Goodwin v J & P Employment and Training Services (9) Pty Ltd trading as Drake Recruitment and Training
[2008] NSWWCCPD 57
•11 June 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Goodwin v J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training [2008] NSWWCCPD 57
APPELLANT: Milton John Goodwin
RESPONDENT: J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training
INSURER:GIO General Limited
FILE NUMBER: WCC8062-07
DATE OF ARBITRATOR’S DECISION: 12 February 2008
DATE OF APPEAL DECISION: 11 June 2008
SUBJECT MATTER OF DECISION: Weight of evidence; factual findings; procedural fairness; bias; credit.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bell Lawyers
Respondent: TurksLegal
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 12 February 2008 is revoked and the following orders made:
“1. The matter is remitted to a different Arbitrator for re-determination.
2. Costs of the first arbitration, and of the second arbitration, are to follow the result of the second arbitration.”
The Respondent Employer is to pay two thirds of the Appellant Worker’s assessed costs of the appeal.
BACKGROUND TO THE APPEAL
In March or April 2005, J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training (‘the Respondent Employer/Drake’), a labour hire company, arranged for Milton Goodwin, (‘the Appellant Worker/Mr Goodwin’), to work as a welder with a company called United Goninan (‘Goninan’). Before commencing work with Goninan on 12 April 2005, Mr Goodwin underwent a medical examination, arranged by Goninan, with a Dr Pedersen, general practitioner.
About six weeks prior to starting work with Goninan, Mr Goodwin injured his back on 27 February 2005 when he slipped on the floor of a local supermarket. The nature and extent of this injury, and whether Mr Goodwin recovered from it, is disputed and will be considered in detail below.
While working for Goninan, Mr Goodwin injured his back on 14 April and 30 May 2005. On the first occasion, he stepped off a trestle and struck his back on two protruding brackets. Mr Goodwin saw a Dr Stephan, but had no time off and continued work “with some informal modification” of his work tasks (Mr Goodwin’s statement 30 September 2007, paragraph four). On the second occasion, Mr Goodwin fell about one metre off a drum and struck his back on a three-millimetre plate on the edge of a coal wagon. Again, he remained at work and sought treatment at Taree Hospital later that day. He states that he was unable to receive any treatment at the hospital and on 2 June 2005 he attended Dr Pedersen who provided him with a light duties certificate with a lifting restriction of five kilograms for the period 2 to 9 June 2005.
Mr Goodwin remained at work and did alternative duties, which he says he had significant difficulty performing as they included bending and stooping to pick up heavy items. He also states that “other duties were available which were lighter in nature” but was told by his shift supervisor, Greg, that he would not be given those duties until he “provided a clearance certificate” (Mr Goodwin’s statement 30 September 2007, paragraph 13). Mr Goodwin saw Dr Pedersen on 16 June 2005 and was certified fit for his pre-injury duties from 17 June 2005 though he claims he could not perform those duties. He states “From that time onwards, I was performing given [sic, even] lighter duties than when I was certified fit for restricted duties” and that he was “taking it very easy and getting assistance when required” and was “struggling” because of his back problem (Mr Goodwin’s statement 30 September 2007, paragraph 15).
On 20 June 2005, Mr Goodwin saw Dr Tan, his usual general practitioner, who he had seen about his February 2005 injury. At examination on 20 June 2005, Dr Tan found no new clinical signs except for a persistent low back tenderness.
Mr Goodwin worked until about 17 July 2005 when, according to his statement, he decided to take 10 days off (without obtaining a medical certificate) to rest his back to see if he would get any relief. He claims he did not provide a certificate because he did not want to jeopardise his job and he thought he would improve enough to return to work. He says he did return to work on or about 27 July 2005 and was told by the plant manager, Tom, that his work job would finish at the end of July 2005 because Goninan could not provide work because of missing components. He says that he finished work on or about 31 July 2005 though I note that a memo from Mr Puff, Goninan’s Human Resources Manager, dated 12 August 2005 states that Mr Goodwin’s last day was Friday 29 July 2005.
Mr Goodwin again saw Dr Tan on 12 August 2005 and was certified fit for suitable duties from 1 August until 31 August 2005 with no lifting over five kilograms, no prolonged sitting or standing. Dr Tan issued further certificates (dated 5 September and 12 October 2005) certifying Mr Goodwin fit for suitable duties until 20 December 2005.
On 14 September 2005, Mr Goodwin attended Dr Tan’s surgery. As he attempted to get rise from his seat he states that his left leg gave way because of numbness and he fell to the ground “considerably stirring up” his back condition (Mr Goodwin’s statement 30 September 2007, paragraph 23). An ambulance conveyed Mr Goodwin to Nepean Hospital where he was admitted for about two weeks.
By an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 22 October 2007, Mr Goodwin seeks weekly compensation from 1 August 2005 to date and continuing, together with lump sum compensation, and medical and hospital expenses as a result of his injuries on 14 April, 30 May and 14 September 2005.
The matter could not be resolved and was listed for arbitration before a Commission Arbitrator on 29 January 2008. The Arbitrator noted that the Respondent Employer disputed that Mr Goodwin had a work related incapacity, arguing that any aggravation of the degenerative changes in his spine ceased “in about August 2005” (Statement of Reasons for Decision (‘Reasons’), paragraph 16). It also argued that there was insufficient evidence to support a claim for medical and hospital expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In a reserved decision delivered on 12 February 2008, the Arbitrator found that any aggravation caused by Mr Goodwin’s work injuries had ceased on or about 17 June 2005 when he was certified fit for pre-injury duties by Dr Pedersen (Reasons, paragraph 41). She further found that the incident in Dr Tan’s surgery was the culmination of two or three days of exacerbation of Mr Goodwin’s pre existing condition which was not employment related but related to either his fall at the supermarket in February 2005 or to aggravation of his underlying degenerative condition. The Certificate of Determination issued on 12 February 2008 records that the Arbitrator made an award for the respondent with no order as to costs.
