Dick v Steelfixed Pty Ltd (in liquidation)
[2009] NSWWCCPD 7
•23 January 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Dick v Steelfixed Pty Ltd (in liquidation) [2009] NSWWCCPD 7 | |||||
| APPELLANT: | James Robert George Dick | |||||
| RESPONDENT: | Steelfixed Pty Ltd (in liquidation) | |||||
| INSURER: | GIO General Limited | |||||
| FILE NUMBER: | A1-4495/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 18 September 2008 | |||||
| DATE OF APPEAL DECISION: | 23 January 2009 | |||||
| SUBJECT MATTER OF DECISION: | Effect in law of prior Consent Order; partial incapacity (section 40 of the Workers Compensation Act 1987) | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | PK Simpson & Co | ||||
| Respondent: | Turks Legal | |||||
| ORDERS MADE ON APPEAL: | 1. | Paragraphs 1, 3 and 4 of the decision of the Arbitrator dated 18 September 2008 are confirmed. | ||||
| 2. | Paragraph 2 of the decision of the Arbitrator dated 18 September 2008, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons. | |||||
| 3. | No order as to costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
On 22 October 2008 James Robert George Dick (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 September 2008.
The Respondent to the Appeal is Steelfixed Pty Ltd (in liquidation) (‘the Respondent’).
As the Respondent has been wound up, and upon the Appellant’s application, the Commission declares pursuant to section 162(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) that:
(1) the Respondent is a deregistered corporation which has ceased to exist, and
(2) the Respondent had, before ceasing to exist, entered into a contract with the insurer GIO General Ltd, in respect of liability to the Appellant under the 1987 Act.
The Appellant, who is 50 years of age, was born in New Zealand and arrived in this country in 1979. He completed his schooling at the age of 16 since which time he has had various forms of employment. It must be said at the outset that the evidence before the Commission concerning, in particular, the Appellant’s work history is scant and lacking in detail. It seems that the Respondent Company was established by the Appellant in NSW on some unspecified date but probably in 1987. Thereafter the Appellant was employed by the Respondent as a Steel Fixer. The Appellant’s work history with the Respondent is, having regard to the state of the evidence, uncertain. It appears that the Appellant continued performing his duties until a date in 1995 or 1996 at which time he ceased work by reason of general health problems. The evidence suggests that the Appellant’s cessation of work was occasioned by reason of either a depressive psychological state or general health problems including back disability or by reason of a combination of such ill health. There is no evidence that any claim for compensation was made as against the Respondent prior to the occurrence of an injury on the first day of his return to work on 6 November 1997. On that day, in the course of his employment, the Appellant sustained a crush injury to his right hand. A claim for compensation benefits was lodged by the Appellant with respect to that injury however there is no direct evidence as to detail of any benefits paid. It appears from the histories taken in the course of medical examination that the Appellant was paid weekly benefits for the first 26 weeks of incapacity following that hand injury.
It appears that the Appellant has not worked since his cessation of work in 1997 except for a short period of employment as a Steel Fixer with Emerald Concrete Steel Fixing Pty Limited during the financial year ending 30 June 2005.
On 13 February 2003 an Application to Resolve a Dispute (‘ARD’) was filed with the Commission on behalf of the Appellant, being matter 6832 of 2003, seeking an award against the Respondent with respect to entitlement to weekly payments, lump sums and medical expenses. The ARD described the Appellant’s injuries as follows:
“Right hand, right arm, loss of bowel function, loss of sexual organs function, anxiety, depression, left arm, left leg, neck and back.”
The ARD specified the dates of alleged injury as being:
“6/11/97 and 1/7/87 [sic], and nature and conditions from 1/7/87 to 10/11/97.”
It was stated in the ARD that the period of weekly compensation in dispute was in respect of the period 1 May 1998 to 30 June 2003 [sic]. I note that the date to which compensation was claimed post dates the time of filing of the ARD.
The Appellant’s claim with respect to lump sums (sections 66 and 67 of the 1987 Act) were not particularised in the formal part of the ARD except to assert in Section 3 of that document that the total amount in dispute was $96,160. The documents accompanying the ARD included medical assessments with respect to impairment of the back and neck as well as loss of use of the left leg, the right leg, the left arm, the right arm, the right hand, loss of use of bowel function and loss of use of sexual organs.
The material before the Commission reveals that examinations of the Appellant were conducted by three Approved Medical Specialists in late 2003 following the registration of the ARD. Medical Assessment Certificates were issued by Dr Frank Breslin, Dr PJ Burke and Dr Roger Rowe. The dates of those Certificates and relevant findings were as follows:
§ Dr Breslin (examination 2 October 2003) – loss of sexual organs – 2.5% permanent loss of efficient use.
§ Dr Burke (examination 23 November 2003) – permanent loss of efficient use of bowel – nil percent.
§ Dr Rowe (examination 7 October 2003) – nil percentage loss/impairment in respect of all body parts examined. (Those body parts were the right hand, right and left arms, right and left legs, neck and back.)
