Dial an Angel Pty Ltd v Thiele
[2005] NSWWCCPD 68
•14 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dial An Angel Pty Ltd v Thiele [2005] NSW WCC PD 68
APPELLANT: Dial an Angel Pty Ltd
RESPONDENT: Liesa Thiele
INSURER:NRMA Workers Compensation (NSW) (No.2) Pty Limited
FILE NUMBER: WCC9831-03
DATE OF ARBITRATOR’S DECISION: 15 December 2003
DATE OF APPEAL DECISION: 14 July 2005
SUBJECT MATTER OF DECISION: Adequacy of reasons; alleged failure to consider evidence and submissions; worker’s credit; statutory framework for decision by Arbitrator; nature of an appeal.
PRESIDENTIAL MEMBER: Acting Deputy President Michael J McGrowdie
HEARING:On the papers
REPRESENTATION: Appellant: Bartier Perry Solicitors
Respondent: Bell and Partners Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is to pay the costs of the appeal, as agreed or assessed.
BACKGROUND TO THE APPEAL
On 12 January 2004 Dial An Angel Pty Ltd (‘the Appellant Employer’) lodged an application seeking leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 December 2003.
The Respondent to the Appeal is Liesa Jayne Thiele (‘the Respondent Worker’).
The Respondent Worker, who was born on 31 March 1969, commenced employment with the Appellant Employer on 11 August 1997 and was working as a child care co-ordinator at the Appellant Employer’s Penrith branch office when she suffered an injury in December 1999 whilst wheeling a swivel chair on castors from one room to another.
The Respondent Worker continued to work for the Appellant Employer after the injury. She lodged a claim for workers’ compensation in June 2000 in respect of the injury of December 1999, namely an injury to her back. After having some months off work, the Respondent Worker was then provided with selected duties and worked reduced hours until taking maternity leave in February 2002.
The Appellant Employer paid workers’ compensation to the Respondent Worker up to 17 December 2002.
The Respondent Worker was due to return to work at the expiration of her maternity leave in February 2003, however, the Respondent Worker’s return to work was extended until 17 March 2003 at which time it was proposed by the Appellant Employer that the Respondent Worker take up duties at the Edgecliff branch office. No alternative was offered.
The Respondent Worker, who lived at Minchinbury, declined this offer of employment upon the basis that her disabilities precluded her from undertaking the travel which would have been involved. Subsequently, the Respondent Worker lodged an ‘Application to Resolve a Dispute’ in the Commission seeking an award of weekly payments for partial incapacity pursuant to s.40 of the Workers’ Compensation Act 1987 from 5 March 2003 on a continuing basis.
The matter was set down before the Arbitrator for conciliation/arbitration on 15 October 2003.
The conciliation was unsuccessful and an arbitration hearing proceeded on 15 October 2003. The Arbitrator granted leave to the Appellant Employer to cross-examine the Respondent Worker. The Respondent Worker was cross-examined at some length, particularly with regard to issues of credit.
According to the Arbitrator’s ‘Statement of Reasons for Decision’, a total of 129 documents were tendered in evidence by the parties. These documents included statements from the Respondent Worker and statements lodged on behalf of the Appellant Employer from fellow workers, Debbie Wesley and Marianne Tyrode, as well as a statement from Dena Blackman, the Appellant Employer’s Chief Executive Officer.
The Appellant Employer showed a video surveillance film depicting the Respondent Worker crouching and pushing a pram on 29 July 2002; bending forward into the back seat of a car on 30 July 2002; and, on 6 February 2003, bending into a car, lifting an infant out of the car and then carrying the infant.
Included in the documents tendered by the Appellant Employer were still photographs of the Respondent Worker taken at her pre-wedding ‘Hen’s night’ on the ‘Studs Afloat’ harbour cruise in about early September 2000.
Following the arbitration hearing, each party lodged detailed written submissions and then each party subsequently lodged further submissions in reply.
The Arbitrator proceeded to make a determination ordering the Appellant Employer to pay weekly compensation to the Respondent Worker on an ongoing basis, together with the payment of medical expenses. The Appellant Employer lodged the present appeal on 12 January 2004. Written submissions dated 12 January 2004 accompanied the application to appeal.
Subsequent to a transcript of the proceedings before the Arbitrator on 15 October 2003 becoming available, the Appellant Employer lodged supplementary submissions dated 3 February 2004 relating to the transcript in accordance with a direction from the Commission that any such submission be filed by 4 February 2004.
