Gunawardena v State Rail Authority of NSW
[2006] NSWWCCPD 230
•14 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Gunawardena v State Rail Authority of NSW [2006] NSWWCCPD 230
APPELLANT: Nimla Gunawardena
RESPONDENT: State Rail Authority of NSW
INSURER:Railcover
FILE NUMBER: WCC 14180-04
DATE OF ARBITRATOR’S DECISION: 10 November 2005
DATE OF APPEAL DECISION: 14 September 2006
SUBJECT MATTER OF DECISION: Power to strike out a claim; procedural fairness.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Lee Peisley & Foley Lawyers
Respondent: Phillips Fox Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 10 November 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
2.State Rail Authority of NSW to pay Nimla Gunawardena’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 25 November 2005 Nimla Gunawardena (‘Mr Gunawardena’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 November 2005.
The Respondent to the Appeal is State Rail Authority of NSW (‘State Rail’).
Mr Gunawardena was born on 16 July 1948 and is 58 years of age. He is married with two children.
Mr Gunawardena was born in Sri Lanka and came to Australia in January 2000. On arriving in Australia Mr Gunawardena worked for several employers before commencing with State Rail in September 2002.
Mr Gunawardena was employed as a train guard and on 4 May 2004, whilst on duty on a train at West Ryde Station, alleges he was assaulted by a passenger. On arriving at Hornsby Station, Mr Gunawardena was met by a State Rail Inspector and was upset that his version of the event was questioned by the Inspector.
The following day Mr Gunawardena consulted his general practitioner and was certified unfit to work for a period of approximately 9 weeks as a result of psychological injury arising from the assault. After this time off work Mr Gunawardena returned to his job as a train guard.
A claim for compensation was made on State Rail, but liability was denied from the outset. On 14 September 2004 Mr Gunawardena commenced proceedings in the Commission for payments of weekly compensation for the time off work.
On 25 November 2004 a teleconference was held between the parties and the Arbitrator, where it was agreed that the matter would be referred for assessment by an Approved Medical Specialist, Dr Robert Kaplan. This assessment took place on 9 February 2005 and Dr Kaplan was “…unable to find that Mr Gunawardena has a psychiatric condition as a result of the incident in April 2004”.
There was a further teleconference on 14 April 2005 where the Arbitrator issued a Direction that:
“If an appeal is not lodged by the Applicant against the findings of the AMS, Dr Robert Kaplan, within the prescribed time limits, the Application is to be discontinued.”
On 15 April 2005 Mr Gunawardena filed an Appeal Against Decision of Approved Medical Specialist.
On 9 June 2005 the Registrar of the Commission wrote to Mr Gunawardena advising that as the assessment of Dr Kaplan “…relates to an assessment of a general medical dispute, which is not conclusive evidence under section 326(1) of the 1998 Act” it cannot be the subject of an appeal.
On 31 October 2005 there was a further teleconference where the Arbitrator ordered the matter is struck out.
Mr Gunawardena has appealed from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 November 2005 records the Arbitrator’s orders as follows:
“1.Matter is struck out.
2.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
“1.did the Arbitrator err in striking out the Application;
2.did the Arbitrator provide adequate reasons for the decision;
3.has there been a denial of procedural fairness to Mr Gunawardena; and
4.has the Arbitrator demonstrated bias in favour of State Rail.”
ON THE PAPERS REVIEW
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.”
As stated above Mr Gunawardena lodged the appeal on 25 November 2005 and then filed a certificate of service stating that the Appeal was served on State Rail on 6 December 2005.
On 4 January 2006 the Registrar wrote to the solicitor for State Rail advising that the Appeal has now been referred to the President for allocation to a Presidential Member for review. The Registrar in that letter also advised the solicitor for State Rail that:
“The Presidential Member may determine the leave application and appeal solely on the basis of the written application and any written notice of opposition.”
There has been no Notice of Opposition to Appeal lodged by State Rail.
The Application to Appeal Against Decision of Arbitrator served on State Rail states:
“If you do not lodge and serve a notice of opposition to the application, the Commission may determine the application in the absence of your response.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mr Gunawardena 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.
LEAVE
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.
The amount of compensation at issue on the appeal is at least $5,000.00 (section 352(2)(a) of the 1998 Act).
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5)
Accordingly I grant leave to appeal.
