ING Administration Pty Limited v Singh
[2008] NSWWCCPD 48
•7 May 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:ING Administration Pty Limited v Singh [2008] NSWWCCPD 48
APPELLANT: ING Administration Pty Limited
RESPONDENT: Reema Singh
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC5625-07
DATE OF ARBITRATOR’S DECISION: 11 January 2008
DATE OF APPEAL DECISION: 7 May 2008
SUBJECT MATTER OF DECISION: Acceptance of further submissions on appeal in the Commission; actual grounds of appeal not particularised in submissions on appeal; substantial compliance with the 1998 Act and Rules as to filing appeal in the Commission; Registrar’s powers to manage the business of the Commission; injury; section 4 Workers Compensation Act 1987; section 11A of the 1987 Act; error of law; error of fact; inadequate reasons for decision; findings unsupported by the evidence and weight of evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Workplace Law
Respondent: Turner Freeman Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 11 January 2008, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
No order is made as to the costs of this appeal.
BACKGROUND
On 7 February 2008 ING Administration Pty Limited (‘ING’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 11 January 2008.
The Respondent to the Appeal is Ms Reema Singh (‘Ms Singh’).
The Insurer is QBE Workers Compensation (NSW) Limited.
The background to Ms Singh’s claim for compensation, leading to the matter being brought to the Commission, is set out in the Arbitrator’s ‘’Statement of Reasons for Decision’ (‘Reasons’), and is briefly summarised hereunder.
Ms Singh claims to have suffered a psychological injury for which compensation is payable under the workers compensation legislation. She claims that the injury occurred by way of a frank incident during May 2006, and was also due to the nature and conditions of her employment from May 2006 to December 2006.
In her statement of 19 May 2007 Ms Singh says that she commenced employment with ING in October 2005. She states that in May 2006 she was assaulted by a colleague who threw a bundle of important and confidential documents at her, almost striking her in the face. She indicates that this was not the first occasion that this particular colleague had mistreated her.
Ms Singh reported the incident to the Human Resource Department of ING, but she was dissatisfied with the way in which her complaint was being managed. In particular, she considered that the issue of her colleague’s unacceptable behaviour was not being dealt with. She states that in or around June 2006 her immediate line manager assured her that she would never again have to volunteer to work in the same team as that particular colleague, who at that point in time, had been promoted to a position of line manager. However, Ms Singh says that on 23 November 2006 her new line manager at that time, instructed her to work under the direction of the colleague who had mistreated her in May 2006.
Ms Singh states at paragraph 15 of her statement of 19 May 2007, that her new line manager knew of the incident in May 2006. She says that she told the line manger that she was unable to work for her former colleague and that the prospect of it made her feel unwell and fearful. She states that she was afraid that that he might again throw something at her in a fit of rage. She said that she felt sick and was gasping for breath. She felt as if her head would explode under the pressure of having to work for this former colleague and take orders from him. The option of working at her own desk away from the immediate proximity of him and his team was not acceptable to her line manager, who apparently said that the earlier incident did not matter.
Ms Singh asserts that she was upset that her managers were being insensitive in asking her to work for the former colleague, in the knowledge that he had assaulted her in May 2006. She says at paragraph 16 of her statement that in any event, she was not the only person who was available to work for him. Ms Singh volunteered to work for a different line manager, against the wishes of her line manager. She was called to a meeting with Management on 27 November 2006. She states that she was threatened with dismissal because of her inability to work under her former colleague. She was told that she was to be issued with a formal written notice, asking her to assist the former colleague, and if she refused, she would be issued with a second written notice, which would constitute dismissal from her employment.
Ms Singh maintains that Management ignored her protestations and pleas, and she lost consciousness while sitting in her chair. She said that when she revived she felt weak and thought that she would collapse again. She states that she was trembling and feeling “blank”. The meeting was terminated, and she says that she was offered no assistance at all (see paragraphs 19 and 20 of her statement). She was off work from 28 November 2006 and claims that since then she has felt sick, dizzy, weak, anxious and helpless. She maintains that the memory of all of this tortures and traumatises her. She says that she has lost weight, and is unable to focus and remain coherent. She states that she has since required medical care and treatment for a work related psychological injury.
