injuries were the reasons he had to reduce his hours at Dawson Street Auto and why ultimately his employment was terminated. However at the arbitration hearing the Applicant conceded that the injury to the right shoulder was no longer the issue with respect to ongoing partial incapacity, which was limited to the injury to the neck only.
ISSUES FOR DETERMINATION
9. The issues for determination are:
Issue 1: Sections 4 & 9A of the 1987 Act.
Did the Applicant receive an injury to his neck and right and left shoulders on 29 July 2006 arising out of or in the course of employment? If so, what was the nature of that injury and was the Applicant’s employment a substantial contributing factor to his injury?
Issue 2: Capacity for work and entitlements to weekly benefits.
Is the Applicant partially incapacitated for work as a result of the injury and for what period, especially since 28 August 2007 and continuing? If so, what is his entitlement to weekly benefits compensation?”
The arbitrator then reviewed histories by the Appellant Worker, in medical histories and statements, dealing with the mechanics of the incident of 29 July, 2006. He identified a number of inconsistencies. In particular, the arbitrator observed that none of the doctors, apart from Dr Wilding, obtained a history from the Appellant Worker of “the incident which required his hospitalisation in October 2006”. He noted Dr Wilding (who examined the Appellant Worker on the Respondent Employer’s behalf) took a history of this incident, but that the doctor commented “It was difficult to ascertain exactly what happened.”
The arbitrator set out various entries from the notes of Dr Drewitt Smith’s practice. The reasons at [40] would suggest he did not fully accept the Appellant Worker’s evidence, when cross-examined, regarding the significance (or lack of it) of the October 2006 incident. He refers to a section of the Appellant Worker’s statement where he said “I was ready, willing and able to resume work at the time I was terminated.” (by the Respondent Employer).
The arbitrator ultimately concluded:
“46. The Applicant has provided differing and inconsistent versions of events and at times when he has made complaint about injury to differing body parts. He has omitted important events and made contradictory reports and declarations. I accept that the Applicant fell from the bus on 29 July 2006 and that he fell onto his left side injuring his left arm, shoulder and knee and strained his neck as he recorded at the time. The claims that he injured his right shoulder are not supported by any contemporaneous evidence, there was no medical attention or treatment for it, it was not a subject of any investigation or complaint to his General Practitioner and the complaint only surfaced at a time when he was seeking to rely on that injury as a justification for a reduction in working hours and ultimately cessation of employment with Dawson Street Auto after undertaking long and arduous work there for seven months.
47. I find that the Applicant did sustain an injury to his neck, which had resolved in accordance with the evidence of Dr Freihaut and to a point where he had been certified fit for pre-injury duties prior to cessation of work with the Respondent. I cannot be satisfied on the evidence before me that the herniation of the disc in his neck was as a consequence of the fall from the bus. There is no medical evidence that states the fall from the bus caused the disc herniation with commentary on the mechanics of injury which required hospitalisation on 29 October and which precipitated investigation by Dr Freihaut, other than the opinion from Dr Wilding and he says it is difficult to know what happened. It is known that for three months after the fall at work he sought no medical treatment nor made any complaint despite numerous visits to his doctor, had no time off work and only sought treatment after the fall at home… I cannot be satisfied that on the balance of probabilities that the disc lesion to the C6/C7 was a consequence of that injury.”
In dealing with “Issue 2”, incapacity for work, the arbitrator said:
“49. The Applicant gave evidence that prior to leaving the employment of the Respondent he was physically affected by the injuries but that he was able to organise work so he could delegate and have a work team and carry out tasks that he was physically unfit to do. There is no supporting evidence. The Applicant has given many and varied conflicting versions of events yet in none of the four written statements does he mention this. It is implausible that he would not have made some complaint or record if he had to modify his work duties due to physical injury. He had also been certified fit for duties and on his own evidence took no time off work. Whilst he did complete a report of injury form on November 6, 2006 this was after Dr Freihaut’s diagnosis following the fall from the scaffold or trestle. He made no claim for compensation.
50. I accept that the Applicant had and has the physical symptoms as described and diagnosed by Doctors Freihaut and Ashwell and that with these symptoms it is quite justifiable for him to reduce the type of work he was doing and the hours of work.51. However at the time the hours were reduced Dr Freihaut had noted that his neck and knee problems had stabilised and that it was his right shoulder that was causing him problems. It was this complaint for which he sought a medico/legal report. I have found that the Applicant did not injure his right shoulder during his employment with the Respondent. Any incapacity that flows from difficulties with his right shoulder is therefore incapacity for which the Respondent is not liable.