The Respondent Worker sought to make submissions in writing, although late. Due to a misunderstanding by the Respondent Worker of the Commission’s procedures, they were not lodged until 4 June 2004. The submissions, dated 3 June 2004, were accompanied by an application for leave to file late submissions. Having regard to the circumstances, it is appropriate to grant leave to the Respondent Worker to rely on those submissions which were served on the Appellant Employer prior to lodgement.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 15 December 2004 records the Arbitrator’s determination as follows:
“1.On or about the 23rd December, 1999 Liesa Thiele received an injury to her back and both legs arising out of or during the course of her employment as a Child Care Co-ordinator with Dial an Angel Pty Limited.
2.Liesa Thiele has remained partially incapacitated for work as a result of that injury before and as from the cessation of the payment of weekly compensation benefits by the Respondent on the 17th December 2002.
3.The Respondent pay the Applicant weekly benefits at the rate of $148.00 gross per week from the 5th March, 2003 to the 30th June, 2003 and thereafter at the rate of $153.00 gross per week to date and continuing.
4.Respondent to pay the Applicant’s medical expenses in accordance with Section 60.
5.The Respondent is to meet the Applicant’s costs as agreed or as assessed on the basis that this is a complex matter.”
ISSUES IN DISPUTE
Broadly put, the basis for the appeal is that the Arbitrator did not appropriately deal with or resolve the various issues raised by the Appellant Employer in its opposition to the Respondent Worker’s claim.
The Appellant Employer has documented a number of grounds for challenging the Arbitrator’s determination and those are set out in the Appellant Employer’s submissions dated 12 January 2004 in the following terms:
“1.The Arbitrator failed to convey his findings on material questions of fact. In particular, the Arbitrator failed to convey his finding on the question of whether a non-work injury in May 2000 caused the worker’s incapacity which first manifested itself when she returned from two weeks annual leave on 1 June 2000 (more than 6 months subsequent to the alleged work injury).
2.The Arbitrator’s reasons were inadequate and he failed to make a decision on the basis of logically probative evidence on the issues of nexus, incapacity and the worker’s credit.
3.The Arbitrator erred in finding that there was no medical evidence from the employer’s doctors during the relevant period claimed since March 2003.
4.The Arbitrator erred in finding that there was no specific medical evidence from the employer that the worker was fit to travel to the employer’s Edgecliff office.
5.The Arbitrator misconstrued the employer’s evidence and submissions in relation to the worker having suffered a non-work injury to her back on 27 January 2000.”
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 the 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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against.
I note that the Respondent Worker has not sought to make any submission against the grant of leave.
Leave is hereby granted to the Appellant Employer to appeal against the decision of the Arbitrator.
FRESH EVIDENCE
Neither party has sought leave for evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against to be given on the appeal.
EVIDENCE AND SUBMISSIONS
Accordingly, the evidence before me on the appeal is the evidence that was before the Arbitrator.
The Appellant Employer’s written submissions dated 12 January and 3 February 2004 set out in some considerable detail the matters relied upon by the Appellant Employer to support its grounds of appeal.
The Respondent Worker has responded to the Appellant Employer’s submissions in the Respondent Worker’s submissions dated 3 June 2003 [sic – should read 2004] and which address each ground of appeal in turn.
I have also had the benefit of the written submissions made by each of the parties and lodged with the Arbitrator prior to his determination.
I shall return to discuss the submissions by the parties after dealing briefly with the question of the nature of an appeal in the Commission against the decision of an Arbitrator.
DISCUSSION AND FINDINGS
As previously referred to, section 352(5) provides that an appeal to a Presidential Member against a decision of an Arbitrator is to be by way of review of that decision. It is appropriate to consider the statutory framework for the decision under review.
Pursuant to section 354 of the 1998 Act, proceedings are to be conducted with as little formality as the proper consideration of the matter permits (sub-section (1)); the Commission is not bound by the rules of evidence (sub-section (2)); and, the Commission is to act according to equity, good conscience and the substantial merits of the case (sub-section (3)).
Rule 70 of the Workers Compensation Commission Rules 2003 (“the Rules”) provides that:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.”
Accordingly, in determining a dispute, an Arbitrator will have regard to evidence that is logical, probative and relevant to the facts in issue and the issues in dispute.
