Halilovic v Paper Australia Pty Ltd
[2008] NSWWCCPD 80
•31 July 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Halilovic v Paper Australia Pty Ltd [2008] NSWWCCPD 80 | |||||
| APPELLANT: | Asim Halilovic | |||||
| RESPONDENT: | Paper Australia Pty Ltd | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC9482-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 4 April 2008 | |||||
| DATE OF APPEAL DECISION: | 31 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Failure to consider the whole of the relevant and material evidence; inadequate reasons for decision; procedural fairness. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| HEARING: | Determined ‘on the papers’ | |||||
| REPRESENTATION: | Appellant: | Bolzan & Princi | ||||
| Respondent: | Ellision Tillyard Callanan | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 4 April 2008 is confirmed. | |||||
| No order is made as to the costs of the appeal | ||||||
BACKGROUND
On 24 April 2008, Mr Asim Halilovic (‘the Appellant Worker/Mr Halilovic’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 April 2008.
The Respondent to the Appeal is Paper Australia Pty Ltd (‘the Respondent Employer/Paper Australia’).
The Insurer is Allianz Australia Workers Compensation (NSW) Ltd.
Mr Halilovic worked as a machine operator and supervisor in a paper manufacturing plant, for Paper Australia. On 5 December 2005, while at work, he was struck by a heavy paper reel and fell to the ground. Mr Halilovic made a written statement dated 10 December 2007, describing the incident at [10], as follows:
“On 5 December 2005 at work when I started my shift I noticed off-cuts next to my machine.
I was required to stack the off-cuts on a nearby pallet prior to commencing work.
The off-cut rolls are the remains from cutting a large paper roll and they vary in dimensions. I was required to use a machine known as a grab to move the off-cut rolls. This machine is similar to a forklift except it has two hydraulic arms, which can be manoeuvred in various directions.
I collected four rolls and placed them on the pallet.
I attempted to move the fifth off-cut slightly to the left to allow me to use the grab and move it onto the pallet. As I attempted to shift the off-cut roll to the left, the off-cut roll tipped towards me.
I attempted to stabilise it by using my weight to push it back, unfortunately I could not do so as the roll weighted over 150 kilograms.
As I could not roll it away I let go of it and jumped backwards. As I did this I became trapped between the off-cut rolls on the pallets that were behind me, and the falling off-cut roll.
The falling off-cut roll initially struck me on the right knee and then the left knee. Also, as a result of the fall I injured my neck, shoulders and back.
I think that I was knocked unconscious for a short period of time.”
Mr Halilovic subsequently received medical treatment including surgery for his fractured patella. He returned to work for eight hours per week for one month, but otherwise, has not resumed his employment. He says that other than medication he is not currently in receipt of medical treatment, although he states that he still suffers as a result of the injuries that he sustained in the workplace incident.
Mr Halilovic lodged a claim for payment of workers compensation on 6 December 2005 for injury to his left knee, and later sought payment of compensation for injury to his cervical spine, lumbar spine, and right upper extremity, when, he says, these injuries became apparent.
The Insurer issued a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Insurer accepted that Mr Halilovic suffered an injury to his left knee, but disputed that he had suffered any injury to his cervical spine, lumbar spine or right upper extremity in the workplace incident of 5 December 2005.
Mr Halilovic duly lodged his Application with the Commission, and on 21 December 2007, Paper Australia filed a Reply.
The matter was unable to be resolved, and it proceeded to arbitration on 5 March 2008. The Arbitrator states at [7] of his ‘Statement of Reasons for Decision’ (‘Reasons’):
“The issue to be determined is whether the Applicant sustained injury to his cervical spine and lumbar spine during the course of, or arising from his employment with the Respondent on 5 December 2005.”
The Arbitrator determined the dispute and his decision is before me on appeal.
Section 352(5) of the 1998 Act provides:
“An appeal under this section is to be by way of review of the decision appealed against.”
I must now review the Arbitrator’s decision and conclude whether or not the decision is correct, having regard to the evidence and the applicable law.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 April 2008 records the Arbitrator’s orders as follows:
“1.Award for the Respondent in respect of the Applicant’s allegation of injury to the cervical spine and to the lumbar spine.
2.The mater is remitted to the Registrar for referral to an Approved Medical Specialist.
3.The Approved Medical Specialist shall be requested to assess whether the Applicant has whole person impairment resulting from:
(a) injury to his left lower extremity; and
(b) scarring.
4. Questions of costs are reserved.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are found in the three specific grounds of appeal, which are:
“1.That the Arbitrator failed to consider all the relevant and material evidence in relation to the issue of injury.
2.That the Arbitrator failed to provide adequate reasons in respect of his finding that the Appellant had not sustained injuries to the cervical and lumbar spines.
3.That the Appellant was denied procedural fairness as the Arbitrator has apparently held against the Appellant on an issue of credit in circumstances where there was no cross-examination.”
ON THE PAPERS REVIEW
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.”
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.
Section 352(1) provides:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission, constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
The amount of compensation at issue on appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against, as required by section 352(2) 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.
