Greater Western Area Health Service v Johnston

[2010] NSWWCCPD 100

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Greater Western Area Health Service v Johnston [2010] NSWWCCPD 100
APPELLANT:		Greater Western Area Health Service
RESPONDENT:		Fiona Johnston
INSURER:		GIO - TMF
FILE NUMBER:		A1-924/10
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		20 May 2010
DATE OF APPEAL DECISION:		16 September 2010
SUBJECT MATTER OF DECISION:		Absence of transcript of arbitral proceedings; need for remitter
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	DLA Phillips Fox
Respondent:	Bell Lawyers
ORDERS MADE ON APPEAL:		Paragraphs 1 and 2 of the Certificate of Determination dated 20 May 2010 are revoked. Paragraphs 3 and 4 of the Certificate of Determination dated 20 May 2010 are confirmed. The matter is remitted to another Arbitrator for determination of any entitlement to weekly compensation between 1 October 2008 and 30 June 2009 and any entitlement to an order pursuant to s 60 of the Workers Compensation Act 1987. Costs of this appeal follow the final costs order following remitter to, and hearing by, another Arbitrator.

BACKGROUND TO THE APPEAL

1. Ms Fiona Johnston commenced employment with Greater Western Area Health Service (the appellant) in December 2006 as an Assistant in Nursing. Ms Johnston was employed on a part time basis performing four shifts per week and, concurrently, attending Charles Sturt University where she was undertaking a Degree course with a view to qualification as a Registered Nurse.

2. On 3 September 2007 Ms Johnston received a significant injury to her lower back in the course of her employment. Subsequent radiological investigations revealed injury at the level of the L4/L5 disc.

3. Ms Johnston was absent from work until 20 September 2007 at which time she resumed duties performing light clerical work four hours per day three days per week. It appears that in early 2008 Ms Johnston had increased her working hours and was by that time performing full time clerical duties.

4. On 28 July 2008 Ms Johnston returned to her duties as an Assistant in Nursing.  However she was compelled to cease that work almost immediately by reason of recurrence of disabling pain in her back. Ms Johnston was absent from work for a period of two weeks following which she returned to clerical duties with the appellant. That employment came to an end when, as stated by Ms Johnston, those suitable duties were “withdrawn” by the appellant. The evidence before the Commission suggests that Ms Johnston had concurrently, performed work with an organisation known as Job Link, between April 2008 and October 2008.

5. Between October 2008 and June 2009, Ms Johnston conducted a business being a horse riding school. On 2 July 2009 she commenced employment with Central West Family Support, working 38 hours per fortnight.

6. In August 2009 Ms Johnston’s solicitors made a claim on her behalf seeking weekly payments between 1 October 2008 and 30 June 2009. The appellant’s insurer declined the claim. Ms Johnston had earlier claimed lump sums in respect of whole person impairment and medical expenses. Those claims had also been declined by the insurer.

7. A dispute concerning Ms Johnston’s entitlement to compensation arose which led to her filing an Application to Resolve a Dispute on 8 February 2010. That Application came before an Arbitrator for conciliation/arbitration on 4 May 2010. The Arbitrator reserved his decision and a Certificate of Determination was issued on 20 May 2010.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 20 May 2010 records the Arbitrator’s orders as follows:

“The Commission determines:

1. Respondent to pay $250.00 per week from 1 October 2008 to 30 September 2009 pursuant to section 40.

2. Respondent to pay section 60 expenses.

3.   Respondent to pay the Applicant’s costs as agreed or assessed.

4.   I remit the claim for permanent impairment to the Registrar for referral to an AMS to assess impairment resulting from an L4/5 disc protrusion suffered on 3 September 2007.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

1. On 16 June 2010 the appellant filed with the Commission an application seeking leave to appeal against the decision of the Arbitrator.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

   (a)    making an award of weekly payments beyond that claimed by Ms Johnston;

   (b) the manner of application of the provisions of s 40 of the Workers Compensation Act 1987 (the 1987 Act), and

   (c)    making a general order in respect of medical, hospital and rehabilitation treatment.

1. The above summary of the issues is taken from the written submissions provided by the appellant in support of the appeal.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me and the submissions put on behalf of the parties. 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

1. There is no dispute between the parties concerning threshold requirements as prescribed by s 352 of the 1998 Act.

2. In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

ABSENCE OF TRANSCRIPT

1. The parties were represented by counsel at the arbitration. Proceedings before the Commission are, as a matter of course, recorded and, in case of an appeal, a transcript of proceedings is produced and made available to the parties. In the present case, by reason of technical failure, there is no transcript of the arbitral proceedings available.