52. The Applicant submits that the continuing incapacity with his neck prohibits him from undertaking work, which required extended or prolonged extension of his neck or use of his arms above shoulder height, which aggravates it. This is supported by the evidence of Doctors Freihaut and Ashwell. However the evidence is that the neck strain had stabilised and to a point where no medical intervention was required either at the time of cessation of employment with the Respondent or up to August 2007. The evidence also is that there was no incapacity or ongoing injury to the neck between the date of the fall and admission to hospital, a period of three months. This is established not just by the absence of any medical treatment but by the Applicants own declaration. Even after there was a disc lesion diagnosed after the fall at home, there was a certification of full fitness for work. The evidence is that the work undertaken at Dawsons Auto by the Applicant was excessively long hours and of the type that Dr Freihaut noted, if continued would cause further exacerbation or aggravation (the arbitrator’s emphasis).
53. I am not satisfied that on the balance of probabilities that the Applicant (sic) injuries sustained whilst employed by the Respondent is the cause of any past or current incapacity and I find that the Applicant is not partially incapacitated for employment as a result of the injuries received whilst employed by the Respondent on 29 July 2006.”
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.”
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.
The amount of compensation at issue in the appeal exceeds $5,000, satisfying the threshold in section 352(2)(a). As no compensation was awarded, the 20% threshold in section 352(2)(b) does not have application: Mawson v Fletcher International Exports Pty Ltd [2002] NSWWCCPD5.
Application to Extend Time
The appeal was ultimately lodged on 16 June 2008, more than 28 days after the Arbitrator’s decision, and out of time pursuant to section 352(4) of the 1998 Act. Accordingly the Appellant Worker requires an extension of time pursuant to Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provides:
“(11) The Commission constituted by a Presidential member may, if the party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In submissions in support of the application to extend time, the Appellant Worker has referred to the following passage from Gallo v Dawson (1990) 93 ALR 479, that has frequently been applied in Presidential decisions on this issue:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)
Attached to the Appellant Worker’s submissions are statutory declarations of his solicitor Brendan Bourke, Selina Pearce (a paralegal with the firm of solicitors), and Sudhir Lakshman, a legal support officer at Law Image (NSW) Pty Limited (‘Law Image’). These declarations deal with the procedural difficulties that led to the appeal being lodged out of time.
Mr Bourke’s declaration states he took instructions from the Appellant Worker, and then obtained further evidence, from a masseur and a chiropractor, going to the issue of treatment between 29 July 2006 and 29 October 2006. He finalised his appeal documentation on 2 June 2008, after receiving a report and clinical notes from the masseur. On that date Ms Pearce forwarded the documentation to the firm’s city agents, Law Image, who she telephoned the next day, 3 June 2008, to confirm the documents would be lodged that morning. Mr Lakshman attended the Registry that day, and was informed the appeal documents could not be “processed on the counter”, but would be processed within twenty-four hours. He told the Registry staff 3 June 2008 was the last date for lodgement.
On 4 June 2008 the solicitors for the Appellant Worker received the appeal documents back from the Registry, with a note they had been rejected on the basis a signature of the solicitor was missing, although the document was signed at other places. Mr Bourke added an additional signature, and Ms Pearce re-lodged the document by email, a procedure the firm was told, by someone at the Commission, would be acceptable. The appeal was rejected on this occasion on the basis it had been lodged out of time. Mr Bourke was informed of this on 11 June 2008, when he spoke to an employee of the Commission, while chasing up the documentation, which had not been returned to his firm. By letter dated 12 June 2008 Mr Bourke wrote to the Commission, on this occasion enclosing various statutory declarations and submissions to support the application for extension of time. The Commission’s date stamps indicate that material, and the re-lodged appeal, were received in the Commission on 16 June 2008. The appeal documentation had been given to the solicitors acting for the Respondent Employer, on 3 June 2008.
In the circumstances, the Notice of Opposition to Appeal lodged by the Respondent Employer states “The respondent does not take issue with the appellant’s submissions for an extension of time.”