The medical assessment made by Dr Rowe was the subject of an appeal brought by the Appellant. The Appeal Panel comprised of Mr Bruce McManamey, Arbitrator, Dr Brian Noll and Dr William Lyons. The Appeal Panel issued a Medical Assessment Certificate on 9 July 2004. The following is a summary of the findings of the Appeal Panel:
§ Right hand – nil percent.
§ Right arm at or above the elbow – 2%.
§ Left arm at or above the elbow – 2%.
§ Left leg at or above the knee – 2.5%.
§ Right leg at or above the knee – 2.5%.
§ Neck – nil percent.
§ Back – 5%.
The Appellant’s claim against the Respondent was the subject of agreement and a Certificate of Determination was issued by the Commission on 23 August 2004. That Certificate records the agreement between the parties as follows:
“In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 75(1) of the Workers Compensation Commission Rules 2003, the determination of the Commission in this matter is as follows:
1.In accordance with the Medical Assessment Certificates of the Medical Appeal Panel and Dr Breslin, the Respondent is to pay the Applicant compensation pursuant to section 66 of the Act in the amount of $11,025.00 [being $1,600.00 for 2% permanent loss of efficient use of the right arm at or above the elbow; $1,500.00 for 2% permanent loss of efficient use of the left arm at or above the elbow; $1,875.00 for 2.5% permanent loss of efficient use of the right leg at or above the knee; $1,875.00 for 2.5% permanent loss of efficient use of the left leg at or above the knee; $3,000.00 for 5% permanent impairment of the back; and $1,175.00 for 2.5% permanent loss of sexual organs (Table of Disabilities)].
2.The Respondent is to pay the Applicant $19,000.00 pursuant to section 67 of the Act as compensation for pain and suffering.
3.The Respondent is to pay the Applicant’s section 60 expenses up to an amount of $4,500.00 on the production of accounts, receipts, or the HIC Charge and a claims’ history statement.
4.Award to the Respondent in relation to any additional or subsequent claim for section 60 expenses.
5.Award to the Respondent in relation to the claim for weekly benefits.
6.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
A further claim for compensation benefits was made on behalf of the Appellant against the Respondent by letter dated 19 February 2008 forwarded to both the Respondent and its Insurer by the Appellant’s Solicitors. The claim was particularised as being in respect of weekly benefits, lump sums under section 66 in respect of various parts of the Appellant’s anatomy and pursuant to section 67 with respect to pain and suffering. A dispute arose with respect to the Appellant’s entitlement to the benefits claimed in that correspondence and an ARD was filed on his behalf with the Commission on 12 June 2008. That ARD claimed weekly compensation from 20 August 2004 “to date and continuing” together with lump sums for permanent impairment and pain and suffering and medical expenses. A Reply was filed on behalf of the Respondent disputing the Appellant’s entitlement to an award in respect of the benefits claimed. The injuries alleged were those particularised in the earlier ARD.
The Appellant’s claim with respect to weekly benefits came before an Arbitrator for conciliation/arbitration on 5 September 2008 and a Certificate of Determination issued on 18 September 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 September 2008 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.The Applicant’s claim for permanent impairment of the neck is discontinued and the requirement to file a Notice of Discontinuance is dispensed with.
2.Award Respondent on the Applicant’s claim for weekly compensation.
3.Award Applicant for medical expenses pursuant to section 60 of the Act.
4.Respondent pay the Applicant’s costs as agreed or assessed.
A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003, is attached.”
The Arbitrator’s Statement of Reasons (‘Reasons’) which accompanied his Certificate of Determination noted the following:
“4. The current claim for permanent impairment by way of deterioration has been remitted by consent of the Parties to the Registrar for appointment of an AMS to assess the deterioration if any to the above body parts according to the Table of Disabilities, except the left arm.
5. The claim for permanent impairment of the neck is discontinued.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i) Whether the Arbitrator erred in failing to make an award for weekly payments in favour of the Appellant.
(ii) Whether the Arbitrator erred in his conclusions as to the Appellant’s incapacity having regard to his findings as to his alcohol dependence.
(iii) Whether the Arbitrator erred in his findings as to the existence and relevance of “changed circumstances” since the entry of the Consent Order in August 2004.
