Gosford City Council v Dowling
[2006] NSWWCCPD 88
•16 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Gosford City Council v Dowling [2006] NSWWCCPD 88
APPELLANT: Gosford City Council
RESPONDENT: Edward Dowling
INSURER:Self insurer
FILE NUMBER: WCC10012-04
DATE OF ARBITRATOR’S DECISION: 25 July 2005
DATE OF APPEAL DECISION: 16 May 2006
SUBJECT MATTER OF DECISION: Whether decision based on evidence not before Arbitrator; certain matters not properly taken into account; misdirection as to the law; misdirection as to the issue in dispute; misdirection as to expert medical evidence; whether decision based on the evidence and the weight of the evidence; procedural fairness.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Moray & Agnew, Solicitors
Respondent: Turner Freeman, Lawyers
ORDERS MADE ON APPEAL: Paragraph 3 of the Arbitrator’s determination of 25 July 2005 is revoked and the following order is substituted:
3. The Respondent is to pay the Applicant’s medical and hospital expenses pursuant to section 60 of the Workers Compensation Act 1987 from 23 October 2003.
Paragraphs 1,2,4 and 5 of the Arbitrator’s decision are confirmed
The Appellant is ordered to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Mr Edward Dowling, the Respondent Worker, was employed by Gosford City Council (‘the Council’), the Appellant, from approximately 1995 and continuing. He is employed as a boilermaker/welder.
Mr Dowling claims to have suffered an injury to his right knee on or about 25 March 1998 when he fell into a hole while loading a truck. Mr Dowling made a claim for weekly compensation payments and medical expenses. In addition, he made a claim for permanent impairment, which settled on 26 April 2001 on the basis of 13% permanent loss of efficient use of his right leg at or above the knee arising from his work related injury.
On 23 October 2003 the Council notified Mr Dowling that it was no longer accepting liability for medical treatment or consultations with Dr Dixon, Mr Dowling’s consulting medical practitioner, beyond 24 October 2003.
On 30 June 2004 Mr Dowling lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), claiming specific medical expenses in relation to a right knee operation, and continuing.
In due course, the matter was listed for an arbitration hearing on 19 July 2005 and, on 25 July 2005 Mr Dowling was successful in obtaining an award in his favour. The award is reproduced at paragraph 7, below.
On 17 August 2005, the Council filed in the Commission, an ‘Appeal against Decision of Arbitrator’.
THE DECISION UNDER REVIEW
The Arbitrator’s decision was given ex tempore during the arbitral hearing held on 19 July 2005. The ‘Certificate of Determination’, dated 25 July 2005 records the Arbitrator’s formal determination as follows:
“1.I find the Applicant continues to require medical and other treatment as a result of the injury of 25 March 1998.
2.The s. 60 expenses required are reasonable and necessary.
3.There will be a general award in favour of the Applicant for s. 60 expenses from 23 October 2003 to date and continuing.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.
5.I certify this matter as complex.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether the Arbitrator erred by taking into account matters that were not properly before him and failing to take into account matters that were before him;
(2)whether the Arbitrator misdirected himself as to the question to be decided before him, and as to the expert medical report of Professor Higgs;
(3)whether the Arbitrator’s decision was contrary to the evidence and the weight of evidence, and
(4)whether the Arbitrator failed to accord procedural fairness to the Council in the hearing, and in the conduct of the hearing.
ON THE PAPERS REVIEW
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.”
The parties have both made submissions as to why the appeal should not be determined on the papers. The Council refers to errors in the transcript in relation to some case authorities being referred to in a “shorthand fashion” and submits, “the state of the transcript is such that corrections to the transcript agreed upon by the parties will need to be made and are best made at a hearing appeal”. The Council further submits that until it has received Mr Dowling’s ‘Notice of Opposition’, it is “unable to make a proper decision that the appeal can be determined on the basis of the written application”. The Commission file reveals that Mr Dowling’s ‘Notice of Opposition’ was lodged with the Commission on 9 September 2005 and an unsealed copy was served on the Council under cover of letter of the same date. However, no further written submissions were made by the Council, as foreshadowed in its ‘Appeal Against Decision of Arbitrator’, lodged in the Commission on 17 August 2005.