Ms Singh’s employment with ING was terminated on 6 April 2007.
Ms Singh claimed weekly payments of compensation at the rate of $878.00 per week (at the current weekly wage rate agreed between the parties at the arbitration hearing) from 28 November 2006 to 28 May 2007 (26 weeks as totally incapacitated) and the maximum statutory rate for a worker with one dependent child from 29 May 2007 to 16 September 2007 because Mrs Singh found other employment on 17 September 2007.
ING denies any liability and submits that Mrs Singh’s psychological injury was wholly or predominately caused by the reasonable action taken or proposed to be taken by it. Consequently, it submits that pursuant to section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’), workers compensation is not payable to her.
The Arbitrator determined the dispute in due course, and a ‘Certificate of Determination’ dated 11 January 2008, was duly issued.
While the ‘Appeal Against Decision of Arbitrator’ met all other requirements, including the inclusion of submissions on appeal, ING omitted to specify its precise grounds of appeal, but included them in a subsequent set of submissions received in the Commission on 4 April 2008.
Ms Singh filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ in the Commission on 4 March 2008.
On 16 April 2007 Ms Singh filed further submissions objecting to the filing by ING of its supplementary submissions filed on 4 April 2008.
ING’s legal representatives filed in the Commission, under cover of a letter date 17 April 2008, a copy of a letter of the same date, addressed to Ms Singh’s legal representatives, drawing attention to the Registrar’s Direction 1.5, dated 8 February 2006, permitting the filing of “submissions in reply” if required.
Contact was made by telephone with Ms Singh’s legal representatives to ascertain whether they wished to avail themselves of the opportunity to file further submissions in the matter. After due consideration, contact was made with the Commission a few days later and the Commission was informed that no further submissions would be made (see file notes 15/5/08; 17/4/.08, and 24/4/08, and email communication to Emma Lethbridge-Gill at the Commission, dated 24 April 2008 at 5:18 pm).
The email dated 24 April 2008 from Ms Singh’s legal representatives states, “we will not be providing any further submissions in relation to this matter.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ records the Arbitrator’s orders as follows:
“1.That the Respondent pays the Applicant weekly payments of compensation at the rate of $878.00 per week pursuant to s36 of the Workers Compensation Act 1987 from 28 November 2006 to 28 May 2007.
2.That the Respondent further pays the Applicant weekly payments of compensation at the rate of $429.30 per week pursuant to s36 of the Workers Compensation Act 1987 for a worker with one dependant child from 29 May 2007 to 16 September 2007.
3.That the Respondent pays the Applicant’s s60 of the Workers Compensation Act 1987 medical and related expenses upon production of accounts and/or receipts.
4.That the Respondent pays the Applicant’s costs as agreed or assessed. The costs are to have a 20% increase in accordance with item 5 of Table 4 of Schedule 6 of the Workers Compensation Regulation 2003.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are found in the grounds of appeal, as set out hereunder:
“1.The Arbitrator erred in law when he failed to properly determine whether or not the Worker had established her case on the balance of probabilities.
2.The Arbitrator erred in law when he failed to provide any adequate reasons for accepting the signed Statements of the Respondent/Worker in preference to those of the other witnesses.
3.The Arbitrator erred in fact when he found that he accepted the evidence of the Respondent/Worker when such finding was against the evidence and the weight of the evidence.
4.The Arbitrator erred in fact when he found that at all material times the Worker was totally incapacitated when such finding was against the weight of the evidence.
5.The Arbitrator erred in law in failing to give adequate reasons for his decision.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
ING did not seek an oral hearing upon the filing of the Appeal but requested that it be permitted to make an application for an oral hearing once a copy of the transcript became available and/or it received any written submissions on behalf of Ms Singh. No such application was made. Ms Singh submits that the matter may be dealt with ‘on the papers’.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission made by the parties, 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.
