Hejazi v State Rail Authority of New South Wales
[2006] NSWWCCPD 177
•7 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hejazi v State Rail Authority of New South Wales [2006] NSWWCCPD 177
APPELLANT: Ezzat Hejazi
RESPONDENT: State Rail Authority of New South Wales
INSURER:RailCover Workers Compensation
FILE NUMBER: WCC 21119-04
DATE OF ARBITRATOR’S DECISION: 18 April 2005
DATE OF APPEAL DECISION: 7 August 2006
SUBJECT MATTER OF DECISION: Application of sections 4, 9 and 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Veritos Legal
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 18 April 2005, is revoked and the matter is remitted to another Arbitrator for determination of any entitlement the Appellant may have pursuant to section 40 and section 60 of the Workers Compensation Act 1987.
2. The Respondent is to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 13 May 2005 Ezzat Hejazi (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 April 2005.
The Respondent to the Appeal is the State Rail Authority of New South Wales (‘the Respondent’).
The Appellant commenced employment with the Respondent as a Transit Officer on 30 September 2002. His duties included supervision and observation of trains during operation including the checking of tickets and maintaining order on the trains in transit and at the rail stations.
A claim was brought by the Appellant against the Respondent in the Commission seeking weekly benefits and medical expenses in respect of incapacity and the need for treatment resulting from an injury which allegedly occurred on 27 January 2004. That Application was heard by an Arbitrator (‘the Arbitrator’) on 30 March 2005 following which the Arbitrator, on 18 April 2005, published a Statement of Reasons for Decision (‘Reasons’). Those ‘Reasons’, I note, wrongly state the date of hearing as 16 March 2005 (paragraph 10). The Arbitrator entered an award in favour of the Respondent both with respect to the claim for weekly benefits and the claim for medical expenses.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 18 April 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Award in favour of the Respondent as regards the Applicant’s claim for weekly benefits.
2.Award in favour of the Respondent as regards the Applicant’s claim for medical expenses pursuant to Section 60 of the Act.
3. No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in law in the manner of application of the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
(ii)Whether the Arbitrator erred in fact and/or law in failing to take into account the totality of the evidence before the Commission.
(iii)Whether the Arbitrator erred in law in failing to provide sufficient reasons for his decision.
(iv)Whether the Arbitrator failed to discharge the obligations imposed upon the Commission pursuant to section 355 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The issues enumerated in paragraph 6 above are a summary of issues raised by the Appellant (paragraphs A-E inclusive) in the Application. The matters thus raised have been the subject of submissions by each party.
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.”
Both the Appellant and the Respondent submit that this Appeal is capable of determination on the papers.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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 at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator is summarised at paragraph 11 of his Reasons. That summary includes reference to “Reply filed on 10 February 2005 together with the documents annexed thereto”. It is to be noted that documents annexed to the said Reply included a report of Dr Peter Isbister, orthopaedic surgeon, dated 20 May 2004. Reference is made by the Arbitrator in paragraph 16(c) of his Reasons to that report of Dr Isbister and noted that it had “been ignored”. A transcript of proceedings before the Arbitrator on 30 March 2005 is available on the Commission file. The Arbitrator addressing the subject of documents “admitted into evidence” is recorded as stating [at line 36]:
“As far as the respondent is concerned, the reply dated 10 February 2005 with its annexures, and with the exception of the report from Dr Isbister, and the letter from Hicksons Lawyers dated 17 March 2005, including the report of Dr Hume, which is in lieu of or at least not in addition to that of Dr Isbister, who has the same specialty.”
Whilst the nature and content of any discussions between the parties before the Arbitrator (see Transcript page 1 line 25) with respect to the tender of documents is not recorded, it seems improbable that the Appellant would, having regard to its contents, actively seek to exclude the report of Dr Isbister. Notwithstanding this fact it seems reasonably clear from the record that such report was not intended by the parties to be taken into account by the Arbitrator and indeed formed no part of the evidence before him. In the circumstances Dr Isbister’s report has been disregarded on this appeal.
