Hawley v Mid Western Area Health Service, Lithgow District Hospital
[2006] NSWWCCPD 349
•18 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hawley v Mid Western Area Health Service, Lithgow District Hospital [2006] NSWWCCPD 349
APPELLANT: Geordie Ernest Hawley
RESPONDENT: Mid Western Area Health Service, Lithgow District Hospital
INSURER:GIO General Limited
FILE NUMBER: WCC8657-05
DATE OF ARBITRATOR’S DECISION: 28 September 2005
DATE OF APPEAL DECISION: 18 December 2006
SUBJECT MATTER OF DECISION: Nature of review by Presidential Member, Arbitrator’s finding of credibility.
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On The Papers
REPRESENTATION: Appellant: Higgins and Higgins Lawyers
Respondent: Phillips Fox Solicitors
ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator dated 28 September 2005 is revoked and the following order made:
The matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.Paragraph 2 of the Arbitrator’s decision dated 28 September 2005 is confirmed.
The Respondent is to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 2 November 2005 Geordie Ernest Hawley (‘Mr Hawley’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 September 2005.
The Respondent to the Appeal is Mid Western Area Health Service, Lithgow District Hospital (‘Lithgow Hospital’).
Mr Hawley was born on 11 December 1963 he is 43 years of age. Mr Hawley is married.
Mr Hawley left school having completed his intermediate school certificate in 1979. He commenced working as a junior station assistant at Lithgow. Thereafter he has been employed in manual labouring occupations. Mr Hawley does not have any trades or qualifications which he could rely upon to obtain employment in the open labour market.
Mr Hawley commenced employment, with Lithgow Hospital on a casual basis on 17 April 1989. He became a full-time employee, on 11 November 1991. He was first employed as a porter/wardsman. He was promoted a number of times during the course of his employment. He was first promoted to the position of storeman, then; purchasing officer, patient’s services support manager and finally patient services manager.
Mr Hawley sustained a number of injuries to his back working for Lithgow Hospital. The first injury was on 21 November 1995 his last injury occurred on 9 February 2004.
Following the injury on 9 February 2004 Mr Hawley was certified either totally or partially incapacitated for work, by his GP, up until the Arbitration hearing. He was also paid weekly compensation payments, those payments continued until at least the Arbitration hearing.
On 6 June 2005 Mr Hawley filed in the Commission an ‘Application to Resolve a Dispute’ (‘Application’) claiming lump sum compensation pursuant to sections 66 & 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 22 June 2005 Lithgow Hospital filed in the Commission, a Reply to Application to Resolve Dispute (‘Reply’). Notwithstanding the fact that Lithgow Hospital continued to pay weekly compensation payments to Mr Hawley not only was Mr Hawley entitlement to lump sum compensation placed in dispute it was disputed, amongst other matters, that Mr Hawley had suffered injury whilst employed by Lithgow Hospital.
Mr Hawley’s claim was heard before a Commission Arbitrator on 9 September 2005. The Arbitrator delivered his decision on 28 September 2005. Mr Hawley was unsuccessful. The Arbitrator was of the opinion that Mr Hawley was not a witness of truth. It is against this decision, that Mr Hawley seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 September 2005 records the Arbitrator’s orders as follows:
1. That there will be an award in favour of the Respondent.
2. The Respondent is to pay the Applicant’s costs as agreed assessed.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·the Arbitrator lacked jurisdiction to make the finding that the affects of the work injuries had ceased, as there was not a dispute as to liability and causation as required under section 74 of the Workplace Injury Management Act 1998 (‘the 1998 Act’) in respect of this issue. (Jurisdiction);
·the Arbitrator finding as to the Mr Hawley’s credit was misconceived. (Mr Hawley’s credit);
·the Arbitrator failed to give adequate reasons, and
·The Arbitrator failed to adequately or at all consider the material before him, and/or based his decision on inadmissible evidence or evidence which was not logical and probative (Mr Hawley’s credit).