Mr Dowling submits, “in the absence of a published Statement of Reasons, the Respondent Worker seeks leave to supplement his written submissions with oral submissions at a hearing, or in the alternative, to file further written submissions on receipt of a published Statement of Reasons.” However, the Respondent Worker has had ample opportunity to make further submissions in the absence of a ‘Statement of Reasons for Decision’ and ought to have been aware from the outset that the Arbitrator had delivered an ex tempore decision, [in which case a ‘Statement of Reasons for Decision’ would not be issued]. In the circumstances, the decision was “formalised” only by a ‘Certificate of Determination’ pursuant to Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’), in accordance with standing practice. The delivery of an e xtempore decision is recorded at pages 62 to 67 of the transcript of proceedings before the Arbitrator.
Both parties were legally represented in the proceedings before the Arbitrator and are, or ought to be, well aware of the substantive issues in dispute between them and the issues in contention on appeal, arising out of the arbitration hearing and the decision of the Arbitrator. Each party has had ample time to file additional submissions or to make application to admit additional material on appeal. Neither has done so. Having regard to the submissions, evidence and documents that are before me, I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
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 amount of compensation at issue on appeal exceeds $5,000 and the amount of compensation at issue in the appeal is greater than 20% of the amount awarded in the decision appealed against. Consequently, sections 352(2)(a) and (b) of the 1998 Act are satisfied.
The appeal was lodged on 17 August 2005, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member 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 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 a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit to the same Arbitrator or a different Arbitrator, for determination in accordance with a decision of or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2002) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The general principle was highlighted by Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249 (Swain). His Honour said: “The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, the position must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
EVIDENCE AND SUBMISSIONS
The Council’s submissions
The Council’s submissions on appeal, dated 16 August 2005, may be summarised as follows:
· the Arbitrator took into account matters that were not properly before him and failed to take into account matters that were before him;
· the Arbitrator misdirected himself as to the question to be decided by him in that he decided the issue of “whether or not the formal form of the employer’s s74 [1998 Act] notice disputing liability was correct” instead of deciding the issue of “whether or not the proposed treatment was reasonably necessary treatment for the injury sustained by the worker”;
· the Arbitrator misdirected himself as to the report of Professor Higgs in that he misapplied the principles set out in Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305 (‘Makita’) and consequently improperly rejected the report of Professor Higgs;
· the Arbitrator’s decision was contrary to, and against the weight of the evidence in that the evidence of Dr Glase, Dr Flood, Professor Higgs and the Approved Medical Specialist (‘AMS’) Dr Best, all indicated that the proposed treatment was for the underlying condition of osteoarthritis and not for the injury sustained by Mr Dowling on 25 March 1998;
· the Arbitrator failed to accord procedural fairness to the Council in allowing Mr Dowling to conduct a case based upon argument as to the form of s74 notice of dispute, such argument not having been known to the Council despite the Council’s repeated requests to know the case brought against it;
· the Arbitrator conducted the hearing as to deny to the Council procedural fairness by determining the issues between the parties despite having earlier said that he would hear the parties on Mr Dowling’s application to amend;
· the Arbitrator took into account irrelevant material [at page 17 to 18 of the transcript]:
“Arbitrator: Well, that may be where we get here, but don’t forget poor old Mr and Mrs Dowling have come all the way from …
Arbitrator: The Central Coast … and their Solicitor as well”
Solicitor: Newcastle.
Arbitrator: It doesn’t matter it seems they are only the scum of the earth according to certain politicians”
· And at page 22 of the transcript:
“Arbitrator: They decided they trust arbitrators to do the job of arbitrating and wish to give doctors a free hit at trying to be judges at the same time, and its just been a complete waste of time – in fact worse than a waste of time. It’s involved us and ….”