SUPPLEMENTARY SUBMISSIONS
As stated, ING filed its ‘Appeal Against Decision of Arbitrator’ in the Commission on 7 February 2008.
On 8 February 2008 the delegate of the Registrar issued a Direction requiring the parties to take certain steps in the matter. This included Direction 1.5:
“By 04/04/08 the Appellant is to lodge with the Commission and serve on the Respondent/s submissions in reply if required.”
The submissions attached to ING’s appeal application included the following:
“The Appellant/Employer does not at this stage to [sic] seek an oral hearing however it does respectfully request that it be permitted to make an application for an oral hearing once a copy of the transcript becomes available and/or it receives any written submissions on behalf of the Respondent/Worker.”
On 4 March 2008 Ms Singh filed in the Commission, a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’, together with supporting submissions.
In Ms Singh’s submissions in opposition to the appeal, the following submission is included at page 5:
“4. FURTHER SUBMISSIONS
The Respondent/Worker seeks leave to file further submissions in support of the Notice of Opposition to Appeal on receipt of the transcript and/or on receipt of the Appellant/Employer’s further submissions.”
On 11 March 2008 the Registrar wrote to both parties in the following terms:
“We refer to the above matter and enclose a copy of the transcript of proceedings [before the Arbitrator].
If you have indicated in your submissions on appeal that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgment, you are required to complete and lodge in the Commission, your final grounds of appeal and/or submissions on appeal and serve on all other parties to the appeal within 28 days of the date of this letter, in accordance with Practice Direction No 6.
A copy of this letter has been sent to all other parties to the appeal.”
A Registrar’s letter of this kind is sent routinely to all parties involved in an appeal against a decision of an Arbitrator in order to enable them to have the benefit of inspecting the transcript of the proceedings before the Arbitrator, in finally settling the whole of their grounds and/or submissions on appeal.
On 4 April 2008, ING filed in the Commission supplementary submissions in reply under cover of a letter dated 2 April 2008.
Included with those submissions is a copy of a letter dated 31 March 2008, from Counsel, in the following terms:
“It would appear that I failed to dictate the actual Grounds of Appeal when preparing the submissions etc. I apologise for this oversight and you will note that I have set them out at the commencement of the submissions in reply.
Please let me know if any aspect of this matter requires further discussion or advice.”
The oversight is addressed at [1] – [3] inclusive of ING’s submissions in reply:
“1.While the Appellant/Employer’s submissions and argument refer to each of the proposed Grounds of Appeal it appears that the actual grounds are not set out in the documents supporting the Application Appeal Against Decision of Arbitrator.
2. The Grounds of Appeal are:-
[See [18] of these Reasons above, where the grounds of appeal are set out in full].
3.The Appellant/Employer apologises for this oversight and seeks to rely on these Grounds of Appeal and the submissions in support of them which it has already made.”
On 16 April 2008, under cover of a letter dated 15 April 2008, Ms Singh filed in the Commission, further submissions in reply, in the following terms:
“1.The Respondent/Worker relies on the Notice of Opposition and Submissions in support filed in the Workers Compensation Commission on 4 March 2008 [“the Reply Submissions”].
2.Since filing those submissions the Appellant/Employer has served further submissions in support of its Appeal.
3.It is the Respondent/Worker’s primary position that the further submissions have not been lodged with the Commission within the nominated time for lodging submissions in support of an Appeal and the Commission ought not allow the further submissions to be relied upon.
4.The Act provides a 28 day period for lodging an Appeal to an Arbitrator’s decision [section 352 of the Workplace Injury Management and Workers Compensation Act 1998] and the Appellant/Employer should be restricted to the submissions that were lodged at that time. The Act does not allow a party to perfect its application by filing further submissions, at a later date. The Appellant/Employer has not provided an acceptable reason for the delay and the Commission ought not exercise its discretion by accepting the late submissions.