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.
The amount of compensation that is at issue in this matter exceeds $5,000 such that section 352(2)(a) is satisfied. Section 352(2)(b) is satisfied as the entirety of Mr. Hawley entitlement to lump sum compensation and weekly compensation is at issue.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) 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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“-a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mr Hawley’s solicitor has filed with the Commission a number of documents described as ‘late documents’ they are:
·filed on 20 January 2006 an application for an invalid pension signed by Dr Chara and Mr Hawley;
·filed on 23 March 2006 a statement from Wayne Harlem dated 21/3/06;
·filed on 1 April 2006 a medical certificate signed by Dr A Denovan dated 23/1/06, and
·filed on 11 July 2006 a medical certificate signed by Dr A Denovan dated 8/5/06.
There are no submissions, accompanying the ‘late documents’, as to why fresh evidence should be admitted on this appeal. The real issue to determine in this appeal, is the Arbitrator’s finding as to Mr Hawley’s credit and his finding that Mr Hawley’s ongoing back problems, if any, did not relate to the work injury or injuries. The medical certificates and the application for an invalid pension are of no assistance in any review or assessment of the Arbitrator’s findings nor does statement of Mr Wayne Harlem assist in relation to the issues the subject of this appeal. I therefore refuse leave to Mr Hawley to adduce ‘fresh evidence’.
EVIDENCE
The essence of this appeal is the Arbitrator’s finding as to Mr Hawley’s credit. The Arbitrator’s findings in relation to Mr Hawley’s credit are set out in a number of paragraphs of his decision, however the most important findings by the Arbitrator as to Mr Hawley’s credit appears at paragraph 43 of his decision:
“I have no such difficulty here. I found the Applicant to be an unconvincing witness. I found his evidence to be in an off-hand manner, and he was evasive and deliberately obtuse. When confronted with questions as to his involvement with the TAFE certificate. I particularly was unconvinced that he was suffering from any continuing problems with his back, notwithstanding his protestations to the contrary. He had no answer as to whether he told Dr Burgess that his employment was terminated because his certificate as to light duties was unsatisfactory – clearly a lie. The Applicant said that he did not remember whether he had told Dr Burgess that or not, which leads me to the conclusion that he did not care very much what story he told his doctor. Mr Stanton, submitted that the Applicant was clearly bitter about the manner of his termination and thus had a motive to engage in deceptive conduct towards the Respondent, which submission I accept.”
The facts necessary to gain an appreciation of the Arbitrator’s finding are as follows
(1) In early 1999 Mr Hawley altered his sons TAFE ‘certificate of mechanical engineering’. Mr Hawley altered the TAFE certificate by placing his name over his son’s name. A cursory examination by an interested party would leave that party with the impression that it was Mr Hawley’s TAFE qualification. The evidence establishes that any detailed examination of the document revealed that it had been altered.
(2) The fake document was placed on Mr Hawley’s personnel file in 1999 and remained there up until the time that it was discovered during an external investigation into complaint made by another employee of Lithgow Hospital against Mr Hawley in 2004.
(3) Mr Hawley was suspended from duties, on full pay, on 9 March 2004 pending an investigation in respect of alleged harassment by Mr Hawley of a subordinate employee. Shortly thereafter, Ms Ronalds commenced the external investigation. It was during this investigation that Ms Ronalds discovered the TAFE certificate.
(4) As a result of Ms Ronalds’ discovery of the fake TAFE certificate she was commissioned to carry out a second inquiry in respect of the certificate. Ms Ronalds’ report in respect of the second inquiry was delivered on 4 May 2004 (before she delivered her report in respect of the harassment allegation inquiry). She found that Mr Hawley had “manufactured the fake certificate” and recommended Mr Hawley’s immediate summary dismissal.
(5) On 12 May 2004 Dr T Khoo chief executive officer of Lithgow Hospital, wrote to Mr Hawley terminating his employment “effective immediately”.
