Dostal v Coles Supermarkets Australia Pty Limited
[2006] NSWWCCPD 272
•16 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dostal v Coles Supermarkets Australia Pty Limited [2006] NSWWCCPD 272
APPELLANT: Zdenka Dostal
RESPONDENT: Coles Supermarkets Australia Pty Limited
INSURERS:1. Allianz Australia Workers
Compensation (NSW) Limited on risk from 31 July 1987 to 31 January 2002.
2.Coles Myer Pty Limited as Self Insurer on risk from 31 January 2002 to date.
FILE NUMBER: WCC221-06
DATE OF ARBITRATOR’S DECISION: 18 April 2006
DATE OF APPEAL DECISION: 16 October 2006
SUBJECT MATTER OF DECISION: Determination of issues outside the identified ‘preliminary issues’; procedural fairness.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Holman Webb
Respondent: (i) In the interests of
Allianz: Hicksons Lawyers
(ii)In the interests of the
Self Insurer Lander & Rogers, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 18 April 2006 is revoked and the following decision is substituted:
“That the Applicant Ms Dostal suffered from two separate injuries pursuant to section 4(b)(ii) of the Workers Compensation Act 1987, the first one on 15 December 2001 and a second injury on 19 April 2003.”
2. The matter is remitted to another Arbitrator for determination of Ms Dostal’s entitlements to compensation in accordance with the reasons stated in this decision.
3. The Respondent, Coles Supermarkets Australia Pty Limited, is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Zdenka Dostal (‘Ms Dostal’) was employed by Coles Supermarkets Australia Pty Limited (‘Coles’) at its Hurstville store in the dairy department. She claimed that on 15 December 2001 whilst unloading a shipment of dairy she developed pain in her lower back, and that in April 2003 whilst lifting heavy stock she again suffered pain in her back. She further claimed that in June 2003 the pain in her lower back became worse and that in addition, the nature and conditions of her employment with Coles from December 2001 “to date and continuing” caused and/or contributed to the “injuries” to her back.
In her statement dated 21 May 2005, Ms Dostal claimed that she was still employed by Coles on reduced hours and selected duties.
Coles was insured by Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) from 31 July 1987 to 31 January 2002, and thereafter by Coles Myer Pty Limited as Self Insurer (‘the Self Insurer’).
Ms Dostal notified Coles of her injuries in December 2001, April 2003 and June 2003.
On 14 November 2003 the Self Insurer wrote to Ms Dostal advising that “… liability for on going benefits has been declined effective from the date of this letter.”
On 10 January 2006 Ms Dostal filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation, medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In its ‘Reply’ filed on 2 February 2006, Allianz disputed Ms Dostal’s entitlements to compensation and claimed, inter alia, that Ms Dostal suffered “… a disease of gradual process and [Allianz] was not the last insurer of the employer of the Applicant in employment to the nature of which the disease was due”.
In its ‘Reply’ filed on 25 January 2006, the Self Insurer, whilst also disputing Ms Dostal’s entitlements, claimed that “any injury is a recurrence of an injury from Allianz’s period of risk”.
The parties attended a conciliation/arbitration hearing on 31 March 2006. On that occasion, the Arbitrator noted that “ the parties have agreed that the only issue to be determined at this time is whether the Applicant has suffered from a disease process or frank injury/injuries.”
The transcript of the proceedings on 31 March 2006 records submissions being made on this issue by the representatives for both the Self Insurer and Allianz.
On 18 April 2006, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the arbitrator was as follows:
“That the Applicant Ms Dostal suffered from two separate injuries pursuant to section 4(b)(ii) of the Workers Compensation Act 1987, the first one on 15 December 2001 and a second injury on 19 April 2003.”
In the ‘Statement of Reasons’ at paragraph 35, the Arbitrator stated:
“I find, as she has recovered and has been certified fit for her pre-injury duties after both episodes, that Ms Dostal suffered from 2 separate injuries within the meaning of section 4(b)(ii) of the 1987 Act, firstly 15 December 2001, which later resolved, and a second injury on 19 April 2003 which had also resolved by 14 January 2004.”
On 10 May 2006 Ms Dostal lodged an ‘Appeal Against Decision of Arbitrator’. Ms Dostal takes no issue with the Arbitrator’s primary findings as to ‘injury’, but claims that the Arbitrator erred in finding that Ms Dostal’s condition had resolved, “… as this finding was outside the ambit of the dispute to be determined between the parties.” Ms Dostal also submits that the Arbitrator failed to give the parties the opportunity of being heard on this issue and that that failure constitutes an error of law.