The Appellant’s written Statement dated 20 December 2004 which was before the Arbitrator included a summary of his work history and a description of his physical fitness (including a history of right knee injury in July 2003 whilst performing his duties as a Transit Officer) prior to the alleged injury on 27 January 2004. That Statement also detailed physical activities including running, swimming and kickboxing as well as details of the Appellant’s participation in boxing classes as being part of his training as a Transit Officer. In short the Appellant, in his Statement, asserted that he was, prior to January 2004, fit and healthy.
The Appellant’s Statement includes a description [at paragraphs 31 – 44] of an incident which occurred at approximately “10.30 am (sic)” on 27 January 2004 at Granville Station. The Appellant and four of his fellow Officers went to the assistance of a female passenger who was then, on platform 3, being assaulted by a group of five young persons (three girls and two boys).
The Appellant described the encounter with the assailants and stated [at paragraphs 38 and 39]:
“38.I came in and started pulling the teenagers off the girl that was being assaulted however each time I pulled them off they would come back and begin assaulting the girl.
39.As I did so on one occasion, I felt a sharp and severe pain in my neck however I did not think anything of it.”
The Appellant proceeded to describe the arrival of four other Transit Officers who assisted in “resolving this issue”. The Police Authorities arrived soon thereafter. It seems that the assailants had “run away”. The Appellant states that he continued his shift “up to 12.00pm (sic) before returning home”. The Appellant further states that whilst at home he noticed “blood on my left shoulder” and further that “about 1.00pm (sic) to 2.00pm (sic) I was having significant and severe pain in my neck and was having difficulty moving it”. The matter of timing of these events is addressed hereunder.
The Appellant states that he communicated with the State Rail Authority through its 24-hour injury hotline and advised it “of the injury I had sustained” [paragraph 48]. He states he was advised during that conversation “to see a Doctor as soon as possible”.
The Appellant consulted his General Practitioner, Dr Aiman Alsayed on 28 January 2004.
The Arbitrator had before him the complete clinical records of Dr Alsayed which commenced Thursday, 7 November 2002. Those notes include an entry dated Wednesday, 28 January 2004 which records:
“Wednesday January 28 2004
Dr. Aiman Alsayed
ASSAULTED AT WORK WHILE TRYING TO STOP PEOPLE FITING [sic] AT TRAIN. WAS PUSHED AND SCRATCHED AT HIS BACK Examination:
Musculo-Skeletal:
Bilateral, bilateral, neck: tender, hot, restriction present.
Diagnosis:
Neck pain with Radiculopathy
Actions:
Prescriptions printed:
PANADEINE FORTE TABLET 500mg/30mg 1-2 TAB q.i.d. m.d.u.
VOLTAREN 50 EC TABLET 50mg 1 b.d c.c.
Letter written – re. NSW – WorkCover to WORK.
Diagnostic Imaging requested: C SPINE XR – NECK PAIN
Medicare item:
AA040, SICK.”
Medical evidence before the Arbitrator included three reports from Dr Maniam, specialist trauma orthopaedics, which practitioner first examined the Appellant on 10 June 2004. Those reports (dated 11 November 2004, 13 July 2004 and 20 December 2004) addressed, inter alia, diagnostic studies which included plain x-rays, a CT scan examination of the cervical spine, an MRI study of the cervical spine and nerve conduction studies. At page 4 of his report of 11 November 2004 Dr Maniam stated his diagnosis (being multi level intervertebral disc protrusions in the cervical spine) and expressed a view as to the attributability of the conditions diagnosed.
Documentary material relied upon by the Respondent before the Arbitrator included correspondence dated 9 September 2004 addressed to the Appellant from the Respondent which stated that liability with respect to the Appellant’s claim was not accepted and that such decision was made upon reliance of section 9A(1) of the 1987 Act. It was stated that the evidence upon which reliance was based was a report from Dr Schutz, consultant surgeon. Notice was given in that correspondence that voluntary payments of compensation “will cease on 22 September 2004”.
A document described as “Health Management Plan No. 6” dated 4 September 2004 was also before the Arbitrator. This document includes the Respondent’s records of date of injury, date of notification, history of incident and other pertinent matters.