Leave to appeal is granted.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Registrar afforded Mr Halilovic the opportunity to provide further submissions on or before 10 July 2008, when she supplied to each of the parties, a copy of the transcript of the proceedings before the Arbitrator. This opportunity is afforded routinely to parties to an appeal to a Presidential member, in the Commission. Mr Halilovic’s legal representatives wrote to the Commission on 25 June 2008 indicating that no further submissions would be filed following receipt of the transcript. Paper Australia’s legal representatives also advised the Commission by letter dated 20 June 2008, that no further submissions would be filed.
I note that each party had stated in his/its initial submissions on appeal that such submissions were made without the benefit of the transcript.
Did the Arbitrator fail to consider all of the relevant and material evidence in relation to the issue of injury, “being the worker’s statement”?
Mr Halilovic states that the Arbitrator made a finding at [2 – sic 1] of his Reasons that on 5 December 2005 a heavy paper reel struck Mr Halilovic and he fell to the ground. However, Paper Australia correctly submits that the Arbitrator made no finding at that point, but rather, sought to set out briefly “the Appellant’s pleaded case (see Part 4 of the Application to Resolve a Dispute (ADR) dated 12/12/07 and the Appellant’s statement (A.S.) dated 10/12/07 par. 10, sub par. 8.)” In any event, the fact of injury to, and “some” permanent impairment of, Mr Halilovic’s left knee are not disputed.
Mr Halilovic submits that the Arbitrator did not take into account “relevant and material considerations, being the worker’s statement, see: John Robinson t/as Robinson's Pharmacy v King [2005] NSWWCCPD 39” [‘King’]. Paper Australia submits that Mr Halilovic’s written statement, dated 10 December 2007 (and therefore not of a contemporaneous nature) was prepared only two days prior to the filing of his Application with the Commission. [The Application was filed on 11 December 2007 and registered in the Commission on 12 December 2007]. I note further, that Mr Halilovic’s statement is not signed. However, the statement was admitted into evidence before the Arbitrator, and Paper Australia raised no objection to it.
Paper Australia further submits that Mr Halilovic gave histories as to the circumstances and consequent symptoms of injuries caused by the workplace incident of 5 December 2005, these being “as deposed to both Dr Bodel in his later report of 16/07/07 and to Dr Dixon in his report of 29/11/07.” It submits that the Arbitrator carefully reviewed the opinions expressed by these doctors in their reports, amongst others. “(See in particular J [‘Judgment’] pars 42-47 and pars 48-49 respectively).” It goes on to submit, “Those respective histories are carefully examined by the arbitrator in his reasons to see if there is any corroboration of the Appellant’s recent statement in that contemporaneous material. Clearly, that exercise was conducted with the Appellant’s statement in mind.”
The Arbitrator states at [8] of his Reasons that the evidence before him consists of [in part] the “Application to Resolve a Dispute and all attachments”. He does not specify the attachments individually, but one of them was Mr Halilovic’s statement of 10 December 2007, along with a considerable number of medical reports and certificates, and copies of correspondence. The Arbitrator makes no specific reference to Mr Halilovic’s written statement in his Reasons. Nonetheless, a reading of his Reasons indicates that he was closely aware of injuries claimed by Mr Halilovic, the work incident out of which the injuries allegedly arose, and the issues involved in the dispute. However, it is correct that his analysis is undertaken largely by specific reference to the medical evidence tendered by both parties, and the histories recorded by the various medical practitioners. The histories came at least in the first instance, from Mr. Halilovic. However, I note further, that Mr Halilovic’s statement was before the Arbitrator and was discussed in the arbitral proceedings. Specific reference was made to it (see for example T13, line 25 and T22, line 50).
Mr Halilovic submits that in [9] – [18] of his Reasons, the Arbitrator accurately summarised the medical records of various doctors who treated him in the period from 5 December 2005 to 22 December 2005. He states, “The post accident medical treatment was for the serious left knee injury for which the worker required internal fixation of a pin to his fractured left patella.”
Paper Australia states, “there were a number of further entries in those notes in addition.” It is useful to reproduce the submission, as follows:
“For example, Dr Vij’s notes have additional entries to those noted by the arbitrator: on 8/12 Dr [sic] reviewed the MRI of the Appellant’s left knee (incidentally the only body part of the Appellant sought to be radiologically examined at that time), on 11/12. Dr [sic] provided a workers compensation medical certificate for the period 10/12/05 to 23/12/05 in respect of knee injury, on 16/12, the Dr recorded that the appellant consulted him in respect of a mole on the sole of the Appellant’s left foot (this entry is noted later in the arbitrator’s Reasons at J par 50 where the Arbitrator deals with Dr Bleasel’s explanation for the lack of any complaint by the Appellant of neck or spinal pain in the month following his injury), on 23/12 Dr [sic] reported a referral to a different physiotherapist located in Revesby (Pratt) as the Appellant (apparently) complained the previous referral in Liverpool was to [sic] far to travel. (Once again, if the Appellant was suffering ongoing pain in his neck or back, surely he could have mentioned it during that consultation as he was being referred to a new treating physiotherapist), and on that date another medical certificate was issued for incapacity for knee injury; on 30/12 Dr [sic] saw the Appellant again to issue a certificate to enable the Appellant to park in disabled parking spaces.