In its ‘Notice of Opposition to Appeal’ filed on 6 June 2006, Allianz submits that the Arbitrator’s finding that Ms Dostal’s condition had resolved was within the ambit of the dispute to be determined between the parties since, in its ‘Reply’, it put ‘injury’ in dispute and further pleaded that Ms Dostal had recovered from any injury arising out of or in the course of her employment with Coles.
Allianz also submits that it was its understanding “… from the Teleconference [on 24.3.06] that the conciliation/arbitration conference was to deal with the issues of disease, liability and apportionment.”
In its ‘Notice of Opposition to Appeal’ filed on 30 May 2006, the Self Insurer submits firstly that the appeal does not satisfy the requirements of section 352(2)(b) of the 1998 Act and further, “… that the question of incapacity was ‘agitated’ at the hearing” and that “… on the question of whether the Worker had aggravated a disease the question of ongoing incapacity was integral.”
LEAVE TO APPEAL
Section 352(2) of the 1998 Act provides as follows:
“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000.00 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
No amount of compensation has been awarded in this matter however, as Deputy President Byron said in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 “The ‘decision’ in each instance is not restricted to an ‘award’”. In section 352(8) of the 1998 Act, “… ‘decision’ includes an award, interim award, order, determination, ruling and direction” such that the Commission constituted by a Presidential Member has power to review the Arbitrator’s decision.
The appeal was filed within the time limits prescribed by section 352(4) of the 1998 Act.
Accordingly, leave to appeal is granted.
ON THE PAPERS REVIEW
All parties submit that the appeal is suitable for a determination ‘on the papers’. Having carefully read all the material before the Arbitrator, the transcript, and the parties’ submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction No. 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE ISSUES ON APPEAL
The only issue is whether the Arbitrator’s finding in paragraph 35 of the ‘Statement of Reasons’ to which I have previously referred was outside the ambit of the dispute to be determined between the parties. I have been unable to locate any notes made by the Arbitrator following the Teleconference on 24 March 2006 nonetheless, the transcript of 31 March 2006 at page 1 records the Arbitrator’s statement as follows:
“The entire claim is for section 60 medical expenses, weekly payments of compensation and section 66 permanent impairment only. There is no section 67 claim, is there? However, the only issue to be determined this morning is whether there’s a disease process or injury simpliciter been suffered by the Applicant.”
Again, at paragraph 14 of the ‘Statement of Reasons’ the Arbitrator noted “The parties have agreed that the only issue to be determined at this time is whether the Applicant has suffered from a disease process or frank injury/injuries.”
In the ‘Statement of Reasons’ the Arbitrator then proceeded to identify the various documents before her and to analyse the medical evidence before reaching her conclusion, in paragraph 35, that Ms Dostal suffered from “… two separate injuries within the meaning of section 4(b)(ii) of the 1987 Act.”
Section 4(b)(ii) of the 1987 Act provides that an injury includes “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; …”
The transcript records the legal representative for Allianz making submissions on this issue contained at pages 1, 2 and 4 of the transcript. Those submissions were entirely on the issue as to whether or not Ms Dostal suffered from an aggravation of a ‘disease’ or frank injury. Whilst submissions were made to the effect that Ms Dostal continues in “the same work that was causing her the problems previously …” nothing was put to the Arbitrator on the issue of ‘recovery’ from any ‘injury’.
The legal representative for the Self Insurer made submissions contained at pages 4 to 6 of the transcript. A submission was made to the effect that Ms Dostal had been certified “fit for pre-injury duties” but in the context of a submission that “if it was a disease, a disease does not resolve.”
Counsel for Ms Dostal was invited to respond to the submissions made by Allianz and the Self Insurer. Parts of the transcript are thereafter inaudible, but it seems that submissions were only made as to whether a report from Ms Dostal’s treating general practitioner, Dr Abdurahman was in evidence and to his opinion as to when any ‘injury’ occurred.
It seems clear then that it was the understanding of all parties, and indeed the Arbitrator, that the only issue to be determined was not whether or not Ms Dostal had indeed suffered an ‘injury’, but whether the ‘injury’ or ‘injuries’, apparently conceded by Coles, were in the nature of a disease or aggravation thereof, or frank injury or injury simpliciter.
It is also clear from the transcript that there was no request made by the Arbitrator to Ms Dostal’s Counsel to make submissions on any other issue. As I said, Counsel for Ms Dostal was simply invited to “respond” to submissions made by the Self Insurer and Allianz on the relevant issue.