Medical evidence which was adduced by the Respondent at the hearing before the Arbitrator included a report from Dr Schutz dated 30 August 2004, a report from Dr Hynes, injury management consultant, dated 24 August 2004 and a report of Dr Kenneth Hume of 23 February 2005. A report by Mr Ron Muratore, Injury Management Consultant addressed to RailCorp dated 12 May 2004 was also before the Arbitrator. Each of those reports included detail of the history of the onset of the Appellant’s neck symptoms.
As noted above the Appellant asserts that there are five grounds of appeal upon which he may rely to challenge the Arbitrator’s conclusions and orders. Those grounds embrace an allegation of the failure to apply the provisions of section 9A of the 1987 Act in accordance with law, failure on the part of the Arbitrator to consider the totality of the evidence before him, failing to “appropriately consider” medical evidence before him, failure on the part of the Arbitrator to provide adequate reasons for his decision and failure on the part of the Arbitrator to discharge an obligation to conciliate the dispute which existed between the parties prior to arbitration and determination of the parties’ rights.
Those “grounds” are supported by the narration of 74 paragraphs of written submissions. The Appellant seeks an order that the Arbitrator’s decision be set aside and that orders in favour of the Appellant be made. The Appellant, in the alternative to the orders as sought, seeks that the matter be “re-listed for a further Arbitration Hearing”.
The Respondent in its Notice of Opposition to Appeal Against Decision of Arbitrator addressed the matters raised by the Appellant in his grounds and supporting submissions and, in argument, seeks to uphold the findings and orders of the Arbitrator.
DISCUSSION AND FINDINGS
Section 352(5) of the 1998 Act provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
Such a proceeding is not an “appeal” in the strict sense nor is it a hearing de novo. As stated by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6:
“The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘… some legal factual or discretionary error’ [Allesh v Maunz [2000] HCA 40 (3 August 2000)].”
Before addressing the arguments raised by the parties it is, in my opinion, important to examine the manner in which the dispute was conducted by the parties before the Arbitrator. As noted above, a Transcript of proceedings before the Arbitrator is available on the Commission file and that Transcript records the submissions put to the Arbitrator on behalf of each party. Counsel for the Respondent is recorded as stating [page 1, line 57 to page 2 lines 1-19]:
“The appropriate starting place is the issues that are not in dispute.
There’s no dispute that the applicant is an employee of the respondent. There’s no dispute that the applicant was a security guard in the employ of the respondent on 28 January 2004 (sic). There’s no dispute that an incident occurred on 28 January 2004 (sic) in which the applicant was involved in an altercation with some passengers on a train.
The issues that are in dispute from the perspective of the respondent is, firstly, whether there is a causal nexus between that incident and the effect of that incident on the applicant’s cervical spine and his current condition. Secondly, and this effectively was stated as Issue No. 1, whether the employment was a substantial contributing factor to the injury. Thirdly, if it’s accepted that there is a causal nexus between the injury that occurred on 28 January and the worker’s current medical condition, what level of incapacity that gives rise to pursuant to section 40 of the Act.”
It appears that the Arbitrator, in reliance upon the statements of Counsel aforementioned, observed when summarising the Respondent’s submissions [at paragraph 14(g) of the ‘Reasons’]:
“Whilst the respondent concedes that an injury occurred on the relevant date, Dr Hynes’ report re-enforces [sic] the views of Dr Schultz and Dr Hume that any current disability (not conceded to be one to which employment has been a substantially contributing factor) is not such as would limit the applicant’s working hours, which have progressively decreased over a period, to 16 hours per week.”
The Arbitrator had, earlier in his Reasons, noted the following matters [at paragraphs 7 and 9]:
“7.The issue in dispute is whether the applicant suffers from an injury to which his employment has been a substantial contributing factor.”
“9.Sections 4, 9, 9A, 38, 40 and 60 of the 1987 Act are of particular relevance to this Application.”
It can been seen that the dispute between the parties, notwithstanding any recorded “concession” by Counsel for the Respondent, required adjudication by the Arbitrator of the questions of “injury”(section 4 of the 1987 Act), employment being a substantial contributing factor to the injury (section 9A of the 1987 Act) as well as the nature, extent and economic consequences (if any) of any proven incapacity resulting from the alleged injury.