The issues as outlined above are a summary of matters raised by the parties in documentation filed in support or opposition of this appeal as well as the submissions which were put on behalf of the parties before the Arbitrator. It must be said that the Appellant’s “Grounds of Appeal” contained in Part B of the Application lack clarity and precision. This shortcoming is not assisted by the fact that there have been no submissions furnished by the Appellant in support of the suggested grounds of appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Respondent in its Notice of Opposition to this appeal states that the matter should not be determined on the papers. There are no submissions in support of such suggestion. I have earlier at [19] noted the shortcomings of the documentation furnished by the Appellant in support of this appeal. I note that there is available before the Commission a transcript of proceedings conducted before the Arbitrator on 5 September 2008 (‘transcript’) and that the parties’ submissions are there recorded. Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me I am satisfied that I have sufficient information to proceed “on the papers”, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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 on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
Section 352(4) of the 1998 Act provides that:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
As noted above the Appellant’s Application to bring this appeal was filed on 22 October 2008 and is thereby 6 days out of time. That lateness is acknowledged by the Appellant and an extension of time is sought. It is put on behalf of the Appellant that he received a copy of the decision on 22 September 2008 which was then forwarded to Counsel for the purpose of drafting submissions in support of the appeal. A delay occurred until 21 October before receipt of Counsel’s draft. It is stated that the Appellant’s Solicitors had failed to diarise the expiry period fixed for the filing of the appeal. Reliance is placed by the Appellant upon the decision of Dennis v NSW Fire Brigades (2007) NSWWCCPD 165 (‘Dennis’). It is further stated on behalf of the Appellant that no prejudice to the Respondent has been occasioned by reason of the delay in filing the relevant documentation.
The Respondent in its submissions opposes the Appellant’s application for extension of time. The Respondent submits that strict compliance with the legislative time frames for appeal “will not result in any injustice to the Appellant”. It is further argued that the Appellant has “a weak case”. It is not argued that any prejudice arises from the 6 day delay in filing of the Appellant’s Application.
The question of entitlement to an extension of time in which to apply for leave to appeal is addressed by the Workers Compensation Commission Rules 2006 (‘Rules’). Rule 16.2 sub-clauses (11) and (12) provide as follows:
“(11) The Commission constituted by a Presidential member may, if a 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.
(12) A party who seeks an extension of time as referred to in subrule (11) must:
(a)as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b)lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
Having regard to all the circumstances, in particular the absence of any suggestion of prejudice and the very short period of delay in filing the subject Application, I am of the view that, in exercise of the Commission’s discretion under Rule 1.6 sub-clause (2), the Appellant is to be granted dispensation with respect to compliance with the requirements of the Rules.
I am satisfied that in the present matter exceptional circumstances, outlined above, exist and that to lose the right to seek leave to appeal would work demonstrable and substantial injustice. Accordingly I order, pursuant to rule 16.2 sub-clause (11) that time for making the appeal be extended to 22 October 2008.
The requirements of section 352(2) having been satisfied and having regard to the above mentioned order with respect to extension of time, I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The Arbitrator, at paragraph 7 of his Reasons, noted that no oral evidence had been given before him at the hearing conducted on 5 September 2008.
The documentary evidence before the Arbitrator was noted by him at paragraph 8 of Reasons as being:
“8. All documents filed in the proceedings, together with documents for which leave to file as given, namely a WorkCover Certificate of Dr Ziade dated 7 July 2008, were in evidence before the Commission.”
It is to be noted that at paragraph 42 of Reasons reference is made by the Arbitrator to the Medical Assessment Certificate (‘MAC’) of Dr Burke. It is there stated:
“42 The AMS Dr PJ Burke found in his MAC deterioration of the back (an extra 5%) and an extra 2.5% in relation to the left leg.”
The MAC to which the Arbitrator refers at [42] of Reasons is that which issued on 15 September 2008 being a date post dating the hearing but being 3 days before the issue of the Certificate of Determination. It is clear that the Arbitrator had that MAC before him and that its contents were considered in the course of determining the dispute between the parties.
Attached to the ARD was a Statement by the Appellant dated 20 April 2008. The Appellant, in paragraph 4 of that Statement, adopts the “employment history” as contained in the medical reports upon which he relies. It is also there stated that he “sustained a number of injuries, details of which are attached in the Application to Resolve a Dispute as well as the medical reports”. Given that there are numerous contradictions and inconsistencies contained in the subject reports, the state of the evidence must be said to be less than adequate to enable a clear factual history to be determined.
The Appellant’s Statement also records the Consent Order which was noted at [11] above.
The Appellant further states (paragraph 7 of Statement) that he managed to return to work following the aforementioned Consent Order, however was only able to work approximately 6 days because of his back and neck problems. The Appellant further states that he continues to experience chronic pain in his back, neck and radiating pain in his left leg. It is said that he walks with the assistance of a cane and is currently being treated by Dr Ziade.
The Appellant at paragraph 11 of his Statement records:
“11 Prior to my injuries, I used to be a social drinker, however, after my injury I started to drink alcohol quite heavily to help relieve pain from my back and neck.”
The Appellant further states that his worst complaint is his back pain, that his condition has deteriorated significantly since the making of the Consent Order and that he is not able to perform any work.
The medical evidence relied upon by the Appellant includes two reports from Dr Thomas Nash dated 6 February 2008 as well as medical reports from Dr Henry Stenning, Dr Richard Crane and Dr Elias Matalani. There were attached to the ARD a number of radiological reports, which relate to examination of various parts of the Appellant’s anatomy, and a number of WorkCover medical certificates.
Additional material upon which the Appellant relied included the Respondent Insurer’s Section 74 Notice, copies of the various MACs which have issued and which have been enumerated above, together with the Statement of Reasons issued by the Appeal Panel which reviewed the findings of Dr Roger Rowe. There is also included among those documents a copy of the Appellant’s Taxation Return filed with respect to the year ending 30 June 2005.