By an appeal filed on 11 March 2008, Mr Goodwin seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The Appellant Worker’s submissions state that he appeals against the Arbitrator’s decision on the following grounds. That the Arbitrator:
(a)failed to provide adequate reasons;
(b)gave conclusions based on a misinterpretation or incorrect interpretation of the evidence;
(c)reached conclusions for which there was no evidentiary basis;
(d)failed to properly consider the qualified evidence of Dr Powell, the Respondent Employer’s medico-legal specialist, and Dr Deveridge;
(e)failed to have regard to the identity and opinion of the treating general practitioner, Dr Tan;
(f)failed to give weight or adequate weight to the evidence of the significant aggravation on 30 May 2005, which has continued to date;
(g)failed to base her decision on logically probative evidence in that she made assumptions on the basis of perceived and subjective inconsistencies in Mr Goodwin’s statement and gave weight to unsupported assertions made by representatives of the employer. In doing so she based her findings on assumptions and speculation;
(h)in determining that she preferred a file note prepared by a Human Resources manager five weeks post facto as opposed to the evidence found in a sworn statement of the worker, she denied the worker procedural fairness in opting not to use the inquisitorial powers of the Commission to allow the worker to address what she saw as a factual discrepancy. Alternatively, the Arbitrator failed to properly explain why she preferred that evidence;
(i)denied the Appellant Worker procedural fairness by basing her determination on assumptions without providing him with the opportunity to address those assumptions;
(j)demonstrated bias in inferring a less than stringent pre-employment medical despite the employer putting no evidence forward to counter Mr Goodwin’s description of his examination, and
(k)having found injury and making reference to the section 323 deductible under the 1998 Act, the decision is ultra-vires as it is for an AMS to give binding assessments in relation to whole person impairment and any deductible proportion under section 323.
Having listed the above grounds of appeal, the Appellant Worker’s submissions then proceed under the following headings: Dr Pedersen, Dr Tan, Pre-employment Medical; Mr Puff, Human Resources Manager; Dr Deveridge; Dr Powell and Conclusions. Some of the submissions deal with the grounds of appeal, but most do not. I intend to deal with the appeal under the headings listed in the Appellant Worker’s submissions and to then deal with the above “grounds of appeal” under “Other Matters”.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [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.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, (2008) 5 DDCR 286 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
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 power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Dr Pedersen
The Appellant Worker submits:
a)the Arbitrator failed to record that Dr Pedersen was a “work doctor” when she described him as Mr Goodwin’s general practitioner and the Arbitrator should not have considered him to be Mr Goodwin’s treating doctor. Dr Pedersen was only a treating doctor to the extent that Mr Goodwin had been referred to him by his employer;
b)in making her determination as to Mr Goodwin’s credibility and the extent of his incapacity as at 17 June 2005, the Arbitrator placed considerable weight on Dr Pedersen’s opinion;
c)the commentary of paragraphs 9-12 (presumably, of the Arbitrator’s Reasons) indicate that having ceased work to rest his back on 17 July 2005, Mr Goodwin never return to employment with the Respondent Employer;
d)the Arbitrator found that the work aggravation had ceased on or about 17 June 2005 when Dr Pedersen certified Mr Goodwin to be fit for pre-injury duties. The evidence does not support this finding. Dr Pedersen’s report of 25 October 2005 states that when he saw Mr Goodwin on 16 June 2005, “his pain and tenderness had almost completely resolved” (emphasis added). Further, Mr Goodwin’s evidence is that he requested a “clearance certificate” from Dr Pedersen and he went back to work having been certified fit for his pre-injury duties although realising that he could not perform those duties (Mr Goodwin’s statement 30 September 2007, paragraph 14), and
e)the Arbitrator incorrectly said that Dr Pedersen’s opinion was largely consistent with Dr Tan’s when Dr Tan never certified Mr Goodwin to be fit for his pre-injury duties.
The Respondent Employer submits:
a)the Appellant Worker criticises the purported classification of Dr Pedersen as the “treating doctor” without explaining what undermines acceptance of Dr Pedersen’s opinion;
b)at the hearing, Mr Goodwin relied on the fact that Dr Pedersen had cleared him for heavy duties. No basis has been advanced as to why there should be a “selective reading” of Dr Pedersen’s evidence. Therefore, the criticism of Dr Pedersen should be rejected, and
c)at paragraph 35 of her Reasons, the Arbitrator properly and accurately analysed the differences between the opinions of Dr Tan and Dr Pedersen.
I will deal with each of the Appellant Worker’s points in the order listed above. First, the Arbitrator was aware that Dr Pedersen was a doctor “arranged by his employer” (Reasons, paragraph seven). Dr Pedersen examined Mr Goodwin and ordered x-rays of his sacrum and pelvis. It was not inappropriate for the Arbitrator to refer to him as one of Mr Goodwin’s treating doctors. The fact that contact with Dr Pedersen came about through a referral from the employer does not render that doctor’s opinion valueless. The Arbitrator considered Dr Pedersen’s evidence and weighed it along with all the other evidence in the case, as she was obliged to do.
Second, it is correct that the Arbitrator placed considerable weight on Dr Pedersen’s evidence. Whether she erred in doing so is considered later in this decision.
Third, the submission that Mr Goodwin did not return to work after having 10 days off work to rest his back from 17 July 2005 is incorrect. The Arbitrator stated at paragraph 10 of her Reasons that Mr Goodwin returned to work on 27 July 2005 to be told by the manager that he would be retrenched due to a lack of components. This finding was consistent with Mr Goodwin’s statement where he said at paragraph 16 that when he returned to work on or about 27 July 2005 he was told that he would be finishing “at the end of July 2005 because Goninan were missing components and could not provide work”. He said he worked a couple of days and finished on or about 31 July 2005. Apart from the dates being different, this evidence is consistent with Mr Puff’s evidence that Mr Goodwin worked until 29 July 2005 when he was, along with a number of other labour hire staff, stood down due to parts shortages.
The fourth and fifth points can be dealt with together. It is correct that Dr Pedersen did not state that the effect of the 30 May 2005 incident had ceased and the Arbitrator erred in finding that he did. Whether Dr Pedersen held the view that Mr Goodwin’s symptoms had returned to the level they had been prior to 12 April 2005 is not known because he made no reference to those symptoms in his evidence.
It is correct that Dr Tan never certified Mr Goodwin fit for work. The Arbitrator said at paragraph 35 of her Reasons:
“Dr Tan is of the view that although the May injury caused some soft tissue injury, the persistent pain is an aggravation of the pre existing low back injury in February. Dr Pedersen, although he had no history of the supermarket fall or other relevant injuries, has an opinion which is largely consistent with Dr Tan, ie of an aggravation of a pre existing condition.”
