Hamilton v Sydney Water Corporation
[2008] NSWWCCPD 5
•15 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSIONCONSTITUTED BY AN ARBITRATOR
CITATION:Hamilton v Sydney Water Corporation [2008] NSWWCCPD 5
APPELLANT: Bruce Hamilton
RESPONDENT: Sydney Water Corporation
INSURER:Sydney Water Corporation – Self Insurer
FILE NUMBER: WCC5102-07
DATE OF ARBITRATOR’S DECISION: 19 September 2007
DATE OF APPEAL DECISION: 15 January 2008
SUBJECT MATTER OF DECISION: Leave to appeal; Section 11A of the Workers Compensation Act 1987; inadequate reasons for decision; findings not based on the evidence.
PRESIDENTIAL MEMBER: Acting President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION: Appellant: Slater & Gordon Limited
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator dated 19 September 2007 is refused.
No order is made as to the costs of this appeal.
BACKGROUND
On 18 October 2007 Mr Bruce Hamilton, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 September 2007.
The Respondent to the Appeal is the Sydney Water Corporation (‘Sydney Water’).
Sydney Water is, and was at all material times, self-insured.
The background information is set out in some detail in the Arbitrator’s ‘Statement of Reasons for Decision’ dated 19 September 2007 (‘Reasons’), at [5] to [29]. The information was largely, but not exclusively taken from a “succinct statement of his evidence” provided by Mr Hamilton.
Mr Hamilton, who is 55 years of age, has worked for Sydney Water since 1973, apart from a period of around 4 years from 1994. He has held a number of positions with Sydney Water, including a promotion to Level D Production Officer 22 August 2006, and since 9 October 2007, a Water Restriction Patrol Officer.
Mr Hamilton has had some significant, physical health issues over the years. In 2002 he was diagnosed with emphysema. It was necessary for him to use a portable oxygen cylinder, and he was able to continue to work. In 2003 he was found to be suffering from depression and anxiety. In October 2005, Mr Hamilton underwent surgery for a double lung transplant and was absent from work for 5 months. In June 2006 he had an operation for a stomach disorder and was off work for 6 weeks.
Notwithstanding the emphysema, Mr. Hamilton was able to carry out his duties, apart from underground work, but in any event, this was of little importance according to him, as it was being phased out.
Mr Hamilton claims that in 2003 he felt that he was being excluded from meetings concerning plant upgrade. This upset him and caused him depression. However, he says that he accepted the explanation that another employee of the same seniority was attending these meetings. Sydney Water filed a memorandum dated 6 September 2006, from a Production Officer, Mr. Greg Melville, which stated that the reason that Mr Hamilton had not been included in production meetings was simply that he was not the person nominated by the members of his work team to represent them at these meetings.
He says that a co-worker told him at some point that he had been placed on an early retirement list. Upon making inquiries, he was told by Management that he should not worry about it. Nevertheless, he says he became most upset.
Mr Hamilton states that when he was recuperating from lung surgery in October 2005, a fellow worker came to visit and asked him if he was interested in a transfer to a different plant or even medical retirement, as Management had raised these prospects at a meeting at work. He informed his co-worker that he was not interested. He returned to work about 5 months later, after receiving a clearance for resumption of duties other than underground work.
Upon returning to work he says that Management informed him that he should take up duty at the Bondi plant in order to avoid the risk of infection. He claims that he was excluded from any further meetings with Management. Apparently there were some discussions about possible redundancy at some stage.
Mr Melville says that at one meeting, there was a suggestion that an informal approach could be made to Mr Hamilton to ascertain whether he would be interested in a voluntary separation package. However, Mr Melville says that over 100 employees had been similarly identified as being “suitable for such an offer and that Mr Hamilton was one of these.” Mr Hamilton says that it was difficult to have the discussion with Mr Hamilton in August 2006 because of his medical issues and treatment at that time. He says that the date for acceptance of the offer was extended because of the delays that had occurred.
Following stomach surgery Mr Hamilton returned to work in August 2006. He claims that on 22 August 2006 he was told that he was not to use a “sleep over facility” which was provided for shift workers who were too tired to travel home, or who wished to avoid late night travel. Mr Melville states that the sleep over facility is available to employees but it is open to review to assess whether there are other health issues, which required management.
Mr Hamilton says that he was excluded from training rotation and considered that he was being treated differently to other employees at the Bondi plant. He claims that he became increasingly worried about his position and his future. He says that he felt that he was being “bullied and harassed” by Management and that this was designed to force him into accepting early retirement or submitting his resignation. He claims that he sought a meeting with Management to discuss his position but that it never took place.