The Respondent relied upon the evidence of Dr John Bentivoglio as stated in his report of 20 March 2008. Relevant detail of this witness’s evidence is addressed hereunder.
Included among the documents relied upon by the Respondent was a copy of the Appellant’s ARD filed on 13 February 2003 in proceedings being matter number 6832 of 2003. Much of the documentation relied upon by the Respondent duplicates that material which had been placed into evidence on behalf of the Appellant. Relevant portions of that evidence are addressed hereunder.
Appellant’s Submissions
The transcript records those submissions put by Counsel on behalf of the Appellant at the hearing before the Arbitrator. It was put that the claim concerned the Appellant’s entitlement to compensation from 24 August 2004 to date (transcript p2). Counsel noted that the Consent Order made in 2004 , in part, made provision for section 66 lump sum awards which reflected the findings of the Medical Appeal Panel dated 9 July 2004. Reference was further made to the other orders contained in the Consent Order including the award in favour of the Respondent with respect to the Appellant’s claim for weekly compensation.
Reference was made by Counsel to relevant authority concerning the consequences in law of the entry of a Consent Order. Following reference to Rail Services Australia v Dimovski and Anor [2004] NSWCA 267 (‘Dimovski’) the submission was put that the existence of a prior Consent Order in favour of the Respondent with respect to weekly payments “… operates as a disentitlement, as it were, up to that date. That doesn’t mean we’re going to have to show some deterioration.” Notwithstanding that submission, Counsel proceeded to address the evidence in support of the proposition that there had been “a deterioration” of the Appellant’s physical condition, particularly with respect to his back disability, since the entry of that Consent Order.
In the course of submissions it was stated on behalf of the Appellant that his claim with respect to weekly payments was brought pursuant to Section 40 of the 1987 Act. Such a submission necessarily defines the Appellant’s claim to be one with respect to alleged partial incapacity.
The Appellant’s submissions proceeded to address the question of entitlement and a cursory reference to the absence of agreement between the parties as to relevant probable earnings, in terms of section 40 of the 1987 Act, was made. It was argued that the Appellant would be fit only for “very light work, in the nature of a Night Watchman or perhaps light retail work, given his back complaints”. It was further argued that, given the extent of his incapacity, he would be fit only for part-time work. It was put that, upon acceptance of the Respondent’s assertion as to the probable earnings ($670.00 per week) the Appellant would nonetheless be entitled to “a full award”.
The subject of the Appellant’s alcohol dependence was touched upon briefly in the course of submissions and it was suggested that the Appellant’s evidence that he had recently overcome his dependence should be taken into account when assessing entitlement to compensation.
As noted above the Appellant has declined to furnish submissions in support of the suggested grounds of appeal. Reference is made to the decision of Seaib v Hays Personnel Services (Australia) Pty Ltd [2008] NSWWCCPD 36 (‘Seaib’) at paragraph 2.6.4 of the Application, and error of law is asserted.
Respondent’s Submissions
Counsel appearing on behalf of the Respondent before the Arbitrator addressed the question as to the “effect” of the Consent Order. Reference was made to the decision of Deputy President Roche in Kaibou v Gillespie’s Produce and Packing Pty Ltd [2006] NSWWCCPD 168 (‘Kaibou’). Of particular significance in this appeal, the consequences of the entry of the Consent Order were addressed on behalf of the Respondent in the following terms:
“My friend is right, if I can say that, where there’s no issue that’s been determined by ventilation of submissions and calling of evidence and they’ve found for him, but there is a res judicata, because the court has determined, or the Commission has determined an issue, and that is as at the time of the giving of the award in August 2004 there was no entitlement to weekly compensation. That’s all up to that point. Beyond that, it is an open case --”
The Respondent’s submissions before the Arbitrator proceeded to deal with the question of the extent, if any, of incapacity. Reference was made to the findings of the Appeal Panel and it was put that the disabilities as found “… would perhaps preclude him from going back to heavy work as a Steel Fixer.”
The Respondent argued before the Arbitrator that the Appellant was precluded from obtaining work by non-work related factors, in particular alcohol dependence. Those matters were summarised at page 7 of transcript and it appears to have been argued that given the existence of the multiple health and emotional problems experienced by the Appellant at relevant times there was “no certainty that the incapacity for work related to the injuries with the Respondent”.
Particular emphasis was placed in the course of submissions upon the relevance of the Appellant’s alcohol dependence. Reference was also made to the demonstrated inconsistencies observed by the Medical Practitioners in the course of examining the Appellant. Counsel highlighted the contrasting observations of Drs Nash and Bentivoglio with respect to suggested muscle wasting.
It was argued that upon comparison of the early medical evidence and that of Dr Nash contained in his reports of February 2008 there is no indication of “significant deterioration”.
