Far West Area Health Service v Radford
[2003] NSWWCCPD 10
•15 April 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10 |
| APPELLANT: | Far West Area Heath Service |
| RESPONDENT: | Colin Robert Radford |
| INSURER: | NSW Treasury Managed Fund, Managed by GIO General Ltd |
| FILE NO: | WCC 1266-2002 |
| DATE OF DECISION: | 15 April 2003 |
| PRESIDENTIAL MEMBER: | Dr. Gabriel Fleming, Deputy President |
| DECISION UNDER APPEAL: | Appeal Against Decision of Arbitrator. Relevance of ‘pleadings’ in the Commission, irrelevant considerations, failure to make the decision on basis of logically probative evidence, Arbitrator misdirected as to issues in dispute. |
| DATE OF DECISION UNDER APPEAL: | 28 November 2002 |
| HEARING: | 11 March 2003 |
| REPRESENTATION: | Appellant: Mr. Scarlett, Solicitor, Hunt & Hunt Solicitors |
| Respondent: Mr. Keady, Solicitor, Paul J Keady & Associates | |
| ORDERS MADE ON APPEAL: | The appeal is not allowed. The decision of the Arbitrator is confirmed. |
THE APPEAL
On 24 December 2002 the Far West Area Health Service, located in Broken Hill (the Appellant in this appeal and the Respondent in the original proceedings) lodged an Application to Appeal Against the Decision of an Arbitrator in the Workers Compensation Commission (the Commission). The Respondent to the appeal is Colin Robert Radford (the Applicant in the original proceedings). The relevant workers compensation insurer is the New South Wales Treasury Managed Fund, managed by GIO General Ltd.
The appeal is against a decision awarding Mr. Radford ongoing payments of weekly compensation.
Leave to appeal was granted on 18 February 2003 by reason of the fact that the amount of compensation at issue on the appeal was over $5000 and more than 20% of the amount awarded in the decision appealed against (in accordance with section 352(2) of the Workplace Injury Management and Workers Compensation Act 1997 (the Act)). The appeal was made within 28 days, as required by the Act.
The Appellant asks that the decision of the Arbitrator be revoked and substituted with a decision that the Appellant is not liable to pay workers compensation to Mr. Radford under the workers compensation acts.
The Respondent submits that the Arbitrator’s decision should be confirmed.
THE DECISION UNDER REVIEW
The decision made by a Commission Arbitrator on 28 November 2002 is:
1.That the Respondent pay the Applicant weekly compensation at the rate of $288.20 from 12 May 2002 to date under section 40 of the Workers Compensation Act 1987.
2.Such weekly payments to continue in accordance with the provisions of the Act.
3.That the Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
4.That the Respondent provide and the Applicant participate in a structured workplace injury management return to work scheme.
5.That the Respondent pay the Applicant’s costs as agreed or assessed.
The Arbitrator’s Findings and Reasons are found at paragraphs 46-51 of the decision as follows:
“46. I find that the work was a substantial contributing factor to the Applicant’s injury. It must be a substantial contributing factor, not necessarily the substantial contributing factor. That is, the Respondent must take the Applicant as he finds him. Undoubtedly the medical evidence is that the Applicant had a significant problem with the C3/4 area of his spine not attributable to the 1999 injury. The Respondent urges on me that the 1999 aggravation of that condition should by now have resolved but it is apparent from the medical reports of the treating doctors for the Applicant and by his own evidence that it has not. I note particularly that he continues to take what I consider large doses of painkillers, something he has done ever since the 1999 injury and that the whole history he presents is consistent with the type of injury suffered.
47. He has continued to do such work as he is able and has taken time off or holidays to try to assist him in his recovery. He has not claimed for these from his employer.
48. His oral evidence was consistent and not materially shaken in cross- examination.
49. He is willing to participate in a return to work programme but the opportunity was taken away from him prematurely. He has indicated his willingness to continue if given the chance. From the medical evidence, I think he would benefit by participating in such a programme.
50. I find that he is partially incapacitated for work and that the measure of that incapacity is the amount that he would have earned from the two days he has off work. I note that this was agreed between the legal representatives of the parties at $288.20 per week gross.
51. The Applicant’s work, whilst not necessarily heavy, is apparently somewhat intricate and I can well imagine that doing such intricate work would place a strain upon the injured part of his body.”