2. Each of the parties has indicated a willingness to proceed with this appeal in the absence of a transcript. I am informed that no oral evidence was adduced before the Arbitrator however submissions were put on behalf of each party at that hearing. The present circumstances require a determination as to whether the absence of a complete record of proceedings so impedes the conduct of the appeal that, rather than proceeding by way of review, there should be a requirement for a new hearing. The difficulties which arise by reason of there being an incomplete record of proceedings was addressed by Bryson JA (with whom Handley JA and Bell J agreed) in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358 where it was stated (at [32]):

   “This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s 352; and also impedes the conduct of a further appeal under s 353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic”.

3. The appellant submits on this appeal that the order made by the Arbitrator with respect to weekly payments was made in error. The claim made was in respect of the period 1 October 2008 to 30 June 2009. The award entered was in respect of the period noted in [8] above. Ms Johnston consents to the correction of the error appearing in the award.

4. A challenge also is made as to the manner in which the Arbitrator applied the provisions of s 40 of the 1987 Act. Reference is made in the course of submissions to the evidence, such as it is, which relates to the conduct by Ms Johnston of a business. The evidence establishes that Ms Johnston conducted that business (the horse riding school) during the period in respect of which the claim for weekly payments was made. In the course of argument the appellant makes reference to a summary of income and expenditure which was relied upon by Ms Johnston which was apparently accepted by the Arbitrator as demonstrating that her business had suffered a loss of almost $3,000 during the period of the claim.

5. Ms Johnston, in her statement dated 31 August 2009 stated that during the period of the claim she “received a taxable income of approximately $200.00 per week from lessons I would give to children in relation to horse riding”. Those earnings, as stated, are not in any way reflected in the income and expenditure summary to which I have referred above. It is thus, as submitted by the appellant, unclear as to whether Ms Johnston’s earnings were associated with the conduct of the business. The evidence, it may be seen, is in a state of considerable confusion. Whilst certain submissions put on behalf of the parties at the hearing have been touched upon by the Arbitrator in the course of his Statement of Reasons, there is, by reason of the absence of the transcript, no certainty as to what arguments were raised by the parties concerning the fundamental issue for determination, namely Ms Johnston’s actual earnings or ability to earn in her incapacitated state, if established on the evidence, during the relevant period.

6. The appellant also challenges on this appeal the Arbitrator’s order with respect to medical expenses. It is true that such a dispute was raised by the appellant, through its insurer, when it issued a notice under s 74 of the 1998 Act. The Arbitrator in the course of his Reasons noted that “matters previously notified as disputed” required his determination. Concerning the order made by him with respect to s 60 expenses, there has been no notation of any argument raised on behalf of the appellant. The Commission, in the absence of a transcript, cannot be certain as to whether argument was raised and if so what may have been put.

7. It is with considerable reluctance that I have concluded that the absence of a transcript gives rise to such practical difficulty that the matter must be remitted to another arbitrator for determination afresh concerning the claim brought by Ms Johnston with respect to weekly payments and s 60 expenses. The difficulties presented by reason of the absence of a transcript are compounded given the state of the evidence.

8. In circumstances where a claim is brought by a worker who is a self employed person there is a need for precise evidence concerning the value of the worker’s labour to the business or, in the alternative, a detailed examination of the business accounts is needed (see discussion by Glass JA in Cage Developments v Schubert [1981] 2 NSWLR 227 at 230). In the circumstances, with the object of determining the parties’ rights according to equity, good conscience and the substantial merits of the case (s 354 of the 1998 Act) the Arbitrator may determine that the parties be given leave to adduce additional evidence relevant to Ms Johnston’s entitlement, or otherwise, to an award of weekly compensation.

9. I confirm Ms Johnston’s agreement noted at [18] above that the closed period to which the claim for weekly compensation relates is the period 1 October 2008 to 30 June 2009. I note that the appellant does not challenge the Arbitrator’s order made in paragraph 4 of his determination dated 20 May 2010. The Commission record reveals that an assessment of whole person impairment has been conducted pursuant to that order and that the parties have agreed to certain orders with respect to that part of the claim. It is appropriate on this appeal to confirm that order and the Arbitrator’s order with respect to costs of the hearing conducted before him.

DECISION

1. Paragraphs 1 and 2 of the Certificate of Determination dated 20 May 2010 are revoked.

2. Paragraphs 3 and 4 of the Certificate of Determination dated 20 May 2010 are confirmed.

3. The matter is remitted to another Arbitrator for determination of any entitlement to weekly compensation between 1 October 2008 and 30 June 2009 and any entitlement to an order pursuant to s 60 of the Workers Compensation Act 1987.

COSTS

1. The need for a rehearing has been occasioned by reason of technical failure during the course of recording of the proceedings before the Arbitrator. The Commission has a broad discretion as to costs which is granted by the provisions of s 341 of the 1998 Act. Having regard to all the circumstances I consider it appropriate that costs of this appeal should follow the final costs order following remission to and hearing by another Arbitrator.

Kevin O’Grady

Deputy President

16 September 2010

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

ASSOCIATE