As noted above the Appellant’s challenge to the Arbitrator’s findings and orders are, in part, based upon a suggested “error in law in not applying the requirements of section 9A of the 1987 Act”. Reference is made in submissions to the principles stated in the matter of Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740. With respect to this ground the Appellant draws attention to paragraph 18 of the Arbitrator’s Reasons:
“18. SUMMARY
The Applicant is not suffering any injury, at least at the present time, which was substantially contributed to by his employment.”
The “Summary” above quoted followed a summation of the Medical Experts’ evidence with particular attention given to the histories as recorded by the Practitioners as to the “mechanism” of injury as well as the views expressed by those Practitioners with respect to the significance of the findings recorded in each of the diagnostic studies which were before the Commission, as well as a finding (paragraph 16(f)) “…I have no alternative but to find that the Applicant’s current medical condition is a result of the various degenerative changes exhibited in the Diagnostic Studies filed in connection with this Application and dealt with by the various Doctors whose reports I have referred to”.
An examination of the reasoning process of the Arbitrator revealed at paragraphs 16(a) – (m) (inclusive) demonstrates, in my view, that the Arbitrator has failed to distinguish the issues of “injury” and “resultant incapacity”.
The Appellant’s submissions with respect to the suggested error as to the application of section 9A of the 1987 Act are broad and, to some extent, reflect the same absence of distinction between the issues of “injury” and “incapacity”.
It was stated by Neilson CCJ (as he then was) in Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48 (3 July 2002):
“… As I read section 9A the employment must be a substantial contributing factor to the event causing the injury; that is, to the receipt of the injury, rather than to be a substantial contributing factor to the ongoing incapacity.”
In the present matter it is unclear from the Arbitrator’s Reasons as to whether he was satisfied, on the evidence, that “injury” in terms of section 4 of the 1987 Act had been established by the Appellant. Notwithstanding the “concession” stated by the Respondent’s Counsel this question required determination and I am of the view that the Arbitrator’s failure to address the issue constitutes an error of law.
It is not in dispute between the parties that an incident occurred on 27 January 2004 at Granville Station as described above. What was in issue between the parties at the hearing was whether an injury (whether it be personal injury, disease or aggravation of a disease as more particularly defined in section 4 of the 1987 Act) occurred at that time. In the present matter the Arbitrator has dealt with the medical dispute relating to the relevance of the radiological studies and the opinions based upon the same without reaching a conclusion as to whether an “injury” had occurred.
Upon the assumption that “injury” had been found by the Arbitrator it would then become necessary to consider the operation of section 9A of the 1987 Act. In my opinion, on any view of the facts, the Appellant’s employment at the relevant time was a substantial contributing factor to any such injury found.
The Respondent in its submissions states:
“A. Section 9A
The Arbitrator made a finding of fact in relation to the issue of substantial contributing factor whereby he found that the applicant’s employment was not a substantial contributing factor to the injury. In this regard the Arbitrator found that the degenerative changes responsible for the applicant’s alleged condition, was the cause of any incapacity/disability. Noting this to be a finding of fact, it is not appealable in the respondent’s submissions.”
It is my view that the aforementioned submission misstates the nature of the Arbitrator’s findings and I note again that which was stated at paragraph 16(f) of his Reasons (paragraph 37 above).
It can be seen that in paragraph 16(f) quoted above the Arbitrator did not address the question of “injury” in terms of section 4 of the 1987 Act but rather has erroneously attempted to deal with those matters requiring determination raised by section 9A of the 1987 Act.
Before proceeding to the balance of the grounds raised by the Appellant, it is appropriate to consider the question as to whether the error demonstrated in the Arbitrator’s reasoning process outlined above is such as to require the revocation, on this appeal, of the Arbitrator’s orders as sought by the Appellant. This question is, to an extent, dependent upon my own views of the evidence and conclusions to be drawn therefrom and the question as to whether, notwithstanding the error demonstrated, the Arbitrator’s conclusions as to entitlement were correct conclusions.
The following is an outline of my views as to the appropriate conclusions to be reached on the evidence.