THE ISSUES IN DISPUTE
The Appellant, in written and oral submissions, detailed a number of grounds of appeal which may be briefly summarized as follows:
i.The Arbitrator took into account irrelevant factors, there being no argument as to the jurisdiction of the Commission or the application of section 9A of the Workers Compensation Act 1987. See paragraphs 9,10,11 and 46 of the statement of reasons.
ii.The Arbitrator misdirected himself as to the issues in dispute, in particular in relation to whether the dispute concerned a claim in relation to the nature and conditions of Mr. Radford’s employment. See paragraphs 8 and 52 of the statement of reasons. The Appellant submits that the Applicant did not plead a nature and conditions case and is therefore prevented from relying upon such a claim. If a nature and conditions claim is allowed the Respondent claims that it is denied procedural fairness in that it was not on notice of, nor in a position to answer, the case against it.
iii.The Arbitrator did not make the decision on the basis of logically probative evidence, nor consistently with the weight of the evidence. The Arbitrator failed to comply with Rule 38 of the Interim Workers Compensation Commission Rules 2002 (the Rules). In particular the Arbitrator erred in:
1. accepting the evidence of the worker against the weight of the medical evidence,
2. finding that the medical reports from treating doctors supported the worker’s claim,
3. finding that the nature and conditions of Mr. Radford’s work constituted an aggravation of his injury, and
4. finding that work was a substantial contributing factor to his injury.
iv.The Arbitrator erred in exercising his discretion to award compensation pursuant to section 40 of the Workers Compensation Act 1987.
EVIDENCE AND SUBMISSIONS
I have before me the Commission file containing all of the documents filed in the proceedings before the Arbitrator. This contains the Application, Reply, documentary evidence filed by the parties, the transcript of arbitration proceedings and a copy of the Arbitrator’s decision of 28 November 2002. This evidence is listed in the Arbitrator’s statement of reasons.
No fresh evidence has been given on the appeal.
A hearing was held on 11 March 2003 and the parties’ legal representatives made oral submissions on the appeal.
The parties are agreed on the following facts:
· Mr. Radford is a 49-year-old man with no dependants.
· Mr. Radford injured his back playing basketball in 1994.
· He commenced employment with Far West Area Health Service in approximately 1977 and has held the position of Rehabilitation Technician since 1980.
· On 20 January 1999 Mr. Radford fell backwards off a chair at work and injured his neck and back.
· Clinical investigations in 1999 show that Mr. Radford has a disc protrusion at C3/4. The clinical picture has not changed since 1996 when an earlier scan was done.
· Following the incident on 20 January 1999 Mr. Radford made a claim for workers compensation by way of weekly benefits. He was totally incapacitated and absent from work for about 140 days following his injury. He returned to work on 13 September 1999 on light duties for 55 days. He has since had additional periods off work that he claims are related to his injury.
· Mr. Radford was assessed by the Commonwealth Rehabilitation Service and entered into a rehabilitation ‘return to work’ program in December 2001. He initially returned to work 4 days per week and this continued on the basis of Mr. Radford working 3 days per week with the aim of return to full employment in August 2002. His return to work program has since been suspended.
· The Appellant met Mr. Radford’s workers compensation claim until 11 May 2002.
· Mr. Radford continues to work three days per week. He now claims workers compensation for the additional two days per week plus medical expenses associated with his injury.
Mr. Radford claimed that he returned to work in September 1999 because he was fearful that he may lose his job if he did not. From September until January 2000 he took approximately 31 days off work made up of sick leave and holidays, which was principally due to neck pain. He also attested to the ongoing nature of his injury, to chronic pain and the need for pain medication. His evidence is that the symptoms brought on by the incident at work have not resolved and continue to cause him incapacity to work in full time employment.