(6) On 14 May 2004 Ms Ronalds delivered her substantive report in respect of the allegations of harassment. The report was extremely critical of Mr Hawley.
(7) Mr Hawley has not worked since he was suspended on 9 March 2004. As at 9 March 2004 Mr Hawley was on ‘light duties’ as a result of his back injuries. He had been certified by his general practitioner, for the period 1 March 2004 to 15 March 2004, as fit only for suitable duties, eight hours per day five days a week, with sitting limited to 40 minutes (or until back pain occurs) then five minutes mobilisation.
(8) The potential dispute between Mr Hawley and his employer in respect of his summary dismissal was settled on 2 June 2004, by way of a deed of release signed by the parties whereby Mr Hawley tendered his voluntary resignation by letter dated 25 May 2004.
The Arbitrator relied heavily on the reports of Ms Ronalds in forming his opinion as to Mr Hawley’s credit and in forming his ultimate finding in favour of Lithgow Hospital, he said at paragraph 45 of his decision of:
“In any event I find the weight of the Respondent’s evidence to be determinative. Ms Ronalds is a barrister and was retained initially to investigate complaints about the Applicant’s behaviour which itself caused a recommendation that he be disciplined. She interviewed many witnesses and came to her determination after thorough examination of the situation. Moreover her reports are extremely detailed, and her reasoning clearly expressed and balance.”
The Arbitrator went on to record:
“The thoroughness also uncovered behaviour which clearly had criminal overtones, and which resulted in the instant dismissal of the Applicant. Whilst the Applicant and Mr Harlem were of the view that she was mistaken in her findings, I accept them, and find no plausible reason from either witness to reject them.”
The lay and the medical evidence relevant to the issues of this appeal are dealt with below under the heading of ‘Mr Hawley’s credit’.
DISCUSSION AND FINDINGS
Jurisdiction
Mr Hawley submits that as Lithgow Hospital had not, as that the time of the Arbitration, denied liability there was no existing dispute between the parties in respect of liability. He further submits that the Arbitrator did not have jurisdiction to make a finding that not only determined his lump sum entitlement but also determined the entirety of the liability of Lithgow Hospital to pay compensation.
Mr Hawley does not dispute that the Arbitrator had jurisdiction to determine Mr Hawley’s entitlements to lump sum compensation. The fallacy in Mr Hawley submission is that although the Medical Assessment Certificate (‘MAC’) from an Approved Medical Specialist (‘AMS’) is binding as to the extent of the workers loss or losses the Arbitrator is still required to determine questions of causation and injury in respect of a claim for lump sum compensation. There have been a number of presidential decisions dealing with the effect of a binding MAC. One of the first of a long line of decisions was: Joppa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Joppa’). The claim in Joppa involved an application by a worker for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act. An Arbitrator referred the matter to two AMS’s, to assess the relevant permanent impairments. MACs were issued by each of these doctors. Subsequently the Director of Professional Services, purportedly acting as delegate of the Registrar of the Commission, issued a Certificate of Determination setting out a final determination in the matter consistent with the MACs, without further reference to the arbitrator. In dealing with the status of the MACs, and whether they were capable of finally determining the matter (as the Certificate of Determination suggested they had), Fleming DP said: (paragraph [27]):
“However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of a matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural evidence, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.”
It follows therefore that the Arbitrator before referring the matter to an AMS was correct in determining the issues of injury and causation and had jurisdiction to do so.
Mr Hawley’s credit
Mr Hawley’s credit is the central issue of this appeal. Mr Hawley’s challenge to the Arbitrator’s findings, the Arbitrator’s assessment of the evidence and the adequacy of the Arbitrator’s reasons all relate ultimately to the Arbitrator’s finding in relation to Mr Hawley’s credit.