He claims that he left work in a highly agitated state, but was contacted by two managers who told him “it was all a big misunderstanding”. He says that he received an offer of redundancy on “29th August one day before the cut off date for acceptance”. He was visited at his home by Mrs Robinson, Sydney Water’s Injury Management Consultant, who assisted him to complete the claim form. According to the evidence before the Arbitrator, the acceptance date was extended to 14 September 2006.
Mr Hamilton was referred to Ms Lorraine Simpson, a treating psychologist who assessed him as being moderately depressed, with significant anxiety, “suffering from adjustment disorder with mixed anxiety and depression”. Dr Gertler, treating psychiatrist examined Mr Hamilton, and agreed with Ms Simpson’s diagnosis. Dr Crocket, Mr Hamilton’s treating general practitioner, certified him as unfit for work until 8 October 2006. He returned to work on 9 October 2006 and took up duty as a Water Restriction Patrol Officer.
Sydney Water arranged for Mr Hamilton to be examined by Dr John Roberts, Consultant Forensic Psychiatrist, on 8 September 2006, who reported on 12 September 2006 that he found no evidence of a psychiatric condition. However, he states at page 14 of his report, “In regard to his capacity to work, I would consider that although Mr Hamilton denies that that was the case, that it is very difficult to envisage a man who has had such serious physical health concerns that such would not have impacted upon his performance.”
In any event, Mr Hamilton filed an ‘Application for Expedited Assessment’ in the Commission on 10 July 2007, seeking weekly payments of compensation from 16 September 2006 to 8 October 2006 [incorrectly stated in the Application as 8 August 2006], and medical expenses in the total amount of $305.38. In due course, the Arbitrator made a decision and an Award for Sydney Water, the details of which are set out in his ‘Certificate of Determination’ dated 19 September 2007, and at [20], hereunder.
Mr Hamilton’s ‘Appeal Against Decision of Arbitrator’ was filed in the Commission on 18 October 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 September 2007, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.That the Applicant suffered a psychological injury within the meaning of s4 and s9 of the Act on 20 August 2006.
2.That the Applicant’s employment with the Respondent was a substantial contributing factor to that injury as required by s9A of the 1987 Act.
3.That the Respondent’s claim of a defence pursuant to s11A of the 1987 Act succeeds.
4.Award for the Respondent in respect of the claim for weekly benefits compensation.”
I note that the Arbitrator did not deal with the matter of the claim for medical expenses under section 60 of the 1987 Act (see [4] of his Reasons), nor did he make any award in that regard (see Certificate of Determination and [51] of his Reasons). There is no specific reference that I can see, to the matter of medical expenses in the transcript of the proceedings before the Arbitrator. However, any failure on the part of the Arbitrator to resolve that matter is not raised as an issue in this appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are broadly threefold, and involve the Arbitrator’s application of Section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’); whether he failed to give proper and adequate reasons for his decision, and whether he erred in making certain findings that were not based on the evidence before him.
Mr Hamilton has appealed against the decision of the Arbitrator in finding that “the respondent’s claim of a defence pursuant to s.11A of the 1987 Act succeeds.”
The specific grounds of appeal are set out at paragraph 2.6 of his submissions on appeal, as follows:
“1.The learned Arbitrator erred in coming to the conclusion that the four areas identified by the applicant as giving rise to his psychological injury, fell within the scope of s.11A.
2.The learned Arbitrator erred in failing to give proper and adequate reasons for his conclusion that the four areas identified by the applicant as giving rise to his psychological injury fell within the scope of s.11A.
3.The learned Arbitrator erred in finding on the evidence before him that s.11A had any application to these proceedings.
4.The learned Arbitrator erred in finding that on the evidence before him that the respondent had established a defence under s.11A.
5.The learned Arbitrator erred in finding that the actions of the respondent were reasonable in the circumstances of the case.”
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 both 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 TO APPEAL
Time
Before proceeding to deal with an appeal the Commission must determine whether the application meets certain requirements of section 352 of the 1998 Act (see section 352(1) of the 1998 Act).
The date of the Arbitrator’s determination was 19 September 2007. The appeal was physically received in hard copy in the Commission and date-stamped 18 October 2007. The Commission accepted the lodgment of the appeal by electronic means on 16 October 2007. Sydney Water accepts, and I concur, that the Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. An appeal file note prepared by Commission staff also confirms that the Appeal was lodged within the prescribed time.