The conclusions to be drawn from the medical evidence are highly contested and the representatives of both parties canvassed this evidence at length at the oral hearing of the appeal. The Appellant submits that the Arbitrator essentially fell into error because he accepted Mr. Radford’s evidence over and above medical evidence that the effects of the work injury in 1999 had ceased. The Respondent asserted that the medical evidence supported the worker’s claims. I have set out below a summary of the relevant medical evidence:
Dr. Mushan was Mr. Radford’s general practitioner prior to, and immediately after, the injury at work in 1999. He completed a number of WorkCover certificates in relation to Mr. Radford’s incapacity following the incident. He documented Mr. Radford’s reports of chronic neck pain from the incident until August 2000 when Dr. Nachiappan took over his care. Dr. Mushan in his report of July 1999 states in my opinion Mr. Radford’s problems relate to his original injury that he reports occurred on 20th July 1994. I believe that Mr. Radford should have now recovered from the exacerbation that he reports occurred following the incident at work in January 1999.
Dr. Jones (Treating Neurosurgeon) saw Mr. Radford on 3 March 1999 at the request of Dr. Mushan and reported on 3 May 1999. He was of the view that Mr. Radford had a soft tissue injury aggravating his previous degenerative cervical spine disease and that it should improve on its own with no residual effects.
Mr. Hanieh (Consultant Neurosurgeon) examined Mr. Radford on 23 June 1999 at the insurer’s request and reported on 30 June 1999. His diagnosis was that Mr. Radford sustained a minor soft tissue injury in the form of a neck strain and that he has recovered completely from this minor injury. He considered that Mr. Radford was able to resume his pre-injury duties. Any aggravation of a pre-existing condition should have resolved.
Dr. Hall (Treating Surgeon) saw Mr. Radford in 1999 at the request of Dr. Mushan and reported on 30 August 1999. His opinion was that Mr. Radford was suffering from symptoms arising from the degenerative C3/4 level of his spine. The work injury constitutes an aggravation of a pre-existing degenerative problem at the C3/4 level and Mr. Radford should be fit to work in light duties on a full-time basis.
Dr. Nachiappan’s (General Practitioner) report and clinical notes are in evidence. His notes record that from August 2000 when he first saw Mr. Radford until May 2002 (when the record of the notes ceases), Mr. Radford was experiencing chronic neck, shoulder and arm pain for which he was taking painkillers. In December 2001 Mr. Radford advised Dr. Nachiappan that he had seen his solicitor who suggested [his injury] may be work related. Dr. Nachiappan has diagnosed Mr. Radford’s condition as degenerative arthritis of cervical spine with chronic pain.
Dr. Bauze (Orthopaedic Surgeon) saw Mr. Radford on 20 March at the insurer’s request and reported on 22 March and 4 April. He concluded that:“The level of the disability that he claims is in excess of what would be expected from the jerking of his neck in the incident he describes in January 1999.
I am unable to explain the level of his claimed pain and disability. They are out of proportion to the clinical and radiological examination. That raises the question of possible abnormal behaviour.
It is my opinion that he is physically fit to perform his normal work as a rehabilitation technician, full time.”Dr. Lewis (Orthopaedic Surgeon) examined Mr. Radford on 31 May 2002 at the request of his legal representative and reported the same day. His diagnosis was of a C3-4 disc lesion and the prognosis was for gradual improvement with time. He attributed his symptoms to his work accidents and conditions and concluded that he was able to do light work. He was of the view that his current work capacity was appropriate and that he should continue with working 3 days per week.
The Appellant claims that any incapacity suffered by Mr. Radford after 13 September 1999 did not result from the injury at work on 20 January 1999 but was attributable to the earlier basketball injury in 1994. It relies upon the medical reports of Drs. Mushan (General Practitioner), Hanieh (Consultant Neurosurgeon) and Bauze and claims they support the view that Mr. Radford suffered a substantial injury in 1994 followed by an injury in 1999 from which the Applicant worker recovered (Appellant’s submissions at (ii.26)). The Appellant also submits that, except for the Applicant’s treating doctor, Dr. Nachiappan, the Applicant’s own medical evidence from Drs Jones, Lewis and Hall supported this conclusion and that:
“the only logical conclusions open to the Arbitrator as to the genesis of the Applicant’s pain after 13 September 2000 were either a revelation or manifestation of the results of the 1994 basketball injury or fresh aggravations of the Applicant worker’s neck as a result of an injury consisting of the nature and conditions of the Applicant worker’s employment subsequent to 13 September 1999 (Submissions ii.27).”