With respect to the question as to the quantum of probable earnings in terms of section 40 of the 1987 Act it was put that “the figure of 670 is a reasonable one in the circumstances …”. It was suggested that there would be no entitlement to weekly compensation “… unless and until it has been established to your satisfaction that the alcohol dependency has been removed from the contemplation [sic] and there’s some explanation as to whether or not the psychiatric condition has resolved to the point where the Applicant is ready, willing and able to engage in any form of work.”
Supplementary Submissions by the Parties before the Arbitrator
Following submissions put on behalf of the Respondent before the Arbitrator, the Appellant argued that the question of readiness and willingness to resume work is not a relevant factor when determining entitlement pursuant to section 40 of the 1987 Act.
The Arbitrator is recorded (at page 10 of transcript) as raising the question as to the relevance of any findings that may be made by the AMS following medical examination which had been arranged for a date shortly after the date of hearing. Each party had the opportunity to address the Arbitrator as to the relevance or otherwise of any findings that may be made by that AMS. Of significance it was argued on behalf of the Appellant that, given the function of the AMS, any findings would not assist the Commission in determining the question of entitlement to weekly compensation. The Arbitrator replied to Counsel in the following terms:
“It doesn’t, but doesn’t it go to the Respondent’s argument initially that there’s no material change?”
It is to be noted that neither party wished to adjourn the matter for the purpose of addressing the Commission with respect to the anticipated findings of the AMS.
Respondent’s Submissions on this Appeal
The Respondent in its Notice of Opposition to this appeal notes the failure by the Appellant “to precisely enumerate the grounds of appeal”. It is further argued that the Arbitrator has not “committed any error of law or discretion in determining the matter”.
It was argued on behalf of the Respondent that the Arbitrator’s conclusion with respect to the claim for weekly benefits was addressed in accordance with relevant principle and reference is made to the decision of Seaib.
The Respondent argues in support of the Arbitrator’s findings and conclusions with respect to the relevance of the Appellant’s alcohol dependence to the question of entitlement to weekly compensation. Particular attention is drawn to the findings of the Arbitrator including that which appears at paragraph 59 of Reasons:
“59. The self medication is the primary reason for incapacity.”
The “self medication” referred to by the Arbitrator was, as noted in the medical evidence before him, the Appellant’s alcohol consumption.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“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 Arbitrator, at [6] of Reasons, which appears below the heading “ISSUES FOR DETERMINATION, matters previously notified as disputed” :
“6. The Commission is required to determine the Applicant’s entitlement to weekly compensation and medical expenses from 20 August 2004.”
The Arbitrator correctly identified the primary issues requiring determination and indeed proceeded to make an order in favour of the Appellant with respect to entitlement to medical expenses. Given the state of the evidence and the arguments raised on behalf of each of the parties at the hearing it may, with respect, be said that the Arbitrator has understated the issues for determination.
The Appellant in his ARD has alleged injuries as occurring on 6 November 1997 and 10 November 1997 (deemed date). Having regard to the manner in which the Respondent has conducted its defence of the Appellant’s claim, with particular reference being made to the contents of its Notice issued pursuant to section 74 of the 1998 Act, there appears to be no real dispute as to the occurrence of the injuries as alleged. Notwithstanding the absence of any such dispute my opinion is that the proper disposition of the Appellant’s claim required a determination as to the occurrence or otherwise of the injuries as alleged. Such findings of fact concerning the occurrence of injury are fundamental to a determination of the ultimate issue for determination, namely, entitlement to weekly compensation.
Having regard to the manner in which the parties conducted the matter before the Arbitrator and the state of the evidence which was before him, a proper disposition of the matter before the Arbitrator required a determination of the following issues:
(i) Whether the Appellant had established injury as alleged in his ARD.
(ii) Whether any incapacity has resulted from such proven injury.
(iii) What, if any, legal consequences flowed from the entry of the Consent Order in 2004.
(iv) Calculation of any entitlement to weekly benefits the Appellant may have in accordance with the provisions of the 1987 Act with due regard to relevant authority.
The Respondent in its submissions on this appeal (at Part B 2.5.1) correctly identifies the significant shortcomings and deficiencies in the manner of conduct of this appeal. Notwithstanding those shortcomings and the absence of submissions in support of the suggested grounds of appeal, I conclude that each of the issues enumerated in [16] above have been raised on behalf of the Appellant either in argument before the Arbitrator or expressly in the suggested grounds of appeal. I am further satisfied that each of those issues has been adequately addressed by the Respondent both before the Arbitrator and on this appeal.
It was stated on behalf of the Appellant in the course of submissions at the hearing that:
“I don’t think there’s any doubt or any dispute as to the issue of injury.”
(transcript p2). In support of such observation, reference was made to the terms of the section 66 awards which appeared in the 2004 Consent Order. Such argument did not address the question as to whether there had been any relevant injury to the Appellant’s neck as a result of the nature and conditions of his employment, nor was any attention given to the occurrence or otherwise of an injury which was particularised in the ARD as “anxiety and/or depression”.
