Groeneveld v Victone Lighting Pty Ltd

[2007] NSWWCCPD 137

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Groeneveld v Victone Lighting Pty Ltd [2007] NSWWCCPD 137

APPELLANT:  Vicki Esther Groeneveld

RESPONDENT:  Victone Lighting Pty Ltd

INSURER:CGU Workers Compensation (NSW) (No. 2) Pty Limited

FILE NUMBER:  WCC661-06

DATE OF ARBITRATOR’S DECISION:          7 August 2006

DATE OF HEARING:  30 May 2007

DATE OF APPEAL DECISION:  13 June 2007

SUBJECT MATTER OF DECISION:                Injury; permanent impairment; fresh evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy

REPRESENTATION:  Appellant:      Brazel Moore, Lawyers

Respondent:   Sparke Helmore, Lawyers

ORDERS MADE ON APPEAL:  The decisions dated 26 April 2006 and 7 August 2006 are confirmed.

Each party is to pay its own cost of the appeal.

BACKGROUND TO THE APPEAL

1. Vicki Groeneveld (‘the worker’) was a working director of Victone Lighting Pty Limited (‘the employer’), and suffered injury to her back on 29 January 2003 when she fell from a ladder.  The question whether she also injured her neck is the subject of this appeal.

1. A claim for workers compensation was made to the employer’s workers compensation insurer CGU Workers Compensation (NSW) (No. 2) Pty Limited (‘CGU’) which then made appropriate payments of compensation.

1. A claim was apparently made for lump sum compensation relying on reports of Professor Ghabrial, an orthopaedic and spinal surgeon, of 9 February 2005. That doctor assessed whole person impairment in relation to both the cervical and lumbar spines in total as 17%. The correspondence relating to this claim is not in evidence. However, an Application to Resolve a Dispute was registered with the Workers Compensation Commission (‘the Commission’) on 18 January 2005 claiming lump sum compensation as assessed by Professor Ghabrial and compensation for pain and suffering under section 67 of the Workers CompensationAct 1987 (‘the 1987 Act’). The injury was described as “injury to cervical spine and lumbar spine”. A Reply was lodged on behalf of the employer on 19 February 2006 in which the issues in dispute were stated to be:

·whether the worker suffered an injury to her cervical spine as alleged or at all;

·the extent of whole person impairment, and

·whether the worker had an entitlement to lump sum compensation under section 67 for pain and suffering.

1. The matter was referred to a Commission Arbitrator who on 23 March 2006 held a teleconference and determined that a conciliation/arbitration hearing was necessary in order to determine whether there had been an injury to the worker’s neck.  On 11 April 2006 the Arbitrator found that there was a back injury only and referred to an Approved Medical Specialist (‘AMS’) the assessment of whole person impairment resulting from that injury. A Certificate of Determination (‘COD’) in respect of this decision of the Arbitrator was issued on 26 April 2006.

2. On 8 May 2006 the worker’s solicitor wrote to the Registrar of the Commission enclosing a report of Dr Scullin, the worker’s general practitioner, dated 26 April 2006 which was said to support the worker’s claim in respect of injury to her neck.  The solicitors sought to have the finding in respect of the neck reviewed.

3. On 8 June 2006 the worker’s solicitor again wrote to the Registrar with an application to admit late documents, being the report of Dr Scullin, previously referred to, and a report of a physiotherapist, M/s Marea Meere, dated 24 May 2006. It was sought to have these reports referred to the AMS. The referral by the Arbitrator to the AMS listed the documents provided to the AMS as being all of the documents filed with the Application and Reply and the clinical notes of Dr Scullin. It does not appear that either of the reports, belatedly sought to be relied on, were referred to the Arbitrator or the AMS.

4. The AMS, Professor Robin Higgs, examined the worker on 26 June 2006 and issued a Medical Assessment Certificate (‘MAC’) on 30 June 2006. In that MAC the AMS assessed the whole person impairment on account of injury to the lumbar spine as 8% with a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) of one-quarter, with a resulting whole person impairment after such deduction of 6%.