The Respondent worker submits that the Arbitrator did not err in his decision. It relied upon the medical reports of Drs. Jones (treating Neurosurgeon) Nachiappan (treating General Practitioner) and Lewis (Orthopaedic Surgeon). The Respondent distinguishes the report of Dr. Bauze in that the doctor questions the worker’s account of his ongoing symptoms. The Respondent argues that the Arbitrator, having accepted the worker’s evidence, was right to prefer the other medical evidence to that of Dr. Bauze.
The Appellant made submissions on what might be summarized as the nature and conditions issue. These were that:
i.The Respondent worker endeavoured to conduct the case at first instance as a nature and conditions case, however the Arbitrator did not allow the Applicant worker’s representative to rely upon the nature and conditions of the worker’s employment as constituting an injury, that not being the case pleaded nor the case which the Respondent employer had prepared itself to meet (transcript page 38).
ii.The statement of reasons discloses the Arbitrator’s error in that it implies two separate injuries, namely the frank injury of 20 January 1999 and the Applicant worker’s employment in the sense of the nature and conditions of that employment constituting an injury (paragraph 52 of the reasons).
iii.The Appellant submits that the nature and conditions claim was not properly before the Arbitrator and, even if it were, the evidence does not support a finding for the worker on that claim (transcript page 8).
The Respondent submits the Appellant was on notice of the details of the claim, including the claim that Mr. Radford’s employment presented an ongoing aggravation of his injury. Relevant details included in the Application to Resolve a Dispute, were referred to in the Applicant’s written statement and were the subject of medical evidence. The Respondent denies the Arbitrator declined to consider this aspect of the claim.
DISCUSSION AND FINDINGS
Irrelevant Factors-Jurisdiction
The Appellant argues that the Arbitrator took into account irrelevant factors, there being no argument as to the jurisdiction of the Commission nor the application of section 9A of the Workers Compensation Act 1987. Support for this is said to come from a reading of paragraphs 9,10 and 11 of the statement of reasons. These paragraphs, under the heading ‘Jurisdiction’, refer to the provisions of the Workplace Injury Management and Workers Compensation Act 1998, in so far as they are relevant to the establishment of the Commission and the jurisdiction of the Arbitrator to hear the dispute before him. In my view it is entirely appropriate to refer to these provisions. Regardless of whether the parties raise jurisdiction as an issue the Arbitrator must be satisfied, before proceeding to use his or her best endeavours to settle, or to hear and determine a dispute, that he or she has jurisdiction to do so. I accept that in this case the parties did not contest the Arbitrator’s jurisdiction. However, the paragraphs referred to do not state that jurisdiction was in issue. They relevantly and simply set out the Arbitrator’s jurisdiction to hear the dispute.
The Appellant refers to paragraph 46 of the statement of reasons to support the claim that the Arbitrator considered, irrelevantly, that injury and section 9A of the Workers Compensation Act 1987 were in issue. Paragraph 46 provides, in part, that the Arbitrator finds work was a substantial contributing factor to the Applicant’s injury. It must be a substantial contributing factor, not the substantial contributing factor. In my view the Arbitrator is correct to address the statutory requirements that must be met before an award of compensation may be made. Where these requirements are not disputed, this aspect of the claim need not be canvassed at length by the Arbitrator in the reasons and there may simply be a reference to it. However the Arbitrator is not in error to find the necessary facts to ensure that the statutory test in section 9A of the Workers Compensation Act 1987 is met. This ground of the appeal is not made out.
Misdirection of the Issues in Dispute - Pleadings
The Appellant submits the Arbitrator misdirected himself as to the issues in dispute, referring in particular to paragraphs 8 and 52 of the statement of reasons, and whether the dispute concerned a claim in relation to the nature and conditions of Mr. Radford’s employment. The Appellant submits that the applicant did not plead a nature and conditions case and is therefore prevented from relying upon such a claim.
Prior to considering the specific nature and conditions issue raised by the Appellant it is important to comment on the claims in relation to the issue of pleadings in proceedings in the Commission. The system of pleadings is common in civil proceedings in the adversarial system of litigation in the courts. Pleadings are written statements, in a concise, logical and legal form, of the facts, which constitute a party’s cause of action or defence (Halsbury’s Laws of Australia (Butterworths, Volume 20 [325-3205])). Their function is to define the issues the parties are asking the court to determine, to inform the parties as to what facts have to be proven at trial, and to assist in determining the conduct of the trial. They are intended to bind the parties to the issues and facts contained in them. The system of pleadings in the courts has not been without its criticisms. These include concern about their complexity and the barrier they present to unrepresented litigants, the questionable accuracy of factual assertions contained in them (Jamieson & Brugmans (1993) 116 ALR 193), the mix of questions of fact and law they frequently raise and their ineffectiveness at truly narrowing the issues between the parties.