The Appellant did not complain to any of the doctors in any of those consultations in respect of any neck or back symptoms.”
Mr Halilovic submits that he first complained to a medical practitioner of pain in the cervical spine on 3 [sic] January 2006 and points to [19] and [35] of the Arbitrator’s Reasons in this regard. He submits further that the first recorded complaint of pain in the lumbar spine was on 15 February 2006 and again points to [23] and [52] of the Arbitrator’s Reasons.
Paper Australia submits that the first entry of actual neck pain is recorded by Dr Giblin in his report of 17 October 2006. It submits further, that the entry in Dr Vij’s notes on 4 January 2006 records a history for the first time of Mr Halilovic hitting his right hand when he fell at the time of the accident. The complaint made was of sudden pain down the right arm to the fingers, which was worse from the elbow to the fingers. It states, “There was no history of any neck or back pain in the interim period following his accident on 01/12/05. The first time Dr Vij records neck pain was on 17/03/06 (J par 27). Given the symptoms complained of on 01/01/06, Dr Vij sought an X-ray of the neck, which he records as showing c5/6 disc degeneration.”
Paper Australia states that Dr Vij’s notes only became available on the date of the hearing. Accordingly, the first note of Mr Halilovic’s attendance at a hospital on 3 January 2006 was when the entry in Dr Vij’s notes was seen on that day. It submits that Mr Halilovic “failed to adduce any evidence from the ambulance service, the hospital, or in a statement to deal with that attendance and the relevant complaints made at that time.”
Paper Australia goes on to say that the entry of 15 February 2006 in Dr Vij’s notes is the first complaint made by Mr Halilovic of persistent lumbar back pain and makes no reference to injury in employment, or any related symptoms following the incident. It states, “this should be compared to the further history of the injury provided to Dr Vij on the 04/01/06 when seeing the Appellant for his hand and arm symptoms.”
Mr Halilovic points to his statement of 10 December 2007 where he denied that he had any prior problems with his neck, back or left knee, until the work related accident. Paper Australia responds that this is consistent with the histories given by Mr Halilovic to Drs Bodel and Dixon.
Mr Halilovic also points to his statement in which he asserted that he injured his back, shoulders and neck, describing the “terrible pain in my knee”, which resulted in hospitalisation, surgery and the need for crutches. Paper Australia responds, “As stated previously, this explanation was dealt with by the Arbitrator in “J par 50” (‘Judgment’). It states, “Paragraph 12 of the AS [‘Appellant’s statement’] makes no reference to the histories and complaints contemporaneously given to the Doctors referred to above. It is noted that no evidence was adduced from Dr Dave, the Appellant’s first treating surgeon, to support the Appellant’s alleged complaints in respect of his neck or back.”
Mr Halilovic further refers to his statement, indicating specifically that his neck and back symptoms became worse following the operation but that on 5 January 2006 he felt severe pain in the neck, right shoulder and arm. However, Paper Australia submits that Mr Halilovic adduced no evidence of contemporaneous complaints made to the hospital in which the surgery was conducted, and neither Dr Giblin nor Dr Vij, Mr Halilovic’s treating specialist and treating practitioner, record any such contemporaneous complaint.
Mr Halilovic submits that the Arbitrator made no reference at all to the contents of his statement of 10 December 2007. Paper Australia submits that the Arbitrator “spent considerable effort” analysing the opinions of Dr Bodel and Dr Dixon, “as the histories recorded by those Doctors accurately reflected the statement made by the Appellant.” It goes on to say that the Arbitrator correctly identified that the statement of history given to Dr Bodel (at least in his report of July 2007), was not supported by any of the contemporaneous material and in due course, he rejected his opinion in “accordance with the principles most recently espoused in Makita (Australia) Pty Ltd v Sprowles (2001) 52NSWLR705. (see J par 7).”
The essence of Mr Halilovic’s ground of appeal is to be found in his statement at [10] of his submissions on appeal:
“In this respect the Arbitrator has treated the ‘histories’ to the doctors as being the evidence before him as to what had occurred. This is incorrect and inconsistent with the principles of acceptance or rejection of expert evidence. See Makita (Australia) Pty Ltd v Sprowles (2002) 52 NSWLR 705 at 722 where assumptions contained within an expert’s report must be based upon primary fact ‘or sufficiently like the case assumed to render the expert’s opinion valuable’: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844.”
Mr Halilovic submits that the Arbitrator should have determined first whether his “version of events was established on the balance of probabilities.” This he asserts, required an analysis of what he said and any relevant evidence, such as the medical notes. He states that he does not dispute that he had not complained of neck and/or back pain to any doctor over the three weeks following injury. He asserts:
“The issue was, given such absence of complaint, whether the worker’s version that he had some pain in the cervical and/or lumbar areas could be accepted in the circumstances of the matter, such circumstances including the undoubted fact that there was a more serious injury (the left knee) and that there is a clear history that the neck pain ‘deteriorated’ for no apparent reason in early January.”