Section 294(1) of the 1998 Act provides that the Arbitrator issue a certificate as to the determination of a dispute to which there is to be attached, a brief statement setting out the reasons for the determination.
As stated by Deputy President Fleming in Cargill Meat Processors Pty Limited v Clark [2005] NSW WCC PD 7 at para. 26:
“Commission Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Rule 73 of the Workers Compensation Commission Rules 2003; Absolon v NSW TAFE [1999] NSWCA 311; Fox v Percy (2003) 214 CLR 118). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. Lengthy written reasons will not generally be necessary to convey simply, clearly and concisely, the reasons why a decision has been made.”
Rule 73 of the Rules relates to certificates of determination issued by Arbitrators pursuant to section 294(1), and provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
However, as expressed by Mahoney JA [at p.271] in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 where the Court of Appeal was dealing with an appeal from the decision of a Judge of the former Compensation Court:
“…the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.”
His Honour then went on to state [at p.272] that:
“…in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557…...Mason JA referred to the fact that a tribunal at first instance may state a number of facts without making findings on all of the issues of fact relevant to the final decision and that there may be unexpressed findings of fact which, as I understand His Honour’s reasoning, have formed part of the process of reasoning to the final conclusion of fact.”
Proceedings before Arbitrators of the Commission are conducted without undue technicality. Essentially, what is required is a statement of reasons which provides the parties with an understanding of the basis upon which the Arbitrator has arrived at his decision (see decision of Deputy President Byron at p.4 in NSW Department of Education and Training v Sanders [2004] NSW WCC PD 89). It is not inconsistent with the requirement contained in Rule 73(1) of the Rules, where a material question of fact may be whether a worker is partially incapacitated for work, for there to be the absence of a specific finding on each contested factual question leading to the ultimate factual finding of partial incapacity.
The fact that one or other party is dissatisfied with the finding of a material fact does not of itself entitle the party to challenge the decision of the Arbitrator. The decision must contain an error to be upset on appeal.
An appeal provided for by section 352 of the 1998 Act is not an appeal by way of rehearing but by way of review. Relevant to the present Appeal are the comments of the President of the Commission in Department of Education and Training v Jeffrey Sinclair [2004] NSW WCC PD 90 stated at para. 158 that:
“…a Presidential Member of this Commission, reviewing an Arbitrator’s decision on appeal, should upset such a finding only if there is other “incontrovertible” evidence indicative of error, not adequately dealt by the Arbitrator at first instance. Fox v Percy (2003) 77 ALJR 989, c.f. Abalos v Australian Postal Commission (1990) 171 CLR 167. (See also the useful discussion in the judgments of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588, especially that of Kirby J at 508ff, and the decision of Deputy President Fleming in Mayne Health Group v Sandford [2002] NSW WCC PD 6, pars 35-41).”
In the present case the Arbitrator accepted the Respondent Worker as a witness of credit. Not unimportantly, the Arbitrator had the advantage of observing the Respondent Worker when she was cross-examined. Nonetheless, the Commission on appeal from a decision of an Arbitrator must examine the facts to ascertain whether the Arbitrator has fallen into error in making the findings he has made.
However, as stated by Deputy President Fleming in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18 at p.2, “(the) error must be such that, but for it, a different decision would have been made (YG & GG v Minister for Community Services (2002) NSWCA 247).”
Having discussed the statutory framework for the Arbitrator’s decision and the process of review of such decision I now return to the grounds of appeal and the party’s submissions.
First Ground of Appeal
The Appellant Employer submits that the Arbitrator failed to convey his findings on material questions of fact particularly whether “a non-work injury in May 2000” caused the worker to be incapacitated for work from 1 June 2000.
In support of that submission the Appellant Employer points to matters which are contrary to a conclusion that any incapacity suffered by the Respondent Worker resulted from the work injury in December 1999.
The Appellant Employer also directs attention to the evidence of its witnesses, Debbie Wesley and Marianne Tyrode, and says that there was an absence of complaint by the Respondent Worker from shortly after the accident until she returned to work after her two weeks annual leave on 1 June 2000 and she performed her duties without apparent restriction during this period. Submission is made that the Arbitrator did not discuss this evidence in his decision. Acceptance of this evidence would, according to the Appellant Employer, have led the Arbitrator to a conclusion that the Respondent Worker suffered no incapacity for work between the occurrence of the injury in December 1999 and June 2000.