Before examining the Arbitrator’s assessment of the evidence, his reasoning process and finding in respect of Mr Hawley’s credit, the extent of a Presidential member’s power on review to interfere with an Arbitrator’s assessment of a worker’s credit needs to be considered. Particularly in circumstances where the Arbitrator had the advantage of observing the worker’s demeanour when he gave evidence.
The extent of a Presidential Members power of review was considered by the Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’). In Zheng the Court of Appeal was called upon to decide whether the employer had been denied natural justice by a Commission Arbitrator in limiting the employer’s representative cross-examination in respect to circumstances of an injury. The worker had been injured, prior to the commencement of his work, when he became involved in a fight with his supervisor. The Court of Appeal also considered the extent of a Presidential member’s ( Fleming DP) power on review. In respect of this issue Bryson JA, who gave the judgment of the court said (at paragraph 38):
“ A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. I see no ground upon which it could be doubted that the Deputy President acted within her discretionary powers in disposing of the matter as she did. No rule of law required the Arbitrator not to limit cross-examination, and the view that there was no want of procedural fairness was a view which the Deputy President could reasonably reach without any error of law.”
Zheng establishes that a Presidential member’s powers on review are broad powers. The High Court, in CSR Ltd v Della Maddalena [2006] HCA 1 (2 February 2006) (‘Maddealena’) was called upon to consider to what extent an appellate tribunal could interfere with trial judge’s findings in relation to credit. Kirby J. with whom Gleeson CJ agreed considered the requirements and limitations of an appellate review. Although the legislation, that His Honour was considering, was different (the legislation concerned rehearing rather than review) his observations are pertinent in respect of a review of an Arbitrator’s decision in general, and in particular, an Arbitrator’s decision which is based on credit. His Honour said the following in respect of appellate tribunal’s obligations in conducting a review. (paragraph 16):
“Requirements and limitations: The form of rehearing so provided "shapes the requirements, and limitations, of such an appeal" Fox v Percy (2003) 214 CLR 118 at 125. The relevant "requirements" are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance" Dearman v Dearman (1908) 7 CLR 549 at 561 cited in Fox v Percy (2003) 214 CLR 118 at 12. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of "weighing conflicting evidence and drawing ... inferences and conclusions" Dearman v Dearman (1908) 7 CLR 549 at 564 cited in Fox v Percy (2003) 214 CLR 118 at 127.”
Kirby J, at paragraph 19 of this judgment, expressed his opinion as to the obligations of appellate tribunal when carrying out a review by way of rehearing:
“Adhering to Fox v Percy: In Fox v Percy there was an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts. Like many other principles re-expressed by this Court in recent years, the change was one founded in a close analysis of the statutory provisions governing the legal task in issue [31]. It involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments. It involved a reminder of the obligations of the appellate court, so far as it properly could, to perform its statutory functions of appellate review by way of rehearing, in a real and substantive way as the enacted law mandates.”
In applying the above pronouncements to the Arbitrator’s decision in the present case, I have come to the conclusion that the Arbitrator’s finding as to Mr Hawley’s credit and his ultimate finding that Mr Hawley has recovered from the effects any work injury or injuries was misconceived and should be set aside. I have come to this conclusion for the following reasons.
Firstly the credit issue, which I will deal with more fully in paragraphs 42 to 44 below, did not go to a central issue in the case. There was no real attack by the Lithgow Hospital in respect of the injuries alleged by Mr Hawley. There was no direct attack on Mr Hawley’s assertion that he had continuing problems with his back following upon the injury he sustained whilst working at Lithgow Hospital on 21 November 1995. In fact, the very opposite was suggested to Mr Hawley by counsel appearing for Lithgow Hospital. At page 10 of the transcript counsel for Lithgow Hospital asked following question:
“Q. and – see, that’s what I want to suggest to you, that ever since 1995 the state of your back is that you might have of these events that stir up the pain but after a short period of treatment or rest the pain returns to how it was, ever since about 1995. Do you agree with that?”