Paper Australia responds that the Arbitrator did in fact carry out his function in precisely the manner described by Mr Halilovic. It submits that once the records from Dr Antoun and Dr Vij became available to the parties, Mr Halilovic was in no position to assert that he had complained of neck or back pain in the weeks following the work incident. It states that at [13] of Mr Halilovic’s statement, referring to worsening of both neck and back symptoms following the knee surgery of 13 December 2005, is inconsistent with the first complaint of those symptoms some weeks later. Paper Australia further observes, “… as stated previously the entries in Dr Vij’s notes of 16/12/05, 23/12/05 and 30/12/05 all tend to demonstrate the Appellant was capable of discussing different issues with his regular general practitioner yet made no complaint in respect of neck or back symptoms.” It points out that the reference in Mr Halilovic’s statement to the deterioration of his neck pain for no apparent reason in January 2006, “neglects the fact that no neck pain at all had ever been complained of by the Appellant previously.”
Mr Halilovic further submits that whether a worker has sustained an injury to specific body parts is a question of fact based on a common sense evaluation of the causal chain, and cites Bluescope Steel (ASI) v Khoury & Anor [2006] NSWWCCPD 303 at [55]-[66] (‘Khoury’), and Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39 at [35] (‘Cheadle’). Paper Australia agrees with the principle advanced and asserts, “that is precisely what the Arbitrator set out in his J.”
Mr Halilovic submits that merely because a body part was not mentioned to a doctor for a period of less than one month, it is not of itself, determinative of the fact that no injury had occurred to that part of the body. He cites Freedom Group Limited v Ferizovic [2008] NSWWCCPD 27 at [93] (‘Ferizovic’), in which “the delay between injury and complaint to a doctor was in the order of over two months.” Paper Australia submits that each case should be decided on its own facts.
Mr Halilovic also submits at [14] of his submissions on appeal that each case must be decided on its own facts. He puts forward a list of matters that were pertinent “to whether the worker should have been believed when he said that he suffered neck and back pain immediately following the work incident.” They are:
“a)the left knee injury was serious requiring hospitalisation and surgery;
b) the worker does not dispute that the initial neck and back problems were minor (or intermittent as described by Dr Bodel) and asserts that the pain deteriorated over the following month;
c) the worker does not dispute the accuracy of the medical notes;
d) there is no evidence of pre-exiting causes for the neck and back;
e) the neck pain became severe whilst the worker was sleeping;
f) the neck injury was distinct from the back injury given the much shorter delay with complaint for the neck and that the investigations revealed a disc lesion at C5/6, such pathology not explained by coming on whilst sleeping and an absence of prior complaints.”
Accordingly, he asserts that it is entirely consistent and reasonable that his focus was on his left knee injury, initially.
Paper Australia disagrees. It submits that there is radiological evidence and Dr Giblin’s express view that Mr Halilovic has a spondylitic neck consistent with Dr Vij’s assessment that the x-rays showed disc degeneration and narrowing at C5/6. It further observes that Dr Giblin also opined that the CT scan of Mr Halilovic’s lumbar spine revealed a very small disc protrusion at L4/5 and L5/1. “Those degenerative changes would be capable of producing the symptoms complained of by the Appellant, more particularly so when the lack of any contemporaneous complaint obviates the argument of causal connection to the Appellant’s injury.”
Mr Halilovic asserts that the Arbitrator gave no consideration to the matters set out at [43] above, of these Reasons, and that he appears to have acted upon the assumption that if no complaint of pain was made to a doctor, then the problem did not exist. Paper Australia responds, “With respect, the Arbitrator set out to see if any contemporaneous complaint made by the Appellant would enable him to find a causal connection with the Appellant’s now complained of symptoms.”
Noting that Paper Australia was given leave to serve directions for production of various medical records, Mr Halilovic states that there is nothing in the material tendered to the Commission that contradicts his version that he had no neck, back and left knee problems prior to the work incident. However, Paper Australia submits that the various notes produced demonstrate conclusively that he complained of no relevant symptoms at all, contrary to the assertions made in his statement or in the histories he gave to the “qualified” doctors.
Mr Halilovic submits that his statement is entirely consistent with the history provided to Dr Bodel on 27 April 2006 (at page 2), “where the doctor records a history of ‘intermittent’ neck pain which slowly deteriorated.” Paper Australia submits in response that this was entirely inconsistent with the contemporaneous material referred to, and as explained by the Arbitrator at [42]-[47] of his Reasons, that Dr Bodel “proceeded upon an erroneous assumption.”
At [18] of his submissions on appeal Mr Halilovic submits that the Arbitrator’s Reasons should reflect the proper process of reasoning (Mayne Health Group v Sarah Sandford [2002] NSWWCCPD 6) and that the Reasons must be capable of unveiling clearly to the parties the grounds upon which a determination is made (Colan Products Pty Ltd v Kale [2006] NSWWCCPD 69 at [57]). Paper Australia submits that the Arbitrator in the instant case set out clearly the grounds upon which his determination was made.
Did the Arbitrator then, fail to deal adequately with Mr Halilovic’s evidence?
There is no dispute between the parties that each case must be determined on its own facts, and I concur.