I am satisfied that the Appeal was lodged in accordance with the provisions of section 352(4) of the 1998 Act.
Amount
Section 352(2) of the 1998 Act provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
Mr Hamilton states that the amount claimed by him in the ‘Application for Expedited Assessment’, the subject of the Arbitrator’s decision of 19 September 2007, is $4,790.08.
He submits at paragraph 2.2 of his submissions on appeal:
“In addition to the Section 60 expenses claimed in the Application to Resolve a Dispute, the applicant with [sic] seek leave to introduce into evidence expenses incurred with respect to medication in the sum of $199.15 together with an outstanding account from the applicant’s treating psychologist, Lorraine Simpson, in the sum of $279.00.
It was [sic] applicant’s evidence in the substantive proceedings that he continues to suffer from a psychological injury for which he will require ongoing treatment by way of consultations with his general practitioner and medication in the form of Zoloft.
The applicant’s statement dated 22 May 2007, which was admitted into evidence in the substantive proceedings, states the requirement for ongoing medication in the form of Zoloft due to his depressive illness.
The applicant intends seeks [sic] leave to introduce fresh evidence with respect of the cost of ongoing consultations with his treating general practitioner for the next twelve months for a total cost of $330.00 and the cost of medication which he will require for a further period of twelve months at a cost of $31.25 per month. Details of this application are set out under 2.4 below.
The applicant submits that the threshold requirement set out in Section 352(2)(a) has been satisfied when taking into account past Section 60 expenses incurred in respect of medication and psychological treatment, together with the requirement of ongoing consultations with his treating general practitioner and anti-depressant medication: Lily v Tomago Aluminium Co Pty. Limited [2004] NSWWCCPD 62.
Further, it is in evidence that the applicant he [sic] is currently undertaking suitable duties as a water patrol officer with the respondent on the basis that he is unfit for his pre-injury duties. Should the applicant be successful on appeal he will be entitled to weekly payments of compensation pursuant to s.38 of the Workers Compensation Act, 1987 should suitable duties be withdrawn in the future.
In addition the applicant submits that as no amount of compensation was awarded there is no requirement to meet the threshold requirement of s.352(2)(b): Mawson v Fletchers International Export Pty. Limited [2002] NSWWCCPD 5.”
Sydney Water submits in its submissions on appeal:
“The Respondent submits that this Appeal is not able to be brought as it does not comply with the provisions of Section 352 (2) (a) of WIM. The Appellant concedes this and claims the Application for Expedited Assessment filed claimed a total of $4790.08.
In fact the Application made a claim for weekly compensation totalling $2072.62 and for Section 60 expenses totalling $305.38 ie. a total of ‘Compensation at issue’ of $2378.00 for the purposes of Section 352 (2) (a).
…
In respect of the assertion that the Appellant may putatively have rights to Section 38 entitlement at some point in the future should certain events occur. The Respondent says this is irrelevant to the consideration under Section 352 (2) (a).”
Discussion and findings as to Amount
The amount claimed by Mr Hamilton, as set out in his ‘Application for Expedited Assessment’ was $2072.62 for weekly wages and $305.38 in medical expenses. The total amount claimed was $2378.00. However, Mr Hamilton submits in his submissions on appeal that the total amount claimed was $4790.08, but does not indicate how this total is made up. In the absence of such guidance, I am unable to arrive at this total amount on what is before me in this appeal. In any event, neither of the total amounts claimed or said to be claimed, “is at least $5,000”, as required by section 352(2)(a).
There is nothing recorded in the Arbitrator’s Reasons nor in the transcript of the proceedings to indicate that an amount of “at least $5,000” was ever in dispute, in the matter before him.
As stated above, the Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act).
Mr Hamilton seeks leave to adduce fresh evidence, which would amongst other things, serve to elevate the amount in dispute on appeal to at least $5,000. Sydney Water objects to the admission of the fresh evidence, for the reasons set out in [1] – [12] of its submissions on appeal. Mr Hamilton’s approach to the matter is rejected for the reasons outlined below, in [39] – [45].
Mr Hamilton also submits that should this appeal succeed, he will be entitled to weekly payments of compensation should Sydney Water withdraw suitable duties from him in the future. No evidence or submissions are before me that would suggest that suitable duties are to be, or have been, withdrawn from Mr. Hamilton. That this could occur remains in the realm of the possible, but is not a factor upon which a decision can be made, simply because it has not happened, and therefore there exists no entitlement to compensation on this basis. In any event, to suggest that the monetary threshold, which must be met before the appeal can proceed, may be fixed by reference to what might flow from a possible outcome of the very appeal for which leave is sought, is misconceived. The substantive appeal cannot proceed without leave, and leave may not be given unless the monetary threshold is first met.
Mr Hamilton submits that the documents that he now seeks to introduce as new evidence, “is fresh evidence which was not available at the time of filing the Application to Resolve Dispute nor at the time of hearing before the Arbitrator.” As correctly highlighted by Sydney Water, most if not all of this new evidence, having regard to the very nature of the documents involved, was or ought to have been, in Mr Hamilton’s contemplation, knowledge and/or possession prior to the determination of the matter by the Arbitrator. He could not reasonably have failed to know about those that were in existence, and to reasonably anticipate the remainder, or the nature of the remainder, that may, or were to, have come into existence, at the very least. Furthermore, not only was none of this produced to the Arbitrator, it was not listed, mentioned, anticipated, highlighted or otherwise brought to attention in the Application to Resolve a Dispute filed by Mr Hamilton.
In any event, Section 352(6) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. Leave to admit such fresh, additional, or substituted evidence may be given if the substantive appeal proceeds. However, if as in this case, the monetary threshold requirements are not first met, the Commission cannot grant leave to appeal. If the appeal does not proceed, a consideration of the admission of such evidence cannot take place. Leave to admit fresh, additional or substituted evidence in this case is not a threshold matter, but is a step in the substantive proceedings that would have followed upon the granting of leave to appeal, had the monetary threshold been met.
Finally, I note that Sydney Water has briefly, albeit correctly distinguished Lily v Tomago Aluminium Co Pty Ltd [2004] NSWWCCPD 62, and I need make no further comment.
Further to the foregoing and for the sake of completeness, on the basis that Mr Hamilton now seeks to include future medical expenses to achieve the threshold under section 352(2)(a), I note in Widdup v Hamilton [2006] NSWWCCPD 258 (‘Widdup’) that the Commission found that the Workers Compensation Commission has no power or jurisdiction to make a declaration of liability in respect of future medical expenses under section 60 of the 1987 Act, before the cost of that treatment has been incurred. In that matter, which has been followed subsequently on appeal in the Commission, President Sheahan said at [24]:
“[The] Commission’s jurisdiction in respect of a claim for hospital and medical expenses under section 60 is invoked when the person on whom a claim for those expenses is made ‘disputes liability for the claim’ or ‘fails to determine the claim as and when required’ by the provisions of the 1998 Act (section 289(2) of the 1998 Act).”
In the absence of such a dispute in respect of a claim for specific medical expenses, the Commission has no jurisdiction. The President stated that the Commission does have the power to make general orders for the payment of medical expenses, but said that the order can be:
“… no more than a statement to the effect that a worker, having established liability, is entitled to have his or her hospital and medical expenses paid provided they are ‘as a result of an injury’ and ‘are reasonably necessary’. It does not determine liability for any particular treatment.”
[Emphasis added]. (See reference to Widdup in Sutherland Shire Council v Webb [2007] NSWWCCPD 238).
The Arbitrator did not deal with the issue of the claim for medical and hospital expenses pursuant to section 60 of the 1987 Act, and no liability for payment of compensation for any such expenses, has been established to date. As stated earlier, his failure to deal with this matter is not an issue in this Appeal brought by Mr Hamilton. The reason or reasons for the matter not being addressed by the Arbitrator or the parties in the course of the proceedings, is not apparent. Nevertheless, having regard to comments made in the submissions of the parties in this appeal, it seems that such expenses remain in issue between them.
In conclusion, and for the reasons stated, the new evidence put forward by Mr Hamilton cannot be admitted for the purpose of lifting the amount of compensation on appeal to $5,000, to meet the threshold for leave to appeal under section 352(2)(a) of the 1998 Act.
While the requirement of section 352(2)(b) of the 1998 Act is either met because the whole of the compensation claimed before the Arbitrator is at issue in the appeal, or does not apply because no monetary award is made (Mawson v Fletchers International Export Pty Limited [2002] NSWWCCPD 5), the threshold requirement in section 352(2)(a), which does apply, is not met.
In the circumstances, leave to appeal may not be granted.
DECISION
Leave to appeal the decision of the Arbitrator dated 19 September 2007 is refused.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Acting President
15 January 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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