Hai Thanh Phan v Southern Steel Supplies Pty Ltd
[2006] NSWWCCPD 70
•1 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hai Thanh Phan v Southern Steel Supplies Pty Ltd [2006] NSWWCCPD 70
APPELLANT: Hai Thanh Phan
RESPONDENT: Southern Steel Supplies Pty Ltd (wrongly sued as Southern Group Supplies Pty Ltd)
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC20687-04
DATE OF ARBITRATOR’S DECISION: 18 April 2005
DATE OF APPEAL DECISION: 1 May 2006
SUBJECT MATTER OF DECISION: Refusal to allow oral evidence; natural justice; weight of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: P & A Lawyers
Respondent: Gillis Delaney Brown
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator's decision of 18 April 2005 is revoked and the following order is made:
Award for the Respondent.
Paragraph two of the Arbitrator's decision of 18 April 2005 is confirmed.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 13 May 2005 Hai Thanh Phan (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 April 2005.
The Respondent to the Appeal is Southern Steel Supplies Pty Ltd (‘the Respondent Employer’). It should be noted that the Respondent Employer was wrongly sued as Southern Steel Group Pty Ltd in the Application to Resolve a Dispute (‘the Application’) filed on 15 December 2004. That error was corrected on the Reply to Application to Resolve a Dispute (‘the Reply’) filed on 4 January 2005 and the change was noted by the Arbitrator. Unfortunately the change was not made to documents filed in the Commission in the appeal but the correct name has now been noted.
The Appellant Worker was born in Vietnam on 27 February 1963 and came to Australia in 1990. He worked for several different employers until he started with the Respondent Employer on 21 May 2001.
On 19 November 2001 (‘the November injury’) he sustained injury at work with the Respondent Employer. The exact nature and extent of that injury is the subject of dispute and will be considered in detail in the reasons that follow.
On 28 March 2002 the Appellant Worker filed an Application for Determination (‘the Court Application’) in the Compensation Court of NSW (‘the Court’) seeking compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of the November injury. In those proceedings the Appellant Worker alleged an injury to the fourth finger on his right hand and claimed $9,000.00 in respect of 100% permanent loss of two joints of the ring finger of the right hand.
By an Amended Application for Determination filed on 18 June 2002 the compensation claimed was amended to be $17,500.00 in respect of 25% permanent loss of efficient use of the right hand plus $12,500.00 under section 67 of the 1987 Act.
An award was made in the Appellant Worker's favour in the Court on 25 July 2003 in the sum of $5,500.00 in respect of 50% loss of use of the Appellant Worker's right ring finger. I do not know if that award was made by consent or after a contested hearing.
In the Application filed on 15 December 2004 the Appellant Worker made the following allegations in Part 3:
· date of injury: “19 November 2001”;
· place of injury: “workplace and nature and conditions of employment”;
· injury description: “injury to right arm”, and
· description of how injury occurred: “as the Applicant was returning a pack of RHS steel to a rack with an overhead crane, he slipped on galvanised RHS, falling forward”.
In the Application the Appellant Worker claimed lump sum compensation under section 66 of the 1987 Act in the sum of $9,750.00 in respect of 13% loss of efficient use of the right arm at or above the elbow, $3,750.00 in respect of 3% whole person impairment and $10,000.00 under section 67. The Appellant Worker also claimed weekly compensation from 2 September 2003 to date and continuing. The application for weekly compensation has been discontinued.
By the Reply filed for the Respondent Employer injury, section 9A of the 1987 Act and incapacity were put in issue.