Mr Hawley rejected this suggestion. However, as I understand it, he was rejecting the second element of the question that is; that the subsequent work aggravations settled down after a period of rest. The credit issue not going directly to an issue in dispute before the Arbitrator, it was incumbent upon the Arbitrator to carefully examine the other evidence before him, which would either corroborate Mr Hawley’s assertions or alternatively lead to a rejection of Mr Hawley’s assertions. In my opinion, the Arbitrator failed to do this.
An examination of the historical medical and other documentary evidence before the Arbitrator in my opinion corroborated Mr Hawley’s assertion that he has had a level of back problems ever since the 1995 work injury. The material, which was not considered by the Arbitrator is as follows:
1. There is Lithgow Hospital’s clinical notes dated 21 November 1995, which corroborate the occurrence of Mr Hawley’s 1995 work injury. The notes also indicate that Mr Hawley sustained a reasonably severe injury. The injury and complaints are recorded as follows:
“Slipped and fell yesterday morning, while unloading truck striking lower
back. Woke up with pain down left leg and cramp last night. On
examination tenderness over the lumbar vertebrae flexion restricted slightly
in all directions.”
2. On the 20 September 2001 Mr Hawley was treated again at Lithgow Hospital’s Emergency Department for lower back pain and left leg pain following another injury at work. He was seen again, on 24 September 2001 at the Lithgow Hospital Emergency Department. On that occasion he was noted to have continuing low back pain with pain into the left leg. A past history was noted of a workers compensation injury in 1997. “L5/S1 disc prolapse?” The 1997 entry is clearly a reference to the 1995 injury.
3. Mr Hawley attended a ‘WorkFitness’ program conducted by Ian Hogg, physiotherapist, following upon his September 2001 work injury. In a report dated 7 November 2001 (on Lithgow, Health Service, letterhead) Mr Hogg records the following:
“While attempting to lift a baby capsule in the back of a car when at work on the 20 September 2001, Geordie became suddenly aware of some slight left lower back pain. He then reported picking up a box soon after the initial instance, which immediately exacerbated his left back pain. He immediately went to Lithgow District Hospital Emergency Department and had a CT scan (which he stated showed nothing of significance). Treatment consisted of medication and advice to rest. After two days of sick leave this gentleman returned to the Emergency Department due to no change in symptoms. He was given an analgesic injection and referred to his GP. His pain began to spread with discomfort noted over the posterior left thigh, as well as intermittent numbness in the left foot. Following a review with Dr Denovan he was referred to Carol Stevens for physiotherapy treatment and placed on restricted duties. Geordie has completed a number of physiotherapy sessions with only slight improvement i. e. although the pain intensity and distribution have not changed he no longer complains of left foot symptoms. Approximately 6 years ago, Geordie sustained an injury to his left lumbar spine when he fell from and hit the loading dock at work. This required two weeks off work, and treated with medication. A specialist reviewed him at the time who recommended surgery or an injection, but he rejected both these options. Since that original episode he has reported intermittent episodes of left back pain and has constantly been aware to protect his back, using a lumbar support brace when he feels it is necessary.”(Emphasis added)
4. On 9/10/03 there is a WorkCover certificate signed by Dr Wilson (?). The doctor was employed by the Lithgow Hospital. The doctor certified Mr Hawley as unfit for duty in respect of a back injury which occurred on the same day, when “Mr Hawley slipped on the floor in the staff change room hitting back on wall and floor doing the splits.” Under diagnosis, the doctor noted that the injury was an “Exacerbation previous back injury.”
5. Mr Hawley attended Lithgow District Hospital Emergency Department on 10 February 2004 following an injury to his back at work on the previous day. A certificate issued the same day, recorded the injury as having occurred as a result of lifting heavy items (lead battery plus people). The history records a note of a previous problem, with his lower back diagnosis “bulged disc?”