The system of pleadings common to adversarial proceedings in the courts does not have the same role in the Commission. It is trite but necessary to reiterate that the Commission is not a Court. It is an independent statutory tribunal whose powers and functions are set out in the Workplace Injury Management and Workers CompensationAct 1998 (the Act). The practice and procedure whereby the issues are defined in a dispute must be determined in accordance with the Commission’s statutory objectives. These objectives are set out at section 367 of the Act as follows:
367 Objectives of the Commission
(1) The Commission has the following objectives:
(a)to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b)to reduce administrative costs across the workers compensation system,
(c)to provide a timely service ensuring that the workers entitlements are paid promptly,
(d)to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e)to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts, to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2)In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.
In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties. The Act provides a comprehensive statutory scheme for the making of claims, substantiation of claims, acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues. The dispute resolution processes in the Workers Compensation Commission, including appeals, are the final step in this scheme. When the parties reach the Commission the issues that are in dispute between them should be clear. This is not to say that some issues will not assume greater significance than others in the proceedings, or that others may be resolved after the dispute is lodged in the Commission and before the Arbitrator must make a decision.
There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfill the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.
The use of the term nature and conditions is problematic. I accept the Respondent’s submission that the issues in dispute were clearly identified by the parties. The Application to Resolve a Dispute initiated the proceedings and described the injury as Aggravation/Injury to Neck. The dates of the injury are stated as 20/1/99 and subsequent aggravations. Attached to the Application is a document entitled ‘Summary of Claim’ that states, inter alia, on 20 January 1999 the Applicant was seated when the backrest of his chair broke and the Applicant fell backwards striking his head and neck on a wooden bench . . . Since 1999 the Applicant has had additional periods off work as a result of work related aggravations. The report of Dr. Lewis for the Applicant also referred to the contribution of Mr. Radford’s work to his ongoing symptoms and incapacity.
I have read the transcript of the proceedings and note that the legal representative of the Appellant objected to much of the evidence given by Mr. Radford on the basis that it was not part of the case ‘pleaded’ before the Arbitrator. The Commission is not bound by the rules of evidence (section 354(2) of the Act). It is a matter for the Arbitrator to determine the relevance and weight to be given to the evidence. Ultimately the Arbitrator must come to a decision on the basis of relevant and logically probative evidence (Rule 38). It does not assist the arbitration process in the Commission for representatives to continually interrupt the giving of oral evidence with objections relative to ‘rules of evidence’ or ‘pleadings’, not applicable to Commission proceedings. Where a representative wishes to refer the Arbitrator to matters of relevance and weight of the evidence this is better done in submissions, either at the conclusion of the oral evidence or later in writing. The Arbitrator must take those considerations into account.
Contrary to the Appellant’s submissions, I can find no instance of the Arbitrator excluding what may be described as a nature and conditions claim by the Applicant worker. The transcript of the Arbitration (at pages 15 and 16) does not support this submission. Following an objection from the Respondent, the Arbitrator simply reminded the worker’s representative that evidence as to how the resumption of the worker’s duties affected his neck pain was already contained in the affidavit material. This appears in context of the proceedings having limited time with no need to repeat material already in evidence by way of affidavit. No more than this can be understood from the transcript.
I do not accept the Appellant’s submission that the Arbitrator misdirected himself in relation to the issues in dispute by considering the Applicant’s claim to the ongoing incapacity, if any, resulting both from his fall at work in January 1999 and subsequent aggravations caused by his work as a rehabilitation technician.
The Nature and Conditions Claim
Returning to the Appellant’s claim that the Respondent did not plead a nature and conditions case before the Arbitrator. I have dealt with this submission in part above in terms of pleadings and whether the Arbitrator misdirected himself as to the issues in dispute, and have found that the Applicant did identify this aspect of the claim, as early as the filing of the Application. The Appellant also relies on this ground to claim that the Arbitrator denied the Appellant procedural fairness.