The matter was heard before an Arbitrator on 5 April 2005 and decided on 18 April 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 April 2005 records the Arbitrator’s orders as follows:
1. Award for the Respondent pursuant to Section 66 of the Act;
2. No order as to costs.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
· placing disproportionate weight on the Appellant Worker's failure to note the shoulder injury in the employee’s Report of Injury form dated 3 December 2001 (‘the claim form’);
· disregarding the totality of the evidence;
· refusing the Appellant Worker the opportunity to give oral evidence;
· denying the Appellant Worker natural justice by refusing to allow the Appellant Worker to give oral evidence;
· that the decision was inconsistent with the Arbitrator's finding that the Appellant Worker suffered an injury to his right arm at or above the elbow;
· concluding that there was insufficient evidence to establish that the shoulder injury was the result of a frank injury or the nature and conditions of employment;
· making a decision contrary to the evidence before him;
· failing to base his decision on logically probative evidence;
· failing to provide adequate reasons for his decision;
· applying the incorrect statutory test in determining whether work was a ‘substantial contributing factor’ to the injury;
· making a finding against the weight of the evidence, and
· the exercise of his discretion in relation to consideration of the evidence.
The last four points listed in paragraph 10 above are raised in a letter from the Appellant Worker's solicitors dated 6 June 2005. No additional submissions were provided with this letter.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties 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 in issue in the appeal exceeds the thresholds set out in section 352(2)(a) and (b) and I grant leave to appeal.
FRESH EVIDENCE
No party seeks to adduce fresh evidence on the appeal.
EVIDENCE
Appellant Worker’s Evidence
The Application had attached to it two letters particularising the claim. By letter dated 7 July 2004 addressed to the Respondent Employer the Appellant Worker's solicitors stated that their client’s claim was for “injury to the right arm at or above the elbow” and the date of injury was given as “19 November 2001” and “nature and conditions of employment up to 2 September 2003” (the Appellant Worker's employment was terminated on 3 September 2003).
By letter dated 30 June 2004 addressed to QBE Workers Compensation (NSW) Limited the injury is described as “injury to the right arm” and the date of injury is given as “nature and conditions of employment for the period 21 May 2001 to 2 September 2003”.
Whilst the Application was ambiguous about whether a claim was being pressed for injury as a result of the nature and conditions of the Appellant Worker's employment, the above letters make it reasonably clear that such a claim was being pursued. Such a claim was referred to by the Arbitrator at paragraph three of the Statement for Reasons of Decision (‘Reasons’). I think it is reasonable to conclude that the ‘nature and conditions’ claim was an issue before the Arbitrator notwithstanding the ambiguous particulars in the Application.
The Appellant Worker relied on two statements before the Arbitrator. The first was dated 9 December 2004 (‘the first statement’) and the second 23 March 2005 (‘the second statement’). The second statement was filed in accordance with a direction by the Arbitrator at a teleconference on 24 February 2005.
In his first statement the Appellant Worker stated at paragraph eight:
“I was returning a pack of RHS steel that was not required for a particular order to a rack with [sic] overhead crane, when I slipped on galvanised RHS steel causing me to fall forward. In doing so I grabbed the chain whilst the hoist was activated in an upward direction causing my finger to be caught between the chain and the material causing a crushing injury to my right ring finger. I was off work for a number of weeks and returned on light duties. As a result of that injury I instructed solicitors to commence proceedings in the Compensation Court and received lump sum compensation in respect of the loss of use of my finger.”
He adds at paragraph 11 of his first statement:
“In relation to my injury on 19 November 2001 where I injured my finger I also suffered injury to my right arm. I was ambulanced to Liverpool Hospital. I stayed over night. The following day I started to feel pain and discomfort in my right arm and shoulder. The pain and discomfort in my right arm and shoulder has been constant since November 2001. At the time my primary concern was my finger. My claim was focused in relation to my finger and not the whole of my arm because I believed that the pain in my arm would subsequently subside.”
At paragraph 13 of his first statement the Appellant Worker states that he still has problems grasping with his right hand because of the injury to his finger and he has a loss of strength in his right arm and restricted movement.
Paragraph 19 of the first statement adds:
“When I injured my hand and right arm on 19 November 2001 I also suffered an injury to my lower back due to the fall. I did mention my back to my then GP, Dr Tran. I also mentioned my painful back to my employer. I do not know whether it was recorded.”
The Appellant Worker also stated that he consulted Dr Lam (later identified as Dr Lam Quac Phan) for his back problem and was prescribed medication for it.
The first statement also adds that the Appellant Worker has a limited knowledge of English and that his ability to speak English in “very poor” (paragraph 14).