FRESH EVIDENCE
Mr Gunawardena has indicated that he seeks leave to rely on fresh evidence and has annexed to his Application to Appeal a copy of a medical report from Dr Thomas Clark, Consultant Forensic Psychiatrist. Mr Gunawardena had in fact indicated his intention to rely on this medical report when filing his initial Application to Resolve a Dispute on 14 September 2004 and had filed in the Commission a copy of the report, with a Certificate of Service on 16 December 2004. Accordingly there is no need to consider this application for fresh evidence.
PRELIMINARY
When a matter, as here, is referred to an Approved Medical Specialist, section 326(1) of the 1998 Act provides that an assessment is conclusively presumed to be correct as to, the degree of permanent impairment of a worker as a result of an injury; whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality; the nature and extent of loss of hearing suffered by a worker; whether impairment is permanent, and whether the degree of permanent impairment is fully ascertainable. Section 326(2) of the 1998 Act provides that as to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.
STRIKING OUT THE APPLICATION
The Arbitrator in his Reasons for Decision stated:
“The Medical Assessment Certificate of AMS, Dr Robert Kaplan, dated February 2005 noted at (paragraph 4) that the AMS was “unable to find that Mr Gunawardena [the Applicant] has a psychiatric condition as a result of the incident in April 2004”. In order to succeed in a claim for compensation for psychological injury under the Workers Compensation Act 1987 an Applicant will need to establish that he suffered a psychological injury in the course of his employment; that his employment was a substantial contributing factor to that injury, and that the injury produced an incapacity for employment.
The parties on 29 November 2004 referred the question of whether the Applicant suffered a psychological injury arising from the incident at the railway station on 4 March 2004 to an AMS chosen by the Registrar. The Registrar appointed Dr Robert Kaplan a psychiatrist to examine the Applicant and provide a report that answers the questions put to the AMS. Dr Kaplan at paragraph 6 noted that “As Mr Gunawardena does not have a psychiatric disorder, assessment of stabilization and permanent impairment is not necessary”.
At the teleconference on 31 October 2005 the Applicant’s solicitor requested that the matter be set down for an Arbitration on the question of injury and causation. Based on the answers provided in the Medical Assessment Certificate of Dr Robert Kaplan, the comprehensive submissions (4 pages) in the Reply detailing the relevant authorities, and the various medical reports provided by the Applicant and Respondent, I declined to set the matter down for an Arbitration Hearing and elected to make the orders noted above.”
As Deputy President Fleming said in Ngu v Three Link-Up Pty Ltd [2005] NSWWCCPD5:
“The exercise of the power to strike out a claim is dependent upon non-compliance with the Rules. Rule 6(4) provides that:
“If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”
The Arbitrator has not identified any failure to comply with the Commission’s Rules. It is also not clear from the brief statement by the Arbitrator whether he made a determination that the proceedings are a nullity, in accordance with Rule 6(4). Such a determination is a prerequisite to striking out the claim (see Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSWWCCPD 83; Forman v Moree Plains Shire Council [2004] NSWWCCPD 85).”
In my opinion the Arbitrator erred in purporting to “strike out” the Application, as his reasons did not disclose that he made a determination that the proceedings are a nullity and accordingly the decision should be revoked.
In my view the Arbitrator should have set the matter down for arbitration as requested by Mr Gunawardena’s solicitor, as the Medical Assessment Certificate of Dr Kaplan was not conclusive evidence on the issue of injury and causation.
Of concern in this matter is that on reading the report of Dr Kaplan, it is clear that he did not have access to the medical report of Dr Clark, whose report is the foundation of Mr Gunawardena’s case. Although not entirely clear, it appears that the Arbitrator also did not have access to the medical report of Dr Clark and if he did, he certainly made no reference to the report in his decision and accordingly the Reasons for Decision were not “capable of conveying adequately to the parties, the basis upon which the Arbitrator came to his decision” (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444, and Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259).
Accordingly I am satisfied that the further ground of appeal that the Arbitrator did not provide adequate reasons for his decision has been made out.
As I have found that the decision of the Arbitrator should be revoked for the above reasons, it is not necessary that I consider the further grounds of appeal.
DECISION
The decision of the Arbitrator dated 10 November 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
State Rail Authority of NSW to pay Nimla Gunawardena’s costs of the appeal.
Julian Martin
Acting Deputy President
14 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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