Further, the Appellant Employer contends that possible non-work related causes become significant to explain the incapacity for work which arose in June 2000.
The Appellant Employer makes reference to a notation in the history taken by Dr Hollings as set out in his report of 27 July 2000 that the Respondent Worker had a fall making a bed in May 2000 and says that the Arbitrator did not refer to this evidence.
In support of this ground of appeal the Appellant Employer referred in the submissions dated 12 January 2004 to the decision of Deputy President Fleming in Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 9. On the facts of that case, the Deputy President was not satisfied that the Arbitrator had provided adequate reasons. In a discussion relating to the adequacy of reasons the Deputy President commented at paragraph 46 of page 17 that “…it will be sufficient if the relevant findings and reasons are demonstrated by reading the decision as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444).”
Whilst the Appellant Employer draws particular attention in the submissions of 12 January 2004 to the notation in Dr Hollings’ report, there are references to other matters in the earlier submissions of the Appellant Employer to the Arbitrator in support of its contention that any injury suffered by the Respondent Worker in December 1999 was not one of any significance and certainly not one which gave rise to an incapacitating back condition manifesting itself in the Respondent Worker’s incapacity to work in June 2000.
There is reliance placed by the Appellant Employer on evidence that the Respondent Worker did not appear to have suffered significant hurt on the day of the accident; that she had bruising on the right hand side of her body rather than in the area of her back; that the Respondent Worker didn’t say to Debbie Wesley or Marianne Tyrode that the physiotherapy she was obtaining related to the injury at work; that she had pre-existing back problems; that the clinical notes of the general practitioner, Dr Lim, for 27 January 2000, being the Respondent Worker’s first consultation post the injury, refers to “backache” and “carrying a bag” and this coincides with a period of leave from work when the Respondent Worker had planned a city hotel stay with her husband for an event and the Respondent Worker may have been expected to be carrying a suitcase; and, that in May 2000 the Respondent Worker applied to the Appellant Employer for two weeks annual leave to “finish home renovations” and may have injured herself at that time.
The above recitation is not intended to be exhaustive of the matters raised and articulated by the Appellant Employer in support of a primary submission that any incapacity for work was not the result of a work injury in December 1999. The Appellant Employer placed reliance not only on individual matters but also on their accumulated effect in a probative sense.
The Arbitrator in his determination stated at paragraph 48 that:
“It is the Respondent’s submission … that the work incident of December, 1999 did not in fact result in any incapacity at all and the Respondent argues the material contained in Statements from Debbie Wesley of the 7th August, 2002 and Marianne Tyrode dated 29 August, 2003 establishes this conclusion. I note, however, that in these statements both witnesses agree that on the day after the fall at work the Applicant showed to each of them the bruises that she had suffered but the Respondent takes comfort from the fact that the bruises were on the Applicant’s right side rather than on her back. The Respondent’s submission is that I should not accept the Applicant as being a witness of truth and in his submissions the Respondent’s solicitor details a litany of alleged inconsistencies in the Applicant’s story.”
The Arbitrator went on to state in paragraph 49 that:
“The impression I formed of the Applicant when being cross-examined at the arbitration hearing was that she was telling the truth and that any inconsistencies were of no real consequence. I believe that the whole of the medical evidence would make it clear that the Applicant is suffering considerable back problems…”
Earlier, the Arbitrator had referred at paragraph 47 to a submission made on behalf of the Respondent Worker that:
“…the weight of the medical evidence is to the effect that the employment incident caused an aggravation of a pre-existing condition to an extent where economic incapacity has resulted and such aggravation is still continuing.”
The Arbitrator went on to make a specific finding in this regard (paragraph 49).
Indeed, the Arbitrator dealt with the medical evidence in considerable detail. With regard to the report of Dr Hollings referred to earlier in this judgment, the Arbitrator stated at paragraph 45 that:
“This doctor reached the view that “…[the] Applicant had suffered a ligamentous injury in the lumbo sacral spine directly related to the work accident”.”
The Arbitrator went on to quote from the doctor’s report including a statement by the doctor that “…I believe that all her current problems relate to the injury”.
Obviously the doctor placed no particular significance on any fall at home making a bed in May 2005 and, as can readily be inferred, neither did the Arbitrator. In his report of 27 July 2000, the doctor sets out the history of the incident at work in December 1999 and then goes on to record “…that her symptoms at the beginning of May were worse than they were in December but have improved. She had a fall while making the bed.” What the doctor appears to be suggesting is that there were heightened symptoms as a result of the fall in May which subsequently improved leaving the Respondent Worker with symptoms referable to the work incident.