In his second statement the Appellant Worker gives the following description of his November 2001 accident at paragraph seven:
“After unloading the pipes from the rear of the truck and placing them in the storage area I made my way to where I had laid the bundle of pipes. It was my intention to physically disengage the hooks from the straps, which held the steel bundle together. As I approached the bundle I slipped on the oily floor surface and in order to break my fall I instinctively grabbed hold of the chain with my right hand. In doing so I struck the control mechanism of the crane which was in front of me causing the crane to lift the bundle of steel. Since I was holding onto the chain I was lifted off the ground approximately two metres causing a significant degloving injury of most of the pulp of the right ring finger. This caused me to fall to the ground and in doing so my shoulder and back struck another bundle of steel pipes, which were on the ground.”
At paragraph eight of the second statement he added that he recalled experiencing pain in his right arm and shoulder, lower back and his hand when he stuck the pipes.
At paragraph 11 of the second statement he stated that after his discharge from hospital he continued to feel pain in his lower back, right arm and shoulder. That pain did not subside so he consulted his general practitioner, Dr Tran. The doctor’s rooms were closed so the Appellant Worker attended on Dr Lam Quac Phan (‘Dr Phan’) who prescribed pain relieving medication and referred the Appellant Worker for X-rays of his shoulder and back.
At paragraph 12 he states that he also consulted Dr V P Vo on one or two occasions for his back and shoulder.
No evidence was tendered from Dr Tran, Dr Vo or Dr Phan. No explanation was offered as to why there was no evidence from these doctors.
At paragraph 15 of his second statement the Appellant Worker states that he mentioned his back and shoulder to a fellow worker named “Joe” and to the warehouse manager called “Jimmy”. It is not know in what context the Appellant Worker mentioned his back and shoulder to his co-workers and little weight can be attached to this evidence.
The Appellant Worker continued performing his normal duties “with great discomfort” until he ceased work on 22 July 2003 because of an eye complaint (see second statement paragraph 17). It is not know if the “discomfort” was due to his shoulder or his finger or both. He remained off work and his employment was terminated on 3 September 2003.
The Appellant Worker states that on most occasions when he attended on his solicitor he did so without the assistance of an interpreter and that, as a result, he had great difficult communicating because of the language barrier (see paragraph 19 of second statement). It is not known if the Appellant Worker had the assistance of an interpreter when he gave either of the statements which were in evidence before the Arbitrator. It is appropriate to observe that each statement is lengthy and detailed.
The Appellant Worker says that he was “asked about his arm shortly before the court case” for his finger and that he told his solicitor that he “had problems with his arm and back” (see second statement paragraph 20).
Medical Evidence
On behalf of the Appellant Worker evidence was tendered from Dr Conrad (three reports of 2 April 2004) and Dr John H McKessar dated 21 May 2003. Dr Conrad had previously seen the Appellant Worker on 12 April 2002 and prepared a report relating to that consultation on 18 April 2002. That report was not put before the Arbitrator and it is not before me. Normal practice would dictate that all reports from a particular doctor would be tendered. However no objection was taken to the selective tender of Dr Conrad’s reports.
Dr Conrad noted that Appellant Worker's complaint that the condition of his left hand had deteriorated since the previous visit. The Appellant Worker found it difficult to grip things with his right hand and he had noticed “progressive pain” in his right shoulder. On examination the doctor noted a restricted range of motion of the right shoulder. Under ‘opinion’ Dr Conrad stated that:
“Since I have last seen him, he has developed pain and stiffness in his right shoulder, which has also been noted by Dr McKessar as far back as May 2003. This appears to be due to the conditions of work at Southern Steel”.
This passage is significant for two reasons. First, as it makes it clear that the shoulder “pain and stiffness” developed after the doctor’s first consultation in April 2002. Second, the doctor thought the shoulder problem was “due to the conditions of work” and, by clear inference, not due to the November injury.
Dr Conrad saw the Appellant Worker without the benefit of an interpreter but he thought that the Appellant Worker was able “to communicate in a limited capacity”.