In New South Fire Brigades v Turton [2008] NSWWCCPD 66 I reviewed a number of decisions dealing with the extension of time pursuant to Rule 16.2(11), where appeals were out of time due to procedural mishaps. Applying what I said in that decision, I conclude exceptional circumstances exist, and it is appropriate to extend time for making the appeal, particularly having regard to:
(i)the Respondent Employer’s lack of opposition to the extension. There is no suggestion of prejudice;
(ii)it was attempted to lodge the appeal within time. It was unexpectedly rejected due to lack of a signature at a place in the document the solicitor did not initially know he was required to sign;
(iii)an unsealed copy of the document was served on the Respondent Employer within twenty-eight days of the Certificate of Determination;
(iv)the appeal is out of time by a relatively short period, a little less than two weeks, and
(v)the appeal is reasonably arguable.
I extend the time for making the appeal to 16 June 2008, and grant leave to appeal.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
· it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
· the evidence is credible;
· there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
· it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
The Appellant Worker submits the Section 74 Notice, and the Reply, relied upon by the Respondent Employer, did not put in issue the fact that the Appellant Worker had injured his neck, left shoulder and arm on 29 July 2006, nor did they assert there had been a “further or intervening injury to his neck or left shoulder and arm after 29th July 2006”. It is submitted that notwithstanding this, counsel for the Respondent Employer was permitted, over objection, to cross-examine on these issues, and they assumed importance in the running of the case. Having regard to how the Respondent Employer conducted its case, evidence of treatment by a masseur and chiropractor between 29 July 2006 and 29 October 2006 became relevant. The fresh evidence on which the Appellant Worker seeks to rely is the reports and clinical notes of Rob Allan, a chiropractor, and Alan Yates, a massage therapist, both of Casino.
My discretion to admit fresh evidence is not fettered by the Practice Direction. In Haider v J P Morgan Holdings Australia Limited t/as J P Morgan Operations Australia Limited (2007) 4 DDCR 634, [2007] NSWCA 158 Basten JA said of the Practice Direction:
“41 This language appears to reflect the conditions which must generally be met before “fresh evidence” is admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. However, to limit the admission of “new” evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to “fresh” evidence by express reference to “evidence in addition to or in substitution for” the evidence received below. To apply a test such as that set out in the Practice Direction, although introduced by the amelioratory words “in general”, is apt to give rise to error by treating the discretion as fettered in a way which it is not: see in relation to the use of the term “further” evidence in s 75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98]-[108]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s 354(1)-(3) (see [15] above).”
In the same decision, in the course of considering exercise by a Presidential member of the discretion to admit a specific item of fresh evidence, Basten JA at [44] said:
“Assuming for present purposes that the evidence was material and probative, the statutory obligations and powers imposed and conferred on the Tribunal suggest that the material should have been considered in order to address the substantial merits of the case.”
The submissions of the Respondent Employer say nothing in opposition to the application of the Appellant Worker to adduce fresh evidence, merely noting the Respondent Employer “does not seek to rely on fresh evidence”.
Read as a whole, the section 74 Notice (referred to at [20] to [22] above) did not, in my view, state that liability was disputed for the reason that the Appellant Worker had not sustained an injury to his left arm, shoulder and neck. It did dispute that there was incapacity resulting from work related injury. The matters in dispute include an assertion that any incapacity resulted from the Appellant Worker’s duties at Dawson Street Auto. It was not asserted any incapacity resulted from the ‘incident’ referred to in the Lismore Base Hospital Notes for 29 and 31 October 2006. However the history of a fall off scaffolding in the notes was mentioned as an issue relevant to matters in dispute. Such matters will frequently be questions of degree.
There was a specific denial of injury to the right shoulder, and a lack of any such specific denial of the other injuries, to the neck, left arm, left shoulder and left knee, for which voluntary liability for medical expenses had previously been accepted (according to the Appellant Worker’s submissions). In such circumstances, ordinarily it would not have been open to the Respondent Employer to contest the matter on the basis there was no injury to the neck, left shoulder, left arm and left knee, due to the operation of section 289A of the 1998 Act, unless leave were given to hear such dispute, pursuant to section 289A(4). It does not appear any such leave was sought. The cross-examination, particularly its culmination described at [28] above, appears to be outside matters notified as disputed by the section 74 notice.
It is said, in material set out at [25] and [26] above, that the arbitrator entertained and ruled on an application to cross-examine, over objection based on the matters notified as disputed in the section 74 notice, during the conciliation phase of the arbitration hearing. It is said this explains why the application, argument and ruling are not referred to in the transcript, as the conciliation phase was not sound recorded. It is, in my view, clearly necessary that applications of this nature, and rulings in respect of them, should be sound recorded and transcribed. This protects the position of all parties on appeal, should there be one.