Dr Pedersen’s evidence is in his report of 25 October 2005 and his certificates of 2 and 16 June 2005. His report refers to Mr Goodwin sustaining bruising to his sacral area and buttocks in the fall on 30 May 2005. On examination, he noted Mr Goodwin complained of tenderness over his sacrum and buttocks and mild paraesthesia of the skin over his buttocks. His opinion was that Mr Goodwin had sustained a soft tissue injury of his lower back and buttocks from the fall. He noted that x-rays revealed “some arthritis of his lower back” which he felt was “unrelated to his injury, and was probably not causing symptoms”.
However, Dr Pedersen’s opinion that Mr Goodwin sustained a soft tissue injury in his fall on 30 May 2005 is consistent with Dr Tan’s opinion expressed in his medical certificates. In his first certificate, dated 12 August 2005, Dr Tan diagnosed a “soft tissue injury to the lower back” due to Mr Goodwin falling onto a sharp plate at work. He repeated this opinion in his subsequent certificates dated 5 September, 12 October and 24 October 2005. His certificate of 17 November 2005 diagnosed “low back injury” and his certificate of 10 December 2005 merely states, “back injury”.
In his December 2005 report, Dr Tan set out Mr Goodwin’s history in full and referred to the opinions of Dr Sundaraj, Pain Consultant, and Dr Seex, Neurosurgeon. He noted Dr Seex’s “impression” was that Mr Goodwin had significant degenerative disease in the lumbar spine and that some of his clinical features were consistent with that. Dr Tan then set out his own opinion under “Diagnosis and Prognosis”:
“He had a pre-existing degenerative lumbar disc lesion possibly caused by the fall in the supermarket in 27.02.05. He had no history of low backache before that accident in February 2005. He was having persistent backache which became worse after the work accident with Drake Recruitment on 30.05.05.
Provisional diagnosis: Low back injury (soft tissue injury) was caused by the work accident in May 2005 (Drake Recruitment) and his persistent pain is an aggravation of his pre-existing low back injury in February 2005.” (emphasis added)
The above analysis reveals that Dr Pedersen and Dr Tan were both of the view, initially at least, that Mr Goodwin sustained a soft tissue injury on 30 May 2005. However, nowhere did Dr Pedersen state that Mr Goodwin’s injury on 30 May 2005 was “an aggravation of a pre existing condition”, as the Arbitrator found. Dr Tan’s evidence is dealt with in more detail at [69] below.
Dr Tan
Mr Goodwin submits:
a)the Arbitrator made no reference to Dr Tan’s statement that Mr Goodwin had “persistent low back ache which became worse after the work incident with Drake Recruitment on 30.05.05”;
b)at paragraph 34 of her Reasons, the Arbitrator accepted that Mr Goodwin suffered a substantial injury to an already degenerate spine in the February 2005 fall and found that his pain gradually worsened without relief until the day before he started with Goninan. This is in contrast with the assumption made by the Arbitrator at paragraph 29 with respect to the presentation to the Respondent Employer’s doctor for the pre-employment medical;
c)Mr Goodwin has consistently maintained that he improved “during the subsequent three week period until commencing employment” (Appellant Worker’s submissions 11 March 2008, paragraph 21). This is uncontested evidence in his statement and in the report of Dr Deveridge and no reasons are given for discounting it;
d)Dr Tan’s notes reveal that Mr Goodwin abandoned the idea of a referral to Dr Seex, as the documents produced by Dr Tan include a referral by her to Dr Seex dated 14 November 2005 and Dr Seex’s letter of 15 November 2005 responds to that referral;
e)the Arbitrator did not mention the date of the referral or the fact that the original referral had not been acted upon and there was a subsequent referral on 14 November 2005. These factors are consistent with Mr Goodwin considering that he did not need to pursue the referral with Dr Seex as originally made on 11 April 2005 and it was not until his admission to hospital following the injury in September 2005 that Dr Tan wrote a further referral, and
f)the referral on 14 November 2005 was consistent with Mr Goodwin’s condition worsening following 30 May 2005.
I do not accept the points made in these submissions. Taking each point in turn I note. First, the Appellant Worker’s submission is incorrect. The Arbitrator referred to Dr Tan’s evidence at paragraph 23 of her Reasons where she said, among other things, that:
“Dr Tan diagnosed low back soft tissue injury caused by the work related accident in May 05 and noted that the persistent pain is an aggravation of the pre existing low back injury in February 05. He noted no history of low backache before the February incident but persistent backache after that fall which became worse after the work related incident on 30.5.05.” (emphasis added)
Second, at paragraph 29 of her Reasons, the Arbitrator said:
“Although there is no documentary evidence to support the stringency of the medical examination as stated by Mr Goodwin, there is no reason to doubt that he was asked to undertake a medical examination prior to taking up his employment with United [Goninan].”
This statement is not in contrast with the Arbitrator’s statement at paragraph 34 of her Reasons where she accepted that Mr Goodwin’s symptoms worsened until the day before he started with Goninan on 12 April 2005. The evidence of that worsening is found in Dr Tan’s referral to Dr Seex dated 11 April 2005. That referral reads:
“Please assess Milton [Goodwin] who had [sic] suffered a back injury from a fall on 27.2.05. Since then he had no relief from the low back pain with left sciatica which in fact had [sic] gotten worse lately. His CT Scan of the Lumbar Spine showed degenerative changes in L4/5 and 5/S1 disc with ?annular tear.” (emphasis added)
The Arbitrator made no “assumption” about the pre-employment medical, but merely noted that it took place. The inference is that Dr Pedersen considered Mr Goodwin to be fit for work after this medical examination, however, the evidence is silent as to what happened at that examination, what history Dr Pedersen was given and what findings he made.
