1. The Arbitrator’s determination dated 26 April 2016 is confirmed.
INTRODUCTION
This appeal essentially consists of challenges by an unsuccessful worker to factual and credit findings made by an Arbitrator.
BACKGROUND
Huazhen He (the appellant) suffered injury on 27 February 2012 when she fell on stairs, in the course of her employment with Glemaro Pty Ltd (the respondent). The matter was the subject of a previous appeal decision, Glemaro Pty Ltd v He [2015] NSWWCCPD 17 (He [No. 1]). The procedural history of the matter up to 3 March 2015 was set out in that decision.
In He (No. 1), Keating P granted leave to the respondent to dispute an allegation of injury to the central nervous system, which the appellant had added by way of amendment. The matter was remitted to Mr Perrignon, arbitrator, for further hearing. Mr Perrignon subsequently recused himself, with the consent of the parties, for reasons unconnected with the subject matter of the case. The matter was then allocated to another arbitrator, and was referred to an Approved Medical Specialist (AMS), Dr Boyce, neurologist, by way of a general medical dispute.
Dr Boyce, in a Medical Assessment Certificate (MAC) dated 13 August 2015, said that the appellant did not have a condition, or impairment, of the central nervous system.
The appellant ultimately proceeded on the basis that she suffered accepted injury on 27 February 2012 to her neck, lumbar spine and left wrist. She discontinued allegations of injury to other body parts or systems, including the central nervous system. On 4 December 2015 the matter was referred, by consent, to an AMS, for assessment of whole person impairment in respect of the cervical spine and lumbar spine. A MAC of Dr Boyce, dated 17 February 2016, certified that the appellant suffered “0%” whole person impairment in respect of each of those body parts.
The matter was listed for arbitration hearing before Mr Harris (the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
He v Glemaro Pty Ltd [2016] NSWWCCPD 48
Case
[2016] NSWWCCPD 48
Decision Date
CaseChat Overview and Summary
In the case of He v Glemaro Pty Ltd, the appellant, Ms He, sought a review of a decision made by an Arbitrator under the Workers Compensation Act 1987. The primary dispute was centred on the appellant's entitlement to ongoing weekly compensation for injuries sustained during her employment. The legal issues that arose in this case primarily focused on the relevance of certain medical assessment certificates (MACs) obtained during the period following the compensable injury, the admissibility of these certificates, and the correctness of the findings made by the Arbitrator.
The court considered whether the MACs were relevant to the issues at hand, as per section 55 of the Evidence Act 1995. The appellant argued that the MACs were irrelevant because they were obtained outside the compensable period for weekly benefits. However, the Arbitrator had previously rejected this argument, asserting that the MACs were relevant to assessing the credibility of Ms He's evidence and her ongoing incapacity resulting from the injury. The court upheld the Arbitrator's decision, finding that the MACs were indeed relevant, as they contained medical opinions that could rationally affect the assessment of the probability of facts in issue, such as the nature and extent of the appellant's incapacity and the legitimacy of her complaints.
The court also addressed the appellant's argument that the MACs should not be considered because she had not been given the opportunity to cross-examine the author of the MACs. The court applied the rule in Browne v Dunn, noting that the MACs were admissible as they were reports of examinations conducted by a medical practitioner, which are generally not subject to the same rules of cross-examination as witness testimony. The court concluded that there were no errors in the Arbitrator's consideration of the MACs, and the findings based on these certificates were appropriately made.
Finally, the court confirmed the Arbitrator's determination dated 26 April 2016, which upheld the original decision denying the appellant ongoing weekly compensation beyond the initial period.
Orders
Orders of the court
1. The Arbitrator’s determination dated 26 April 2016 is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Section 55 of the Evidence Act provides:“55 Relevant evidence(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2) In particular, evidence is not taken to be irrelevant only because it relates only to:(a) the credibility of a witness, or(b) the admissibility of other evidence, or(c) a failure to adduce evidence.” The submission that the MAC’s were irrelevant, as they were obtained “outside the compensable period for weekly benefits”, is contrary to the appellant’s submission at the arbitration hearing, that the Commission could make an ongoing award for weekly compensation in the circumstances. However, the appellant’s counsel did submit, at the arbitration hearing, that the MAC dated 17 February 2016 was only relevant to weekly entitlement in 2016. On this basis it was put that “you don’t really need to look at” that MAC, if “payments on any view cease on 31 August [2015]” (T57.4–58.5). The Arbitrator specifically rejected this submission, in his reasons at T36.4–8, where he said:“I don’t agree with the submission that the MAC is only relevant as to the situation in 2016. Dr Boyce’s views clearly comment on credibility issues that the applicant must face in an assessment of the medical evidence.” It is appropriate that I have regard to s 55 of the Evidence Act, in considering the appellant’s submission that the MAC’s were not relevant. The medical opinion in the MAC’s, if accepted, clearly could rationally affect proof of facts at issue in the proceedings. The relevance of the medical opinion in the MAC’s is made clear from the Arbitrator’s consideration of them. The Arbitrator’s reasons, at T28.28–30.11, referred to the MAC dated 13 August 2015. The “present symptoms” recorded on that occasion were persistent retarded thinking, memory problems, dizziness and headache. The Arbitrator referred to “a number of tests” carried out by Dr Boyce, which led the doctor to conclude that there was “gross inconsistency of presentation”. The Arbitrator referred to Dr Boyce’s conclusion that there was “no abnormality of the central nervous system”. The appellant’s credit was in issue, and was relevant to facts in issue going to whether there was ongoing incapacity, its extent and duration, and whether any incapacity resulted from the employment injury. The relevance of the MAC dated 13 August 2015, consistent with the test described in s 55(1) of the Evidence Act, is plain. Amongst other things, it went to the acceptability of the appellant’s evidence and complaints. The appellant’s weekly claim was based, to a significant extent, on her complaints relating to her cervical spine and her lumbar spine. In the second MAC dated 17 February 2016, Dr Boyce was required to assess permanent impairment in respect of the cervical spine and the lumbar spine, resulting from the appellant’s injury. The Arbitrator’s reasons dealing with this document were at T30.13–34.15. He referred to the “present symptoms” recorded by Dr Boyce, being “recurrent pain all over, but particularly in her head, in her neck, in her back, in her arms and legs”.