As can be seen from an analysis of the evidence not referred to in the Arbitrator’s decision Mr Hawley’s assertion of a continuing level of back disability resulting from the 1995 work injury is confirmed by independent and objective evidence. Mr Hawley’s continuing complaints of left leg pain following the 1995 injury is certainly consistent with a disc damage having occurred at that time, as opined by Dr Burgess. I am of the opinion that the Arbitrator’s failure to consider this material, undermines his finding as to Mr Hawley’s credit and his ultimate finding that Mr Hawley had recovered from his injuries.
Secondly in my opinion, the Arbitrator’s analysis of the relevant medical evidence, to reach his conclusion that any aggravation by way of work injury to Mr Hawley’s back condition had ceased by the time of the Arbitration hearing, was flawed.
1. The Arbitrator at paragraph 22 of his decision suggests that Dr Burgess in a second report dated 25 August 2005 had changed his opinion as to the cause of Mr Hawley’s back complaints. Dr Burgess, in his first report of 15 January 2005 was of the opinion that Mr Hawley had suffered disc damage as a result of the work accident in 1995 (wrongly recorded by him as having occurred in 1994). In the supplementary report Dr Burgess comments on the medico-legal opinions relied upon by Lithgow Hospital. The doctor agrees that the work incidents would have “aggravated and exacerbated the underlying condition.” There is no inconsistency, as found by the Arbitrator, between a degenerative underlying condition and a disc injury. An underlying degenerative condition of the lumbar spine can and in this instance does, according to Dr Burgess and Dr Meachin (Lithgow Hospital’s qualified medico legal specialist) include damage to a lumbar disc. The Arbitrator’s conclusion that Dr Burgess had changed his opinion that Mr Hawley had suffered discal damages as a result is injury, was incorrect.
2. Further the Arbitrator relied upon Dr Perla’s (Occupational Physician) to support his conclusion that any aggravating effects caused by the work injury or injuries to the underlying degenerative condition of Mr Hawley’s lumbar spine had ceased at least by the time of the Arbitration. Dr Perla in his report records a history of a number of injuries that Mr Hawley sustained whilst working for Lithgow Hospital. Under the heading ‘In your opinion of what caused the current condition.’ The doctor recorded the following:
“It is my opinion that employment with Lithgow Hospital was a cause of the condition and employment was a substantial contributing factor in the incident of October 2003, and likewise in the more recent episode of January 2004.
In my opinion these events were temporary aggravations of a pre-existing degenerative problem. In my opinion, ongoing symptoms are no longer related to employment with Lithgow Hospital and are related to his pre-existing degenerative condition. The situation is confirmed in my opinion by non-organic pain focused illness behaviour, as evidenced by inconsistencies in the examination.”
Dr Perla makes no comment in respect of whether Mr Hawley is still suffering the effects of 1995 injury. The doctor deals with the events which occurred in 1995 under the heading ‘Previous history of the condition (described the cause of these pre-existing conditions or injuries)’. The doctor records the events which caused the injury in 1995 (the doctor recorded the 1995 injury to have occurred in 1991 on 1993). The doctor further records Mr Hawley’s history that he was told by a doctor that he suffered a disc injury and Mr Hawley’s history of ongoing back discomfort from time to time from then onwards. An inference which can be readily drawn from Dr Perla’s report and conclusions is that if Mr Hawley’s history of the 1995 accident is accepted then the underlying degenerative condition of the back, which, in Dr Perla’s opinion was temporarily aggravated by the 2003 and 2004 injuries, was in fact caused by the 1995 work injury. Dr Perla’s report and opinion could not be relied upon by the Arbitrator, as he did, as a basis for his opinion that effects of the 1995 work injury had ceased as Dr Perla did not consider this issue in his opinion or report.
3.Dr Meachin (Orthopaedic Surgeon) who examined Mr Hawley at the behest of Lithgow Hospital obtained a correct history of the 1995 work injury. The doctor’s ultimate conclusion was that:
“His employment at Lithgow Hospital was an aggravation of some degenerative changes, but that aggravation has now ceased. His present complaints relate to degenerative changes and the fact that he is overweight.”