The Appellant/Employer’s Further Submissions:
5.The Appellant/Employer is also seeking to rely on further submissions, which purport to be in response to the Respondent/Worker’s Reply Submissions.
6.The Respondent/Worker repeats the submission that the Commission should not accept the further submissions, which have been lodged out of time.”
On 18 April 2008 ING’s legal representatives filed in the Commission a letter dated 17 April 2008, enclosing a copy of a letter dated 17 April 2008, that it had written to Ms Singh’s legal representatives. It states:
“We refer to your letter of 15 April 2008.
We draw your attention to Direction 1.5 of the Registrar’s Directions.
We note the Appellant’s submissions in reply were served on your office on 2 April 2008.
A copy of this letter has been sent to the Workers Compensation Commission.”
On 24 April 2008 an email communication was received in the Commission from Ms Singh’s legal representatives stating that they would be filing no further submissions in relation to the matter.
Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
Section 364 of the 1998 Act provides that the Minister may from time to time by order make Rules of the Commission for or with respect to any aspect [emphasis added] of procedures to be followed in connection with the jurisdiction and functions of the Commission, including provision for and with respect to the following range of specific matters:
“(a)the manner of referring claims or disputes for assessment or determination by the Commission, and
(b)the documentation that is to accompany such a reference of a claim or dispute for assessment or determination, and
(c)the manner of presenting documents and information to the Commission by the parties, including time limits for the presentation of the documents and information, and
(c1)requiring the provision of documents and information by a party to a matter before the Commission to any other party to the matter, and
(d)the making of assessments and determinations by the Commission, and
(e)the manner of specifying an amount of damages or compensation, and
(f)default awards and orders, and
(g)the extension or abridgment or any period referred to in this Part, and
(h)all matters of practice and procedure in proceedings before the Commission, and
(i)the issue of a seal for the Commission and the use and effect of the seal, and
(j)any other matter that this Act or the 1987 Act provides may be the subject of Rules of the Commission.”
Section 364(2) provides that the Rules of the Commission may be made so as to apply differently according to such factors as may be specified in the Rules.
Rule 16.2 (10) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:
“For the purposes of section 352(4) of the 1998 Act, an appeal is made when the application for leave to make the appeal is lodged as required by subrule (1).
Rule 16.2 (1) provides:
“A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (11).”
Rule 16.2 (3) provides:
“If the Registrar determines that he or she is not satisfied that the requirements of section 352 of the 1998 Act, or any applicable Rules and regulations, as to the making of the appeal have been complied with, the Registrar is to return the application to the party who lodged it, with a statement particularizing the non-compliance.”
Rule 16.2 (4) provides:
“An application referred to in subrule (1) must have attached to it a copy of the certificate as to the determination of the dispute referred to in subrule (2), and must include, or have attached, full details of:
(a)the arguments to be put in favour of review of the decision sought to be appealed against, and
(b)for the purposes of section 352(2) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal, and
(c)any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352 (6) of the 1998 Act, and
(d)if the party lodging the application wishes to object to the matter of leave to make the appeal, or the appeal, being decided solely on the basis of the written application and any written notice of opposition lodged, the reasons for the objection.”
Rule 16.2 (5) to (12) inclusive, makes further provision for procedure to be followed, filing of documents, time-frames within which steps must be taken in relation to appeals, and an application for extension of time for making an appeal.
Broader powers for the arrangement of the business of the Commission are provided in the 1998 Act, the Rules and the Practice Directions.
Section 349 of the 1998 Act provides:
“349 The arrangement of the business of the Commission is to be as determined by the Registrar, subject to the regulations.”
Part 3 of the Rules contains comprehensive provisions as to “Time”. It provides:
“3.1 Fixing of time
Where no time is fixed by the Workers Compensation Acts, or these rules, or by a Practice Direction, or by any decision or order of the Commission in any proceedings, for the doing of any thing in or in connection with the proceedings, the Commission may, by order, fix the time within which the thing is to be done.
3.2 Extension and abridgment of time
(1) The Commission may by order extend or abridge any time fixed by these rules or under Part 9 of Chapter 7 of the 1998 Act.