For the purposes of the application to admit fresh evidence, in my view the submissions of the Appellant Worker adequately explain why, having regard to the issues apparently raised between the parties, evidence of treatment by a masseur and a chiropractor would not have been adduced at the arbitration hearing. The question of whether there had been treatment or complaint in respect of the neck and left shoulder, prior to the ‘incident’ in October 2006, assumed considerable significance in the approach of the arbitrator. Evidence from the masseur and chiropractor, going to this issue, is material and probative, and in my view should be admitted. Whilst my discretion is not fettered by the Practice Direction, in the current circumstances the Appellant Worker has satisfied the requirements of the Practice Direction in any event. I grant leave for this evidence to be given on this appeal.
Mr Yates’ material consists of a report dated 2 June 2008, accompanied by his handwritten notes, and a typed transcription of the notes. The material reveals an initial consultation on 20 December 2005, with a history “worked hard on weekend”. There was a “general massage of Paul’s head, neck and shoulders to relieve general tension. There was nothing treated on 20 December 2005 that relates to or was similar to the treatment dispensed between 11 September 2006 and 12 November 2007.” The next consultation was on 11 September 2006. The history in the cards was “Stressful working last few weeks – fell out of bus onto head – been having headaches”. The treatment was described as “Deep tissue to back shoulder and neck – Trigger points [TPS] to Levator Scapular (Left)”. The report dealing with this consultation adds “He told me that he had ‘fallen out of a bus and onto his head’ and had been suffering from headaches and neck and left sided shoulder pain ever since.” Consultations on 17, 20, 23 and 26 October 2006 are described as being “for similar reasons”. The next (and final) consultation was on 12 November 2007, with a complaint of “continued pain in the trapezius and neck”. It should be noted the entries for 20 and 23 October 2006 describe neck pain going down the left arm. None of the entries refer to any incident other than the fall from a bus.
The evidence of Mr Allan, chiropractor consists of a short report, undated but under cover of an email dated 30 May 2008, that states:
“Mr Deadman presented at my office on the 26th October 2006, complaining of Severe Headaches, and Cervico-Dorsal Spine Pain Radiating into the Left-hand and Shoulder.
He was seen on the 27th and 30th October also.
I was advised this was the result of an injury, however, he could not present for further treatment as he was moving away.”
GROUNDS OF APPEAL AND SUBMISSIONS
There are twenty-seven grounds of appeal. These are not genuinely separate grounds. They all go to factual matters, and the effective ground of appeal is an assertion the arbitrator decided the matter against the weight of the evidence, and erred in his assessment of the evidence. Without seeking to be exhaustive, the Appellant Worker submits the following errors can be identified:
(i)the arbitrator erred in dealing with various medical histories, in that he concluded the histories recorded were actually given by the Appellant Worker, rather than setting out the medical practitioner’s interpretation of the history given;
(ii)the arbitrator erred in his consideration of the evidence going to the ‘incident’ in October 2006, and its significance;
(iii)the arbitrator erred in his assessment of the various histories and statements of the Appellant Worker, and in his conclusion that they were differing and inconsistent;
(iv)the arbitrator erred in his assessment of, and the weight he attached to, apparently credible medical evidence, including that of Dr Wilding qualified by the Respondent Employer, that the Appellant Worker’s cervical disc lesion was caused by the fall of 29 July 2006, and
(v)the arbitrator erred in rejecting the Appellant Worker’s evidence that he could moderate the physical aspects of his work, by delegating heavier work, prior to leaving the Respondent Employer’s employ, on the basis it was not corroborated by his statements. The arbitrator concluded “there was no incapacity or ongoing injury to the neck between the date of the fall and admission to hospital, a period of three months”, and that this was established by both “the absence of any medical treatment” and “the Applicant’s own declaration”. This, it is submitted, was inconsistent with the Appellant Worker’s own evidence, and also with the fresh evidence admitted on this appeal. It is submitted the arbitrator confused the concepts of “remaining at work and having no physical injuries”.
The submissions of the Appellant Worker say “The Appellant was never found by the Arbitrator to be unreliable, and his evidence should be accepted”, and there was “no finding made by the Arbitrator, that the Appellant was dishonest or unreliable”. In my view it is apparent, from passages of the arbitrator’s reasons referred to at [33] to [35] above, that there were aspects of the Appellant Worker’s evidence the arbitrator declined to accept. The appeal must be approached in this light.