The Council submits that the correct decision is an award for the Council on the basis that the medical treatment sought in the dispute, namely the cost of a total knee replacement, is not reasonably necessary treatment for the injury alleged by Mr Dowling.
Mr Dowling’s submissions
Mr Dowling’s submissions in reply may be summarised as follows:
· there was no evidence to suggest that the Arbitrator took into account matters that were not properly before him while failing to take into account matters, which were before him. It was submitted that the Arbitrator was to determine whether or not the proposed treatment was reasonable and necessary, which he determined in the affirmative and in doing so, considered the medical evidence in its totality as well as the oral evidence of Mr Dowling;
· the Arbitrator did direct himself as to the question to be decided. It is argued that the Council’s decision to deny liability for Mr Dowling’s ongoing medical treatment was contained in a letter dated 23 October 2003 and that this “formal form of notice” was only considered by the Arbitrator to the extent that the Council’s only basis of denial was the report obtained by the Council from Professor Higgs;
· the Arbitrator did not misdirect himself as to the report of Professor Higgs nor improperly reject it. It is submitted that the Arbitrator considered the report of Professor Higgs but on balance he preferred the reports of Dr Dixon in combination with Mr Dowling’s oral evidence. It was also argued that it was clearly for the Arbitrator to determine the persuasiveness or otherwise of the medical evidence and to arrive at a determination by reference to all of the evidence: Sheridan v David Anthony Clarke t/as Marine Sports [2003] NSW WCC PD 9 (‘Sheridan’); Makita;
· it was clear from the transcript that the Arbitrator undertook a thorough analysis of all of the evidence and that it is clearly for the Arbitrator to weigh up the evidence before him and arrive at his decision on the basis of the whole of that evidence, medical or otherwise: South West Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18 (‘Edmonds’);
· Rule 17 of the Workers Compensation Commission Rules 2003 (‘Rules’) provides that the Commission may, in any proceedings before it, amend any documents filed in connection with the proceedings if the Commission considers the amendment to be necessary in the interests of justice. Mr Dowling’s application to amend his pleadings at the outset was done in order to identify and narrow the issues to be determined by the Arbitrator;
· furthermore, it is submitted that Mr Dowling’s amendments did not raise a fresh issue but simply reformulated the claim to include the ongoing contribution of the nature of his employment with the Council to the aggravation of his injury, which was within the scope of the existing factual issues and readily apparent from the material before the Arbitrator. It is argued that the evidence that was adduced, being the clinical notes of Dr Adams, was produced in response to a ‘Direction for Production’ issued by the Council and were such within its reasonable knowledge: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 (‘Leotta’);
· procedural fairness is determined by the nature of the decision under review and the demands of the instant case: Kioa v West (1985) 159 CLR 550 (‘Kioa’). When the Arbitrator asked the Council to show prejudice by allowing this amendment, the Council was unable to do so. It is further submitted that as Mr Dowling has remained in the employment of the Council and has attended medical examinations from time to time as directed, the Council possessed full knowledge of the circumstances of Mr Dowling’s injury and ongoing employment, and therefore could not be prejudiced by the amendment of the claim. It is submitted that, “it is not a question for an Appellant relying on an insurer at arms length to determine these matters for it, as the Appellant is a self insurer.” Therefore, it is submitted that the Arbitrator did not deny the Council procedural fairness when it allowed Mr Dowling to amend his claim;
· the Arbitrator afforded the Council an opportunity to make submissions with respect to Mr Dowling’s application to amend and was also given an opportunity, which it took, to cross examine Mr Dowling on the evidence introduced by him;
· as the Council was unable to point to any prejudice or disadvantage arising from the proposed amendments, the Arbitrator allowed Mr Dowling’s amendments so that the matter could be dealt with and progressed in the interests of justice and in line with the objectives of the Commission, pursuant to section 367 (1) of the 1998 Act;
· with respect to the comments made by the Arbitrator at pages 17, 18 and 22 of the transcript, it is submitted that the comments do no more than demonstrate that the Arbitrator was mindful of the need to meet the Commission’s objectives (section 367 (1)) in determining the matter efficiently and expeditiously, and that the comments cannot be seen in any way to be evidence on which the Arbitrator based his decision. It is submitted that the Arbitrator did not take in to account irrelevant considerations when considering the whole of the evidence and arriving at his decision;
· the Arbitrator’s decision contains no legal, factual or discretionary errors and accordingly the Arbitrator’s award in favour of Mr Dowling for section 60 medical expenses from 23 October to date and continuing, should be upheld;
· Mr Dowling asserts that it will be denied procedural fairness if the Council, contrary to the Rules, is permitted to file further submissions in reply to his Notice of Opposition, and in the alternative, if the Commission grants leave to the Council to file further submissions. [In fact, no further written submissions have been filed by the Council and consequently, this issue does not arise], and
· Mr Dowling seeks an order that he be granted leave to file further submissions. [I have dealt with this issue at paragraph 11, above].