Mr Halilovic submits that a delay in reporting injury to a body part to a doctor, for a period of less than one month is not itself determinative of the fact that no injury was sustained. This submission is made having regard to the facts and circumstances put by him, and in particular, that he sustained a severe injury to his knee which was the immediate focus of his attention. Mr Halilovic cites Ferizovic in support of this submission. However, the delays and other difficulties in that case were a consequence of the particular circumstances surrounding the matter and the discrepancies in medical records and other evidence. The facts and circumstances were quite different to those in the instant matter, as illustrated by reference to [131] of the Reasons in that particular appeal:
“The Arbitrator’s decision and consequently this appeal, substantially rest upon a consideration of the essential facts of the case. The difficulties for the Arbitrator in determining the matter include language differences, communication problems and the lapse of time between injury and determination of the dispute in the Commission, quite apart from conflicts between and discrepancies in, the evidence of the witnesses. A reading of the transcript of evidence taken before the Arbitrator is instructive, in that it is apparent that Mr Ferizovic was experiencing difficulty in understanding and dealing with some of the questions put to him in cross examination and in conveying his answers. Freedom opines that this is disingenuous and evasive on the part of Mr Ferizovic. That is not my impression and clearly, it was not the impression formed by the Arbitrator. The language difficulties, Mr Ferizovic’s obvious social isolation in the workplace, and his lack of appreciation of routine industrial processes, priorities and requirements, have all contributed to a certain sense of confusion that appears to have surrounded this whole matter, to some extent.”
I agree with Mr Halilovic that a delay in reporting injury of particular body parts to his doctor, having regard to the circumstances of this matter is not necessarily, on its own, determinative of the fact that An injury was not sustained. However, Ferizovic was obviously an extreme case that was not assisted by inconsistencies in the evidence on particular aspects, as between the Employer’s witnesses, and as between them and Mr Ferizovic. There is little similarity between the facts and circumstances of that matter and those of the instant case.
There is in fact, no dispute that Mr Halilovic did not complain of neck and back pain immediately following the injury. Mr Halilovic explains that he was focussed principally on the severe injury to his knee at that time. However, he asserts that the Arbitrator failed to take into account the contents of his statement of 10 December 2007, in relation to his further injuries. He submits that the Arbitrator has therefore failed to take into account relevant and material considerations (‘King’).
In my view, Mr Halilovic has not demonstrated that this is so. Mr Halilovic’s statement was filed with his ‘Application to Resolve a Dispute’ in which the issues were clearly stated, and was in evidence before the Arbitrator. The Arbitrator referred in his Reasons to the “attachments” filed with the Application. He did not make specific mention of each of them. (See [8] of his Reasons). The Arbitrator again mentioned the “attachments” and “various late documents” (which he did specify) at the commencement of the proceedings before him, and asked the legal representatives of the parties whether this was the extent of the evidence before him. Each agreed that it was. (See T1, lines 40-53). As previously indicated, Mr Halilovic’s statement was referred to and discussed in the arbitral proceedings. Finally, the substantial focus of the parties and the Arbitrator in those proceedings was whether or not Mr Halilovic sustained injury to his right upper extremity, cervical spine and lumbar spine, as he had claimed, notwithstanding that he made no immediate complaint of injury to those body parts, at the time. The Arbitrator was clearly aware of the facts and details of Mr Halilovic’s assertions, throughout the proceedings and it was in this context and on the basis of this background information that those proceedings were conducted, and on which he arrived at his decision. At [1] of his Reasons he briefly refers to the circumstances of the incident and states, “The Applicant has in proceedings before the Workers Compensation Commission claimed in that accident he sustained injury to his left knee, neck and back.” He then proceeds to consider the medical evidence upon which Mr Halilovic relied in support of his claim as to each of those injuries. I am unable to conclude from all of this that the Arbitrator did not take the evidence before him, including Mr Halilovic’s statement, into account.
Clearly, it would have been preferable for the Arbitrator to make specific reference to Mr Halilovic’s statement of 10 December 2007. However, the facts as put by Mr Halilovic in his statement were relatively brief and quite straightforward. A reading of the transcript of proceedings and the Arbitrator’s Reasons reveal that his treatment of the medical evidence of both parties was undertaken, on the basis and in the context of the facts and circumstances described in that statement. Indeed, the detailed submissions on appeal put forward by both parties, as outlined above (but which also focus largely upon the merits and weight of the medical evidence as to the substantive issue of injury – that being a different consideration from the issue raised in this ground of appeal), support the fact that this was the case. It is difficult to arrive at any other conclusion.
Much of Mr Halilovic’s argument is predicated on the contention that the Arbitrator did not take his statement into account. His assertions as to error of law on the part of the Arbitrator cannot stand on that basis, as in fact, as outlined above the matter proceeded specifically on what is claimed by Mr Halilovic in that statement. The Arbitrator took into account, but not exclusively, the “histories” contained in the medical reports in evidence before him. The “primary facts” addressed by the Arbitrator were asserted in Mr Halilovic’s Application, in his statement attached to that Application, and in the course of the arbitral proceedings in which both parties were represented.
In terms of injury to the lumbar spine, the cervical spine and the upper right extremity as a result of the workplace incident, the fact of injury (not how it occurred) comprised the essential basis of the dispute before the Arbitrator. The decision of the Arbitrator must be read as a whole and it is not for a Presidential member to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). It is not enough to establish error simply by pointing to a failure by the arbitrator to make specific reference by name, to Mr Halilovic’s statement, particularly when in this matter, the material contents including the matter of delayed notification of injury, comprised the essential and precise focus of the proceedings before the Arbitrator, and his determination of the dispute.