The Respondent Employer submits the reasoning and fact finding of the arbitrator were correct, and relies upon that reasoning. Additionally, the Respondent Employer cites The King Island Company v Deery [2005] NSWWCCPD 1, Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56 and Allesch v Maunz (2000) 203 CLR 172. These authorities are used to ground a submission that a decision of an arbitrator will only be revoked on review, where it is affected by legal, factual or discretionary error, and a different decision should have been made but for the error.
Scope of Review Pursuant to Section 352 of the 1998 Act
The submission described in the preceding paragraph, in my view, is inconsistent with a number of recent decisions of the NSW Court of Appeal, dealing with the nature of the review process in appeals pursuant to section 352 of the 1998 Act. There is a review of the authorities in the decision of Roche DP in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81. In State Transit Authority of NSW South Wales v Chemler (2007) 5 DDCR 287, [2007] NSWCA 249 (‘Chemler’) Spigelman CJ said:
“22. The scope of an internal merits review by a Presidential member is an important safeguard for the proper operation of the legislative scheme. Arbitrators’ decisions, particularly on issues of credit, are entitled to respect. That does not, however, mean that such a merits review process should operate on the basis of some kind of presumption that the first instance decision-maker should redetermine the matter.
23. In s4 of the Act is a statement of objectives of the workers compensation system which concludes with the objective:
“4(f) to deliver the above objectives efficiently and effectively.”
24. It is inconsistent with this objective to confine the discretion of the Presidential member to make a “new decision” in the manner proposed.
25. Furthermore, a specific power, designed to serve objective 4(f), to hold what has been called a “paper hearing” is found in s354(6):
“354(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.”
26. This power may be exercised by a Presidential member conducting a review. The existence of such a broadly expressed discretion is itself inconsistent with the Appellant’s contention that the power to review a decision is constrained.
27. I note that the Acting Deputy President determined to proceed without a formal hearing. No challenge has been made to his ‘satisfaction’ that he had “sufficient information”.
28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of “review” instead of “appeal” with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
29. That line of authority is also inconsistent with the kind of restriction on the powers of a Presidential member for which the Appellant contends. (See Mansini v Director General of Education (1990) 6 NSWCCR 1 at pp4-20; Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds [2007] NSWCA 16 at [133]-[134].)
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
In Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 Hodgson considered Chemler, saying:
“31. These passages in Chemler raise but do not clearly resolve two questions relevant to the present case:
(1) Does the Presidential member have to identify an error before intervening?
(2) Is the Presidential member bound to apply the Abalos principle?
32. As regards the first question, it is generally the case that an appeal court, dealing with an appeal from a first instance judge, will not intervene on a question of fact unless it is affirmatively satisfied that the decision of the first instance judge is wrong. This is particularly significant in relation to matters on which minds may reasonably differ, such as an assessment of what reasonable care requires. In relation to such matters, an appeal court recognises that minds may reasonably differ, and even if its own view, if it were approaching the matter de novo, would be different from that of the primary judge, it will not substitute its own view unless it is satisfied that the primary judge’s view is wrong, in the sense of being one not reasonably available or vitiated by some error. A question whether this approach applies in the case of a review under s 353 of the WIM Act could be significant, particularly in relation to a question whether a worker’s employment was a “substantial contributing factor” to an injury, within s 9A of the Workers Compensation Act 1987. The discussion by Basten JA at par [63]-[66] in Chemler suggests that this approach would not apply, so that it would be open to a Presidential member carrying out a review under s 353 of the WIM Act to substitute his or her own preferred view on such a question, even if he or she was not affirmatively satisfied that the Arbitrator’s view was wrong. Paragraph [29] in the judgment of Spigelman CJ in Chemler also tends to support that view.
33. As regards the second question, it is clear that the Presidential member conducting such a review must apply substantive rules of law and must accord procedural fairness; but it is doubtful whether s 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos. Again, the discussion in Chemler seems to suggest that it is not.
34. For reasons I will give, in my opinion the Presidential member did not commit any error of law in this case, even if she was obliged to identify an error before intervening, and even if the Abalos principle applies. Accordingly it is not necessary to come to a final view on the two questions I identified.”