Third, the date of the pre-employment medical is not known and the reference to the period of “three weeks” in the Appellant Worker’s submissions is obscure. It is correct, however, that Mr Goodwin said at paragraph 52 of his statement of 30 September 2007, “it [his symptoms after the fall of February 2005] improved to some extent, but my back and leg symptoms never completely subsided”. Dr Deveridge records the history of improvement “to some extent” at page one of his report of 7 March 2006. It is not correct to say that this evidence was “uncontested”. The relevance of the February 2005 injury and whether Mr Goodwin had recovered from it was very much in issue at the arbitration. Further, Mr Goodwin’s evidence that he had “improved to some extent” is completely inconsistent with and contrary to Dr Tan’s referral letter to Dr Seex dated 11 April 2005 quoted at paragraph [41] above. The Arbitrator correctly acknowledged as much at paragraph 34 of her Reasons where she said:
“Taking all the evidence into consideration on balance the evidence appears to demonstrate that the Applicant had a substantial injury to an already significantly degenerative spine when he fell in February at the supermarket, and the pain symptoms from that fall continued, and gradually worsened with no relief at least up until the day prior to his employment with the Respondent when Dr Tan wrote to Dr Seex referring the Applicant to him.”
The Arbitrator’s finding on this issue was open on the evidence and discloses no error.
Fourth, Dr Tan’s notes do not reveal that Mr Goodwin abandoned the idea of a referral to Dr Seex. Mr Goodwin’s evidence as to why he did not see Dr Seex until a later date is that he “could not get an appointment for several months” (Mr Goodwin’s statement 30 September 2007, paragraph 52). This evidence is not undermined by the further referral to Dr Seex on 14 November 2005. Dr Seex reported to Dr Tan on 15 November 2005 but made no mention of either referral letter. Whether he was responding to the referral of 14 November or of 11 April 2005 is not clear, but is of no consequence.
The relevance of the referral of 11 April 2005 is that it gives a clear and unambiguous indication that Mr Goodwin’s symptoms were increasing immediately before he started with Goninan, not decreasing as Mr Goodwin claimed in his evidence.
Fifth, the Arbitrator did mention the referral of 11 April 2005 and that Mr Goodwin stated that he was unable to get an appointment for several months (see Reasons, paragraph 21). Apart from Mr Goodwin’s evidence at paragraph 52 of his statement, the evidence is silent as to what steps Mr Goodwin took to follow up the 11 April 2005 referral. In effect, the Appellant Worker’s submission on this issue is that the Arbitrator erred in failing to draw an inference that he did not pursue the 11 April 2005 referral to Dr Seex because he did not need the referral (presumably, because he had improved). That inference is inconsistent with Mr Goodwin’s direct evidence that he could not get an appointment for several months and the Arbitrator made no error on this issue. Further, the evidence in the referral itself does not support Mr Goodwin’s claim that he had “improved to some extent” after the February 2005 incident.
Last, the suggestion that the referral on 14 November 2005 was consistent with a worsening of Mr Goodwin’s condition following the 30 May 2005 injury misses the point. By November 2005 Mr Goodwin had been hospitalised because of the incident in Dr Tan’s surgery on 14 September 2005 and the November 2005 referral seems to have been more related to the aggravating effect of that incident than to either the work injury or the February 2005 injury. The Arbitrator’s approach to these issues discloses no error.
Pre-employment Medical
The Appellant Worker submits:
a)the Arbitrator’s statement at paragraph 29 of her Reasons (see [40] above) indicates bias on her part;
b)Drake was aware of the claim that the pre-employment medical had been “stringent”, as that claim was made in Mr Goodwin’s statement attached to the Application, yet it called no evidence in response;
c)for the Arbitrator to “suggest or infer that perhaps the examination was not as stringent as the worker claimed, demonstrates clear bias on her part” (Appellant Worker’s submissions 11 March 2008, paragraph 26), and
d)there was no reason for the Arbitrator to cast doubt over the evidence that the pre-employment medical was “stringent”. Mr Goodwin passed that medical and was placed in heavy employment.
These submissions raise two distinct issues: first, bias and, second, whether the Arbitrator cast doubt over the stringency of the pre-employment medical and, if so, whether she erred in doing so.
Whether Mr Goodwin alleges actual bias or apprehended bias is not identified. A party who alleges apprehended bias is not entitled to stand by until the final decision is known before objecting, but must raise the issue at the hearing (Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568). Mr Goodwin did not do that and is not entitled to raise this issue for the first time on appeal.
If actual bias is relied upon, I make the following observations and findings. An allegation of actual bias should not be lightly made. If it is made, it must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] (Jia Legeng)). To establish that the Arbitrator was guilty of actual bias in the form of pre-judgment Mr Goodwin has to prove that she was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [72]). The question is not whether the decision maker’s mind is blank but whether it is open to persuasion (Jia Legeng at [71]). Pre-judgment is not established merely because an Arbitrator has formed a preliminary view about the outcome of a matter. As McColl JA stated at [103] in Edmonds, “It would be remarkable, and most probably amount to a failure to discharge his functions, if he [the Arbitrator] had not” formed a view about the outcome. The question of bias must be considered in the context of the nature of the decision-making process in which the Arbitrator is engaged and having regard to the role he or she plays in that process (Edmonds at [103]). The nature of the jurisdiction exercised by an Arbitrator makes it “obligatory that he form a view about the issues” (Edmonds at [105]), but the expression of such a view does not amount to bias in the form of pre-judgment.
Applying the above authorities to the present matter, the allegation of bias has not been “clearly proved”. The Arbitrator’s statements at paragraph 29 of her Reasons were factually accurate and disclose no suggestion of pre-judgment of the issues she had to determine. This challenge to the Arbitrator’s decision has no merit and should not have been made.
In respect of the second issue under this heading, the Arbitrator did not cast doubt over the stringency of the pre-employment medical, but correctly observed that there was no documentary evidence to support the stringency of the examination. She then acknowledged that there was “no reason to doubt” that the medical was conducted prior to Mr Goodwin starting work on 12 April 2005. Mr Goodwin’s statement did not explain what he meant by “a stringent medical”. If Dr Tan’s comments in the 11 April 2005 referral (that Mr Goodwin had no relief from the low back pain from the February 2005 incident with left sciatica which had gotten worse) were accurate and accepted by the Arbitrator, then she was entitled to place less weight on the pre-employment medical. That is clearly what she did when she said at paragraph 34 of her Reasons that Mr Goodwin suffered a substantial injury in the February 2005 fall which caused symptoms that “gradually worsened with no relief at least up until the day prior to his employment with the Respondent when Dr Tan wrote to Dr Seex referring the Applicant to him”. That finding was open to the Arbitrator and discloses no error.