The Arbitrator had ample evidence available to him to make the material finding that he did, namely a finding that the injury at work caused aggravation of a pre-existing back condition which aggravation still persists.
The Respondent Worker did consult a physiotherapist on 31 January 2000 and gave a history of a fall at work. She had bruising and restriction in movement and the Arbitrator makes reference to it at paragraph 49. Physiotherapy continued over a period of time.
There were visits by the Respondent Worker to Dr Lim prior to June 2000 where reference is made to an injury at work.
Not insignificantly, the Arbitrator accepted the Respondent Worker as a credible witness who was well supported by the medical evidence. The Respondent Worker, for instance, explained that when she took leave in June 2000 it was to straighten out the house that she and her husband had moved into in late 1999 but that she in fact rested over this period. It is fairly clear that the Arbitrator accepted this evidence.
It was not necessary for the Arbitrator in his determination to examine each piece of evidence in the process of arriving at a material finding of fact relating to causation of the Respondent Worker’s incapacity.
It was completely open to the Arbitrator to find as he did on the balance of the evidence before him. It cannot be said that the evidence which was before the Arbitrator was such as to overwhelmingly compel a contrary conclusion or was such as to render his determination improbable. There was no failure on the part of the Arbitrator to convey his findings on material questions of fact.
I do not consider that the first ground of appeal is made out.
Second Ground of Appeal
The Appellant Employer submits that the Arbitrator’s reasons were inadequate and he failed to make a decision on the basis of logically probative evidence on the issues of nexus, incapacity and the Respondent Worker’s credit.
In particular the Appellant Employer submits that:
1.“the arbitrator’s finding that the worker was a truthful witness and that any inconsistencies were of no real consequence was contrary to the weight of the evidence.”
2.“the arbitrator has ignored and/or not dealt with or not properly dealt with the employer’s submissions and evidence in relation to the worker’s credit.” , and
3.“the arbitrator ignored and/or did not deal with or did not properly deal with the employer’s evidence and submissions in relation to the issue of ‘no incapacity’.”
In relation to the Arbitrator’s acceptance of the Respondent Worker as a truthful witness and the Arbitrator’s statement in paragraph 49 that “…any inconsistencies were of no real consequence” the Appellant Employer submits that:
“…the arbitrator should….where the worker’s evidence differed from the evidence of the employer’s witnesses, Wesley and Tyrode, have…..made findings as to whether he accepted the employer’s witnesses and employer’s submissions or accepted the worker’s evidence and worker’s submissions on each …main factual issue.”
The Appellant Employer further submits that:
“…when confronted with the conflicting evidence from opposing witnesses, the arbitrator should have made findings on the credibility of each of those witnesses and which witnesses evidence was preferred on each significant issue where there was a dispute. ……Furthermore, the arbitrator’s apparent dismissal of the crucial evidence of Wesley and Tyrode with reference to ‘bad blood’ (existing between the applicant and some of the respondent’s staff) was not supported by the evidence and was not based on logically probative evidence.”
It is clear that the Arbitrator was cognisant of there being conflicts in the evidence on a number of factual matters, some of which I have referred to above.
The Arbitrator made the general comment at paragraph 49 that:
“There appears to be little doubt that there has been bad blood between the Applicant and some of the Respondent’s staff. I cannot help but feel that it is that bad blood that has somewhat clouded the thinking of all parties involved in this matter.”
I do not consider that the Arbitrator was suggesting that the evidence of Debbie Wesley or Marianne Tyrode should be dismissed on this basis at all.
It appears to me that what the Arbitrator was referring to included the approach taken by the parties to the proceedings and the reliance placed by the Appellant Employer on what the Arbitrator described as “a litany of alleged inconsistencies….” particularly with regard to the Respondent Worker’s credit.
Ultimately, the Arbitrator concluded that “any inconsistencies were of no real consequence” when determining, at paragraph 49, that:
“…the Applicant has established on the balance of probabilities that she did injure her back at work in some fashion or other and on some date in December, 1999. I further believe and so find that such injury caused aggravation of a pre-existing back condition which aggravation still persists.”
As previously referred to, the Arbitrator is not required to deal with each and every factual issue. This is to be understood in the context of the statutory framework which I have already outlined.