In Cook v Midpart Pty Ltd t/as McDonalds Forster & Anor [2008] NSWCA 151 (‘Cook’) Allsop P said:
“10 The decision of this Court in Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 at [32] (Hodgson JA, with whom Beazley JA and McColl JA agreed), the discussion in State Transit Authority of New South Walesv Chemler [2007] NSWCA 249 at [22]-[29] (Spigelman CJ, with whom Basten JA and Bryson AJA agreed) and [63]-[66] (Basten JA), and Jeffery v Lintipal Pty Limited [2008] NSWCA 138 at [11] (Basten JA, with whom Hodgson JA agreed) provide powerful support for the proposition that the appeal in s352 of the WIM Act that is to be “by way of review” (s352(6)) is not limited to the identification and correction of error on the part of the Arbitrator. (That is not to say, however, that any demonstrated error would not be persuasive in any appeal.) I will return to the consequences of the approach of the Presidential member at the end of these reasons.”
and:
“60 The approach expressed by the Presidential member in [27] of his reasons was not a separate ground of appeal. Therefore it is unnecessary to decide the question as to the correct approach to be taken by the Commission in an appeal “by way of review” under s352 of the WIM Act. This should not be taken as intended to throw any doubt on the views of Hodgson JA in Duinker that the authorities clearly suggest that it is not limited to the correction of error. It was unnecessary for the Court in Duinker to decide the issue, as it is unnecessary for us to do so.”
Most recently, in Tan v National Australia Bank Limited [2008] NSWCA 198 (‘Tan’) Basten JA said:
“Where the statute refers to an “appeal”, as opposed to a review, it may be intended that the appellate tribunal could vary or discharge the decision below only if satisfied that it was affected by a relevant error. However, the concept of an “appeal” does not necessarily invoke the precondition of a finding of error: an appeal may be by way of hearing de novo, where “the matter is heard afresh and a decision is given on the evidence presented at that hearing”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [13]. Furthermore, as noted in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 at [64], the term “review” may connote a fresh consideration of a matter, without the need to find error before setting aside or varying the decision below. But even in a hearing de novo the appellate tribunal will not necessarily disregard conclusions reached by the original decision-maker. Constraints may arise at various stages. First, in deciding the primary facts, the appellate tribunal may defer to findings made by a decision-maker who has resolved conflicts in the course of hearing and assessing oral testimony. In such a case, the appellate tribunal which does not hear the witnesses, will be constrained to approach the findings in a manner similar to that described in Fox v Percy[2003] HCA 22; 214 CLR 118. Secondly, the appellate tribunal may be constrained in drawing inferences, not having seen the witnesses, but to a lesser extent, for reasons analogous to those identified in Warren v Coombes[1979] HCA 9; 142 CLR 531 at 551, despite there being no need to find error. Thirdly, a similar constraint may arise in relation to the exercise of a discretionary power, again recognising that the appellate tribunal may not be required to find error: cf House v The King[1936] HCA 40; 55 CLR 499 at 505.”
Applying the above authorities, I am obliged to conduct a merits based review. Whilst the arbitrator’s decision is entitled to respect, I am not obliged to confirm the arbitrator’s decision, in the absence of error. If the arbitrator’s decision is not true and correct, I can revoke it, substituting my own view, or remitting the matter: Chemler. However the existence of demonstrated error would be persuasive: Cook. Where the arbitrator’s decision has involved resolving conflicts by assessing oral testimony, I should defer to findings made in that way, subject to the principles in Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’) (Tan).
DISCUSSION AND FINDINGS
The Arbitrator’s Consideration of Medical Histories
At [50] of his reasons, the arbitrator essentially accepted the Appellant Worker’s case, that he suffered from symptoms in his neck and left shoulder, that justified him avoiding certain physical aspects of his work as a mechanic, and avoiding long working hours. The arbitrator also accepted the occurrence of the fall on 29 July 2006, injuring the neck, left shoulder, left arm and left knee (at [46]). Whilst the arbitrator had (in my view understandably) rejected the allegation of injury to the right shoulder in the fall, this was largely irrelevant. The evidence of the Appellant Worker was that the right shoulder “after the physio treatment, is fixed” (T17.50). Thus the question became one of causation, did the found incapacity result from the found injury?
It is apparent from those passages of the reasons referred to at [33] to [35] above, that perceived inconsistencies between the case the Appellant Worker sought to make out, and the contents of doctor and hospital notes, was an important factor in the arbitrator’s rejection of the causal link. One history that assumed considerable importance was that recorded at Lismore Base Hospital on 29 October 2006. Of the material before the arbitrator, this was the first recorded medical history of the onset of the neck and left shoulder symptoms. The typed portion of the notes describes “painful L shoulder and pins and needles to L hand on background injury to shoulder 6/52 ago then re-injury 1/52 ago”. The handwritten part of the notes records “6/52 fall onto left hand following push- left shoulder (?) tingling left hand – 3/7 (resolved?) was improving. 1/52 ago fell off scaffolding caught(?) himself with left hand following again pain to left shoulder. Chiropractor – minimal relief”.