Dr McKessar saw the Appellant Worker with an interpreter on 21 May 2003. He took the following history from the Appellant Worker:
“Heavy loads of steel for order preparation were lifted by crane and at approximately 6.00pm on 19.11.01, whilst about to lift material which he estimated weighed in excess of 1000 kg, he slipped on the oily floor, striking the control mechanism of the crane in front of him and he put out his hand to save himself and unfortunately his right ring finger was trapped between the lifting chains and the load and he suffered quite a significant degloving injury of most of the pulp of the right ring finger…”
In respect of the right shoulder the doctor took this history:
“He states that since resuming work he has been conscious of some pain which radiates up his arm as far as his shoulder, and indeed, his principle discomfort is currently in his right shoulder in which he is conscious of some restriction of movement and he cannot recall any prior problem in his shoulder before his injury, although his work did involve him using his hands at and above shoulder height, pulling down on chains etc.”
Dr McKessar has no history of injury to the right shoulder during the incident at work on 19 November 2001. His history is consistent with the Appellant Worker developing pain in his shoulder after he resumed work following the November injury. There are conflicting histories as to exactly when the Appellant Worker resumed work after that injury.
On examination of the right shoulder the doctor found:
“He had a full range of wrist function, full elbow function and normal [sic] in his shoulder. He produced normal forward flexion, abduction, external rotation and he produced internal rotation to 45°, the end of the range, according to the patient, being painful over the bicipital groove.”
The doctor found no evidence of any muscle wasting in the shoulder girdle and no tenderness over the acromioclavicular joint.
Under ‘opinion’ Dr McKessar stated:
“I do believe he has a separate problem in his shoulder which I believe is more likely to be related to the nature of his work generally than to this specific injury but has never been investigated.”
Contrary to the Appellant Worker's statement, Dr McKessar recorded that the Appellant Worker has had no investigations for his shoulder and he has never reported the shoulder problem to his general practitioner.
The Respondent Employer relied on the evidence of Dr Rowe in two reports of 12 June 2003 and a report of 25 February 2005 and two reports from Dr William Walker of 18 January 2002. Dr Walker’s reports were presumably obtained to meet any potential claim in the Compensation Court of NSW.
Dr Walker had the benefit of an interpreter at his examination. He took a brief history which reads as follows:
“On 19 November 2001, he caught his right finger in a chain when he slipped, catching it between the chain and a hard object. This caused a fingertip injury with loss of most of the pulp of the finger.”
The Appellant Worker complained to Dr Walker that his hand was weaker, he had trouble holding a pen and his finger ached at the end of the joint.
Dr Walker has no history of any shoulder or back injury. Bearing in mind that this consultation took place within three months of the incident and with the benefit of an interpreter, I find the omission of any complaint of a shoulder or back injury to be most significant.
Dr Rowe also had the benefit of an interpreter at his consultation and examination on 12 June 2003. His history of the incident need not be recorded but under ‘current status’ the doctor notes:
“He did indicate that there has been pain extending from the right shoulder down to the wrist for the past couple of months since April of this year. He said that it is constantly present at all times and that it is worse with working. Clearly this is unrelated to the current claim.”
Under ‘treatment’ Dr Rowe states that the Appellant Worker has been taking panadeine forte and another drug “since the onset of his pain in the right shoulder region in April of this year”.
On examination of the right shoulder Dr Rowe found a “painful click” and a reluctance to move the shoulder. He thought the shoulder pain was “completely unrelated to the hand injury” which was the subject of the claim.
At his second examination in February 2005 the doctor again had the benefit of an interpreter. Under ‘history’ it was noted that there had been no further accidents or injuries since the attendance in June 2003. Therefore it is reasonable to conclude that the doctor worked off the history set out in his 12 June 2003 report. The Appellant Worker complained to Dr Rowe of pain in his right ring finger, right shoulder and his lower back. On examination of the right shoulder there was a general over reaction with “only a trace of active movement” in any direction. When distracted the Appellant Worker was noted to have a normal range of movement.