I am satisfied that the Arbitrator did not fail to consider all of the relevant and material evidence, including Mr Halilovic’s statement of 10 December 2007.
Accordingly, this ground of appeal is not made out.
Did the Arbitrator fail to provide adequate reasons in respect of his finding that Mr Halilovic had not sustained injuries to the cervical and lumbar spines?
Mr Halilovic submits that there is no discussion of his statement in the Reasons of the Arbitrator and in particular, no reference that the version provided by him is entirely consistent with the various medical notes, “that is the worker did not complain about the neck (and back) problems until it [sic] had deteriorated for no apparent reason. In support of this ground of appeal the Appellant repeats its submissions provided in support of the first ground of appeal.”
Mr Halilovic cites Bluescope Steel (ASI) Pty Ltd v Khourey & Anor [2006] NSWWCCPD 303, per Deputy President Roche at [70] and [72], where he said:
“70.The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311).
72.To succeed in having the decision set aside on this ground BlueScope must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise the statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).”
Paper Australia submits that the Arbitrator’s analysis is sufficient to “accord with Mahoney J.A.’s test in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247:
‘A judge is not required to make a finding in respect of every fact leading to the final conclusion of fact …. Nevertheless a judge must distinguish between the essentials and the peripherals … Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which the decision rests should be articulate [sic]’.”
(This passage appears to loosely paraphrase and combine parts of statements selected from pages 271-273 of the relevant Law Report, in the case cited. I have noted the judgment of Mahoney J in full, in order to obtain an accurate account of what he said).
This ground of appeal follows upon the first ground and is essentially based upon the assertion that the Arbitrator failed to take Mr Halilovic’s statement of 10 December 2007 into account. Mr Halilovic puts forward no other significant basis for his assertion as to inadequacy of reasons for decision.
The Arbitrator conducted a detailed examination of the medical evidence put forward both by Mr Halilovic and Paper Australia, and arrived at his decision following an analysis of the evidence. As previously stated, the essential question in the matter before the Arbitrator was whether Mr Halilovic sustained particular work-related injuries as a result of the incident, the occurrence of which is not in dispute. As also stated, the proceedings before the Arbitrator were conducted on the basis of testing Mr Halilovic’s claim of injury to his lumbar spine, cervical spine and right upper extremity, arising out of or in the course of his employment, and from that particular incident. The facts surrounding the incident were clear enough and substantially undisputed. The matter proceeded on that basis.
The parties agree that whether Mr Halilovic sustained injury to the specific body parts is a question of fact based on a common sense evaluation of the causal chain (Khoury; Cheadle). It is apparent, on a reading of the Arbitrator’s decision as a whole, and having regard to what is set out above, that he undertook just such an evaluation, based upon the evidence before him.
Having found that the Arbitrator did not fail to consider the material and relevant evidence, including what is contained in Mr Halilovic’s statement of 10 December 2007, there appears to be no further basis for his assertion that the Arbitrator failed to provide adequate reasons for his decision, in the particular circumstances of this case. Whether the Arbitrator was correct, is a different consideration.
Accordingly, this ground of appeal is not made out.
Did the Arbitrator deny procedural fairness because he “apparently held against the Appellant on an issue of credit in circumstances where there was no cross-examination”?
Mr Halilovic submits that while the Commission may inform itself as it thinks appropriate, the conduct of the proceedings must be determined according to principles of fairness (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 at [24] (‘Zheng’); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [128] (‘Edmonds’).
He submits that in Zheng, Bryson J, with whom Handley JA and Bell J agreed, discussed the principles applicable in the Commission insofar as they extend to limiting cross examination. He states:
“His Honour stated 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 conducted in a fair way’ (paragraph 25) and felt that the arbitrator was in the best position to judge when cross-examination should be limited (paragraph 26). The comments of Bryson J were quoted with approval by the Court of Appeal in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 at paragraphs 78, 91, 119, 120.”
In pointing to the fact that there was no cross-examination of Mr Halilovic, and “nor was there a request to do so by the Respondent”, he states that the comments of the Commission in Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355 at [31] are, “in a sense applicable to the facts of this case.” However, [30] of that decision precedes and should be read with [31], as follows:
“30.Contrary to the Respondent Worker’s submissions, she was not cross examined on her evidence. In normal circumstances where a witness is not cross examined that will often lead to the result that the witness’s evidence will be accepted because it is unchallenged. However, in matters before the Commission, that is not so because cross examination is often not permitted. The rule in Brown v Dunne is not a rule of evidence but is a rule of procedural fairness. It requires that, unless notice has been clearly given of the cross-examiner’s intention to rely upon certain matters, it is necessary to put to an opponent’s witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of his evidence (Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297). It does not require that matters about which notice has already been given be put in cross examination (Daw v Toyworld Pty Ltd (2001) 21 NSWCCR 389). In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, Hunt J (at 18F) identified two aspects of the ‘rule’ in Browne v Dunne. The first was described as a ‘rule of practice or procedure based upon general principles of fairness’; the second was described as ‘a rule relating to the weight or cogency of the evidence’ (See also State Rail Authority of NSW v Brown [2006] NSWCA 220 per Basten JA at [54]).