Before coming to this conclusion it would seem that the doctor accepts the following in respect of Mr Hawley’s claim:
·Mr Hawley’s radiological investigations showed some disc injury although not a significant disc injury;
·although Mr Hawley exaggerated his complaints to some extent, he does suffer from a level of back pain;
·the doctor does not reject Mr Hawley’s assertion that his back had never completely settled down since work injury in 1995, and
·the doctor accepts that the work incident would aggravate Mr Hawley’s underlying degenerative condition.
Given the acceptance of the above factors by the doctor his conclusion that “ the aggravation has now ceased” would not be sufficient to fulfil his obligations to lay the foundation for his expert opinion in accordance with principles articulated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
For the above reasons, I am of the opinion that, contrary to the Arbitrator’s finding as to causation, the better assessment of the relevant medical evidence as to causation establishes that as result of work injury in 1995, Mr Hawley sustained damage to a low lumbar disc which has resulted in some level of impairment of his back.
Thirdly the Arbitrator in coming to his decision, in respect of credit and therefore his ultimate finding that Mr Hawley had recovered from the effects of the injuries, relied heavily on two reports following an inquiry by Ms Chris Ronalds. The first inquiry centred on an allegation of harassment by a fellow employee of Lithgow Hospital against Mr Hawley. Many witnesses were interviewed and the ultimate conclusion by Ms Ronalds was highly critical of Mr Hawley. No objection was taken by the solicitor appearing for Mr Hawley at the Arbitration hearing to the evidence and in fact some of the material was tendered in evidence by Mr Hawley’s solicitor. The Arbitrator was clearly entitled to rely on the report in reaching the conclusion that he did. However, given that the inquiry related to matters which were irrelevant or marginally relevant to the issue to be determined by the Arbitrator, that the witnesses statements remained untested; that the inquiry tended to present only one side of the argument; and that the Arbitrator was relying on conclusions of Ms Ronalds the Arbitrator erred, in my opinion, in placing the significant reliance that he did, on the report following the inquiry.
The second inquiry conducted by Ms Ronalds is more relevant than the first in that it was an investigation relating to Mr Hawley’s dishonesty. There is no doubt that in January 1999 Mr Hawley falsified a TAFE certificate by replacing his son’s name (who had obtained the mechanical engineering certificate) with his name. There is no doubt that this was a dishonest act. However I am of the opinion that the Arbitrator placed too much emphasis in coming to his conclusion on this act of dishonesty. The false document was given by Mr Hawley to his supervisor in January 1999. It would seem from the report of Ms Ronalds that he did this to avoid staff training opportunities. It does not appear that he did it to mislead his employer as to his qualifications in order to obtain promotional opportunities.
It would seem that the document laid dormant on his file from 1999 to 2004, when it was discovered by Ms Ronalds during her internal investigation into allegations of harassment. Mr Hawley’s handling of questions in relation to the TAFE certificate thereafter is less than honest. Without trying to justify Mr Hawley’s behaviour he appears to be an unsophisticated person of limited educational background who must have known following the first inquiry and the discovery of the falsified TAFE certificate that his employment of in excess of 15 years was in jeopardy. In those circumstances, I am of the opinion that the Arbitrator erred in placing so much weight on this act of dishonesty. At best, it should have alerted the Arbitrator to, as suggested by Handley JA, in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (a case where a worker had been dishonest), “… carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker's evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.” As I said in paragraph 39 above the Arbitrator failed to do this.
Fourthly I do not believe that the evidence bears out the Arbitrator’s conclusion at paragraph 43 of his decision. The Arbitrator’s conclusion has been recorded at paragraph 23 of this judgment, however, for the sake of clarity I will reproduce the relevant conclusion of the Arbitrator:
“Mr Stanton submits that the Applicant was clearly bitter about the manner of his termination and thus had a motive to engage in deceptive conduct towards the Respondent, which submission I accept.”