DISCUSSION AND FINDINGS
Arbitrator erred by taking into account matters that were not properly before him and failing to take into account matters that were before him
In making this broad submission, the Council has not elaborated its position by detailing the matters to which it refers, but has put forward other grounds, set out at paragraph 19 above, and which are dealt with below, alleging error on the part of the Arbitrator.
Mr Dowling submits that the Arbitrator did in fact deal with the totality of the medical evidence and his [Mr Dowling’s] oral evidence, in support of the claim in dispute before the Commission.
In the absence of anything specific under this ground of appeal, I look for guidance to what is contained in the further grounds of appeal and also the transcript. I note that it was open to the Council to point to any specific matters to which it was alluding under this general ground, had it wished to do so.
A reading of the transcript and the Council’s submissions as to the remaining grounds of appeal would appear to indicate that the issues to which Council may be alluding, are tied up in or together with the issues of, and submissions about, procedural fairness, and may be dealt with conveniently, in that general context.
I note that the Council’s express concerns about the “state of the transcript” relate to the citation of authorities in “shorthand fashion”, rather than the substantive content [see paragraphs 11 and 12 of the submissions made on appeal], and do not claim to be related to this ground of appeal.
Arbitrator erred in misdirecting himself as to the question to be decided before him, and as to the report of Professor Higgs
The Council submits that the Arbitrator decided the issues between the parties “not on whether or not the proposed treatment was reasonably necessary treatment for the injury sustained by the worker but whether or not the formal form of the employer’s S74 notice disputing liability was correct.”
Mr Dowling submits that the Arbitrator did in fact direct himself to the question that was to be decided by him. He states, “The employer’s decision to deny liability for the Respondent worker’s ongoing medical treatment was contained in a letter dated 23 October 2003 (Exhibit B). The formal form of this notice was not considered by the Arbitrator, except to the extent that the basis of the employer’s denial of liability was the report of Professor Higgs.”
A close reading of the transcript of the proceedings before the Arbitrator reveals a good deal of discussion between the Arbitrator and the two legal representatives. While there were references to how liability was disputed (including references by the Arbitrator), and the form that this took, this was not the central issue, but one of a number of matters upon which discussion took place. I note in particular the ex tempore decision handed down by the Arbitrator, recorded at pages 62 to 67 inclusive, of the transcript of proceedings. The Arbitrator goes to some lengths to analyse and weigh up the evidence before him, in particular, the medical evidence. His focus on the issue in dispute, rather than the form of denial of liability, is apparent.
The reference to the formal form of the notice disputing liability was highlighted in the Arbitrator’s finding at page 66 of the transcript. He said,
“I find that the compensation for treatment ceased because of Professor Higgs’ statement. That’s borne out in the letter which is marked B of 23 October 2003. I read what the author of that letter wrote is plain meaning, picking up, as it does, the language of Dr Higgs. It seems to me that the reason why section 60 expenses were stopped was because it was accepted that Professor Higgs’ opinion was correct that the work-related aggravation had ceased. I find that not to be the case and, therefore, there will be an award in favour of the applicant.”