It may reasonably be inferred from the terms of the Respondent’s submissions before the Arbitrator that there was no dispute with respect to the occurrence of injury as alleged (transcript page 6, lines 20 – 22). It is to be noted further that no dispute as to the injuries as alleged was raised by the Respondent’s Insurer in its Notice under section 74 of the 1998 Act. I note that the Notice appears to be flawed in that the only injury addressed is that which is deemed to have occurred on 10 November 1997. The Notice does not address the Appellant’s allegation of injury occurring to his right hand on 6 November 1997.
In his Statement of Reasons, the Arbitrator makes no express finding as to injury. Notwithstanding the absence of any express finding it is clear that, underlying his reasons, there has been an assumption that injuries as alleged had been proven.
With respect to the question of whether the Appellant suffered any incapacity as a result of the proven injuries the Arbitrator purports to deal with that question between paragraphs 37 and 59 of Reasons where it is stated:
“38. Even if the worker had some work related change in his body part complaints, what are the work related injuries and continuing disabilities which make him partially incapacitated?
39. The medical evidence on both sides finds a deterioration of 5% of the back under the Table of Disabilities.
40. There is no other disability which is work related, except perhaps the neck, for which there was a 100% deduction on permanent impairment on a section 66 assessment in 2003.
41. There may be some contribution of the enck [sic] condition to incapacity.
42. The AMS Dr P J Burke found in his MAC deterioration of the back (an extra 5%) and an extra 2.5% in relation to the left leg.
43. The MAC is only binding as to permanent impairment and is otherwise only additional evidence on the question of incapacity.
44. There is however no evidence of significant change in work related impairment.
45. The body parts right and left leg are found not to have deterioation [sic].
46. There is evidence of self medication with excessive levels of alcohol until 2 months before the Applicant’s Statement in April 2008, partly for back and neck pain, some or all of which is work related.
47. There is evidence of the worker’s problems with alcohol which on the medical evidence of both Drs Nash and Bentivoglio relates to relatively minor symptoms and signs, predominately in the back and neck.
48. The alcoholism is on the evidence post injury in 1997, and should be taken into account as a consequence of work injury.
49. However the alcohol abuse is identified by both Dr Nash and Dr Bentivoglio as his major reason for not working.
50. Mr Dick also has limited education, skills and training to undertake other work, as pre-injury work is not an option for him, but he has no capacity for work because of his admitted alcohol dependence.
51. I accept that he has reduced or stopped his drinking at excessive levels, but he admits his lapses in the past, and all of the medical evidence is that he needs treatment for the condition, which is at least in part constitutional and part related to non-work related issues.
52. That complicates the capacity for work issue, but there is evidence of inconsistent behaviours in examination by Dr Bentivoglio, fears about the risk of falling which justifies the walking stick (s), and a lack of any evidence of true incapacity for work.
53. He was a relatively young man at injury in 1997 (aged 39) bur [sic] he had worked in demanding heavy work for over 15 years.
54. There are significant unresolved personal issues which on Dr Nash’s evidence are the primary factors in Mr Dick’s incapacity for work due to alcohol dependence.
55. The certifications of unfitness for work in 2007 and 2008 refer to ‘chronic back injury’ and ‘chronic low back disc disease’. That is not borne out on the other medical evidence before the Commission/ [sic]
56. There is minor deterioration of the back as a primary medical issue beyond the position in 2004 when there was an award for the Respondent for weekly compensation..[sic]
57. That in my view is not a material change sufficient to warrant an order for weekly compensation since August 2004 to date and continuing.
58. I am not satisfied that the Applicant has suffered an economic loss due to work related injury since August 2004 due primarily on the evidence of his alcohol dependence and his unresolved personal issues giving rise to that dependence.
59. The self medication is the primary reason for incapacity.”
It may be seen from the Reasons as expressed by the Arbitrator above quoted that there has been a failure to apply the appropriate test to determine the existence or otherwise of partial incapacity. It is stated by the learned author of Mills Workers Compensation NSW at page 2863:
“Section 40(1): “partial incapacity” The test to apply in determining whether a worker is partially incapacitated is that of whether a worker is physically unable to do some of the things which uninjured the worker could do, and, further, that the incapacity affects a worker’s ability to sell his or her labour in the relevant labour market: see Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 and Alexander v Ashfield Municipal Council (CA (NSW), No 78/81, 27 October 1982, unreported).
Partial incapacity: was described by Mason, Wilson, Deane and Dawson JJ in Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 178; 57 ALR 229; 59 ALJR 215 as follows:
“The concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. Under s 11(1) an applicant’s entitlement to compensation will depend on his loss of earning power.
Section 11(1) of the 1926 Act is the predecessor of s 40 of this Act.””