Dr Rowe concludes his report with the following opinions:
“His right shoulder and back symptoms are not in any way related to the subject incident.
Mr Phan has a permanent loss of use of the right arm at or above the elbow of ten percent (10%) as a result of the work injury on 19 November 2001.”
The reference to the loss of use of the right arm is clearly a reference to the loss that has resulted from the injury to the right ring finger.
SUBMISSIONS AND FINDINGS
Weight of Evidence
It has been submitted for the Appellant Worker that the Arbitrator’s decision was “against the weight of the medical evidence”. I assume that this submission relates to the ‘nature and conditions’ claim. I have referred to the relevant medical evidence on this issue. It provides some support for a ‘nature and conditions’ claim in respect of the right shoulder. However, I believe there are a number of insurmountable problems with such a claim.
The Appellant Worker did not give evidence that he suffered pain in or injury to his right shoulder as a result of his duties with the Respondent Employer. His evidence was that he hurt his right shoulder in the November injury and that his pain has “been constant” since that time (see Appellant Worker's first statement generally and at paragraph 11 in particular).
The evidence about the nature of the Appellant Worker's duties with the Respondent Employer was very limited. In his first statement he stated that he worked for the Respondent Employer as a storeman. He worked 50 to 55 hours per week. His normal duties required him to ‘pick orders’. To do this he would bundle together steel pipes for loading onto trucks (see first statement paragraph seven). Obviously that work would have required some physical effort but a good deal of it would have been done with cranes because of the weights involved. Exactly how much physical effort would have been required by his work is not know.
Some assistance is obtained from Dr McKessar’s history which notes that the work involved the Appellant Worker in “using his hands at and above shoulder height”. However Dr McKessar’s opinion is that he merely “suspects” a problem in the Appellant Worker's shoulder which he thought was “more likely to be related to the nature of his work generally” than to the specific injury on 19 November 2001. He quite properly adds that the problem has never been investigated. He thought there was “possibly” a rotator cuff tendonitis. This opinion falls well short of satisfy the test in section 9A of the 1987 Act that employment must be a substantial contributing factor to an injury before compensation is payable.
Dr Conrad talks about the shoulder problem and says that it “appears to be due to conditions of work” (emphasis added) with the Respondent Employer. Again, this does not satisfy the requirements of section 9A of the 1987 Act.
Dr Conrad took no history of the nature of duties performed by the Appellant Worker with the Respondent Employer. This no doubt accounts for the doctor’s reticence in attributing the shoulder problem to the employment.
The Appellant Worker’s medical evidence has not satisfied the tests set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 in that the doctors did not have complete histories of the nature of the duties performed by the worker. As a result they were unable to express an opinion about whether the Appellant Worker sustained a shoulder injury due to the nature and conditions of his employment with the Respondent Employer. They expressed no opinion about whether employment was a substantial contributing factor to such an injury.
In these circumstances I believe the Arbitrator was correct to conclude that there was “no worthwhile support” for the nature and conditions claim either in “the medical reports or in the Applicant’s Statement” (Reasons paragraph 14 (l)).
I would add that this part of the claim also fails because it is completely inconsistent with the Appellant Worker's evidence of injuring his shoulder in the frank injury on 19 November 2001 with the pain remaining “constant” since that time.
The Appellant Worker's written submissions place some weight on the report of Dr Rowe of 25 February 2005. It is submitted that Dr Rowe concedes a causal connection between the injury and the employment. It is true that the doctor does make that concession but it is clear beyond doubt that the doctor is talking about the connection between the finger injury on 19 November 2001 and the employment. Dr Rowe does not give the Appellant Worker any assistance on the question of whether the shoulder problem is related to the injury on 19 November 2001.
Natural Justice
It is submitted that the Arbitrator denied natural justice by refusing to allow the Appellant Worker to give oral evidence about the following issues:
· the nature and conditions of employment;
· the circumstance in which the claim form was completed, and
· whether the initial claim form signed by the Appellant Worker was completed by him or interpreted to him in his language.