(2) For the avoidance of doubt, it is declared that the functions of the Commission
under subrule (1) may be exercised by the Registrar.
(3) The Commission constituted as it was when it made a decision or order that fixed a period of time may, on the application of a party or of its own motion,
extend or abridge that period.
3.3 Running of time
Time does not run in respect of any proceedings during such period as may be fixed by order of the Commission in the proceedings or by a Practice Direction.
3.4 Time of commencement of proceedings
The time of commencement of proceedings is the time when the Registrar registers the document lodged for the commencement of proceedings by affixing the seal of the Commission.”
Rule 18.1 provides:
“18.1 Practice Directions
The President, in consultation with the deputy Presidents, may issue Practice Directions in relation to the operation of these rules, and may from time to time rescind or amend any such Practice Direction.”
Practice Direction No. 6, Appeal Against a Decision of the Commission Constituted by an Arbitrator, dated 15 November 2007 provides, in part, under “PROCEDURE FOR APPEALS AGAINST A DECISION OF AN ARBITRATOR”:
“A Direction will be prepared by the Registrar and issued with the sealed copies of the Application. The Direction will contain a timetable to ensure that the parties comply with the Rules.
A copy of the transcript of proceedings, if available, will be obtained by the Registrar and forwarded to each party to the appeal.
Any supplementary submissions following receipt of the transcript must be lodged and served within 28 days of the date of the letter from the Registrar addressed to the party enclosing a copy of the transcript.”
And further:
“The Appellant has 14 days to lodge with the Commission and serve on the other parties to the appeal any submissions in reply, if required.”
The Directions issued by the Registrar were therefore, properly made and have been complied with, including Direction 1.5 of 8 February 2008.
I note in the context of Ms Singh’s objections to the filing of ING’s supplementary submissions, that at page 5 of her own submissions attached to her ‘Notice of Opposition to Appeal Against Decision of Arbitrator”, she states:
“The Respondent/Worker seeks leave to file further submissions in support of the Notice of Opposition to Appeal on receipt of the transcript and/or on receipt of the Appellant/Employers further submissions.”
The procedures followed by both parties in this matter are based upon the provisions of the Act, the Rules and the Practice Directions. They are unexceptional and are routinely followed by parties to appeals in the Commission, and by their legal representatives.
It may be arguable that an exception arises in this matter. ING’s grounds of appeal are not actually listed in the otherwise reasonably comprehensive first submissions on appeal lodged with the Appeal Application within the 28 days prescribed in section 352 (4).
However, the submissions on appeal filed with the ‘Appeal Against Decision of Arbitrator’ are substantial and contain the arguments in support of the appeal, as required by Rule 16.2 (4) (a), notwithstanding that the actual grounds of appeal are not specifically itemized. The grounds of appeal may be construed, upon a reading of those submissions. I note that this is essentially what Ms Singh’s legal representatives have done in their ‘Submissions in Support of Opposition to Appeal’.
The supplementary submissions filed by ING in the Commission, were filed in accordance with the Registrar’s Direction 1.5 referred to above, and the directions in her letter of 11 March 2008, which she sent to both parties, enclosing the transcript of proceedings that took place before the Arbitrator. In my view, there has been substantial compliance with the Act and Rules in terms of filing the appeal. Ms Singh’s legal representatives’ assertion that there is no provision for the filing of further submissions after the 28 days prescribed in section 352(4) of the 1998 Act, and that only the submissions filed with the initial Appeal Application are to be taken into account, is not correct.
Having regard to the circumstances of this matter, I consider that the omission of the itemized grounds of appeal from ING’s first submissions does not give rise to any prejudice, injustice or substantial inconvenience to Ms Singh, particularly as she has had ample opportunity to respond to all of ING’s submissions on appeal, including the supplementary submissions that succinctly particularized the grounds of appeal. I note again in this regard, that immediately prior to consideration being given by me towards the determination of this appeal, Ms Singh was afforded an opportunity to file a third set of submissions, which, after due consideration, her legal representatives elected not to do (see [18] above of these Reasons).