From my reading of the Arbitrator’s thirty-four page reasoned determination, it was open to the Arbitrator, upon the basis of the evidence before him, to find on the balance of probabilities, that the Respondent Worker’s claim of continuing partial incapacity as a result of the injury at work in December 1999 was established for the reasons given in the determination.
In relation to the Arbitrator’s stated impression that “the Respondent Worker was telling the truth…” the Appellant Employer submits that the Arbitrator’s reasons were inadequate having regard to its submission made to the Arbitrator that the Respondent Worker was an untruthful and unreliable witness.
It is apparent that the Arbitrator firmly had in his mind, the challenge made to the Respondent Worker’s credit when he said, at paragraph 48, that “The Respondent’s submission is that I should not accept the Applicant as being a witness of truth…..”
Earlier, in paragraph 29, the Arbitrator stated:
“…(at) the arbitration hearing the Applicant was cross-examined at length by the Respondent’s solicitor with such cross-examination directed almost entirely towards destroying the Applicant’s credit.”
The Arbitrator deals with numerous matters raised in evidence which the Appellant Employer relied upon in relation to the Respondent Worker’s credit.
I do not consider that the Arbitrator’s reasons are inadequate in dealing with the Appellant Employer’s challenge to the Respondent Worker’s credit.
The Arbitrator was conveying, no doubt based upon the Respondent Worker’s presentation and demeanour during cross-examination, his impression of the Respondent Worker’s reliability and truthfulness. This is not to say that the Arbitrator has ignored all other evidence or placed undue weight on the impression he formed.
From an examination of the determination as a whole, the Arbitrator made a determination on the balance of probabilities having regard to matters of credit raised by the Appellant Employer.
There is no requirement that the Arbitrator make a separate determination on each factual issue and its impact on credit.
In support of the Appellant Employer’s submission that the Arbitrator “…ignored and/or did not deal with or did not properly deal with the employer’s evidence and submissions in relation to the issue of ‘no incapacity’”, the Appellant Employer refers to evidence relating to the Respondent Worker’s activities on her “hen’s night” in September 2000; the Respondent Worker’s participation in two games of ten pin bowling in about February 2001; and, the Respondent Worker jumping on a trampoline in May 2001.
The Appellant Employer submits that the Arbitrator should have specifically “…referred to that evidence and given reasons as to why he considered that that those activities were not inconsistent with the worker suffering an ongoing incapacity for her pre-injury job or being fit for a wide range of jobs that would pay more than her probable earnings.”
Relevantly, the Arbitrator stated at paragraph 48 that:
“The Respondent submits that the Applicant’s credit has been destroyed particularly in relation to the alleged nexus between the employment incident and the Applicant’s alleged continuing back problems. Further, the Respondent submits that the Applicant’s back problems, if any, would not prevent her from accepting the Respondent’s offer of full-time employment at its [sic] Edgecliff office. It is asserted that the video film shown at the arbitration hearing and the still photographs taken at the Applicant’s ‘hen’s night’ would indicate that the Applicant is being untruthful about the existence of her back pain and restrictions.”
The Arbitrator referred to there being attacks made on the Respondent Worker’s credit and references by the Appellant Employer to “inconsistencies” in the evidence which the Arbitrator regarded as of no real consequence. The Arbitrator accepted and articulated in considerable detail medical evidence which led him to conclude that the Respondent Worker was suffering considerable back problems.
At paragraph 48 the Arbitrator states that:
“It is the Respondent’s submission on the other hand that the work incident of December, 1999 did not in fact result in any incapacity at all and the Respondent argues the material contained in Statements from Debbie Wesley…and Marianne Tyrode….establishes this conclusion.”
Further, in paragraph 49, the Arbitrator states that “A back condition of the nature suffered by the Applicant is one which can cause symptoms of fluctuating severity….”
Clearly, the Arbitrator was mindful of the Appellant Employer’s submissions and the matters relied upon by the Appellant Employer in relation to the Respondent Worker’s credit and capacity.
The Arbitrator provided adequate reasons for determining that the Respondent Worker had an ongoing incapacity for work not limited to the Respondent Worker’s pre-injury employment but an incapacity on the open labour market, with such incapacity resulting in economic incapacity.
Accordingly, for all of the above reasons, the second ground of appeal is not made out.