Injury
(i)The occurrence of the incident at Granville Station is not in issue between the parties. The time of that particular incident is the subject of some confusion on the evidence. The Appellant’s Statement [paragraph 31] states that the incident occurred at 10.30am and that he continued with his shift up until 12.00pm [sic]. The RailCorp document dated 4 September 2004 referred to above, records the time of injury as being 11.00pm on 27 January 2004 and the date that the injury was notified [to the Respondent] as 28 January 2004, 1.56am. Whilst addressing the Arbitrator the Appellant’s representative stated [at page 9 of Transcript] that:
“The incident occurred at 11.30pm. His shift finished at 12 o’clock pm. He made the first report to his employer between the hours of 1 and 3 o’clock in the morning of that day, of that following morning.”
Whilst that observation does not constitute evidence, it does indicate the manner of conduct of the Appellant’s case. It seems to me that the most reliable contemporaneous material is the documentation held by RailCorp and, on the probabilities, the incident occurred at approximately 11.00pm on 27 January and was reported at 1.56am on the following morning. This question of timing is important, in my view, given the Respondent’s reliance upon apparent inconsistencies in relation to various histories as recorded by the Medical Practitioners.
(ii)Notwithstanding the variations as to the time of onset of neck symptoms (particularly as recorded by the Respondent’s Medical Practitioners) I would conclude on the evidence as a whole that, certainly by the time of the report at 1.56am on 28 January 2004, the Appellant was suffering discomfort in his neck which was, later that day, reported to his General Practitioner [see clinical notes Dr Alsayed entry January 28 2004 quoted in paragraph 23 above].
Nature of Injury
(iii)I am of the view that, on balance, the Appellant as at the date of the subject injury had a degenerative condition in his cervical spine as demonstrated on the plain x‑rays dated 28 January 2004 [contents of which is noted by Dr Maniam and briefly summarised by Dr Schutz]. I also conclude that such degenerative condition was, to an extent, aggravated by some mechanism within the Appellant’s neck which took place during the altercation at Granville Station. I reach this conclusion having regard to the reasonably contemporaneous report made to the employer within, it seems, 3 hours of the incident. The nature of that injury and its consequences are addressed hereunder.
Section 9A of the 1987 Act
(iv)Having regard to the facts and circumstances (not in dispute) I am satisfied that such injury arose out of and in the course of the Appellant’s employment and further that the injury as found was caused directly by the physical circumstances prevailing during the course of the altercation. There being a causal nexus between the Appellant’s employment and the receipt of the subject injury I conclude that the Appellant’s employment was a substantial contributing factor to his injury in terms of section 9A of the 1987 Act. As stated above the injury was in the nature of an aggravation of an underlying disease, the employment being a substantial contributing factor to the aggravation of such disease (rather than the disease itself). This is not a case, in my view, where the evidence would support any argument disqualifying the Appellant from recovery having regard to the provisions of section 9A(d) or (e).
Incapacity
(v)The uncontroverted evidence is that the Appellant, prior to 27 January 2004, suffered no disabling symptoms in his neck. It was also established that the Appellant was physically active both during and outside his working hours. The Appellant alleges that he has suffered persistent symptoms in his neck and both arms since very shortly after the subject injury.
(vi)I, as did the Arbitrator, conclude that, on the probabilities, the Appellant suffered degenerative changes in his cervical spine which were in place prior to the injury.
(vii)The Appellant’s treating Specialist Dr Maniam diagnosed intervertebral disc protrusions at four levels (C3/4 to C6/7). He opined that there was nerve root involvement at “right C5” and “left C7”. As to causal relationship Dr Maniam expressed the view that “attributability is reasonable” and the occupation was a substantial contributing factor. Dr Maniam went on to say “there were no pre-existent problems that were aggravated in the incident”.
(viii)I have already expressed my view that the Applicant did have evidence of pre-existent degenerative changes in his cervical spine prior to the subject injury and that same were aggravated in the subject injury. The nature and extent of the aggravation appears, on the probabilities, to have involved, at least, an aggravation or exacerbation of disc protrusion at C5 and C7. I have reached this conclusion having regard to the radiological findings (in particular the MRI study) read together with the electrodiagnostic studies and the Appellant’s consistent complaint of bilateral arm problems which, in Dr Maniam’s view, related to the right C5 dermatome and the left C7 dermatome. I accept the opinion of Dr Maniam as to diagnosis notwithstanding some difficulty which arises by reason of his manner of expression. That practitioner appears to treat the diagnosed ‘protrusions’ as being unrelated to any “ pre-existent problems”. I do not accept that aspect of his views if it is intended to convey that the existence of the noted degeneration had no relevance to the occurrence of the prolapses as diagnosed.
(ix)It is my view that the persistence of the neck and arm symptoms support an inference that the aggravation, which rendered a previously asymptomatic condition to be symptomatic, persists and that disability resulting from those symptoms render the Appellant incapacitated for his pre-injury work.
(x)I have reached the conclusions summarised above after consideration of the views expressed by Dr Schutz in his report of 30 August 2004. That Practitioner accepts that the Appellant has neck discomfort but attributes that to “underlying degeneration” and a “non-organic factor”. I expressly reject Dr Schutz’ view that “any aggravation causing symptoms would be anticipated to recover over 3-6 weeks. Current symptoms are consistent with the underlying degeneration.” I have reached that conclusion having regard to the correlation between the radiological picture which emerges from the medical material and the reported symptoms which correspond to that radiological overview (in particular the reported arm symptoms).
(xi)I note that I have also considered the views expressed by Dr Hynes in his report of 24 August 2004. That Practitioner diagnoses “globalised conditioned pain syndrome accompanying co-incidental radiological degenerative change”. Dr Hynes appears to accept that the Appellant had suffered and had not recovered from the subject injury as at the date of his examination of the Appellant.
(xii)I have also considered the opinion as expressed by Dr Hume in his report of 23 February 2005. That Practitioner stated at 1.6 “I consider that Mr Hejazi did suffer some form of strain of his neck”. Dr Hume also stated that “I consider it most unlikely that the disc pathology demonstrated on the MRI of the cervical spine on 16 June 2004 can have resulted from the episode he described to me”. With respect to the question of disc pathology I have earlier expressed my view as to the probable mechanics of injury having regard to the overall radiological picture and the Appellant’s reported symptoms (particularly arm symptoms). I further note that Dr Hume expressed the view that the Appellant was, at the date of that report, “unfit for his pre-injury duties”.
It can be seen from the above summary that I am of the view that the Appellant, on the probabilities, suffered injury as alleged, that the Appellant’s employment was a substantial contributing factor to that injury, and that incapacity for pre-injury work has resulted from such injury. In the circumstances it would be appropriate, given the error in reasoning noted above, to revoke the orders made by the Arbitrator.
The question remains as to the manner of disposition of this appeal. The NSW Supreme Court, Court of Appeal in the matter of Chubb Security Australia Pty Limited v Trevarrow (2004) NSWCA 344 considered the legislative intention behind section 352 of the 1998 Act and has expressed the view that should an appeal be upheld it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras 28 and 29).
Having regard to my conclusions in relation to revocation of the Arbitrator’s orders it is unnecessary to address the balance of the Appellant’s arguments with respect to the further stated grounds of appeal at length. With regard to those grounds I think it appropriate that I note my view that ground E, which relates to a suggested non-compliance by the Arbitrator with the requirements of section 355 of the 1998 Act, may not be arguable as a ground of appeal pursuant to section 352 of the 1998 Act where, if for no other reason, there exists no evidence presently before the Commission of the nature and consequences of any suggested non-compliance. I further note that, as the identified error vitiates the decision, it need not be examined as to whether there has been failure, in any relevant sense, to address all of the evidence or to give sufficient reasons for the decision.
The Appellant’s claim to weekly payments is brought pursuant to section 40 of the 1987 Act. It is recorded in the Arbitrator’s Reasons that, should the Appellant succeed on the question of “the liability issue”, written submissions with respect to entitlement were to be “considered” (paragraph 13 of ‘Reasons’). Such submissions, in my view, would be desirable and, having regard to the effluxion of time, detailed up-to-date economic material needs to be before the Commission to enable justice to be done between the parties. In those circumstances I do not consider it appropriate to proceed, on this appeal, with a determination of any entitlement the Appellant may have pursuant to section 40 of the 1987 Act.
DECISION
The decision of the Arbitrator dated 18 April 2005 is revoked, and the matter is remitted to another Arbitrator for determination of any entitlement the Appellant may have with respect to weekly payments and medical, hospital or related expenses.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Kevin O’Grady
Acting Deputy President
7 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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