The content of procedural fairness is determined by the nature of the decision under review and the demands of the instant case (Kioa v West (1995) 159 CLR 550). The Appellant submits it did not have notice of the case it was required to meet, was denied the opportunity to adduce evidence on it, and therefore was denied a fair hearing. In support of this ground the Appellant appears to argue that the worker’s failure to specifically refer to the nature and conditions of employment led to the failure to particularize the issues in dispute.
The term nature and conditions does not appear in the workers compensation acts and there has been judicial criticism of its continuing use (Bowthorpe v Fred Clark Australia (a division of McIlwraith Pty Ltd) [2001] NSWCC 96 (24 April 2001); Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 at 667; Colliar v Bulley & Another [2002] NSWCA 1; Coleman v Denison Hydraulics Australia Pty Ltd [2002] NSWCC 14). The definition of ‘injury’ in section 4 of the Workers Compensation Act 1987 includes injuries where the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. Section 16 addresses the issue of deemed liability in terms of when such an injury arises. Nature and Conditions is commonly used to distinguish between injuries caused by repeated micro trauma caused by the worker’s specific employment and injuries said to arise from a frank or specific incident. In Coleman v Denison Hydraulics Australia Pty Ltd [2002] NSWCC 14, at paragraph 9) Neilson CCJ observed that:
“As I have pointed out in numerous judgments, the Court of Appeal has categorised an allegation of nature and conditions of employment as ‘quaint’ and Judge Burke and I have constantly said, described it as ‘cant’. The Act talks of injuries and diseases, it does not speak of nature and conditions.”
In this case Mr. Radford claimed that his injury in January 1999 arose out of or in the course of his employment and that his ongoing employment caused aggravation of that injury.
In my view the Applicant worker put the Respondent on notice of the nature of his claim in the Application filed in the Commission. He also referred to the ongoing contribution of the nature of his employment to the aggravation of that injury in the medical and affidavit evidence. The failure to nominate the dispute as a nature and conditions claim is irrelevant. The Respondent had ample notice of the case against it and the opportunity to respond to it. There was no denial of procedural fairness in relation to this issue.
Decision not Based on Logically Probative Evidence and Against the Weight of the Evidence .
The Appellant submits that the Arbitrator did not make the decision on the basis of logically probative evidence and that the decision was against the weight of the evidence. Such errors, if found, would be an error of law and contrary to the requirements of Rule 38 of the Interim Workers Compensation Commission Rules 2001(‘the Rules’), which provides as follows:
38. Principles of Procedure
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.
The reasoning in the Arbitrator’s decision is brief (paragraphs 46-51 of the decision as set out above). While the parties did not submit that the Arbitrator’s reasons are inadequate, in my view, the Arbitrator has not clearly addressed the requirements of Rule 41(2), which provides as follows:
(2). A statement of the Commission’s reasons attached to the certificate is to include:
(a)the findings on material questions of fact, referring to the evidence or 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.
However reading the decision as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error, (Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259) it is possible to come to conclusions as to the basis for the Arbitrator’s findings.
The Arbitrator accepted Mr. Radford as a witness of truth. The Arbitrator found that following Mr. Radford’s injury at work in January 1999 he continued to experience chronic pain. The Arbitrator accepted Mr. Radford’s evidence that he continues to take what I consider large doses of painkillers, something he has done ever since the 1999 injury and that the whole history he presents is consistent with the type of injury suffered (at paragraph 46). The Arbitrator found that Mr. Radford’s oral evidence was consistent and not materially shaken in cross-examination.
The acceptance or rejection of the evidence is a matter solely for the Arbitrator. In addition to the documentary evidence the Arbitrator had the considerable advantage of seeing and hearing Mr. Radford give oral evidence, and is the only person who is in a position to assess his credibility and truthfulness (Abalos v Australian Postal Commission (1990) 171 CLR 167). The function of a Presidential Member on review of an Arbitrator’s findings based on credit is to ensure the decision is not affected by demonstrable mistake or misapprehension about relevant facts and that the ‘value and importance’ of the advantage of the Arbitrator has not been misused (State Rail v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588). I find no such error in the Arbitrator’s decision in this matter and the Appellant’s submissions do not point to any such error.