31.Neither ‘rule’ can be strictly applied in the Commission because all evidence must be filed with the Application or the Reply and late evidence is only allowed by leave. The issues to be determined are, or should be, set out in those documents or at the teleconferenced stage of the proceedings. Cross examination is only allowed in limited circumstances (see Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242). The issue of whether Mrs Rafiq injured her left shoulder in the March 2002 fall was always alive in this case. That was clear on the face of the Reply and every other document tendered in evidence. In these circumstances it seems reasonable to conclude that Mrs Rafiq was ‘on notice’ that injury to her left shoulder and when she first mentioned that injury and the symptoms from it, were always issues in the case. Counsel for Mrs Rafiq has not contended otherwise, either before the Arbitrator or on appeal. Therefore, it was not essential (as a matter of fairness to Mrs Rafiq) that she be cross examined in order to comply with the rule. However, it certainly would have been prudent, in a case such as the present, where the Appellant Employer was effectively saying that the worker lied when she said she injured her left shoulder in the March 2002 fall and where the Arbitrator invited cross examination, if Mrs Rafiq had been cross examined. By not cross examining when the Arbitrator gave counsel for the Appellant Employer the opportunity to do so the tribunal was deprived of the opportunity of hearing if Mrs Rafiq had an explanation for the lack of complaint about her left should until several months after the fall.”
Mr Halilovic submits that it was unfair that the Arbitrator did not invite cross examination (unlike the situation in Rafiq) in the instant matter, and an assessment of his credibility was made in the absence of cross-examination and/or his response.
Paper Australia generally agrees with Mr Halilovic in relation to his observations about Rafiq, however it points out that the facts were different. In the instant case, it submits that it had given no notice of any intention to cross-examine Mr Halilovic, “and as the Appellant was not called to give evidence, neither was the Respondent invited to cross examine.”
In agreeing with the comments of the Deputy President in Rafiq, Paper Australia submits that Mr Halilovic had been on notice of the issues in the instant matter since at least the date of the “section 74 letter of 2/9/07”. It submits that the Reply it lodged was consistent in that it denied injury to the neck and back, and “as the Appellant has said in their [sic] submissions (par 2) that the dispute was correctly identified by the Arbitrator at J par 7.”
Paper Australia refers to [30] in Rafiq and “relies upon the Deputy President’s Analysis of the situation in the Workers Compensation Commission as set out in that paragraph.”
It further submits that it is for Mr Halilovic to prove his case as he sees fit. It states that he was not called to give evidence notwithstanding the fact he was on notice of “the Respondent’s section 74 notice”, and there is no rule that an applicant for workers compensation must be cross-examined (see Rafiq [30]).
In Zheng Bryson JA observed at [20]:
“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.”
Again, at [37] he went on to say that there is no legal right to cross-examination in the Commission, and decisions about allowing cross-examination or otherwise, are discretionary, and must be made in the context of the legislation and practices that the Commission follows and, “at least as importantly, in the context of the facts and circumstances of the case under consideration.” In the Guidelines for the Practice of Conciliation and Arbitration at page 11, it states in part:
“Questioning or cross-examination of witnesses (including parties) will be permitted in very limited circumstances and only if the arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
·Contradictory evidence requires to be clarified or tested, or
·Adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.”
In National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312, Gibbs CJ said:
“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.”
The Commission is bound to comply with the rules of natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Michelle Zarb [2003] NSWWCCPD 15). This principle was reaffirmed by the Court of Appeal in South Western Area Health Service v Edmonds [2007] NSWCA 16 at [88] when it was observed that the Commission is bound to apply the rules of law in arriving at its conclusions. In the matter of In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1(‘Lam’), Gleeson CJ said at [37]:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Boston Clothing Co Pty Ltd v Margaronis (1992) NSWLR 580, the Court of Appeal held that the former Compensation Court was bound by “the practical rule of fairness enshrined in the Browne v Dunne principle” requiring the suggested contradictions in the worker’s history should have been put to the worker before they were used as a basis for challenging the truth of his evidence. However, as observed by Deputy President Bill Roche in Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3, the Commission operates under totally different rules and procedures to those applicable to that Court. The Commission is not bound by the rules of evidence and its proceedings are to be conducted with as little technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act). The Commission has a wider range of discretionary choices about the procedure appropriate for a particular case than existed under the earlier legislation that governed the Compensation Court (Zheng, [23]). Bryson, JA added at [25]:
“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 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.”
Mr Halilovic did not give oral evidence; he was not called to give oral evidence, nor was any application made by Paper Australia to cross-examine him. However, having regard to the way in which the Commission is authorised to proceed and the fact that all information is required to be lodged and made available to the other party or parties, there can be no suggestion that Mr Halilovic could have been ignorant of the case against him, including the fact that his assertion of injury to his lumbar spine, cervical spine and upper right extremity was a live issue in dispute right from the outset, and for the duration of the proceedings before the Arbitrator. Indeed, as previously stated, this was the very basis upon which the Arbitrator dealt with the matter. The details of his case and the case against him, in relation to such injury, were known and had in fact been ventilated, even before he went through the formality of making his statement of 10 December 2007, the day before he filed his Application [registered on 12 December 2007] in the Commission.