It is clear that the Arbitrator, when considering the question of partial incapacity, has improperly taken into account a suggested need to establish a deterioration or change in the Appellant’s condition since the date of the entry of the Consent Order. It is also clear that consideration was given to irrelevant factors such as alcoholism and “unresolved personal issues”. Such matters may properly be taken into account when exercising discretion as to the quantification of any entitlement to weekly payments during a period of partial incapacity. However, those matters are not relevant to the determination of the existence or otherwise of partial incapacity. Such determination is made on a theoretical basis and factors other than the consequences of the subject injury are not to be taken into account. As was stated by Counsel for the Appellant in the course of submissions at the hearing (transcript page 10) in the context of section 40 of the 1987 Act:
“It’s an objective section, in effect – it always was – as to whether there is a loss arising out of the injury that he’s had.”
I am of the opinion that the Arbitrator has erred in his approach to the question of determining the existence or otherwise of partial incapacity in terms of section 40 of the 1987 Act.
The Effect of the 2004 Consent Order
The Certificate of Determination dated 23 August 2004 as noted in [11] above records that the orders made therein had been made following agreement reached during the conduct of a telephone conference conducted by an Arbitrator. In the circumstances, it is plain that there had been no adjudication of the dispute by the Commission and, in particular, there had been no findings of fact in respect of issues such as the occurrence of injury or resultant incapacity. It is common practice, in circumstances where a claim brought in the Commission is compromised, that admissions of fact and associated collateral agreements are made and recorded at the time of settlement. That is not the case in the present matter. The evidence reveals merely an agreement with respect to those matters recorded in the Certificate of Determination.
The ARD in matter number 6832 of 2003 concerned injuries identical to those with which the Commission is concerned in this appeal. Each of the parties have made reference in the course of submissions on this appeal to the decision of Seaib. That matter, a determination of Acting Deputy President Snell, was concerned with the question of the effect in law of the entry of a prior consent award which was accompanied by certain admissions made by the Worker and agreed facts. The determination in Seaib records a detailed examination of relevant authority concerning the legal consequences of prior settlements effected by consent awards ([58] – [77]). I respectfully agree with the reasoning expressed and the conclusions reached by Snell ADP in that matter. The Commission’s conclusions as to the effect of such consent awards is to be found at [77] where it was stated:
“77. Without purporting to be exhaustive, I would identify the following principles from the authorities discussed above, in respect of the legal consequences of prior settlements effected by consent award:
(i) A consent award can create res judicata estoppels, and also will involve admissions of facts inherent to the award, for example the occurrence of injury, or the existence of economic incapacity resulting from injury, at a certain point in time (Dimovski).
(ii) When an issue is the subject of res judicata estoppel, it is not justiciable in a further action; it is not open to consideration de novo (Almario).
(iii) A res judicata estoppel, created by a consent award for an employer, on a weekly claim, or claim for section 60 expenses, operates up to the date it is made. It does not eliminate future rights (Almario, Kaibau, Coggins).
(iv) A consent award does not obligate the Commission, in subsequent proceedings, to take the factual position described in the consent award as a starting point in the fact finding process. The Commission should determine the facts as at the date of further hearing, “without legal constraints flowing from the earlier award” (Dimovski, De Witte, Kaibau).
(v) When engaging in this fresh fact finding process, it is appropriate to have regard to admissions flowing from the earlier consent award, and the presumption of continuance. However such matters are only part of the evidence, to be considered with other evidence, lay and medical (Dimovski, Coggins).
(vi) A consent award does not create an issue estoppel (Anderson).
(vii) Where a worker executes Admissions and Agreed Facts as part of a settlement, these speak as at the time they were made. They are evidentiary of the facts stated, but not conclusive (Almario).
(viii) It is necessary to analyse and interpret admissions and agreed facts with care, in deciding what evidentiary force they have (Smylie).
(ix) Section 60 is an indemnity provision (New South Wales Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442). Admissions that a worker has no entitlement to such expenses “thereafter”, or “over and above” an agreed sum, should be read in this light (Smylie).
(x) Agreed Facts which purport to impose a blanket bar upon the recovery of further compensation, for example a worker “is not entitled to any further weekly payment or compensation”, or “has no entitlement to compensation against the Respondent”, must be read subject to section 234 of the 1998 Act, which prevents contracting out of the 1987 and 1998 Acts.
(xi) The parties cannot use a series of consent awards to achieve de facto commutation, without appropriate approvals (Nelson v Flood & Co Ltd [1934] 8 WCR 227, Almario).”
In the present matter the Arbitrator’s approach to the question as to relevance and effect of the prior Consent Order is to be found between paragraphs 12 and 15 of Reasons:
“12. The Applicant does have to establish entitlement to weekly compensation and medical expenses post the awards in August 2004.
13. There is no evidence before the Commission as to why the Applicant’s claims for weekly compensation in the 2003 proceedings resulted in a consent award for the Respondent.
14. I do note an award of $19000 for pain and suffering, which was probably a high figure for the relatively low findings of permanent impairments.
15. In any event the worker has an entitlement to weekly compensation (and medical expenses incurred) for work related injury if there is a material change in his medical condition post those awards. That is agreed in principle between the legal representatives for the Parties.”