The rules of natural justice have been considered by the courts on many occasions. In Muin v Refugee Tribunal [2002] HCA 30 Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
In considering the application of the rules of natural justice to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’) at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:
“In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’ The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”
In light of the above authorities it is appropriate to consider the provisions that govern proceedings before the Commission. They are set out in Chapter 7 of the 1998 Act and in section 354 which provides as follows:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
In addition to the above provisions the Workers Compensation Commission Rules 2003 (‘the Rules’) require parties to lodge and serve (within set time limits) all information and documents on which they intend to rely and to make statements setting out the specific nature of their evidence and other material related to producing it (see Rules 38 and 42 and comments in Zheng at [24]).
After referring to the Rules Justice Bryson said in Zheng at [24]:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way. The overall and continuing duty under s.355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”
In Zheng the Court of Appeal was dealing with a complaint by an employer that cross examination had been unfairly and prematurely curtailed. The court rejected that argument and stated at [31]:
“The ordinary expectation should reasonably be that every material thing which a witness has to say about the facts will appear in the statement of the witness produced before the Arbitration hearing by the person who relies on what a witness has to say. The Arbitrator no doubt can allow departures from this ordinary expectation,...”
Whilst the ordinary expectation may be that all relevant material will be set out in a statement produced before the hearing, there may be some cases where denying an application to call oral evidence will amount to a denial of natural justice. In Kojima vAustralian Chinese Newspapers [2000] NSWSC 1153 Justice O’Keefe considered such a situation which arose in the Small Claims Tribunal of the Local Court. His Honour held that the refusal to allow oral evidence in a case where the parties had agreed the matter would proceed on statements was not a denial of natural justice. His Honours comments at paragraph [32] are instructive and, in my opinion, relevant to proceedings before the Commission:
“There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether that is so or not in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any agreement as to the way in which the proceedings are to be conducted. It is for the relevant tribunal, in this case the Small Claims Division of the Local Court, to determine this in the light of its obligation to act fairly.”
In the present case the Appellant Worker provided two statements. The first dated 9 December 2004 was attached to the Application filed on 15 December 2004. The second was dated 23 March 2005 and was filed pursuant to a direction made by the Arbitrator at a teleconference on 24 February 2005. Strict observance with the Rules would have required that all statements and information be filed with the initial Application. The Arbitrator showed appropriate flexibility in allowing the second statement to be filed out of time notwithstanding that such a late filing may well have caused prejudice to the Respondent Employer.
There is no transcript of what was said at the teleconference on 24 February 2005 but it seems a reasonable inference to conclude that the issues in the case and the state of the evidence were discussed. It has not been suggested that the Appellant Worker's legal advisers were taken by surprise that the Respondent Employer argued at the Arbitration hearing that the claim should be rejected because, among other reasons, the claim form signed by the Appellant Worker did not make any mention of an injury to the shoulder.
The reason why oral evidence should have been allowed by the Arbitrator was not clearly articulated at the Arbitration hearing. After the application to call oral evidence was rejected by the Arbitrator the solicitor for the Appellant Worker made statements summarising the nature of the evidence he wished to call. The thrust of the evidence intended to be called was that the Appellant Worker did not complete the claim form because he does not speak or write English and the form was not read to him in his own language.
That the Appellant Worker did not speak English is clear on face of the claim form. It states that the injured worker’s language spoken at home was Vietnamese and that an interpreter was required. It is also reasonably clear from the claim form that no interpreter was used to complete it. Had an interpreter been used he or she would have signed the document. The failure to have an interpreter read the claim form to the Appellant Worker does give rise to doubts about the accuracy of the form and, in a contentious case such as the present, raises a potential prejudice to the Appellant Worker in the presentation of his case.
Whilst I believe there was a strong argument in favour of allowing oral evidence from the Appellant Worker dealing with the circumstances in which the claim form was completed, I have decided that the Arbitrator did not err in refusing the Appellant Worker's application to call such evidence. I believe the Appellant Worker was given every opportunity to properly prepare and present his case when the issue of a supplementary statement was raised at the teleconference on 24 February 2005. A lengthy supplementary statement was prepared and filed. In addition the point sought to be made about the claim form, namely, that it had not been prepared by or with an interpreter, was obvious on the face of the document. Oral evidence would not have added anything of relevance to that issue.