Third Ground of Appeal
At paragraph 50 of his determination, the Arbitrator stated that:
“…the applicant’s claim for weekly benefits only commences on 5 March 2003, [and] there is no medical evidence at all from the respondent’s doctors during the relevant claimed period.”
The Appellant Employer submits that the Arbitrator was in error in that there was a medical report dated 16 August 2003 of Professor Ehrlich which was tendered by the Respondent Worker.
That report was prepared by Professor Ehrlich after viewing a video film of the Respondent Worker’s activities in July 2002. The doctor relates his observations of the Respondent Worker on the video to his clinical examination of her in August 2002.
What the Arbitrator was referring to was that there was no medical report tendered by the Appellant Employer in relation to any examination of the Respondent Worker since 5 March 2003.
This is made clear by the Arbitrator who went on to state that “Indeed none of the Respondent’s doctors have examined the Applicant since August, 2002….”.
The Appellant Employer goes on to say in respect of this ground of appeal that the Arbitrator did not refer to the Appellant Employer’s submission that the Respondent Worker had exaggerated her problems when examined by doctors in the context of her claim and appears to have accepted the opinions of the Respondent Worker’s doctors without considering whether those opinions were influenced by inaccurate histories and exaggeration by the Respondent Worker.
The Arbitrator reviewed in his determination, all of the medical evidence including the medical evidence tendered by the Appellant Employer.
The acceptance of the medical evidence supporting the Respondent Worker must be viewed in the light of the findings made by the Arbitrator in relation to the Respondent Worker’s credit and his conclusions that any inconsistencies were of no real consequence.
As previously indicated, the Arbitrator was well aware that it was the Appellant Employer’s submission that the Respondent Worker should not be accepted as a witness of truth.
There has not been a failure on the part of the Arbitrator to have regard to the Appellant Employer’s submissions outlined above and the Arbitrator was correct in observing that there was no medical report tendered by the Appellant Employer in respect of any examination of the Respondent Worker since 5 March 2003.
I do not consider that the third ground of appeal is made out.
Fourth Ground of Appeal
The Appellant Employer submits that the Arbitrator erred in finding that there was no specific medical evidence from the Appellant Employer that the Respondent Worker was fit to travel to work at its Edgecliff office.
In support of that submission the Appellant Employer refers to the report dated 16 August 2003 of Professor Ehrlich where the Professor provides a commentary on the video film and concludes that “…there is no convincing evidence of there being disability involving her back or lower limbs.”
It is the case that there was medical evidence relied upon by the Appellant Employer to the effect that the Respondent Worker was fully fit for work. Accordingly, it was open to the Appellant Employer to argue that there would be no restriction on the Respondent Worker’s ability to travel to Edgecliff.
Leaving the question of causation to one side, there were doctors whose reports were tendered by the Appellant Employer who considered that the Respondent Worker did have continuing back problems.
Whether or not the Respondent Worker’s back problems related to the fall at work in December 1999, there was no report tendered by the Appellant Employer which specifically addressed the Respondent Worker’s assertion that her back problems would prevent her from undertaking the travel involved to work at the Edgecliff office. The Arbitrator details what he described as “…a wealth of medical support for the Applicant’s contention that she is unable to do the travelling”.
I consider that the Appellant Employer’s fourth ground of appeal is not made out.
Fifth Ground of Appeal
The Appellant Employer submits on appeal that the Arbitrator misconstrued its evidence and submissions in relation to the Respondent Worker having suffered a non-work injury to her back on 27 January 2000.
In its submissions dated 12 January 2004 lodged with the appeal, the Appellant Employer states:
“The employer’s submission (summarised in paragraph 2.5 of the employer’s written submissions dated 29 October 2003) was that the worker suffered a non-work injury to her back on 27 January 2000 (during an extended five day long weekend) while carrying a bag to and from a hotel in the city.”
At paragraph 48 of the determination, the Arbitrator states that:
“I have been asked to infer that the back pain that the applicant was suffering on 27 January 2000 (when she attended Dr Lim) was not related to the work injury and further I am asked to infer that the applicant must have injured herself on her annual leave over the Christmas/New Year period.”
The Appellant Employer had never submitted to the Arbitrator that the Respondent Worker injured herself whilst on annual leave over the Christmas/New Year period but rather, the Appellant Employer’s submission was that the Respondent Worker injured herself whilst on leave towards the end of January 2000.