I agree with Mr Dowling that the formal form of the notice was not in fact the principal issue under consideration. As he says, Professor Higgs’ report simply formed the basis of the employer’s denial of liability.
The transcript further reveals a detailed and focussed exchange between the Arbitrator and the two legal representatives at the hearing, about the central issue in dispute between them. Indeed the Arbitrator was moved to make comment on this at the conclusion of the hearing. His comments are recorded at page 67 of the transcript.
The Arbitrator did not lose his way in relation to the issue before him and I can find nothing in the transcript or any other document to indicate that he did so. As he himself intimated, he was ably assisted by both legal representatives in progressing the matter that was before him.
I find that the Arbitrator addressed the correct issue and did not misdirect himself in this regard.
The Council further submits that the Arbitrator misdirected himself as to the report of Professor Higgs “in that he misapplied the principles set out in Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305 [‘Makita’] and improperly rejected the report of Professor Higgs.” The Council has provided a hard copy of this case, running to some 48 pages, without further elaboration.
Mr Dowling disagrees with the Council on this point, and submits that the Arbitrator on balance, preferred the reports of Dr Dixon in combination with the Respondent Worker’s oral evidence. “It is clearly for the Arbitrator to determine the persuasiveness or otherwise of the medical evidence and to arrive at a determination by reference to all of the evidence.” Mr Dowling cites Sheridan in support of this submission.
The Arbitrator was required to make findings of fact, to look to the substance of the opinion expressed by Professor Higgs, and not merely confine himself to looking at his expertise. He was required to take the opinion into account but as there is a difference of opinion among experts, he was required to “apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted” (Makita per Haydon JA citing Holtman v Sampson [1985] 2 Qd R 472 at paragraph 71).
Relevantly, the Arbitrator notes that Professor Higgs’ opinion as to the cessation of the aggravation is not supported by any reasons as to why he is of that view. Professor Higgs observes that right knee pain did not prevent Mr Dowling from working, but conceded that his right knee pain grew worse, and that he continues to suffer the pain. Professor Higgs also states at page 5 of his report that “No investigations have been seen.” However, he refers to a report of 11 June 2002 prepared by Dr Limber and indicates that x-rays taken “showed bilateral narrowing of the knee joint spaces with early degenerative changes to both knees.” He observes that Mr Dowling was already suffering some degenerative osteoarthritis of both knee joints at the time that the injury to his right knee occurred. Professor Higgs concludes that the aggravation that occurred in the injury has ceased, however he provides no reasons for this view or how he arrived at this conclusion. In considering Professor Higgs report, the Arbitrator states at page 66 of the transcript,
“…but with all due respect to Professor Higgs, I am left none the wiser as to why he is of the opinion that any aggravation suffered has ceased. There is nothing of a temporal nature in the facts of the situation that suggests that the applicant has ever had any recovery from his knee injury sufficient to indicate a cessation of the aggravation and that subsequently it has flared up again to be properly then described as constitutional.”
As Mr Dowling submits, Fullagher J in R v Jenkins; Ex parte Morrison 91949) VLR 277 said that an expert witness must explain the basis of theory or experience upon which his or her conclusions are founded, “for, as Sir Owen Dixon said in an extra judicial address courts cannot be expected to act upon opinions the basis of which is unexplained.” See also (Makita per Heydon JA at paragraph 60). In Bell v F S & U Industrial Benefit Society Ltd,
9 September 1987, unreported, McLelland J stated that the importance of proving the facts underlying an opinion was that the absence of such evidence deprives the court of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence (see Makita, paragraph 72, per Heydon JA). Moreover, without such a requirement, there is a distinct risk of prejudice to the person against whom the expert evidence is given – a risk that far outweighs its probative value (Lewis v The Queen (1987) 88 FLR 104 at 123, per Maurice J).