5. The worker’s solicitor wrote to the Manager, Dispute Services of the Commission on 3 August 2006 referring to his letter of 8 May 2006.  In that letter there is also reference to a telephone conversation with one Michelle Boyle, a Dispute Management Officer, in relation to the further evidence.  The solicitor said that it was his understanding from Ms Boyle that an appeal was not necessary and he sought that the matter be reviewed back [sic] to the Arbitrator for a hearing to determine if the neck injury could be part of the claim.

6. The Registrar replied on 7 August 2006 advising that the Arbitrator had determined that the worker had not suffered an injury to her neck.  Against that decision no appeal had been lodged and, as the Arbitrator had determined the claim in respect of the neck injury, this was unable to be referred back to him.

7. On 7 August 2006 the Registrar issued a certificate under section 294 and 371(1) of the 1998 Act in accordance with the MAC entitling the worker to the sum of $7,500.00 in respect of 6% whole permanent impairment attributable to the injury of 29 January 2003.

8. On 17 August 2006 the worker’s solicitors lodged an ‘Application to Appeal Against the Decision’ of an Arbitrator which relied on the evidence which had been forwarded to the Commission on 8 May 2006 and 8 June 2006.  This Application was initially rejected by reason of the failure to attach submissions on threshold issues relating to the granting of leave.

9. The Application was again lodged on 31 August 2006 with appropriate submissions being made as to the amount of compensation at issue on the appeal.

THE DECISION UNDER REVIEW

1. The COD of the Arbitrator dated 26 April 2006 records the Arbitrator’s orders as follows:

“1.On 29 January 2003 the Applicant suffered injury to her back.  She did not suffer injury to her neck.

2.I refer the matter to an AMS for assessment of the impairment resulting from the back injury.”

The COD of the Registrar dated 7 August 2006 records the Commission’s orders as follows:

“1.That the Respondent pay the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $7,500.00 in respect of 6% permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of 29 January 2003.

2.That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

·whether the appeal meets the requirements of section 352 of the 1998 Act.

·whether the additional evidence sought to be relied on should have been considered by the Arbitrator in order that he might review his finding that there had been no neck injury.

ON THE PAPERS REVIEW

1. 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.”

2. Although the parties submitted that the appeal could proceed to be determined on the basis of the documents before me, I considered that further submissions should be made particularly as to the absence of transcript of the proceedings of 11 April 2006. Such further submissions were made at a telephone conference held on 30 May 2007. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

2. An appeal can only be made within 28 days after the making of the decision appealed against. The worker concedes, wrongly in my view, as will appear later, that the appeal lodged on 31 August 2006 is out of time but says that an appeal would have been brought in time but for the advice which it is said was given by the Dispute Management Officer, Ms Boyle, in May 2006 that an appeal was not necessary. There is no note on the Commission file of such conversation however I am prepared to accept that it took place. The employer submits that the appeal is out of time since the appeal is against the decision of the Arbitrator dated 11 April 2006. This submission ignores the provisions of rule 77(2) of the Workers Commission Rules 2003, which were then applicable:

   “For the purposes of subrule (1), [which prescribes the time within which an appeal under section 352 of the 1998 Act must be brought] a decision is made when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”

3. There are in this case two certificates as to the determination of the dispute, one dated 26 April 2006 and the other dated 7 August 2006. The question arises as to which is the relevant certificate for the purposes of rule 77(2). I have not been referred to any authority on this question nor have I found any.

4. This is a matter in which legislative change has overtaken events. Section 352(8) of the 1998 Act was amended on 1 November 2006 to exclude from section 352 awards, orders, determinations, rulings or directions of an interlocutory nature prescribed by the regulations.  The relevant clause of the Workers Compensation Regulation 2003 is clause 200B which prescribes “all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature”. Such amendment to section 352(8) is expressed to be retrospective (Schedule 6 Part 18J Clause 5 of the 1987 Act). The fact that there is no appeal except in relation to a final order does not mean that, at a later time, an appeal may not be brought in relation to an interlocutory order. The legislative change, in my opinion, does no more than postpone the occasion for such appeal until a final order has been made. I have derived considerable assistance in this respect from the decision of Deputy President Roche in P&O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87. In that matter there was an appeal from the Arbitrator’s decision as to the deemed date of injury in a disease case as well as to the entitlement of a party to rely on certain medical reports. Both decisions were held to be interlocutory. Although this case is somewhat different I am of the view that the decision of the Arbitrator embodied in the COD of 26 July 2006 was no more than an interlocutory decision. Apart from the provisions of section 352(8), I am of the view that rule 77(2) to which I have referred at [18] specifies the time when a certificate as to the determination of the dispute is issued as the relevant date from which time to appeal begins to run. The dispute was not determined until the COD of 7 August 2006 was issued.

5. The appeal was thus lodged within 28 days of the decision in compliance with section 352(4) of the 1998 Act.

6. The monetary threshold in section 352(2) is conceded by the employer to have been met although this does not conclude the question. However I am satisfied that the impairment claimed in relation to the worker’s neck does represent compensation of more than $5000, both of itself and as a result of the worker’s possible consequent entitlement to compensation under section 67. All of that compensation is at issue on the appeal.

7. Leave to appeal is granted.

FRESH EVIDENCE

1. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

   “(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

2. Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

   “New Evidence

   Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

   In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

3. Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,

   -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

4. In this matter the worker seeks to rely on the two reports to which I have referred at [5] and [6]. Regrettably no submission has been made as to why these reports were not obtained earlier and put into evidence before the Arbitrator and, indeed, it is difficult to see the basis of any such submission. Injury to the worker’s neck was clearly denied in the employer’s Reply lodged on 10 February 2006.

5. Professor Ghabrial took a history on 9 February 2005 that the worker had suffered injury to her neck and back as a result of the fall of 29 January 2003. There is no suggestion in Professor Ghabrial’s report that the injury to her neck occurred during the course of treatment of her back injury in September 2003 which is what Dr Scullin and M/s Meere have recorded. In any event the clinical notes of Dr Scullin were in evidence and were referred to the AMS. In those notes is contained an entry of 22 September 2003 which the doctor has set out in his report of 26 April 2006. He does however additionally, in that report, express a view as to the temporal and causal connection between the neck injury and treatment for the back injury.

6. The new evidence sought to be relied was only obtained after the Arbitrator’s decision had been given. It could, and in my view, should have been obtained earlier in order to meet an issue raised by the employer. The matters to be considered in deciding whether to admit fresh evidence were considered by Deputy President Fleming in McMahon v Anthony Lagana and Joseph Lavella t/as The Vessel “Nimble II” [2003] NSWWCCPD 22. It is not I think necessary to set out those matters here at length. It is sufficient to say that the new evidence is not of such a probative value as to make a different outcome likely nor is it such as could not, with reasonable diligence, have been obtained before the arbitration. I have weighed the claimed substantial injustice to the worker and the probable prejudice to the employer if the evidence is rejected or admitted and have concluded that the new evidence should not be admitted.

EVIDENCE

1. There were two ways in which a claim might have been made in respect of the worker’s neck. The first was simply that in the fall her neck was injured. The Application to Resolve a Dispute and Professor Ghabrial approach the matter in this way. The worker’s own statement which is undated but bears the imprint of having been faxed on 12 December 2005 simply says that she had trouble getting out of bed due to severe pains at times in her neck, back and shoulders. The claim form completed by the worker on 8 May 2003 refers only to injury to her low back. Dr Scullin’s clinical notes make no reference to the neck until 22 September 2003 when the relevant part of the entry is “Buttock/leg pain ISQ; increased low back & new cervical pain since starting gym program”.

2. I was informed by the worker’s solicitor that the worker’s case was, in accordance with the Application to Resolve a Dispute, that she had injured her neck in the fall in January 2003 and she had given brief evidence on 11 April 2006 that this had happened. She said she had reported this to Dr Scullin who had evidently failed to record it. I was further informed that the worker had not sought to make out a case of injury to her neck in the course of treatment to her back. As I have earlier noted there is no transcript of the hearing on 11 April 2006 or the Arbitrator’s reasons, given ex tempore, for determining that the worker had not suffered an injury to her neck.

3. The second approach was that suggested in Dr Scullin’s note of 22 September 2003 referred to above. Dr Hession, a specialist physician, who examined the worker at the request of the employer on 21 September 2004 obtained a history of injury to her low back only and there was no complaint by the worker concerning her neck. Dr Rimmer, an orthopaedic surgeon, who examined the worker for the employer on 5 October 2005, also obtained a history from the worker of lumbar injury however she did tell him that the pain in the left lumbar region radiated up to her neck level causing tingling and stiffness in her neck Neither Dr Hession or Dr Rimmer saw any reports of radiological examinations of the worker’s neck. At the telephone conference it was conceded that there were none.

4. The AMS, Professor Robin Higgs, reported that the worker suffered from cervical spinal symptoms although it was only the lumbar spine which was referred for assessment of whole person impairment. The AMS reviewed the documents forwarded to him in response to the worker’s complaint of pain radiating from her low back to her neck. He noted the eight month delay in the onset of neck symptoms and the absence of references to the neck in the claim form. He considered, however, that he was not required to assess the worker’s cervical spinal region. Later he noted that the onset of neck pain appeared to have been associated with the undertaking of gymnasium based exercises.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The worker’s solicitor specifically took no point as to the absence of transcript of the arbitration hearing on 11 April 2006 and also the absence of the reasons of the Arbitrator.  He fairly conceded that the Arbitrator was not obliged to accept the evidence of the worker that she had injured her neck in the fall and indeed there was no substantive attack on the finding on the Arbitrator in this regard.

2. The absence of transcript was considered by the Court of Appeal in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34. Bryson JA, with whom Handley and Bell JJA agreed, said the following at [32] and [33]:

   “In the present case, for reasons which were not explained, there was no compact disc or sound recording of the Arbitration hearing and the evidence given there.  This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s352; and also impedes the conduct of a further appeal under s353.  According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a re-hearing; although that result would not be automatic.

   In the present case this large shortcoming was overcome by the Deputy President’s acceptance of the following narration made by the solicitor who appeared at the Arbitration hearing for the employer of the events of which he complained in a matter of 14 November 2003 to the Workers Compensation Commission:”

3. Given the attitude of the worker’s solicitor in this matter, it is not in my view necessary to consider whether the absence of transcript leads to the result that there must be a further hearing of this matter.  The issue in this case was quite narrow and the evidence of the worker was stated to have simply been that she did injure her neck in the fall of January 2003.  There was, it appears, cross-examination of her, no doubt on her failure to complain to doctors about it and failure to refer to it in her claim form or statement.  I accept what was submitted by the worker’s solicitor that his client’s evidence was that that she did injure her neck in the fall and had reported it to Dr Scullin who had failed to record it.  Nonetheless, it was, in my view, open to the Arbitrator to come to the conclusion that there had been no injury to the neck in the fall in January 2003. 

1. The sole ground of appeal relied on is as follows:

   “2.3The correct decision is that the Arbitrator should be allowed to review the further medical evidence to determine if the neck injury can be made part of the claim.”

2. As the appeal is framed, the complaint is not so much as to the conclusion to which the Arbitrator came but rather the failure on the part of Commission staff to refer the further medical evidence to the Arbitrator.  As I have earlier said, there was no direct challenge against the conclusion to which the Arbitrator came, based, as it was, on the evidence before him.

3. This aspect has caused me some concern.  It appears to me that the reports sought to be relied on ought to have been referred to the Arbitrator so that he might consider whether they should be admitted in evidence or not.  It is regrettable that there was no formal response to the requests made by the worker’s solicitor in letters of 8 May and 8 June 2006.  Nonetheless an appeal pursuant to section 352 of the 1998 Act is an appeal “against a decision in respect of the dispute by the Commission constituted by an Arbitrator”.  In this case I consider that an application to receive fresh evidence if made to the Arbitrator would necessarily have failed as it has failed on this appeal and for the same reasons.  In addition the essence of the fresh evidence sought to be relied on was contained in Dr Scullin’s notes which were before the Arbitrator and before the AMS and the two reports in question did not support the case sought to be made out by the worker. I am thus not persuaded that this ground of appeal is established.

DECISION

1. The decisions dated 26 April 2006 and 7 August 2006 are confirmed.

COSTS

1. Although the employer has been successful on the appeal brought by the worker, I do not consider that this is an appropriate case to make an award of costs against the worker.  Accordingly, the order made is that each party pay her or its own costs of the appeal.

Anthony Candy

Acting Deputy President  

13 June 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE