Hawker Pacific Pty Ltd v Lang
[2014] WADC 104
•15 AUGUST 2014
HAWKER PACIFIC PTY LTD -v- LANG [2014] WADC 104
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 104 | |
| Case No: | APP:6/2014 | 4 JUNE 2014 | |
| Coram: | EATON DCJ | 15/08/14 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed. Leave refused. | ||
| PDF Version |
| Parties: | HAWKER PACIFIC PTY LTD MARY COLLEEN LANG |
Catchwords: | Appeal from decision of WorkCover arbitrator Whether errors of law were made by the arbitrator Turns on own facts |
Legislation: | Workers' Compensation and Injury Management Act 1981 |
Case References: | Catholic Education Office of WA v Granitto [2012] WASCA 266 Ewart v Caruso [2013] WASCA 266 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
MARY COLLEEN LANG
Respondent
ON APPEAL FROM:
For File No : APP 6 of 2014
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR POWLES
Catchwords:
Appeal from decision of WorkCover arbitrator - Whether errors of law were made by the arbitrator - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Appeal dismissed. Leave refused.
Representation:
Counsel:
Appellant : Mr J P Wilson
Respondent : Mr B L Nugawela
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : Shine Lawyers
Case(s) referred to in judgment(s):
Catholic Education Office of WA v Granitto [2012] WASCA 266
Ewart v Caruso [2013] WASCA 266
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
1 EATON DCJ: On 21 January 2014 Hawker Pacific Pty Ltd (the appellant) filed a notice of appeal in this court seeking leave to appeal against the decision of Arbitrator Powles published on 24 December 2013 in the Arbitration Service of WorkCover WA. In that matter the applicant was one Mary Colleen Lang and the respondent was Hawker Pacific Pty Ltd. Pursuant to the arbitrator's decision, an order was made that Hawker Pacific Pty Ltd pay Ms Lang's cl 17 expenses for left wrist fusion surgery to be performed by Mr Jeff Ecker.
2 Section 247 of the Workers' Compensation and Injury Management Act 1981 provides that if written reasons for an arbitrator's decision under pt XI of that Act in respect of a dispute are given to a party, the party may, with leave, appeal to this court against the decision. This court is not to grant leave unless:
(a) in the case of an appeal in which an amount of compensation is at issue –
(i) a question of law is involved and the amount of that issue in the appeal is both –
(I) at least $5,000 or such other amount as may be prescribed by the regulation; and
(II) at least 20% of the amount awarded in the decision appealed against; or
(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie; and
(b) in any other case, a question of law is involved.
3 Section 247(4) of the Act provides that an application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for decision appealed against were given to the party making the application. Such an appeal is to be by way of review of the decision appealed against and is, in general, to be conducted in accordance with the rules of this court.
4 The appeal was commenced within time.
5 Perusal of s 247 of the Act reveals that leave is not to be granted unless a question of law is involved and certain other conditions are present.
6 In the appellant's notice of appeal the question of law involved is set out as follows:
1. Whether the arbitrator erred in law in failing to provide sufficient reasons for her decision that the respondent's need for surgery arose from the work accident on 4 October 2007.
2. Whether the arbitrator erred in law in failing to take into account relevant considerations.
3. Whether the arbitrator erred in law in misconstruing the medical evidence of Mr Ecker.
4. Whether the arbitrator erred in law in failing to consider Mr Ecker's concerns regarding the fusion surgery.
5. Whether the arbitrator failed to consider relevant medical evidence from Mr Allison.
7 The grounds relied upon by the appellant in the Notice of Appeal were as follows:
1. The arbitrator erred in law in failing to provide sufficient reasons for her decision that the respondent's need for fusion surgery arose from the work accident on 4 October 2007.
2. When considering whether the fusion surgery undertaken by the respondent was reasonable, the arbitrator erred in law in failing to consider the respondent's prognosis, the advisability of having the treatment, the effectiveness of the treatment, which option would restore the respondent to her fullest capacity, the respondent's present capacity and condition, and the success of the treatment in alleviating the respondent's symptoms.
3. The arbitrator erred in law in failing to take into account a relevant consideration, being the non-organic signs and symptoms demonstrated by the claimant.
4. The arbitrator erred in law by misconstruing the medical opinion of Mr Ecker in finding that his willingness to operate as an indication that the fusion surgery was a reasonable expense pursuant to cl 17.
5. The arbitrator erred in law in failing to take into consideration Mr Ecker's opinion that any further surgery would not be productive, had the risk of making the respondent worse, that limited intracarpal fusions produced the worst results in the workers' compensation scenario and that instability and pathology such as that of the respondent did not do well with tendon transfers, limited intracarpal fusions or fusions.
6. The arbitrator erred in law in failing to consider the evidence of Mr Allison in that the need for surgery is not caused by her employment with the appellant and to be cautious as to any benefit from surgery due to non-organic aspects.
8 The orders sought by the appellant on appeal are that the appeal be allowed, that the arbitrator's decision be quashed and that the respondent's claim for payment of the fusion surgery be dismissed or the matter be remitted for re-hearing by another arbitrator.
9 The notice of appeal made it very clear that the appellant relied, in seeking the court's leave, on s 247(2)(b) of the Act, that being a contention that a question of law is involved in the absence of any other relevant circumstances having regard to the terms of that section.
10 The matter was heard by me on 4 June 2014. Mr J P Wilson appeared for the appellant and Mr B L Nugawela appeared for the respondent. Mr Wilson handed up an amended Notice of Appeal which sought to include a further ground of appeal being ground 1A. There being no opposition, the amendment was allowed. Ground 1A provides as follows:
Whether the Arbitrator erred in law in making a finding that the respondent's need for surgery arose from the work accident on 4 October 2007, which was a finding unsupported by any evidence.
11 In the course of the hearing Mr Wilson submitted that the reference to s 247(2)(b) in the Notice of Appeal was in error and that the reference should have been to s 247(2)(ii). It follows that the appeal is brought on the basis that leave should be granted because a question of law is involved and that the matter is of such importance that, in the public interest, an appeal should lie.
12 In Ewart v Caruso [2013] WASCA 266 Newnes JA said at [25]:
A question of law arises, among other things, if only one finding is open on the facts: Hope v Bathurst City Council (1980) 144 CLR 1, 8; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439, 450 - 451. An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
13 At [27] Newnes JA said:
An appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and the District Court, within the constraints marked out by the nature of the appellate process, must conduct a 'real review': see Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20], [24]. Where a review is undertaken, the appellant must provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator: Pacific Industrial [20], [26]. See also Catholic Education Office of Western Australia v Granitto [2012] WASCA 266 [56] - [57].
14 In Catholic Education Office of WA v Granitto [2012] WASCA 266, Murphy JA, with whom Pullin and Newnes JJA agreed, said [54]:
If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction in the commissioner to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]. That was a case involving s 247(3) but the point plainly applies to s 247(2) which uses the word 'unless'. It is unnecessary for present purposes to consider whether there are any differences in relation to the operation of the grant of leave contemplated under s 247(2) and s 247(3).
15 It is the case that, in addition to the oral submissions of counsel for the parties made at the hearing, the parties have provided written submissions both before and after the hearing, the latter pursuant to leave to file supplementary written submissions granted by me at the conclusion of the hearing. In summary, I have received written submissions from the appellant dated 30 May 2014 and 13 June 2014 and from the respondent dated 3 June 2014, 26 June 2014 and 2 July 2014.
16 The principal contention advanced by the appellant in its initial written submissions is that the appeal involves a question of law in that it is in respect of a legal conclusion as to whether the fusion surgery was a 'reasonable medical expense' as referred to in sch 1 cl 17 of the Act.
17 The first ground of appeal asserts that the arbitrator erred in law in failing to provide sufficient reasons for her decision that the respondent's need for fusion surgery arose from the work accident on 4 October 2007. Section 213 of the Act deals with the form and content of an arbitrator's decisions and reasons. It provides that such reasonsneed only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so, need only identify the law applied by the arbitrator in coming to the decision and give the reasons for doing so and need not canvass all the evidence given or all the factual and legal arguments or issues arising in the case.
18 It is the case that Arbitrator Powles did provide lengthy reasons for her decision, comprising some 17 pages. The contention of the appellant in ground 1 is that she did not provide 'sufficient' reasons for her decision. It follows that the complaint is that her reasons were not adequate. In its written submissions of 30 May 2014 the appellant referred to the arbitrator's finding that there was a clear chain of causation linking the need for the fusion surgery with the compensable injury. The appellant contends that the arbitrator 'erred in making such a finding as she failed to explain that finding in the context of Mr Ecker's qualified comments in his letter of 8 January 2010'. To allege an 'error' in those quite specific terms can only amount to a complaint that the arbitrator made a mistake of fact.
19 Similarly, in par 30 of those written submissions the appellant acknowledges that the arbitrator noted that there was a conflict of opinion between Mr Ecker and Mr Allison, that the arbitrator preferred the opinion of the former but failed to take into account Mr Allison's comments to the effect that the respondent's symptoms and/or condition had nothing to do with her employment with her appellant.