This matter is not on “all fours” with the situation in Makita but it is clear that the unsupported opinion of an expert is not to be accepted uncritically, particularly where no reasons are provided that support the opinion. The high qualifications and experience of an expert in the field do carry weight, but in the mix of conflicting expert medical evidence before him, the Arbitrator was entitled to be satisfied as to the validity of the process that gave rise to Professor Higgs’ opinion, and the basis upon which the opinion was put forward. The Arbitrator’s treatment of Professor Higgs’ report was within the scope of the Makita principles.
The Council has not demonstrated that the Arbitrator has misdirected himself as to the report of Professor Higgs. He was correct in his view that he was entitled to be acquainted not only with the Professor’s opinion, but also some indication of how and why he arrived at it. Having read Professor Higgs’ report, there is simply no reason or explanation given to explain the apparent cessation of injury to Mr Dowling’s right knee.
I can find no error as alleged on the part of the Arbitrator and consequently, I find that neither leg of this ground of appeal is made out.
The decision of the Arbitrator was contrary to the weight of evidence
The Council submits that the Arbitrator’s decision was made against the evidence and the weight of the evidence, “in that the evidence of Dr Glase, Dr Flood, Professor Higgs and the AMS Dr Best all indicates that the proposed treatment was for the underlying condition of osteoarthritis and not for the injury sustained by the worker on 25 March 1998.”
Relevantly, the Arbitrator was satisfied that “the reason why section 60 expenses were stopped was because it was accepted that Professor Higgs’ opinion was correct that the work-related aggravation had ceased. I find that not to be the case and, therefore, there will be an award in favour of the applicant.” In his ex tempore decision and findings, the Arbitrator clearly rejected the medical evidence relied on by the Council to decline liability for the payment of ongoing medical expenses, including that evidence as to the denial of the need for surgery arising from the injury, and makes his finding as set out in the ‘Certificate of Determination’,
“1.I find the Applicant continues to require medical and other treatment as a result of the injury of 25 March 1998.
2. The s. 60 expenses required are reasonable and necessary.”
A reading of the transcript reveals that the discussion, treatment and analysis of the medical evidence by the Arbitrator and the two legal representatives throughout the proceedings were reasonably detailed and thorough. The Arbitrator’s ex tempore decision is quite adequate. Mere disagreement with the outcome of the proceedings is not a sufficient basis to overturn a decision on appeal (see discussion in Clarke v Alkene Asbestos Removal Pty Limited [2006] NSWWCCPD 84). I have carefully read the whole of the medical evidence that was available to the Arbitrator. Without reproducing the ex tempore decision of the Arbitrator and reciting the substance of the medical evidence again, it is evident that the Arbitrator has conducted a close analysis of that medical evidence, and has set out his reasons in some detail, as the basis for his acceptance or rejection of it, and the weight that he attaches to it. The weight and relevance to be accorded to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. For the Council to succeed in the instant case, it is required to demonstrate that the Arbitrator has failed to exercise that discretion fairly and according to law (see discussion in Edmonds; Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSW WCC PD 24). In my view, the Council has not satisfied the onus that it carries to demonstrate that the Arbitrator has failed that test. Mere assertion of error, or disagreement with a decision is not enough. The Council has failed to demonstrate 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” (Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10).
Finally, I agree with the Deputy President in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73, who stated:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”
In my view it is not obvious that the Arbitrator has not properly exercised his discretion in the assessment of the evidence and the weight of the evidence, to the extent that it has not been exercised fairly and lawfully. His ex tempore decision has given a fair and accurate treatment of the evidence, and he was entitled to arrive at his decision based upon that evidence (Swain).
I find that error as alleged has not been demonstrated and consequently, this ground of appeal fails.