I find that the supplementary submissions of both parties have been made and filed in accordance with the Act and Rules, and the directions made by the Registrar, pursuant to Practice Direction No. 6.
Furthermore, I consider that the omission by ING does not constitute a failure to make the appeal within the time prescribed in section 352(4) of the 1998 Act, and ING was/is not required to make an application pursuant to Rule 16.2 (10) – (12), inclusive. I find accordingly.
The supplementary submissions made by ING are allowed and are taken into account in this appeal.
LEAVE TO APPEAL
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 appeal is both, at least $5000 and at least 20% of the amount awarded in the decision appealed against.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
SUBMISSIONS, DISCUSSIONS AND FINDINGS
At the conclusion of its initial written submissions on appeal, ING cites Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, but makes no comments and offers no views in terms of its specific application in support of the submissions made on appeal. In the absence of any such specific submissions, I note generally the relevance of this case in terms of those submissions.
In her ‘Submissions in Support of Opposition to Appeal’, Ms Singh submits:
“(a)The Appellant/Employer has failed to properly particularise the grounds of Appeal;
(b)The Appellant/Employer has failed to identify any error of either fact or law in the decision of the Arbitrator; and
(c)The Appellant/Employer has failed to establish that there is any proper basis for a Presidential Member to overturn the decision of the Arbitrator.”
Ms Singh submits that the only ground of appeal identified by her appears at paragraph 2 under the heading ‘APPELLANT/EMPLOYER’S SUBMISSIONS AND ARGUMENT IN SUPPORT OF APPEAL’, which states:
“The appellant/employer submits that the statement of reasons for decision (SRD) contains errors of law and/or errors of fact which materially affected the decision.”
Ms Singh submits that ING then makes reference to five grounds of appeal without ever identifying or particularising them. She states, “On that basis, the Respondent/Worker responds to each of the matters enumerated under the heading “SUBMISSIONS AND ARGUMENT” found in paragraphs 12 to 21 inclusive, of ING’s submissions.
Ms Singh cites The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19] and Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 (at [54]) in a preliminary submission on the nature of review to be exercised by a Presidential member, in the conduct of such a review pursuant to section 352 of the 1998 Act. The nature of a review of an Arbitrator’s decision on appeal has been discussed in, and developed over, many Presidential decisions on appeal in the Commission, having regard to wider authority on the nature of a review, including the following quite recent decisions: Plumbers Supplies Co-Operative Limited v Behnampirouz [2008] NSWWCCPD 47; Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46; Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43; Royal Rehabilitation Centre Sydney v Cassar [2008] NSWWCCPD 41, and Freedom Group Limited v Ferizovic [2008] NSWWCCPD 27 (see in particular [50] to [55] inclusive).
I acknowledge and adopt the relevant principles to be applied in this matter.
While the particulars of Ms Singh’s submissions are dealt with in more detail below, the summary of her position is set out in [31] of her first submissions on appeal. She submits:
“(a)The Appellant/Employer has failed to properly identify any ground of Appeal;
(b)The Appellant/Employer has failed to demonstrate any error of fact of [sic] law in the Arbitrator’s findings;
(c)The Arbitrator accepted the evidence of the Respondent/Worker over that of the Appellant/Employer. He states that he finds the worker’s evidence to be more consistent and, in particular, to be consistent with the histories recorded by the various medical practitioners. This is a proper finding and is within the Arbitrator’s discretion.
(d)The matters that the Arbitrator has determined are within the Arbitrator’s discretion and all findings were available to be made on the evidence that was before him.
(e)The Appellant/Employer is essentially asking the Presidential Member to accept its own evidence over that of the Respondent/Worker. The Appellant/Employer has not established that there is any proper basis for the Presidential Member to exercise that function, in circumstances where the Arbitrator declined to do so. The Arbitrator was entitled to accept the Respondent/Worker’s evidence and has made his findings accordingly.”