The reasoning above noted demonstrates, in my view, two distinct errors. The Arbitrator at [15] and throughout his Statement of Reasons expresses the view that, having regard to the existence of the prior Consent Order, it is incumbent upon the Appellant to establish “a material change in his medical condition” post dating entry of the subject award. It is clear from the authorities as summarised in Seaib that such an approach is erroneous. The proper approach to the matters raised for determination is succinctly stated by Snell ADP in the matter of De Witte v Tawnay Pty Ltd t/as Country Coast Real Estate [2006] NSWWCCPD 109 (‘De Witte’) at [54]:
“54. Applying the reasoning in Anderson, as I do, in my view the arbitrator has erred in the approach she has taken to the prior consent award. It did not involve any findings by the court, but rather enshrined in an award what was an agreement between the parties. Its legal effect on the latter proceedings did not go beyond whatever evidentiary force lay in the admissions of the parties, which were inherent in the terms and consent award. Accordingly it was not appropriate to approach the weekly claim, as the arbitrator did, on the basis the appellant had to demonstrate a change in circumstances since the date of the consent award, if she was to succeed.”
As noted at [43] above it was argued on behalf of the Appellant at the hearing that, having regard to earlier authority, there was no obligation upon the Appellant to demonstrate “some deterioration” since the making of the Consent Award. Whilst this issue has not been squarely raised in the documents filed in support of the appeal it was plainly raised on behalf of the Appellant before the Arbitrator and the relevance of the Appellant’s submission was acknowledged by the Respondent as noted at [48] above.
Whilst it may be said that the Appellant’s attention to relevant principle when addressing the question of the relevance of the prior Consent Order was lacking in precision and detail, it is my view that the question had been squarely raised for the Arbitrator’s determination at the hearing and, as above noted, that issue was acknowledged by the Respondent. Such acknowledgement (transcript page 6, lines 1 – 13) demonstrates the second error to be found at [15] of the Arbitrator’s Reasons. It is there stated that the need to establish a material change “post those awards” had been “… agreed in principle between the legal representatives for the parties”. That the Arbitrator so concluded may be explained in part upon the basis that argument put at the hearing lacked clarity and precision and, in some respects, may be perceived as being ambiguous and unhelpful.
The errors identified above concerning the Arbitrator’s approach to the issues of incapacity and the consequences in law of the Consent Order are such that, in my view, revocation of his decision expressed in order number 3 of the Certificate of Determination dated 18 September 2008 is required. The question then arises as to whether there should be a substitution of that order with a new decision on this appeal or alternatively whether the matter should be remitted for determination in accordance with the matters determined on this appeal. The NSW Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 (‘Trevarrow’) has expressed the view that should an appeal be upheld, it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at [28] and [29]).
A re-determination in this appeal of the question of any entitlement the Appellant may have to an award for weekly compensation requires consideration of the fundamental question as to the nature of the subject injuries as alleged, a determination as to the existence and extent of any incapacity, a proper adjudication of the question as to the effect in law of the making of the 2004 Consent Order and, if relevant, a calculation of entitlement to weekly benefits in accordance with established principle. That task of re-determination is not, in all the present circumstances, appropriate. It is my view that justice requires that each of the parties have the opportunity to address the matters which I have attempted to summarise above. There exists a further impediment to the conduct of re-determination of the Appellant’s entitlement or otherwise to an award for weekly payments, that being the absence of any evidence or agreement with respect to relevant economic matters including, but not only, the quantum of the Appellant’s probable earnings, but for injury, in terms of section 40 of the 1987 Act.
I conclude that the relevant order made with respect to the Appellant’s claim for weekly benefits requires revocation. I do not consider it appropriate to make a new decision in place of that of the Arbitrator in this appeal. I consider the appropriate course is to direct that the matter be remitted to another Arbitrator for determination afresh of all relevant issues concerning the Appellant’s claim for weekly compensation. Having regard to the deficiencies of the evidence with respect to relevant earnings, it may be anticipated that the parties will seek leave to adduce fresh evidence concerning such matters. I commend that efforts be made to reach agreement with respect to these matters, a task that should not be difficult having regard to the fact that the Respondent company had been established by the Appellant.
DECISION
Paragraphs 1, 3 and 4 of the decision of the Arbitrator dated 18 September 2008 are confirmed.
Paragraph 2 of that decision is revoked and the matter is remitted to another Arbitrator for determination afresh of the Appellant’s entitlement to weekly compensation in accordance with these reasons.
COSTS
The Appellant has succeeded in his appeal. In such circumstances, having regard to general principle, costs would normally follow the event. In the present matter I conclude that such an order is inappropriate. My reasons for such conclusion, shortly stated, are that the Commission has not been assisted in any meaningful manner by those representing the Appellant having regard to the manner of presentation of this appeal. Not only is there an absence of argument in support of the suggested grounds of appeal but it may be seen that those “grounds” failed to succinctly raise the matters which, having regard to the manner in which the claim was conducted before the Arbitrator, required review. In the circumstances I make no order as to costs of this appeal.
KEVIN O’GRADY
Acting Deputy President
23 January 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
6
0