Arbitrator erred in failing to accord procedural fairness in the hearing and in the conduct of the proceedings
The Council alleges a lack of procedural fairness in that the Arbitrator permitted Mr Dowling “to amend at the hearing, to plead ‘nature and conditions of employment’ which had not previously been pleaded and to which the Appellant objected at the hearing.” Denial of procedural fairness is also asserted in the determination of the issues between the parties “despite having earlier said that he could hear the parties on the Respondent’s applications to amend.” Finally, denial of procedural fairness is claimed in that the Arbitrator “in allowing the Respondent to conduct a case based upon an argument as to the form of the S74 notice of dispute, such argument not having been made known to the Appellant despite the Appellant’s repeated requests to know the case brought against it.”
I already dealt sufficiently with the third issue at paragraphs 27 to 34 above. Further consideration of the issue is not required and I find that there was no lack of procedural fairness in relation to the matter of notice of dispute.
While the amendment was made as asserted, the Council was given the opportunity to make submissions, including objections, which were noted by the Arbitrator. The Council also took the opportunity to cross examine Mr Dowling on his evidence.
Mr Dowling argues that Rule 17 provides that the Commission may, in any proceedings before it, amend any document filed in connection with those proceedings, if the Commission considers the amendment to be necessary in the interests of justice. He claims that his application “to amend his pleadings at the outset of the Arbitration was done in order to identify and narrow the issues to be determined by the Arbitrator.”
Mr Dowling submits and I agree, that the amendments did not raise a fresh issue, but merely reformulated the claim to include the ongoing contribution of the nature of his employment to the aggravation of his injury, which was within the scope of the existing factual issues in dispute, and was readily apparent from the material that was before the Arbitrator, and that was well known to the Council. Mr Dowling submits, again correctly, that it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties in proceedings before the Commission (Far West Area Health Service v Colin Robert Radford [2004] NSW WCC PD 10; Wyong Shire Council v Paterson [2004] NSW WCC PD 45).
Again Mr Dowling correctly submits that the entry in the clinical notes of Dr Adams was introduced to refute the comments made by Dr Best, AMS, and the notes were produced in response to a ‘Direction for Production’ issued by the Council. Obviously, this material was within the reasonable knowledge of the Council, and its use in the proceedings was quite reasonably predictable in these circumstances.
Furthermore, the Council has failed to demonstrate substantial prejudice or injustice, either before the Arbitrator or in this appeal. In my view, the Arbitrator was entitled to allow the amendments in the circumstances of this matter. Mr Dowling further points out that since his injury, he has remained in the employ of the Council and has attended medical examinations as required by the Council. The Council has always been in a favourable position to remain fully acquainted with Mr Dowling and the detail of the relevant issues in this dispute between them. This is relevant in considering that the content of procedural fairness is determined by the nature of the decision under review and the demands of the instant case (Kioa). Procedural fairness is to be assessed therefore, not merely on a theoretical consideration of principle, but in the real circumstances and context of each case.
Finally, it can be said in the instant case, given the intimate knowledge of both parties with the issues and circumstances of this matter, that the amendments allowed by the Arbitrator did little if anything more, than to bring the formal pleadings into conformity with the evidence with which each party was familiar, and that was adduced (Leotta).
I find that there is no error as alleged on the part of the Arbitrator. This ground of appeal has not been made out.
Arbitrator erred in taking into account irrelevant material
The Council contends that the comments made by the Arbitrator and recorded in the transcript of proceedings, as set out in paragraph 19 above, is irrelevant material that was taken into account in arriving at the Arbitrator’s decision.
The comments made must be construed in the context in which they are used. The comments made, and recorded at pages 17 and 18 of the transcript were made in an exchange about the procedure that could to be followed. The Council’s legal representative was suggesting that it would be “a lot simpler for him [Mr Dowling] to discontinue it and start again.” This followed an objection, noted by the Arbitrator, to the admission of certain evidence. The error alleged under this ground of appeal relates specifically and entirely to the somewhat disparaging and colourful comments made by the Arbitrator arising from the need for the parties to travel to the hearing, and were not in the nature of findings and reasons relating to the admission of the material, or any other substantive issue.