Whilst it was no doubt open to the Arbitrator to make the ultimate findings as to ‘injury’ that she did, her finding that Ms Dostal had “recovered” as set out in paragraph 35 of the ‘Statement of Reasons’ was clearly outside the ambit of the issue to be determined before her. The Arbitrator has exceeded the limitations on the nature of her determination as notified and agreed to by the parties, and this amounts to an error of law.
Even if the parties’ understanding of the issues to be determined was broader, and to include issues such as the nature and extent of the injury, and any incapacity, the failure to give the parties an opportunity to be heard on these issues constitutes a denial of natural justice and procedural fairness in the conduct of the matter.
This issue was considered in a slightly different context by Deputy President Fleming in Seymour v West Sydney Area Health Service [2004] NSWWCCPD 18 where she said (page 5):
“The parties were entitled to rely upon the Arbitrator’s directions in relation to the ongoing conduct of this matter … there has been a denial of procedural fairness in the determination of the substantive matter by the Arbitrator. A denial of procedural fairness is an error of law and a ground upon which a decision may be revoked.”
I also considered the issue of an Arbitrator’s determination of ‘preliminary issues’ in Coledale District Hospital v Harrison-Shaw [2005] NSWWCCPD 139. In that case, the parties agreed that, as a preliminary issue, the Arbitrator should determine the issues of failure to give notice and late making of a claim. The Arbitrator went on to make findings that included a finding of a frank injury and that employment was a substantial contributing factor to that injury, which findings I determined were outside the scope of the agreement between the parties as to the limited issues to be determined.
I am of the same view in this case. The Arbitrator has exceeded the limitations of the ‘preliminary issues’ she directed should be determined at the outset. Whilst, as the Self Insurer submits, the Arbitrator may well have been referred to medical evidence dealing with the issue of ‘incapacity’ in the course of hearing submissions on the primary issue, that evidence did not permit her to make findings beyond those to which the parties had agreed. In this context, the Self Insurer’s submission that “… there was ample evidence before the Arbitrator to justify the decision she has reached” is unfounded.
Similarly, with Allianz’s submission that the Arbitrator’s finding that Ms Dostal’s condition had “resolved” was “… within the ambit of the dispute to be determined between the parties” because the ‘Reply’ put in issue ‘injury’ and pleaded that “the Applicant has recovered from any injury arising out of or in the course of employment with the Respondent.” As I said, ‘injury’ was apparently conceded by both insurers since the task of the Arbitrator was simply to determine the ‘nature’ of the injury. Whilst Allianz was no doubt entitled in its Reply to claim that Ms Dostal had recovered in light of its evidence, this was not an issue to be dealt with by the Arbitrator at the hearing on 31 March 2006.
CONCLUSION
Whist the Arbitrator’s primary determination as to the nature of the ‘injuries’ suffered by Ms Dostal in the course of her employment with Coles was open to her on the evidence before her, her finding that “… she has recovered and has been certified fit for her pre-injury duties …” was outside the ambit of the ‘preliminary issues’ the parties had agreed should be determined.
This amounts to a denial of procedural fairness and constitutes an error of law.
Ms Dostal submits that:
“… Given the Arbitrator has arrived at a decision as to the merits of the Applicant’s claim for continuing losses, the matter should be resubmitted for determination on that issue to another Arbitrator in order to afford the Applicant a fair hearing in accordance with law.”
The nature of the error made by the Arbitrator in this case is such that her findings cannot stand and the decision should be revoked. However, since Ms Dostal takes no issue with the Arbitrator’s determination of the primary issue of ‘injury’, it seems to me that it would be contrary to the objectives of the Commission as set out in section 367 of the 1998 Act to again refer this issue to another Arbitrator.
In the circumstances, I think the course of action proposed by Ms Dostal for the further conduct of the proceedings is appropriate.
DECISION
1. The decision of the Arbitrator dated 18 April 2006 is revoked and the following decision is substituted:
“That the Applicant Ms Dostal suffered from two separate injuries pursuant to section 4(b)(ii) of the Workers Compensation Act 1987, the first one on 15 December 2001 and a second injury on 19 April 2003.”
2. The matter is remitted to another Arbitrator for determination of Ms Dostal’s entitlements to compensation in accordance with the reasons stated in this decision.
COSTS
The Respondent, Coles Supermarkets Australia Pty Limited, is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
16 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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