The worker was cross-examined about this entry, and said:
“I didn’t say I’d injured it. I was coming up, I told the nurse that I thought I’d dislocated me shoulder. I was stepping down off a trestle and raising me arm a lot higher than it had been for a few weeks, and I had severe pain, and that’s why I went to – I thought it had dislocated.”
and:
“I was getting off a trestle. She didn’t know what a trestle was. I said “It’s a form of scaffolding. It’s two, like ladders, with a plank on it.”
The cross-examiner continued:
“Q. See, what I’m suggesting to you, Mr Deadman, is that what’s recorded there is precisely what you told the people at the hospital, that irrespective of what happened before you had sustained a further injury to your left shoulder a week before when you had fallen off scaffolding?
A. I never said that to her.
Q. No, I’m suggesting that’s what happened.
A. It didn’t.”
The Appellant Worker also dealt with the entry of 29 October 2006, in one of his statements dated 21 February 2008, where he said:
“24. I was not on scaffolding. I was using a ‘trestle’ which was approximately 2 metres high, to do some work on my house.
25. As I was coming down from the trestle and I was just stepping on to the ground, I lifted my left arm up to grab onto the trestle to slow my descent. I did not actually grab anything, as my arm lost power as I lifted it. I was only a matter of inches from the ground, and I simply fell onto my left foot a little more heavily than I ordinarily would have. I did not injure any part of my body during this exercise.”
The next attendance at Lismore Base Hospital was on 31 October 2006, recorded as “9.30”. The typed portion of history reads:
“Painful L elbow post injury July ’06 – seen in LBHED 2/7 ago & told to return if pain persist (sic) Pt CO numbness & parathesia since July ’06 – seen by chiropractor last night – PO Panadeine Forte @ 630 hrs”.
There is nothing relevant to onset or further injury in the handwritten portion of the entry.
The Appellant Worker saw Dr Young at his GP’s practice on the same day, 31 October 2006, at “14:48:35”. There was a history of the fall in July, with pins and needles in the left little, middle and index fingers since, and “dyasthesia more constant in the last 1-2 weeks”. There was no mention of an incident involving scaffolding. The only reference to this ‘incident’ in October 2006, in reports or documents from people furnishing the Appellant Worker with treatment, is that at the Emergency Department of the hospital on 29 October 2006. I also should note it does not appear the Appellant Worker was ever hospitalised at Lismore Base Hospital for these complaints, the treatment afforded him was from the Emergency Department as an outpatient.
The Appellant Worker consulted the orthopaedic surgeon Dr Freihaut on 2 November 2006. He recorded a history of the incident falling from a bus in July 2006, and that “he had some pain in the shoulder at the time but this resolved spontaneously”. Dr Freihaut records the Appellant Worker “for the last two weeks has had a lot of pain in his posterior shoulder radiating down the lateral aspect of his arm just below the elbow. This is associated with numbness and pins and needles in his thumb and forefinger. The pain is worse when he extends his neck.” Notwithstanding the reference to the shoulder, Dr Freihaut at that point thought the symptoms were probably due to compression of the left C6 nerve root, a view later supported by MRI findings. Dr Freihaut did not obtain any history of an incident involving a fall in October 2006.
Dr Wilding, the orthopaedic surgeon qualified by the Respondent Employer, took a history of the ‘incident’ in these terms:
“His house was being renovated and he began assisting the painter by placing putty in screw holes whilst he was standing on a trestle. He said that as he came down from the trestle he was holding onto the rungs of the trestle with his left hand and he maximally flexed his left shoulder and experienced sharp pain in the left shoulder. It was difficult to ascertain exactly what happened.”
Thus the only evidence of a fall, or indeed anything dramatic occurring, shortly prior to 29 October 2006, is in the hospital notes from that day. When cross-examined, the Appellant Worker denied he had fallen off scaffolding, and denied telling anyone at the hospital he had done so. The reasons at [47] refer to “the mechanics of injury which required hospitalisation on 29 October and which precipitated investigation by Dr Freihaut”. It is said the Appellant Worker “only sought treatment after the fall at home”. At [52] it is said “Even after there was a disc lesion diagnosed after the fall at home, there was a certification of full fitness for work.” The arbitrator has not, in his reasons, made a specific finding that he rejects the evidence of the Appellant Worker regarding what was said at hospital on 29 October 2006, and prefers the written evidence in the hospital notes. Yet in analysing the evidence, he has proceeded on the basis the written version of the history is to be preferred. He has not given a specific reason for adopting this course.