Because the Appellant Worker did not have the assistance of an interpreter when he signed the claim form, I believe little or no weight should have been given to it in assessing whether the Appellant Worker injured his right shoulder on 19 November 2001.
Whilst the Arbitrator appears to have placed some emphasis on the absence of complaint in the claim form I believe there was more persuasive evidence that the Appellant Worker made no complaint about his right shoulder until about April or May 2003 contained in the medical histories, most of which were taken with the benefit of an interpreter.
In addition I take into account that the Compensation Court claim was filed on 22 May 2002 and only pleaded an injury to the ‘fourth finger’ of the right hand. The solicitor on the record in the Compensation Court was Peter Antoniou, the same solicitor who appeared for the Appellant Worker before the Arbitrator in the Commission.
Therefore if the Arbitrator was in error in placing weight on the absence of a complaint of shoulder problems in the claim form, I do not believe that error is of any significance and I place no weight on the absence of a complaint about the right shoulder in the claim form.
On appeal the Appellant Worker submits that oral evidence was also sought to be adduced at the Arbitration on ‘the nature and conditions of employment’. No submissions were made to the Arbitrator that oral evidence was sought to be adduced on this issue. If the point had been raised in the way that it is now sought to be raised on appeal, the Arbitrator would not have been in error in refusing such an application. Detailed evidence about the nature and conditions of employment would only have advanced the Appellant Worker's case if that history had also been given to the doctors in the case. As that had not been done its value would have been very limited. In addition allowing such evidence so late in the proceedings would have created a significant prejudice for the Respondent Employer.
It is further submitted that the Arbitrator erred in failing to allow the Appellant Worker to give oral evidence “touching upon” the issue of causation. The submissions before the Arbitrator do not raise this as a discrete issue. The Appellant Worker's statements gave very exact evidence that his shoulder problem had been caused by the November injury. It is not know what evidence it was intended to call on this issue. If it had been raised before the Arbitrator he would not have been in error to refuse the application in light of the fact that leave had previously been given for the Appellant Worker to file a supplementary statement.
I do not believe the Arbitrator’s refusal to allow oral evidence involved any breach of the rules of natural justice.
Alleged Inconsistency
It is submits that the Arbitrator's decision was inconsistent with his finding that the Appellant Worker suffered an injury to his right arm at or above the elbow (see Submissions paragraph 5).
At paragraph 14 (k) of the Reasons the Arbitrator found:
“In all the circumstances I cannot accept, on the balance of probabilities, that the Applicant suffered a frank injury to his right arm on the 19th November 2001.”
At paragraph 14 (l) of the Reasons the Arbitrator found:
“As far as the ‘Nature and Conditions’ claim is concerned I do not see any worthwhile support for it either in the medical reports or in the Applicant’s Statement.
Neither contains a description of the work undertaken.”
The Arbitrator then added at paragraph 15 of the Reasons:
“In summary the Applicant has suffered an injury of some sort to his right arm at or above the elbow, but there is insufficient evidence before me to establish that it is either the result of a frank injury on the 19th November 2001 or the result of a nature and conditions [sic] of the Applicant’s employment.”
The statement that the Appellant Worker has “suffered an injury of some sort” is unfortunate as it has lead to confusion. The Arbitrator may have been influenced by the second report from Dr Rowe which he interpreted as “conceding a causal connection between the injury…and the employment” (Reasons paragraph 14 (a)). In my opinion Dr Rowe’s opinion has been taken out of context. The doctor was giving his assessment of the loss of use of the arm as a result of the injury to the finger on 19 November 2001. He did not provide any basis for a finding that the Appellant Worker suffered an injury to his arm or shoulder in the November injury.
Notwithstanding the language used by the Arbitrator I believe it is clear that his ultimate findings set out in paragraphs 14 (k) and (l) were that the Appellant Worker did not suffer a work injury to his right arm or shoulder either as a result of the injury on 19 November 2001 or as a result of the nature and conditions of his employment. These findings were justified on the evidence and were, in my opinion, correct.