The Appellant submits the Arbitrator erred by accepting Mr. Radford’s evidence as to whether the aggravation of his injury had resolved, rather than medical evidence to the contrary. The Arbitrator was entitled to accept Mr. Radford’s account of chronic pain (for which he required strong painkillers) from the date of the incident in 1999. As he states in the reasons, this evidence was contained in an affidavit, was given orally and was not shaken by cross-examination. In his affidavit (18 October 2002) Mr. Radford states that the work that I perform for the Respondent aggravates my neck because it involves a lot of fiddly bench work requiring me to hold my head at a constant position for extended periods. Also I have to work in awkward positions repairing upholstery etc. No evidence was put by the Appellant to challenge Mr. Radford’s account of his ongoing symptoms, the limitations he claims in relation to domestic and work tasks, and the time he has taken off work as holiday and sick leave due to his neck pain.
The Arbitrator was also entitled to accept medical evidence that supported the proposition that Mr. Radford’s ongoing symptoms were, more likely than not, due to the aggravation of his earlier injury, caused by the incident at work in 1999. If the Arbitrator has erred, it was in failing to fully set out his findings as to exactly what medical evidence he preferred in making the decision. I have carefully considered the medical evidence that was before the Arbitrator. The clinical notes from Dr Mushan and Dr Nachiappan were in evidence. They detail symptoms of Mr. Radford’s 1994 injury, numerous visits from Mr. Radford following the date of the work injury in January 1999 and continuing visits until May 2002. There was a consistent and regular pattern of Mr. Radford reporting ongoing chronic neck and associated pain following the 1999 incident. I do not accept the Appellant’s submission that the medical evidence of Drs. Lewis, Hall and Jones all indicate a substantial injury in 1994 followed by an injury in 1999 from which the Applicant worker recovered. In my view they support the worker’s claim that following the incident at work in 1999 he suffered neck and associated pain, his symptoms have not resolved, he continues to suffer symptoms of chronic neck pain and is partially incapacitated for work as a result.
The Appellant also submits that the decision was against the weight of the evidence. This ground must fail unless the Appellant can show that there was no logically probative evidence upon which the Arbitrator could reasonably make his findings. It is not sufficient to argue that the Arbitrator failed to put significant weight on the Appellant’s medical evidence. It is entirely a matter for the Arbitrator as to what weight to give the evidence before him. I do not accept that there was no evidence to support the Arbitrator’s findings. As discussed above, I am of the view that the evidence of Mr. Radford himself, and the evidence of Drs. Nachiappan, Hall and Jones support the Applicant’s claim.
The submission that the Arbitrator failed to base the decision on logically probative evidence and that the decision was against the weight of the evidence fails.
Section 40 Award
At the hearing of the Appeal the Appellants submitted that the Arbitrator also erred in exercising his discretion to determine the amount weekly compensation payable to Mr. Radford during his period of partial incapacity, pursuant to section 40 of the Workers Compensation Act 1987. It was submitted that the Arbitrator did not consider the relevant factors in exercising the discretion as to Mr. Radford’s capacity to earn. I do not propose to allow the Appellant to press this ground. The Respondent was not on notice of it at the hearing nor in a position to respond to it and it would be unfair to allow this ground to be heard. It was not raised in the detailed submission that accompanied the ‘Application to Appeal’. No adequate reason was given as to why this ground was raised at the end of the hearing of the appeal. It was raised by the Appellant only in reply to the Respondent’s oral submissions at the hearing of the appeal.
DECISION
The Appellant has failed to establish that the Arbitrator has made an error of law, fact or discretion in the decision. The appeal must therefore fail. The appeal is not allowed. The decision of the Arbitrator is confirmed.
COSTS
Section 341 of the Act provides that the Commission has full power to determine by whom and to what extent costs are to be paid.
Section 345 of the Act provides for Costs Penalties Where Appeal Unsuccessful as follows:
1.On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for payment of the appellant’s costs on the appeal by any other party ot the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount as may be prescribed by the regulations.
2.If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)The insurer’s costs on the appeal, and
(b)The costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
3.if an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
4.An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
5.The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
No application has been made for costs and in the circumstances I make no order, but the parties should take the above provisions into account in coming to any agreement as to costs. Failing agreement, the parties may make application for an order as to costs.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission
Registrar Date:
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