“Mr Deadman fell on 29/7/06 at work in circumstances which have been outlined above.
As a consequence of the fall he sustained a cervical disc lesion at C6/7 which resulted in neck pain, and referred pain down the left arm. This has been managed conservatively and his symptoms have settled although he still has continuing symptoms in the neck with intermittent radiation of pain down the left arm as noted above.”
This was the view of an orthopaedic surgeon whose opinion was arranged by the Respondent Employer. It clearly had considerable persuasive force. The history on which Dr Wilding formed his views was similar to evidence in the matter, including the sworn evidence of the Appellant Worker when cross-examined. The history of the October ‘incident’ in the hospital notes was different as regards its mechanics. Be that as it may, even if one accepts the version in those notes totally, this does not deprive the opinion of Dr Wilding of all persuasive force. It is not necessary that the proven facts “correspond with complete precision”, for the opinion to have value. The arbitrator at [47] of his reasons expressed the view that the history of the incident recorded by Dr Wilding was different to that in the hospital notes, and different to the version given in oral evidence when the Appellant Worker was cross-examined. In my view, the history recorded by Dr Wilding is not different in material respects from the oral evidence, although it is different to that in the hospital notes.
Even if the arbitrator accepted the version in the hospital notes completely, in preference to all other evidence on the topic, it was still incumbent upon him to consider Dr Wilding’s opinion in light of that. What persuasive force did that opinion retain, if one accepted a view of the mechanics of that incident different to the understanding of Dr Wilding when he reported in the matter? This the arbitrator did not do. It should be remembered there was no medical evidence expressing an opinion on causation contrary to that of Dr Wilding. In my view the arbitrator did err in the weight he accorded apparently credible medical evidence, being Dr Wilding’s report, as the Appellant Worker argues.
Having conducted a merits based review, I have formed the view the arbitrator’s decision demonstrated error, of such a nature that a different decision potentially should have been made. For reasons that appear below, I have formed the view it is appropriate that I remit the matter for re-determination, rather than determine it myself. One matter I should raise, although it was not the subject of a ground of appeal, and was not addressed by either party, is the possible relevance of the decision of the NSW Court of Appeal in Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435 (‘Cluff’). In a passage at [52] of his reasons, the arbitrator discussed the existence of economic incapacity, occurring during and after the Appellant Worker’s employment at Dawson Street Auto, saying:
“The evidence is that the work undertaken at Dawsons Auto [sic] by the Applicant was excessively long hours and of the type that Dr Freihaut noted, if continued would cause further exacerbation or aggravation.” (the arbitrator’s emphasis).
There may be, inherent in the above passage, an assumption that if incapacity resulted from aggravation by the work duties at Dawson Auto, this would be inconsistent with a finding the incapacity also resulted from the injury on 29 July 2006. In Cluff Reynolds JA said:
“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.”
This issue was not raised or addressed by the parties, and I do not rely upon it for the purposes of upholding the appeal. I raise it simply on the basis it may be of assistance when the matter is re-determined.
DECISION
The decision of the arbitrator dated 6 May 2008 is revoked.
There was a live issue, at the arbitration hearing, as regards credit, and the Appellant Worker was cross-examined to some effect. It is apparent, from some of the passages of the arbitrator’s reasons quoted above, that he did not accept all aspects of the Appellant Worker’s evidence. I, of course, have not had the benefit of seeing the Appellant Worker give evidence. It is fairer to both parties if the matter is re-determined, in circumstances where a different arbitrator can form a view on the Appellant Worker’s credit after seeing him give evidence, assuming there is again a successful application to cross-examine.
Additionally, the material on which counsel for the Respondent Employer cross-examined, and on which the parties addressed, did not include the fresh evidence, admitted on this appeal. There may be material in that fresh evidence on which the Respondent Employer would wish to cross-examine. The way in which the parties approach the causation question may now be different, having regard to the fresh evidence. It is appropriate, in my view, that I remit the matter to a different arbitrator for re-determination, rather than determining it myself.
The matter is remitted to another arbitrator for determination afresh in accordance with these reasons.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
Michael Snell
Acting Deputy President
25 September 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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