This ground of appeal has no substance.
Mr Puff, Human Resources Manager
Mr Goodwin stated, incongruously, that after he was certified fit for work by Dr Pedersen on 16 June 2005, he returned to work and performed “lighter duties” than when he had been certified fit for “restricted duties” (Mr Goodwin’s statement 30 September 2007, paragraph 15). Drake disputed this evidence and relied on evidence from Goninan’s Human Resources Manager, Mr Puff, set out in a “File Note” dated 12 August 2005.
Mr Puff’s evidence is set out in his file note dated 12 August 2005 and may be summarised as follows:
a)immediately following the incident (presumably of 30 May 2005, but this is not clear) Mr Goodwin continued working, including weekend and evening overtime shifts;
b)some time prior to 12 August 2005, Mr Goodwin applied for a permanent role with Goninan as a Methods Engineering and in his interview for that position he stated that he ran another business in which he was self employed and earning income. When questioned as to his health status he stated that he had no disabilities and that he had recovered from the incident involving the drum, which I infer to be the incident on 30 May 2005;
c)in his last week at work with Goninan, Mr Goodwin displayed no disability or restriction, worked on afternoon shift and carried out all activities relating to metal fabrication and welding without concern, and
d)his proposed claim was out of character with the history of his work and overtime record.
The Arbitrator referred to Mr Puff’s evidence at paragraphs 32, 33 and 36 of her Reasons. She noted (at paragraph 32 of her Reasons) that he contradicted Mr Goodwin’s evidence that when he returned to work after being certified fit by Dr Pedersen, he only did light duties. The Arbitrator impliedly accepted Mr Puff’s evidence at paragraph 36 of her Reasons where she observed that it was unlikely that a person with Mr Goodwin’s sensitivity to pain would take on the additional work (such as overtime and weekend work) Mr Puff claims Mr Goodwin did after his fall on 30 May 2005.
The Appellant Worker challenges the Arbitrator’s acceptance of Mr Puff’s evidence and submits:
a)the Arbitrator relied on the evidence as if it had the force of a contemporaneous note. In fact the note is dated 12 August 2005, several weeks after Mr Goodwin ceased work;
b)no time sheets were provided in support of Mr Puff’s claims;
c)Mr Goodwin stated that he did not wish to jeopardise his job and that is why he did not produce a medical certificate for the 10 days he had off work in mid July 2005 (Mr Goodwin’s statement 30 September 2007, paragraph 15). The Arbitrator gave no reasons as to why she did not accept that Mr Goodwin would not “want to make waves” and keep his job;
d)at paragraph 36 the Arbitrator placed weight on Mr Goodwin’s presentation to Dr Sundaraj, some three to four months post employment;
e)the Arbitrator formed an adverse view of Mr Goodwin’s credibility and had to “provide a proper and appropriate explanation and reason as to why she adopted this position” (Appellant Worker’s submissions 11 March 2008, paragraph 32), and
f)the Arbitrator gave insufficient weight to the uncontested evidence of the bruising to Mr Goodwin’s lower back as a result of the 30 May 2005 injury.
Dealing with each of the Appellant Worker’s submissions in turn, I find. First, there is nothing to indicate that the Arbitrator relied on Mr Puff’s evidence as if it were contained in a contemporaneous note and this submission is without foundation.
Second, it is true that no time sheets were produced to corroborate Mr Puff’s evidence. Time sheets would have provided the Arbitrator with contemporaneous evidence confirming or rebutting part of Mr Goodwin’s allegations. So far as I am aware, neither party made any effort to put that highly relevant material before the Commission. Whilst that is a most unsatisfactory and not uncommon situation in matters heard in the Commission, it does not mean that the Arbitrator erred in referring to and accepting Mr Puff’s evidence. The absence of time sheets left it open to the Arbitrator to accept Mr Puff’s evidence.
Third, the Arbitrator did not indicate if she accepted or rejected Mr Goodwin’s evidence that he did not produce a medical certificate for his 10 days off in mid July 2005 because he did not want to jeopardise his job (Mr Goodwin’s statement 30 September 2007, paragraph 15). This issue was not critical to the outcome of the claim and was not expressly dealt with by Mr Puff. The Arbitrator’s failure to deal with it was not relevant to the outcome of the claim and, if it was an error, it is an error that has not affected the final outcome.
Fourth, the Arbitrator’s reference to Mr Goodwin’s presentation to Dr Sundaraj was in the context that Mr Goodwin was a man with sensitivity to pain. This was based on Dr Sundaraj’s findings in September 2005 of there being “overwhelming pain behaviour…over reacting and exhibiting excessive pain and disability”. The Arbitrator felt it was “unlikely” that a person with such sensitivity to pain would have taken on the additional work referred to by Mr Puff and it was more likely that the soft tissue injury and pain associated with the May 2005 fall had subsided (Reasons, paragraph 36). The Arbitrator’s reference to Dr Sundaraj’s evidence was accurate and she was entitled to consider it in determining the issues before her.
Fifth, the Arbitrator did not express an adverse view of Mr Goodwin’s credit. She found, on the basis of all the evidence, that Mr Goodwin aggravated an underlying condition in his fall on 30 May 2005 but the aggravation had ceased on or about 17 June 2005 when he was certified fit by Dr Pedersen.
To succeed in having a decision set aside on the ground of inadequate reasons Mr Goodwin must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
After referring to and analysing the evidence in detail, the Arbitrator identified the essential grounds for her decision at paragraphs 36, 38, 39 40, 41 and 42 of her decision. The Arbitrator’s reasons adequately disclosed her reasoning process and the essential grounds upon which she based her conclusions and I do not accept the Appellant Worker’s submissions on this issue.