Insufficient Evidence
The insufficient evidence point is raised (in different ways) in paragraph’s seven, eight, nine and 10 of the Appellant Worker's submissions. In my opinion the evidence of injury to the right arm or shoulder was totally inadequate and fell well short of what was required to establish that employment was a substantial contributing factor to any injury other than the injury to the right ring finger. This issue has been dealt with in more detail under the heading ‘weight of evidence’ above.
Logically Probative Evidence
This ground (and the next three grounds) of appeal is raised in a letter from the Appellant Worker's solicitors dated 6 June 2005. No submissions have been made to support this ground. The Arbitrator based his decision on the evidence presented. He did not take into account extraneous material. He concluded that the Appellant Worker’s evidence was insufficient to establish an entitlement to compensation. The Arbitrator was correct to reach that conclusion.
Adequate Reasons
An Arbitrator has an obligation to set out his or her reasons in sufficient detail to comply with Rule 73. That rule requires that the reasons be stated “sufficiently…to make the parties aware of the Commission’s view of the case made by each of them” (Rule 73(2)).
In Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 at [45] it was held that:
“It is not necessary for an Arbitrator to give lengthy reasons for their decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set the statutory provisions at length, not specify and examine all relevant and judicial authority on the matters decided.”
No submission has been made to suggest that the Arbitrator in the present case has not complied with the above requirements. I believe the Arbitrator's reasons are adequate and that they comply with Rule 73.
Incorrect Application of Section 9A
No submissions have been made as to why the Arbitrator was in error on this issue. The Arbitrator's essential finding was that he did not accept the Appellant Worker's case that he suffered an injury to his arm or shoulder either in the incident on 19 November 2001 or as a result of the nature and conditions of his employment. That finding did not require a consideration of section 9A. It was a finding that was open on the evidence and, in my opinion, was correct.
Exercise of Discretion
No specific error has been identified. I do not believe the Arbitrator made any error in the exercise of his discretion.
OTHER MATTERS
There is an alternative basis on which the Arbitrator’s decision in respect of the November injury should be confirmed. In the Compensation Court proceedings the Appellant Worker claimed compensation for the injury he sustained with the Respondent Employer on 19 November 2001. He was awarded compensation for that injury. In my opinion the Appellant Worker had no right to later bring a claim for further compensation resulting from the same injury unless there had been a change in circumstances that would warrant a reconsideration of the earlier award (see Ada v Westmead Centre Parramatta Hospital (1985) 1 NSWCCR 101 and Bruce v Grocon Ltd (1995) 11 NSWCCR 247). It is not open to a worker to allege an injury to a finger in one set of proceedings and subsequently allege an arm or shoulder injury from the same incident in later proceedings. Therefore the only matter the Arbitrator should properly have considered was whether the Appellant Worker suffered an injury to his right arm or shoulder as a result of an injury caused by the nature and conditions of his employment with the Respondent Employer. The Arbitrator did consider that issue and found against the Appellant Worker. For the reasons set out above, I agree with that conclusion.
Subject to the comments made in the body of this decision, I am satisfied that the Arbitrator's decision is not affected by any error of law, fact or discretion.
FORMAL ORDERS
Whilst the Arbitrator has not made any relevant error of fact, law or discretion in his reasons, the formal orders made in the Certificate of Determination state in paragraph one “Award for the Respondent pursuant of Section 66 of the Act”. This does not accurately reflect the findings made and as a result constitutes an error which must be corrected on appeal. The finding was of no injury caused by or arising out of employment. That finding flows from the factual findings made by the Arbitrator and now confirmed on appeal. Therefore the correct order is “Award for the Respondent”.
DECISION
Paragraph one of the Arbitrator's decision o 18 April 2005 is revoked and the following order made:
“Award for the Respondent.”
Paragraph two of the Arbitrator's decision of 18 April 2005 is confirmed.
COSTS
No order is made as to costs of the appeal.
Bill Roche
Acting Deputy President
1 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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