I infer from the Arbitrator’s acceptance of Mr Stanton’s submission that he was of the opinion that Mr Hawley is or was maintaining his disability dishonestly, because of the inquiry into his conduct and subsequent termination of his employment by Lithgow Hospital. The fallacy with this argument is that: all the alleged injuries, including 2004 injury, occurred before instigation of the inquiry; at the time that inquiry commenced Mr Hawley was certified fit only to perform light duties and was complaining of significant back and left leg pain and further, all doctors accept (allowing for some exaggeration) that Mr Hawley has continuing back pain and/or disability.
Fifthly, the Arbitrator failed to give sufficient weight to the uncontested objective facts. There was no issue that Mr Hawley suffered the injuries he alleged, there was no issue at least up until the time of the termination of his employment that he had back and left leg pain and was fit only for suitable duties. At the time of the arbitration hearing Lithgow Hospital had accepted liability, with the full knowledge of the credit issues ultimately relied upon by the Arbitrator. Notwithstanding this knowledge Lithgow Hospital continued to pay weekly compensation and medical expenses up to and including the arbitration hearing. The acceptance of liability and payment of weekly compensation payments is not an estoppel it is however an admission. See APD Snack Food Pty Ltd v Vuic [1984] 58 WCR (NSW) 62, a decision of Hardly AP, Glass and Mahoney JJA. There was no attempt before the Arbitrator by Lithgow Hospital to produce evidence to explain why compensation payments continued to be paid if it seriously disputed liability. Particularly in circumstances where it was in possession of the evidence, which affected Mr Hawley’s credit. In the circumstances in my opinion, the admission was a significant admission, particularly when considered in the context of the uncontested facts of this case. I am of the opinion that the Arbitrator failed to give sufficient weight, in the circumstances, to Lithgow Hospital’s admission of liability as evidenced by the continuing payments of weekly compensation to Mr Hawley.
In summary therefore, I am of the opinion that the Arbitrator’s ultimate finding that Mr Hawley did not suffer any ongoing disabilities as a result of his employment injury or injuries, such decision being based on the Arbitrator’s assessment of Mr Hawley’s credit or lack thereof, was erroneous and should be set aside.
I have dealt with Mr Hawley’s submission on appeal that the Arbitrator failed to consider all the material before him in my deliberations in respect of the Arbitrator’s findings concerning Mr Hawley’s credit. Mr Hawley’s has further submitted that the Arbitrator should not have allowed into evidence the reports of Ms Ronalds. Mr Hawley’s solicitor made no objection to the tender of Mr Ronald’s reports at the Arbitration hearing and in fact part of the report was tendered by Mr Hawley’s solicitor at the Arbitration hearing. It is my opinion that Mr Hawley having not raised objection to this material at the Arbitration hearing he cannot raise objection to this material on appeal.
Mr Hawley submitted on appeal that the Arbitrator failed to give adequate reasons for his decision. The Arbitrator’s failure to consider relevant material in respect of his determination as to Mr Hawley’s credit would amount, in my opinion, to a failure by the Arbitrator to give adequate reasons for his decision. I am of the opinion that in other respects the Arbitrator’s reasons were adequate in the circumstances.
DECISION
The question remains as to whether I should substitute my decision for the Arbitrator’s decision or remit the matter to a different Arbitrator for determination. As Mr Hawley credit is at issue together with the fact that Lithgow Hospital has now denied liability in respect of all of Mr Hawley’s entitlements to compensation I am of the opinion that a Commission Arbitrator should determine the matter afresh.
Paragraph 1 of the decision of the Arbitrator dated 28 September 2005 is revoked and the following order made:
The matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
Paragraph 2 of the decision of the Arbitrator dated 28 September 2005 is confirmed.
COSTS
The Respondent (Lithgow Hospital) is to pay the Appellant’s (Mr Hawley) costs of the appeal.
Robert Harrington
Acting Deputy President
18 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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