The question arises as to whether the Arbitrator did indeed misconstrue the Appellant Employer’s submission by referring to “annual leave over the Christmas/New Year period” rather than annual leave towards the end of January 2000.
The Arbitrator refers, in paragraph 49, to the notes of Dr Lim that were taken on 27 January 2000 and goes on to comment that following the Respondent Worker’s attendance upon the physiotherapist on 31 January 2000, the physiotherapist “recorded a history to the effect that the Applicant was suffering back pain ‘following a fall at work’”.
The entry in Dr Lim’s clinical notes relating to the Respondent Worker’s attendance on 27 January 2000 contains a reference to “backache” and to “carrying bag…”.
The Appellant Employer tendered in the proceedings before the Arbitrator, a letter dated 24 January 2000 from the Respondent Worker to Dena Blackman of the Appellant Employer asking to take Thursday 27 and Friday 28 January 2000 as annual leave and stating that “Lotto has invited Craig (the Respondent Worker’s husband) and myself to the Australia Day boat race and we thought we would make the most of it and stay in the city for a few days”. These two days, together with Australia Day and the next weekend, gave the Respondent Worker five days away from work.
In its submissions to the Arbitrator dated 29 October 2003, the Appellant Employer stated that “It seems clear the applicant spent several days staying in a hotel in the city during that period.”
Whilst the Respondent Worker was cross-examined on a wide range of matters, she was not cross-examined about her visit to Dr Lim on 27 January 2000; experiencing back pain as a result of carrying a bag; or, whether she did spend several days in the city at the time.
It is not a criticism that these matters weren’t put to the Respondent Worker but on the material before the Arbitrator it would have been speculative for him to have inferred, as the Appellant Employer submitted he do, that:
“…her back pain came on when carrying a suitcase or bag containing several changes of clothes, toiletries, shoes and other items (as would typically be required for a stay of a few days in a hotel), when she was on her way to a hotel in the city where her and her husband planned to stay several nights.”
The impression I have is that the Arbitrator’s reference to “annual leave over the Christmas/New Year period” in his determination, was a misstatement rather than a misconstruction and what the Arbitrator intended to refer to was the annual leave towards the end of January 2000.
If I be wrong in my impression and the Arbitrator did misconstrue the evidence and submissions, it is not an error of a kind likely to have altered the outcome of the proceedings in any way given the uncertainty of the events which the Appellant Employer sought to have accepted.
Also, there is no doubt that the Arbitrator was not persuaded by the Appellant Employer’s submission that the notation by Dr Lim on 27 January 2000 together with other evidence led to a conclusion that the symptoms suffered by the Respondent Worker at the time of her visit to the doctor were unrelated to the fall at work in December 1999. As previously stated, the Arbitrator particularly referred to the history obtained when the Respondent Worker attended for physiotherapy on 31 January 2000 which related symptoms back to the fall at work.
It is the task of the Arbitrator to weigh the evidence presented and an examination of the determination as a whole indicates that he did.
I do not consider that the fifth ground of appeal is made out.
Sixth Ground of Appeal
The Appellant Employer submits that a review of the evidence and submissions should lead the Commission on appeal to revoke the Arbitrator’s determination and to substitute a new decision. The Appellant Employer then goes on to detail the findings and awards which it submits should be made.
On appeal, the Commission may confirm the Arbitrator’s decision or revoke it and substitute a new decision in its place (section 352(7) of the 1998 Act).
The Appellant Employer quite properly has presented the findings and awards which it submits should be made.
However, as stated by Deputy President Fleming in M & S Shipman Pty Ltd v Larry John Matters [2003] NSW WCC PD at page 10:
“The review (by a Presidential Member) is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
What was expressed by the Appellant Employer as the sixth ground of appeal completed the Appellant Employer’s submissions on the appeal. It should not, however, be regarded as a separate ground of appeal. Accordingly, it is not necessary for me to say anything further to what I have already said in relation to it.
DECISION
In the present appeal I am not satisfied that the submissions of the Appellant Employer demonstrate that the decision of the Arbitrator has been affected by any error that would entitle the Appellant Employer to succeed.
Accordingly, the appeal is dismissed and the decision of the Arbitrator is confirmed.
COSTS
As the Appellant Employer was unsuccessful on the appeal, I order that the Appellant Employer pay the costs of the appeal, as agreed or assessed.
MICHAEL J McGROWDIE
Acting Deputy President
14 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL J McGROWDIE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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