20 At par 47 of her reasons the arbitrator made specific reference to Mr Ecker's letter of 8 January 2010. It is clear from her reasons that she considered the opinions of both Mr Ecker and Mr Allison. At pars 38 to 43, inclusive, the arbitrator deals with the opinions of Mr Allison, noting his concerns as to the 'non-organic aspects of her case'. At par 67 of her reasons the arbitrator summarized her position, finding that the surgical treatment proposed by Mr Ecker was based on a sound diagnosis. She described him as an eminent hand surgeon and drew support for her conclusion from the reports of Mr Allison 'the other eminent hand surgeon'. It is clear that, in arriving at that conclusion, she had canvassed the opinions of both experts, noting areas of agreement and areas of disagreement. In my view the arbitrator complied with the requirements of s 213 of the Act and has given 'sufficient' reasons for her conclusions such that no error of law is demonstrated. Ground 1 must fail.
21 Ground 1A of the Notice of Appeal is not covered by the appellant's submissions of 30 May 2014 because those submissions were crafted prior to the amendment being made. That ground asserts that the finding that the respondent's need for surgery arose from a work accident on 4 October 2007 was 'unsupported by any evidence'. In support of the appellant's application to amend in that regard, counsel for the appellant explained that ground 1A
feeds off the first appeal ground in that it is simply a different way of characterising. It's a different legal conclusion that we say will follow from the submissions in regards to the first appeal ground.
22 He went on to explain that the proposed ground 1A did not 'require any additional submission which takes my friend by surprise and puts him to any prejudice'. Having been so reassured, there was no opposition to the amendment and it was duly allowed.
23 It is clear that there is a considerable gulf between the complaint advanced in ground 1 and that advanced in ground 1A. The former complains that the arbitrator erred in law in failing to provide sufficient reasons for her conclusion that the respondent's need for surgery was causally linked to the work accident on 4 October 2007. The latter complains that the arbitrator erred in law because her finding in that regard was unsupported by any evidence.
24 Section 213 of the Act obliges the arbitrator to give her decision and reasons for decision in writing if certain circumstances exist. In par 1 of her reasons the arbitrator begins with the following statement: 'Mrs Mary Colleen Lang was working as an administrative assistant for Hawker Pacific Pty Ltd when she suffered an injury on about 4 October 2007'. That bald statement at the outset would suggest that the fact of the injury was not in contest.
25 The respondent applied for arbitration on 24 December 2012. In her application she referred to the date of injury as being '01.10.07+'. The appellant filed a reply on 14 January 2013 which included an annexure marked 'A' in which the appellant purported to concisely state which grounds of dispute in the application were admitted. Paragraph 1 of annexure 'A' begins with the following:
The applicant is a 51 year old (DOB: 22.07.1961) administrative supervisor who suffered injury during the course of her employment with the respondent on 4 October 2007.
26 The arbitrator, in her opening eight paragraphs, outlined a brief history of the matter and concluded with the observations that Mrs Lang was applying for an order that her employer, the appellant before me, pay for left wrist fusion surgery which, she said, was reasonably required for treatment of her injury that occurred on 4 October 2014 and that the appellant disputed that claim on the basis that such surgery was not a reasonable expense, Mrs Lang not requiring any further treatment and that her ongoing symptoms were not causally related to the employment. It is the case that the arbitrator, having considered the evidence put before her at the hearing and, having heard from the parties' legal representatives, decided in favour of the respondent finding, firstly, that her ongoing symptoms were causally related to the work event on about 4 October 2007 and, secondly, that the proposed fusion surgery was a reasonable expense.
27 It may well be the case that a failure to give adequate or sufficient reasons for a decision might amount to an error of law but it is the case that ground 1A, far from being 'simply a different way of characterising' ground 1, seeks to, in effect, bring about a re-hearing of the arbitration.
28 Putting that consideration to one side, ground 1A contends, not that the arbitrator misconstrued or misinterpreted the evidence relating to causation, rather that the arbitrator's conclusion in that regard was unsupported by 'any evidence'. It is the case that the appellant relied heavily upon the reports of Mr D M Allison. In his report of 17 December 2012 he said 'I do not believe the need for surgery is caused by anything that happened at her work on 4 October 2007 or since'. He went on in that report to express the opinion:
…purely on objective grounds, that Mr Ecker is right and that she has an instability in her wrist and the surgery is indicated, although, like him, I would be very cautious about any benefit from it because of the non-organic aspects of her case.
29 There was evidence before the arbitrator that Mr Peter Silbert, a neurologist, had conducted an EMG study on 6 October 2007 which revealed a mild left ulnar neuropathy at the elbow. The respondent had attended her general practitioner on 4 October 2007 and been referred to Mr Silbert.
30 He again saw the respondent about two years later, noting that her symptoms in the interim had continued intermittently since 2007. A further EMG and an ultrasound examination revealed that the ulnar neuropathy had progressed. It had been discovered in 2007 and described as acute and by 2009 had become chronic. The progression, he said, was consistent with the patient's reported history. When asked whether he considered her employment in 2007 was the cause of her then current condition in 2009 he replied that her employment was the main contributor. He recommended a surgical review. In consequence, the respondent was referred by her general practitioner to Mr Ecker, a hand, wrist and elbow micro-surgeon, who reported on 2 December 2009 that his diagnosis was one of left cubital tunnel syndrome with compression of the ulnar nerve at the elbow and left wrist ulnar carpal impaction.
31 On 8 November 2011 Dr David Kennedy, a medico-legal consultant, provided a report having reviewed the history of the respondent's problems. He concluded that her problems stemmed from her work in or about July 2007. He said:
The problems have progressively worsened and persisted in her left arm initially with the numbness involving the ulnar nerve distribution in the left hand and the following work activities on July 2009, Ms Lang developed problems in her left wrist and hand with involvement with the distal ulnar and the intercarpal joints for which she underwent assessment and treatment coordinated by Mr Jeff Ecker who performed surgery on the left wrist joint as well as surgery for cubital tunnel syndrome involving the ulnar nerve.
32 Mr Ecker, in a comprehensive report of 12 May 2012, reported to the appellant's solicitors that the respondent had informed him that her symptoms developed when she was working at a desk station in August 2007.
33 At the hearing of the appeal the appellant attempted to persuade me that the respondent had suffered two distinctly different injuries, one being a neurological problem involving the ulnar nerve at the left elbow and the other being a mechanical or skeletal problem being the left ulnar carpal impaction. The former, the appellant's counsel submitted, was causally related to the compensable injury of 4 October 2007 and the latter, was distinct from the compensable injury and only causally related to an event at work in July 2009. He said that no claim was ever made arising from the July 2009 event and that it had never been 'tested'. Those problems, being distinct from and unrelated to the problems emerging from the events of October 2007, were not causally related to those events which, counsel suggests, give rise to the compensable injury. That is the argument which gives rise to ground 1A, an argument quite divorced from the complaint in ground 1 that the reasons provided by the arbitrator were inadequate or insufficient.
34 I do not purport to have made and have not made a complete survey of the evidence that was before the arbitrator. To do so would, in my view, be conducting a re-hearing of the matter. As was observed by Newnes JA in Ewart v Caruso (op cit) the appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator.
35 What is contended before me in ground 1A of the amended grounds of appeal is that the arbitrator erred in law in that there was no evidence to support her finding of a causal connection between the respondent's circumstances at work in October 2007 and her need for the surgery proposed. Suffice it to say that the ground is without merit. There was clearly evidence before the arbitrator to support the finding of a causal relationship between the events of October 2007 and the need for the proposed surgery. That finding relied predominantly, but not exclusively, upon the evidence of Mr Silbert and Mr Ecker. There was evidence before the arbitrator, which she accepted, to support the conclusion that there had been a continuum of related symptoms and pathology from about October 2007 to the present. Ground 1A must fail.
36 As to the remaining grounds, to allege that the arbitrator 'erred in law' in various ways such as failing to consider various individual pieces of evidence, failing to take into account relevant considerations, or misconstruing medical opinion, is to attempt to attack matters of fact by describing them as errors of law in an attempt to come within the confines of s 247 of the Act. If a ground of appeal, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts that a decision is against the evidence or the weight of the evidence, that the decision-maker failed to consider various individual pieces of evidence, failed to take into account relevant considerations or misconstrued medical opinion does not per se raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
37 In the course of argument during the hearing of the appeal I put the following to counsel for the appellant: 'Is it, in part, a function of attempting to challenge a finding of fact by characterising it as an error of law?'
38 He replied: 'It could be. I could be interpreted that way, your Honour. I'm not happy with grounds 2, 3, 4 and 6 in the light of your comments and I'm not going to push those in the circumstances'. Counsel for the appellant made it clear that he was abandoning grounds 2, 3, 4 and 6 and that he relied on grounds 1, 1A and 5. With regard to the latter he said: 'But 5 really is a particular of what 2, 3 and 4 would have been if they had been properly drafted …'
39 I am not persuaded that grounds 2 to 6, inclusive, even if proven, would amount to errors of law, as alleged. In any event, I am not persuaded that the arbitrator did misconstrue evidence, failed to take evidence into account or failed to consider evidence, as alleged in each of those grounds. Each must fail. For the foregoing reasons all grounds of appeal must fail. The appeal should be dismissed. Leave is refused.
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