Endeavour Energy v Ohmsen

[2014] NSWWCCPD 6

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Endeavour Energy v Ohmsen [2014] NSWWCCPD 6
APPELLANT:	Endeavour Energy
RESPONDENT:	Barbara Ohmsen
INSURER:	Self-insured
FILE NUMBER:	A1-5488/12
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	19 November 2013
DATE OF APPEAL DECISION:	4 February 2014
SUBJECT MATTER OF DECISION:	Absence of transcript; failure to provide reasons for decision; need for revocation of order and remitter for hearing afresh
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1.       Compliance by the parties with the timetable concerning conduct of this appeal fixed by the Registrar pursuant to the Workers Compensation Commission Rules 2011 is dispensed with in accordance with the provisions of r 1.6 of those Rules. 2.       Paragraphs 1 and 2 of the Certificate of Determination dated 19 November 2013 are revoked. 3.       The matter is remitted back to the Arbitrator for hearing afresh. 4.       The costs of the original hearing and of this appeal are to follow the final costs order following the remitter.

INTRODUCTION

1. Ms Barbara Ohmsen received an injury on 23 February 1990 when she was involved in a motor vehicle accident which occurred in the course of her employment with Endeavour Energy, formerly known as Integral Energy (the appellant). In 2012 a dispute arose between Ms Ohmsen and the appellant concerning her entitlement to weekly compensation and reimbursement of medical and associated expenses which she had claimed pursuant to s 60 of the Workers Compensation Act 1987. The appellant also disputed Ms Ohmsen’s claim that proposed medical treatment, being a trial of sub-occipital nerve stimulation, was, as a result of the subject injury, reasonably necessary medical treatment within the meaning of s 60.

2. Proceedings seeking orders in respect of those claims were commenced in June 2012. An order, as was required by the provisions of s 60(5), was made that the questions raised concerning the proposed medical treatment be referred to an Approved Medical Specialist for an assessment under Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

3. The Approved Medical Specialist, Dr Robert Adler, provided a Medical Assessment Certificate dated 11 January 2013. That Certificate included a recommendation that Ms Ohmsen undergo a trial relating to occipital nerve stimulation. It seems that the matter was again referred by the Registrar to Dr Adler seeking clarification of those matters raised under s 60. A further Certificate, which was undated, was subsequently provided by Dr Adler.

4. The matter came on for conciliation/arbitration before Arbitrator Beilby on 10 May 2013 at which time each party was represented by counsel. The matter, which at that time concerned the claim in respect of weekly compensation as well as the s 60 disputes, proceeded to hearing. The appellant, later on that day, was granted an adjournment and the matter was set down for further hearing before the Arbitrator on 11 September 2013. At the resumed hearing Ms Ohmsen discontinued her claim for weekly payments but pressed her claim with respect to medical expenses incurred and her claim in respect of proposed treatment.

5. Following submissions put on behalf of each party the Arbitrator reserved her decision. Following a teleconference on 14 November 2013, a Certificate of Determination was issued on 19 November 2013 which recorded orders made as follows:

   “The determination of the Commission in this matter is as follows:

   1.     The proposed treatment (an occipital nerve stimulator trial) is reasonably necessary.

   2.     The respondent is to pay the applicant’s costs as agreed or assessed. Such costs are certified as complex for both parties. It is determined that a 30% uplift is appropriate in the circumstances.”

PRELIMINARY MATTERS

Threshold matters

1. There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

Transcript

1. The proceedings conducted before the Arbitrator were, in accordance with the Commission’s practice, recorded and a transcript of matters which took place on 10 May 2013 and 11 September 2013 is available. It seems that the Arbitrator’s decision, and her reasons for so ordering, were made and delivered in the course of the teleconference conducted on 14 November 2013. No recording of that teleconference exists, thus there is no transcript available to the Commission of the Arbitrator’s reasons for her ultimate orders. This matter is addressed below.

On the papers

1. The parties, when submissions were initially put concerning the appeal, each consented to the matter being heard ‘on the papers’ as is permitted by the provisions of s 354(6) of the 1998 Act. Given the circumstance that there was no transcript of the Arbitrator’s reasons for her decision, the parties were invited to put submissions concerning the future conduct of this appeal. Those matters are addressed below. Notwithstanding the absence of the transcript I am satisfied that, having regard to the arguments raised and the material before me, I have sufficient information to proceed without holding any further conference or formal hearing.

Absence of transcript

1. A telephone conference was conducted on 3 February 2014 which was attended by Mr Paul Macken, solicitor, representing the appellant and Mr Luke Morgan, of counsel, representing Ms Ohmsen. During that conference it was acknowledged by the parties that no order had been made by the Arbitrator concerning Ms Ohmsen’s claim pursuant to s 60 in respect of medical and associated expenses incurred to date as particularised in the Application to Resolve a Dispute at paragraph 6.2.

2. Both parties submitted that, given the absence of a transcript of the Arbitrator’s reasons for her determination, the appropriate course would be to refer the matter back to the Arbitrator for hearing afresh including determination of the outstanding question concerning medical expenses actually incurred.

CONSIDERATION

1. As I have recently determined in Nepean Rubber Moulding Pty Ltd v Veljanoski [2014] NSWWCCPD 3, the absence of a transcript of the Arbitrator’s Reasons constitutes a constructive failure to provide reasons as was discussed by Fleming DP in Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWCCPD 14. The provisions of s 294 of the 1998 Act require that a statement of such reasons be provided. Failure to provide sufficient reasons, as a matter of general principal, constitutes error of law: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

2. The present circumstances are similar to those considered by the Court of Appeal in Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358. As was stated by Bryson JA in that matter (with whom Handley JA and Bell J agreed) the absence of a transcript “is a serious shortcoming because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s 352; and also impedes the conduct of a further appeal under s 353”. It was his Honour’s view as expressed in that matter that such circumstances “could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic”.

3. It follows, as correctly submitted by the parties, in the present circumstances, that the Arbitrator’s orders should be revoked on appeal and the matter should be remitted back to the Arbitrator for rehearing. Appropriate orders appear below.

DECISION

1. Compliance by the parties with the timetable concerning conduct of this appeal fixed by the Registrar pursuant to the Workers Compensation Commission Rules 2011 is dispensed with in accordance with the provisions of r 1.6 of those Rules.

2. Paragraphs 1 and 2 of the Certificate of Determination dated 19 November 2013 are revoked.

3. The matter is remitted back to the Arbitrator for hearing afresh.

COSTS

1. The need for remitter to the Arbitrator for further argument and adjudication has been occasioned through no fault of the parties. The Commission has a broad discretion as to costs as granted by the 1998 Act as it stood before the 2012 amendments: s 341. Having regard to all the circumstances, I consider it appropriate that the costs of the original hearing and of this appeal follow the final costs order following remitter to the Arbitrator and conclusion of those proceedings.

Kevin O'Grady
Deputy President

4 February 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE