Gunawardena v State Rail Authority of NSW

[2007] NSWWCCPD 139

WORKERS COMPENSATION COMMISSION

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

CITATION:Gunawardena v State Rail Authority of NSW [2007] NSWWCCPD 139

APPELLANT:  Nimla Gunawardena

RESPONDENT:  State Rail Authority of NSW

INSURER:RailCover

FILE NUMBER:  WCC14180-04

DATE OF ARBITRATOR’S DECISION:          1 December 2006

DATE OF APPEAL DECISION:  14 June 2007

SUBJECT MATTER OF DECISION:                Treatment of the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      Lee Peisley & Foley Lawyers

Respondent:   DLA Phillips Fox

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 1 December 2006 is confirmed.

There is no order as to the costs of this appeal. 

BACKGROUND TO THE APPEAL

1. On 22 December 2006, Nimla Gunawardena sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 1 December 2006. The Respondent to the appeal is the State Rail Authority of NSW (‘the SRA’). At the relevant time, the SRA was a workers compensation self-insurer through RailCover.

1. Mr Gunawardena was born in Sri Lanka on 16 July 1948 and is aged 58. He migrated to Australia with his wife and two children in 2000. Mr Gunawardena was employed by the SRA as a train guard from early 2003. On 4 March 2004, a passenger kicked him in the stomach. Mr Gunawardena had time off work following the incident and subsequently lodged a claim for workers compensation. He has since returned to full pre-injury duties.

1. Mr Gunawardena’s claim for compensation, dated 22 March 2004, nominated his injuries as:

“A kick on my stomach and the emotional stress that caused [sic] by an actual incident and the emotional stress caused by the Inspector for falsely accusing me as the CCTV file does not cover the actual point of impact.”

On 8 April 2004, the SRA denied liability on the ground that Mr Gunawardena did not suffer any injury arising out of or in the course of his employment.

1. On 23 August 2004, Mr Gunawardena’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Commission claiming weekly compensation; they subsequently amended the claim to include medical expenses. On 5 October 2004, the SRA lodged its ‘Reply’. On 25 November 2004, an Arbitrator conducted a telephone conference with the parties at which the parties agreed that Mr Gunawardena should be referred to an Approved Medical Specialist (‘AMS’), Dr Robert Kaplan, Psychiatrist, for assessment. Dr Kaplan examined Mr Gunawardena on 9 February 2005 and, on 15 March 2005, the Commission issued Dr Kaplan’s Medical Assessment Certificate (‘MAC’). Dr Kaplan said: “I am unable to find that Mr Gunawardena has a psychiatric condition as a result of the incident in April 2004.” He found “Mr Gunawardena’s reaction to the situation at work is so excessive that it can only be attributed to personal factors”.

1. Mr Gunawardena’s solicitors’ appeal against Dr Kaplan’s assessment was rejected by the Registrar on the ground that the assessment did not constitute conclusive evidence under section 326(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), with the consequence that the Commission had no jurisdiction to hear such an appeal.

1. On 31 October 2005, the Arbitrator conducted a further telephone conference with the parties when he ordered that the matter be struck out. Mr Gunawardena’s solicitors appealed against this decision and, on 14 September 2006, Acting Deputy President Martin revoked the order and remitted the matter to a different Arbitrator for re-determination. A different Arbitrator conducted a teleconference with the parties on 26 October 2006. On 16 November 2006, he conducted a conciliation conference and, this having proved unsuccessful, an arbitration hearing. On 1 December 2006, the Arbitrator issued his decision in the terms set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 1 December 2006, records the Arbitrator’s orders as follows:

“1. The Applicant’s claim for weekly benefits for the closed periods of 8 March 2004 to 30 March 2004 and 19 April 2004 to 28 May 2004 fails and is dismissed.
2. The Applicant’s claim with respect to a “general order” for s 60 medical expenses fails and is dismissed.
3. There is no order as to costs.
4. Accordingly there is an award for the Respondent with respect to the Applicant’s claim for weekly benefits.
5. Accordingly there is an award for the Respondent with respect to the Applicant’s claim for s 60 medical expenses.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator said he was “not satisfied to the requisite evidentiary standard, that the Applicant has suffered a psychological injury in the workplace in compensable terms including pursuant to s 4 of the 1987 Act” (paragraph 58). The Arbitrator found that Mr Gunawardena “elevated, converted and interpreted [the SRA’s response to the incident] into some sort of integrity challenge” (paragraph 60), which “was so excessively reactionary as to be completely disproportionate to any reasoned or reasonable response” (paragraph 61).