Similarly, the comments made and referred to, as recorded at page 22 of the transcript of proceedings, appear to represent a personal view, expressed by the Arbitrator as to the role and function of the medical profession in the legislative framework of the workers compensation jurisdiction. As Mr Dowling states in his submissions at paragraph 9, the comments were by way of a general observation arising out of a medical assessment, and upon a situation about which there was no real disagreement between the parties. I agree with Mr Dowling that, “…the comments cannot be seen in any way to be evidence on which the Arbitrator based his decision. It is clear from the transcript that the Arbitrator considered the medical evidence and oral evidence from the Respondent worker when reaching his decision.”
I think it is clear by reference to the transcript that the Arbitrator did not “take into account” irrelevant considerations, notwithstanding the unsophisticated way in which he interposed some personal views, in the process of determining the matter before him. The Arbitrator’s personal comments were more to do with certain aspects of the existing workers compensation dispute resolution “system”, rather than the particular matter that was before him. His comments may be regarded as intemperate, inappropriate and even regrettable in the context of a formal and public hearing of a dispute between parties who were properly involved in proceedings before him. However, they were not directly linked to any substantive findings and on my reading of them, they do not contribute materially or at all, to any such findings nor to his ultimate determination.
The Arbitrator’s comments, the subject of this ground of appeal, are not directed for or against the interests of either party. From my reading of the relevant parts of the transcript they are negative comments specifically about the alleged attitude of “certain politicians” and about giving “doctors a free hit at trying to be judges.” There is no evidence of prejudice to either party and no indication that these observations made by the Arbitrator in the course of the arbitral hearing, had any material bearing on the outcome of the matter before him. This ground of appeal is not made out.
CONCLUSION
While the disputed claim was particularised in the ‘Application to Resolve a Dispute’, as “treatment, care or related expenses incurred or needed …” the fundamental issue before the Arbitrator was one of liability, principally whether Mr Dowling required ongoing medical and hospital treatment as a result of the injury to his right knee, and in particular, the proposed surgery in the form of a total knee replacement. Having determined that the effects of the knee injury continued and therefore necessitated treatment after 23 October 2003, it is apparent from the transcript that full particulars of all medical accounts were not available at the Arbitration hearing, necessitating a general order under section 60 of the 1987 Act.
While I have found no error of fact, law or discretion in the Arbitrator’s reasons, section 60 of the 1987 Act is an indemnity provision (New South Wales Sugar Milling Co-op Ltd v Manning 1998) 44 NSWLR 442; 16 NSWCCR 606). However this does not prevent a general order being made under the section for the Council to be liable for future medical and hospital expenses, which will become payable as they are incurred. The Respondent is not liable to pay for reasonable and necessary medical and hospital expenses unless and until they are incurred and properly verified. Paragraph 3 of the ‘Certificate of Determination’ is technically inconsistent with the Act and contains an error that should be corrected on appeal. In addition, I note that the findings made by the Arbitrator expressed in paragraphs 1 and 2 of the ‘Certificate of Determination’ are findings and not formal orders, however I see no reason to disturb them for the purposes of this appeal.
DECISION
The Arbitrator has made no error of fact, law or discretion as asserted by the Council, in the determination of this matter. Consequently, the appeal is not successful. However, having regard to the error contained in what purports to be the formal orders, paragraph 3 of the Arbitrator’s ‘Certificate of Determination’ dated 25 July 2005 is revoked, and the following order is substituted:
3. The Respondent (Gosford City Council) to pay the Applicant (Edward Dowling)
medical and hospital expenses pursuant to section 60 of the 1987 Act, from 23
October 2003.
Paragraphs 1,2,4 and 5 of the Arbitrator’s decision are confirmed.
COSTS
The Appellant is ordered to pay the Respondent Worker’s costs of appeal.
Gary Byron
Deputy President
16 May 2006.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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