Last, the fact that Mr Goodwin had bruising to his lower back was not disputed and was acknowledge by the Arbitrator at paragraph 32 of her Reasons. The question was whether he had sustained anything more than bruising and whether it continued to affect him after 16 June 2005. On 20 June 2005, (four days after Dr Pedersen declared Mr Goodwin to be fit for work), Mr Goodwin attended on Dr Tan “regarding a work injury to his back in May 2005” (report Dr Tan, 12 December 2005). Dr Tan took a history of the 30 May 2005 incident and noted Mr Goodwin’s complaint that since then he had been experiencing low back pain “almost everyday which had disturbed his sleep”. Dr Tan also recounted the history of the February 2005 incident when Mr Goodwin slipped on the floor of a supermarket and developed low back pain and leg pain. On 20 June 2005, Dr Tan found “no new clinical signs except for a persistent low back tenderness”. There is no mention of leg pain at this attendance. Mr Goodwin was advised to take analgesic medication for pain relief, but no certificate for unfitness for work was issued. It is not clear if Dr Tan had a history of the work Mr Goodwin performed from 30 May and 31 July 2005. Mr Goodwin next saw Dr Tan on 12 August 2005 when he was declared fit for suitable duties from 1 August 2005 until 31 August 2005. A further suitable duties certificate was provided on 5 September 2005. Dr Tan’s report of 12 December 2005 provides limited support for Mr Goodwin’s claim and the weight to be attached to it depends on an acceptance of Mr Goodwin’s history that his backache became worse and stayed worse after the 30 May 2005 incident. That history seems unlikely in light of Mr Puff’s evidence that Mr Goodwin did his normal work (including overtime) until no further work was available at the end of July 2005.
Dr Deveridge
The Appellant Worker submits:
a)Dr Deveridge’s history of improvement prior to commencing employment is consistent with Mr Goodwin seeing Dr Tan on 21 March 2005 complaining of symptoms but enjoying some improvement between that time and when he started work on 12 April 2005;
b)the Arbitrator wrongly stated that Dr Deveridge was unaware of the fall in February 2005;
c)Dr Deveridge’s opinion is consistent with the balance of the evidence, as well as Mr Goodwin’s evidence, and
d)the Arbitrator did not have regard to Dr Deveridge’s opinion on the radiology which showed some change in the pathology between the CT scan on 16 March 2005 and that performed on 18 August 2005.
The Arbitrator stated that she preferred the evidence of the two treating doctors (Dr Tan and Dr Pedersen) and Dr Sundaraj (Reasons, paragraph 38). She appears to have discounted Dr Deveridge’s evidence for two reasons. First, he “could only do a modified assessment” because of Mr Goodwin’s “gross disablement presentation”. Second, she said that neither he nor Dr Powell were “provided with a full history of the supermarket February 05 fall and the ongoing significant symptoms which on the evidence continued until the incidents in April and May 05” (Reasons, paragraph 38).
The Arbitrator also stated (apparently out of context) at paragraph 35, “with no real history of the supermarket fall and the ongoing and increasing pain from that injury suffered by Mr Goodwin, Dr Deveridge was in no real position to know if the underlying arthritic condition was in fact symptomatic”. The three immediately preceding sentences in paragraph 35 all refer to Dr Pedersen and it seems that the Arbitrator’s reference to Dr Deveridge in that paragraph may well have been a ‘slip’ and she may have been referring to Dr Pedersen. On reading the whole of paragraph 35, I am satisfied that when the Arbitrator referred to Dr Deveridge she intended to refer to Dr Pedersen.
The Arbitrator was correct to note that Dr Deveridge could only do a modified assessment because of Mr Goodwin’s “gross disablement presentation”. However, she was wrong to state that Dr Deveridge had no real history of the February 2005 fall. At paragraph 30 of her Reasons, the Arbitrator set out Dr Deveridge’s detailed history of that fall. The only difference between Dr Deveridge’s history and the objective evidence is that he recorded (as per Mr Goodwin’s statement) that Mr Goodwin had “improved to some extent” after that fall but his back and leg symptoms never completely subsided. That history of improvement was inconsistent with the symptoms noted in Dr Tan’s referral to Dr Seex on 11 April 2005. It may well be that the Arbitrator was referring to this issue when she said at paragraph 38 that neither Dr Powell nor Dr Deveridge had a “full history” of the “February 2005 fall and the ongoing significant symptoms” (emphasis added) which continued until the incidents in April and May 2005. If that is so, her statement was correct though perhaps not expressed as precisely as it could have been.
I do not accept that Dr Deveridge’s opinion is consistent with the balance of the evidence. His history that Mr Goodwin improved after the fall in February 2005 was patently false and provided a sound basis for the Arbitrator not to accept his conclusions. Further, he did not express an opinion on the radiological evidence. He merely set out the findings in the second CT scan of 18 August 2005 and in the MRI scan of 17 September 2005. He then said under “Opinion”:
“Your client presents in a grossly disabled fashion with unrelenting low back pain, stiffness and non-verifiable radicular complaints referred to his lower limbs, mainly on the left side. The clinical presentation is disproportionate to the medical imaging, which demonstrates some long-standing spondylosis and disc degeneration in the lower lumbar spine. While I accept his complaints as being reasonable and consistent, there are clearly functional factors which are magnifying the degree of disability. His stress reaction has led to a state of chronic regional pain, which will need to be assessed by specialists in psychiatry and psychology. As I have stated, I do not have any reason to doubt his complaints. In the circumstances attributability [sic] is also going to be difficult and speculative. He had developed mechanical low back pain as well as some leg symptoms following the fall at Big W on 27.2.05. He had improved but not recovered when the second incident occurred whilst employed by Drake Recruitment on 14.4.2005. It appears that the 30.5.2005 incident of injury was the most significant, as regards his future capacity for work. The last incident on 14.9.2005 at the treating doctors surgery was merely a manifestation of the established disability; however this incident did significantly increase his perception of pain leading to the need for hospitalisation. Approximate attributability [sic] of back and leg disability is 25% of the total to the incident on 27.2.2005; a further 25% to the incident of 14.4.2005; and the remaining 50% to the incident on 30.5.2005. Although he had pre existent spondylitic changes in his lumbar spine, there is no evidence of any prior symptomatic impairment. Now that these underlying changes have been triggered and materially aggravated, the effects of aggravation will be long lasting.” (emphasis added)
The key features underlying Dr Deveridge’s opinion are:
a)he accepted Mr Goodwin’s complaints as being reasonable and consistent;
b)he found causation (“attributability”) difficult and speculative, and
c)he expressly noted (incorrectly) that Mr Goodwin had improved after the February 2005 incident.