Clearly, Mr Halilovic was on notice of all of the disputed issues and the details of the case against him. Had he been concerned to clarify or expand upon his written statement, it was open to him to give oral evidence before the Arbitrator. He chose not to do so. There is no evidence of any unfairness or “practical injustice” to Mr Halilovic (Lam), in these circumstances.
Mr Halilovic has failed to demonstrate a denial of procedural fairness on the part of the Arbitrator. Accordingly, this ground of appeal fails.
Conclusion
Mr Halilovic submits that a delay of less than one month in reporting injury is not of itself, determinative that the injury to his lumbar spine, cervical spine and upper right extremity was not sustained. That is correct. However, such a delay, the circumstances of, and reasons for it, must be taken into account, along with the rest of the evidence, in order to arrive at a proper determination of the matter.
Mr Halilovic submits that initially, his whole focus was upon the serious injury to his knee, the significant pain that he was suffering as a consequence, and the surgery that he underwent.
However, not only did Mr Halilovic make no complaint to any medical practitioner of injury to his back and neck for a month after the workplace incident, he made no mention whatsoever of injury to those body parts in his workers compensation claim form, which he completed on the day after the accident. While he may well have been focussed primarily on his injured right knee, it is clear according to his statement and the some of the histories he gave in the fullness of time, that he was at the time of the incident, aware of his alleged back and neck injuries. Yet he made no mention of them at all. Again, that is not of itself determinative, but it is certainly relevant and must be taken into account.
The Arbitrator sets out a detailed chronology of the medical evidence that was tendered by each of the parties. His statement at [34] of his Reasons, as follows, is correct:
“It is clear from contemporaneous materials that on the day of the accident, in the days that followed, and for the rest of the month of December 2005, the Applicant did not complain of any symptoms in his back and neck.”
It is reasonable that Mr Halilovic may have been immediately and principally concerned with the injury to his right knee. It is less reasonable to accept that he would remain totally silent about injury to his back and neck for a period of a month, given that he says that he was aware of them at the time of the workplace incident, and further, that he underwent a number of medical consultations and treatments over this period, before he broke his silence.
At [35] of his Reasons the Arbitrator states:
“The first occasion on which the Applicant complained of any problem in respect of a body part other than his lower limbs was on 3 January 2006. The details recorded on 4 January 2006 by Dr Vij were of sudden pain down the right arm to the fingers, the previous night. Dr Giblin does not appear to have considered the Applicant’s neck symptoms to have been serious when he saw him on 17 January 2006. In his report of that date he also did not indicate any causal relationship between those symptoms and the accident on 5 December 2005.”
Even in his report of 3 April 2006, Dr Giblin when referring to a moderate right-sided disc protrusion at C 5/6 says nothing of a causal relationship between that condition and the incident on 5 December 2005. This is significant having regard to other medical evidence pointing to degenerative changes (see [44] above, of these Reasons).
Having examined the evidence that was before the Arbitrator, and without reproducing it or the Arbitrator’s treatment of it, it is clear on balance, that one could not be satisfied that the back and neck injuries arose from the work incident of 5 December 2005. While Mr Halilovic points to some of the histories and symptoms that emerged at a later date, he does not succeed, as rightly suggested by the Arbitrator, in connecting those particular injuries to the work incident, causally - or for that matter, temporally.
I agree with the Arbitrator that the evidence in this matter does not support Mr Halilovic’s claim that he injured his neck in the accident of 5 December 2005, “or that the pathology in his neck is in any other respect causally related to that injury.”
I also agree with the Arbitrator’s statement at [52] of his Reasons:
“Similar questions arise regarding the Applicant’s lumbar spine complaints. The first occasion on which he mentioned any lower back problems to Dr Vij was on 15 February 2006. I do not accept that there was any direct injury to the lumbar spine on 5 December 2005, given that the Applicant did not report any symptoms in that part of the body at the time of the accident, and in the immediate wake thereof. There is, moreover, no explanation as to how the complaints in relation to the lumbar spine, more than 2 months later can be considered to be related to the accident of 5 December 2005.”
The evidence in support of Mr Halilovic is somewhat tenuous, having regard to the circumstances. On a consideration of the whole of the facts and the evidence in this matter, he simply failed to establish his case on the balance of probabilities. While his delay in mentioning injury to his lumbar spine, cervical spine and upper right extremity to anybody at all, including his own treating doctor, was not determinative of the fact that he did not sustain them in the workplace incident, such delay diminished his case, particularly when viewed against the rest of the facts, circumstances and medical evidence.
Having regard to the facts, circumstances and the evidence in this matter, I agree with the decision of the Arbitrator, substantially for the reasons given by him. Accordingly, the appeal must fail.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 4 April 2008 is confirmed.
COSTS
No order is made as to the costs of the appeal.
OTHER
The matter is referred to the Registrar for the implementation of the orders made by the Arbitrator.
Gary Byron
Deputy President
31 July 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON, WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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