ISSUES IN DISPUTE

1. The grounds of appeal identified by Mr Gunawardena’s solicitors are that the Arbitrator “fundamentally erred” in his interpretation of the legislation and in his reasoning in dismissing the application, and that he “displayed bias against [sic] in his reasoning and accepting of the evidence”. The parties’ submissions are considered below.

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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can 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. 

1. Neither party sought to adduce fresh evidence.

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. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises the whole of the amount at issue in these proceedings, the Arbitrator having made an award in favour of the SRA. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Gunawardena’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. Mr Gunawardena’s solicitors submit, first, that the Arbitrator erred by giving consideration to irrelevant factors such as Mr Gunawardena’s general practitioner, Dr HH Salem’s original certification that Mr Gunawardena was suffering from “abdominal” assault when Dr Salem later certified “psychological trauma”, and, further, by relying on Dr Kaplan’s report in relation to causation and injury which is not permitted by section 362(2) of the 1998 Act.

1. The SRA submits the Arbitrator clearly identified all the material before him, all of which was in the possession of Mr Gunawardena’s solicitors prior to the determination, and it was open to him to give consideration to all of this material in making his decision. In relation to Dr Kaplan’s assessment, the SRA notes that, pursuant to section 362(2), “the assessment certified is evidence (but not conclusive evidence) in any such proceedings”.

1. In my view, the Arbitrator was entitled to take into account as relevant evidence Dr Salem’s medical certification on the day after the accident, 5 March 2004, when he diagnosed “Assault/kicked Abdominal wall”, but that on 8 March 2004, Dr Salem diagnosed “Assault/kicked area Abdominal wall/Psycholog [sic] Trauma”. With regard to Dr Kaplan’s assessment, the SRA are correct in pointing out that, pursuant to section 362(2) of the 1998 Act, the assessment certified is evidence but not conclusive evidence in these proceedings. Thus, Mr Gunawardena’s solicitors have not made out their first ground of appeal.

1. Secondly, Mr Gunawardena’s solicitors submit that the Arbitrator erred by relying on the reports of Dr Kaplan and of Dr Doron Samuell, Consultant Psychiatrist, while disregarding the evidence of the treating psychologist, Raymond Hudd, and of Dr HH Salem, and the findings of Dr Thomas O Clark, Consultant Psychiatrist.

1. Thirdly, Mr Gunawardena’s solicitors submit that the Arbitrator displayed bias in relying on Dr Kaplan’s and Dr Samuell’s reports, while disregarding the evidence submitted in Dr Clark’s report and that of Mr Hudd.

1. With regard to the second and third grounds, the SRA submits that since the MAC was certified evidence, this could be taken into account by the Arbitrator in making his decision. In his Statement of Reasons, the Arbitrator made reference to all the evidence before him and provided a full and comprehensive account of his findings. He made no demonstrable error and the mere fact that his decision was not palatable to the Applicant does not form a legitimate basis for an appeal.

1. I note that in relation to the second ground, Mr Gunawardena’s solicitors refer to paragraphs 47(e) and (f) and 48(a) of the Arbitrator’s Statement of Reasons in support of their contention that the Arbitrator erred in relying only on the reports of Drs Kaplan and Samuell. In fact, these paragraphs comprise the Arbitrator’s summary of the parties’ submissions, rather than setting out the Arbitrator’s reasoning. The Arbitrator summarises and discusses the evidence of Mr Hudd, Dr Salem and Dr Clark under the heading “The Medical Evidence of the parties”, and further discusses the various medical reports under the heading “Findings and Reasons”, although admittedly not Mr Hudd’s report about which the Arbitrator commented (at paragraph 32): “Dr [sic] Hudd’s report is, in terms of diagnosis of an injury of a psychological type, curiously short. It is effectively just over one (1) page. There is little if any antecedent patient history given.”

1. My review of the Arbitrator’s Statement of Reasons indicates that he adequately canvassed all the medical evidence and explained his reasons for preferring the evidence of Drs Kaplan and Samuell. I am not satisfied that he erred in so doing or displayed any bias. Mr Gunawardena’s solicitors have therefore failed to make out their second or third grounds of appeal.

1. My having rejected Mr Gunawardena’s solicitors’ grounds of appeal, the decision of the Arbitrator must be confirmed.

DECISION

1. The decision of the Arbitrator dated 1 December 2006 is confirmed.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

14 June 2007

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

ASSOCIATE