On his attempted examination, Dr Deveridge noted:
a)Mr Goodwin was too unsteady on his feet to test heel and toe walking;
b)Mr Goodwin could stoop so his fingertips reached the “distal thigh level” and he straightened with hesitancy;
c)Mr Goodwin declined to attempt any lumbar extension;
d)lateral flexion was reduced to half;
e)rotation was moderately limited;
f)Mr Goodwin had difficulty getting on and off the examination couch, but was observed to sit erect with his legs extended;
g)straight leg raising was limited to 40 degrees on the left and 55 degrees on the right;
h)knee and ankle jerks were present and symmetrical;
i)there was patchy sensory loss involving the back of the left leg, the instep and sole of the foot (not in any clear-cut anatomical distribution), and
j)there was muscle wasting in the right leg (presumably due to previous right knee and ankle injuries).
In other words, there were no clear objective signs that Mr Goodwin had sustained a significant injury in either of his incidents while working at Goninan’s premises. Given that Dr Deveridge could only conduct a “modified assessment”, because Mr Goodwin was “extremely anxious about palpation and movement of his painful lumbar spine”, and given that Mr Goodwin’s “clinical presentation” was “disproportionate” to the medical imaging, it is difficult to see on what Dr Deveridge based his opinion that Mr Goodwin’s complaints were “reasonable and consistent”.
The doctor’s opinion on causation (“attributability”) seems to have been based on an acceptance of Mr Goodwin’s history that he improved after the February 2005 injury and that he only did light duties after the 30 May 2005 incident. In respect of the post February 2005 symptoms, the Arbitrator did not accept that Mr Goodwin had improved (as he claimed), but found that he had deteriorated (consistent with Dr Tan’s referral of 11 April 2005). In respect of the 30 May 2005 incident, the Arbitrator accepted Mr Puff’s evidence referred to at [57] above that Mr Goodwin displayed no disability or restriction in his last week of work. Therefore, the factual basis for accepting Dr Deveridge’s conclusions has not been established and, even though the Arbitrator erred in stating that Dr Deveridge had no history of the February 2005 incident, that error has not affected the result.
Dr Powell
Dr Powell examined Mr Goodwin on behalf of Drake on 13 February 2006 (report 21 February 2006). He concluded that on 30 May 2005 Mr Goodwin injured his low back by way of aggravation of pre-existing degenerative changes, that he remained symptomatic and that the aggravation was ongoing.
The Appellant Worker notes Dr Powell’s supporting conclusion and submits that there is no evidentiary basis for the Arbitrator’s conclusion to paragraph 38 of her Reasons where she stated that neither Dr Deveridge nor Dr Powell “was provided with a full history of the supermarket February 2005 fall and the ongoing significant symptoms which on the evidence continued until the incidents in April and May 05”.
I reject this submission. Whilst Dr Powell had a history of the February 2005 incident, he did not have a history of the increase in symptoms described by Dr Tan in his referral of 11 April 2005. His history was limited in his report of 21 February 2006 to noting that Mr Goodwin had sustained a soft tissue injury to his low back in February 2005, having a CT scan, being off work for six weeks, seeking alternative employment, and undergoing a medical with Goninan, which he appeared to have “satisfactorily” passed (Dr Powell 21 February 2006, page five). In his supplementary report of 13 April 2006 [sic] (not requiring a further examination), he was asked whether the aggravation from the February 2005 injuries had ceased. He answered:
“Opinion in this regard is based solely on the history provided by Mr Goodwin. He indicated that following the incident in Big W on 27 February 2005, he was off work for a period of six weeks. CT scans at that time confirmed the presence of degenerative changes. However, Mr Goodwin indicated that his lower back symptoms settled and that he was required to pass a stringent medical assessment before taking his position with Drake Recruitment and United Goninan. He informed me that he [had] no problems passing that assessment.
Based on the information provided to me by Mr Goodwin, I believe it is reasonable to conclude that the aggravation provided by the particular incident on 27 February 2005 had ceased.” (emphasis added)
Mr Goodwin’s history that his low back symptoms from the February 2005 incident had settled was incorrect and the Arbitrator was entitled to discount his conclusion because of that incorrect history. Further, Dr Powell had no history of the symptoms noted in Dr Tan’s referral of 11 April 2005.
Other Matters
Adopting the paragraph numbers set out in paragraph [19] above, I make the following observations and findings:
a)the Arbitrator gave extensive reasons in support of her conclusions and I refer to the discussion on this topic at paragraphs [65] to [69] above;
b)subject to potential error in respect of Dr Deveridge’s history referred to at paragraph [73] above and the errors identified at [32] and [38] above, the Arbitrator’s other findings were open to her on the evidence;
c)subject to the errors noted above, the Arbitrator’s conclusions were open on the evidence;
d)the Arbitrator carefully considered the evidence of Dr Powell and Dr Deveridge but did not accept it because it was based on partly inaccurate histories;
e)the Arbitrator had regard to the opinion of Dr Tan;
f)the Arbitrator’s finding that the effect of the incident had ceased was not supported by the evidence from Dr Pedersen or Dr Tan;
g)it was open to the Arbitrator to accept the evidence of Mr Puff in preference to Mr Goodwin’s evidence;
h)Mr Goodwin’s evidence was not contained in a sworn statement as has been submitted. The allegation that the Arbitrator denied Mr Goodwin procedural fairness by not using the Commission’s “inquisitorial powers” is dealt with below under “Procedural Fairness”;
i)see “Procedural Fairness” below;
j)the issue of alleged bias has been dealt with above at paragraphs [50] to [53];
k)an Arbitrator has an obligation to determine all liability issues (including injury and causation) before a matter is referred to an AMS for assessment. If the evidence supports a finding that the effect of any alleged work injury has ceased, and an Arbitrator makes that finding on the basis of probative and relevant evidence, there is no obligation to then refer the matter to an Approved Medical Specialist (‘AMS’) for assessment and the finding is not ultra vires (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38; Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33, and Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 1). In the present matter, however, the Arbitrator erred in finding that Dr Pedersen concluded that the effect of Mr Goodwin’s work aggravation had ceased. The consequence of this error is discussed below.
Procedural Fairness
The Arbitrator did not deny Mr Goodwin procedural fairness in not using “the Commission’s inquisitorial powers” to allow him to address what she saw as a factual discrepancy. There is no doubt that the Commission is obliged to comply with the principles of procedural fairness and natural justice (South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16). In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]):
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Review Tribunal(2002) 190 ALR 601; (2002) 76 ALJR 966; (2002) 23(14) Leg Rep 2; (2002) 68 ALD 257; [2002] HCA 30 Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.” (emphasis added)
In considering the application of the rules of procedural fairness to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng (2006) 4 DDCR 358; [2006] NSWCA 34 at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
However, procedural fairness does not require a decision maker to give a running commentary upon what he or she thinks about the evidence that is given (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592; [2006] HCA 63 at [48]). A decision maker “is generally not obliged to invite comment on the evaluation” of a person’s case (Commissioner for the Australia Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 approved in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Palme [2003] HCA 56; (2003) 216 CLR 212). The factual discrepancies in the case were clear from the documents tendered in evidence. They raised important factual issues that had to be dealt with by the Arbitrator on the evidence presented. It is for the parties to prepare and present their cases, not for the Arbitrator to do it for them. If it was felt necessary for Mr Goodwin to give oral evidence on any contentious issue, it was open to his counsel to seek leave to do that.
The Appellant Worker’s reference to the “Commission’s inquisitorial powers” is misguided. As McColl JA observed at [94] in Edmonds:
“…although the Commission operates pursuant to a legislative framework which frees it, to some degree, from “constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals” (Minister for Immigration and Multicultural Affairs v Eshetu at [49]), it is modelled on adversarial proceedings to the extent that issues are primarily defined by what for convenience can be described as “pleadings” (cf the primary judgement at [11]), the parties are entitled to be represented by a legal practitioner or agent and they adduce the evidence upon which they wish to rely before the Arbitrator. The proceedings “take the form of litigation between parties”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ). In contrast, in the “pure” European model of the inquisitorial process, the “task of the judge... is to act as a protagonist in the proceedings and it is the judge and prosecuting officials, not the parties, who have the responsibility for seeking out and testing the evidence, often in advance of a formal hearing”: Creyke and Bedford, at 4. Although I note, in this respect, that the Guidelines state “[q]uestions to witnesses, if any, will be by or through the Arbitrator”, it is not clear to what extent this is actually observed. Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng, for example, concerned a complaint that an Arbitrator hearing a case in 2003 limited the time for cross-examination by the employer.”
Her Honour added at [96]:
“I would also add that Creyke and Bedford suggest (at 9) that ‘purloining the label ‘inquisitorial’ to describe Australian inquisitorial tribunals may be misconceived ... and misleading’. It would not be appropriate to take these observations about this aspect of the Commission’s Guidelines further as the matter was not argued and it may well be the Court does not have all the relevant material before it. I would merely observe that the features of the adversarial model to which I have referred indicate, in my view, that the Commission cannot be described as ‘inherently inquisitorial’, at least if by that expression, it is intended to connote the ‘pure’ European model of such processes.”
Since the decision of Edmonds, the Commission revised its “Guideline for the Practice of the Conciliation/Arbitration Process” in April 2007 to delete the reference to Arbitrators being required to play “an inquisitorial role in resolving disputes” and to state that they are “required to play a pro-active, non-adversarial role in resolving disputes”. Regardless of the wording of the Guideline, the obligation to prepare and present a case in the Commission rests with the parties concerned and their legal representatives.
Any “factual discrepancy” in the case was, or should have been, obvious to the parties at the arbitration, where they were both represented by counsel and given every opportunity to present their respective cases as they saw fit. Neither side sought to call oral evidence to supplement the written material before the Arbitrator. In these circumstances the allegation that Mr Goodwin was denied procedural fairness is without foundation.
The ground of appeal that the Arbitrator denied Mr Goodwin procedural fairness by basing her determination on assumptions without providing him with an opportunity to address those assumptions is, for the reasons outlined above, without merit.
CONCLUSION
The majority of the Appellant Worker’s grounds of appeal have no merit, are baseless and/or misguided. However, the Arbitrator did err in finding that Dr Pedersen concluded that the aggravating effects of the work injury or injuries had ceased and this error has affected the result in the case and requires that the matter be re-determined. Normally, where no oral evidence has been called and the Arbitrator has not based his or her decision on an assessment of the worker’s credit, the Presidential member hearing the appeal is in as good a position to re-determine the matter as an Arbitrator. In the present case, however, the credit issues are of such significance and the evidence so inadequate, that I am unable to re-determine the matter. As a result, it is necessary for the matter to be remitted to a different Arbitrator for a further arbitration hearing.
The parties may consider it prudent to call evidence on and/or make submissions about the following issues at the re-determination:
a)time sheets to establish the hours and days worked by Mr Goodwin between 30 May and 31 July 2005;
b)the nature of the duties performed by Mr Goodwin between 30 May and 31 July 2005;
c)medical evidence based on the full relevant history;
d)the nature and extent of Mr Goodwin’s previous leg/knee injury and its impact on his working capacity;
e)the duties involved in the permanent job as a methods engineer Mr Goodwin applied for with Goninan and when that application was made;
f)the nature of Mr Goodwin’s self employment, and
g)the relevance of Dr Tan’s notes in July 2002 that refer to Mr Goodwin having low back ache at that time.
This is a case where the credit issues raised are of such significance that it may well be necessary for Mr Goodwin to be cross-examined.
DECISION
The Arbitrator’s determination of 12 February 2008 is revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for re-determination.
2.Costs of the first arbitration, and of the second arbitration, are to follow the result of the second arbitration.”
COSTS
The majority of the Appellant Worker’s grounds of appeal had no merit and many were completely specious and should not have been raised (for example, the allegation of bias and the alleged lack of procedural fairness). As a result, the review has taken much longer that it should have. In these circumstances it is appropriate, for the reasons explained by McHugh J in Oshlack v. Richmond River Council (1998) 193 CLR 72 at 97-98, to depart from the usual costs order and for the Appellant Worker to recover only two thirds of his costs of the appeal.
The Respondent Employer is to pay two thirds of the Appellant Worker’s assessed costs of the appeal.
Bill Roche
Deputy President
11 June 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
25
0