Having dealt with point (a) above, there is little need to make further comment, except to say again that Ms Singh was afforded the opportunity to give further consideration to ING’s submissions following the filing of its supplementary submissions. ING’s supplementary submissions, when read with its first submissions, were quite clear as to the particular grounds of appeal and the arguments in support of them. Ms Singh’s legal representatives elected not to make further submissions and to rely on their submissions previously made.
Points (b), (c), (d) and (e) in [71] above, are taken into account in determining this appeal.
In its response to Ms Singh’s submissions in opposition to the appeal, ING notes that its submissions before the Arbitrator commence at page 17.43 of the transcript of proceedings. It submits that an endeavour was made to take the Arbitrator to specific references in the witness statements to assist him to come to a conclusion regarding the actual events that took place in the course of Ms Singh’s employment. It states that the submissions conclude at page 30.31. ING states that further submissions were made in reply, commencing at page 34.25 of the transcript. It submits:
“The Arbitrator does not appear to refer to the Appellant/Employer’s submissions. It is customary for an arbitrator to refer in summary form to the submissions of the parties. The arbitrator provides an introduction, a background and list two issues in dispute. The Appellant/Employer submits that it is not clear from the SRD [Reasons] whether or not the Arbitrator gave consideration to the Appellant/Employer’s submissions. The SRD does not appear to contain any reasons why the Appellant/Employer’s submission were apparently unacceptable.”
In considering the issues on appeal as reflected in the questions that follow, I note that the issues determined by the Arbitrator were (as set out in his Reasons at [15]):
1. whether Ms Singh had suffered an injury pursuant to section 4 of the 1987 Act, and
2. whether, if there was injury, section 11A of the 1987 act prevents compensation being payable to Ms Singh.
Did the Arbitrator err in law in failing to properly determine whether or not Ms Singh had established her case on the balance of probabilities?
ING submits specifically, that in order to demonstrate that she suffered an injury in the course of her employment, Ms Singh was required to establish that her account of the events that allegedly occurred in the course of that employment should be accepted in preference to the accounts given by the other witnesses. ING submits that the Arbitrator did not consider this in relation to the issue of injury. It further submits that her case regarding injury was supported by her treating general practitioner and her treating psychologist, but both of them relied upon her account of the events at work. ING asserts that the Arbitrator has not considered the evidence “given by those witnesses although he does record it as being ‘competing and opposite’ (paragraph 33 of the SRD).”
ING, referring to [34] of the Arbitrator’s Reasons’, states that the Arbitrator refers to 11 unsigned statements. It submits that while in the first factual investigation dated 15 January 2007 there were 11 unsigned witness statements (including an unsigned statement from Ms Singh), there was also a subsequent letter written by the investigators dated 1 February 2007, which is attached to the Reply. A number of signed statements also accompanied the Reply. Ms Singh made submissions regarding unsigned statements. However, ING submits that the Arbitrator did not consider the merits of any of its witness statements, whether they were signed or not.
ING further submits that the Arbitrator acknowledges that his duty is to resolve the dispute in the face of the competing statements and factual assertions (at [35] of his Reasons), and that to do so necessarily involves, one version of events being preferred over the other, based on the balance of probabilities. It submits that the Arbitrator states generally, “that he is willing to accept ‘in this instance’ the signed Statements of the Respondent/Worker as being on [sic] more consistent more times.” ING submits that this is an error of law, as the Arbitrator does not refer to the actual instances where Ms Singh’s statements are more consistent than the statements of other witnesses. ING submits that it had submitted that the witnesses who provided statements in August 2007 were replying to Ms Singh’s second witness statement and had provided answers to the matters raised in that statement. ING submits that the Arbitrator did not refer to the contents of those statements.
Ms Singh contends that the Arbitrator made no error or law as alleged and that the Arbitrator was entitled to accept her evidence over that of ING. She states that the Arbitrator sets out the basis for his decision at [33]-[36] of his Reasons. I have read the Arbitrator’s Reasons and have noted in particular, the paragraphs to which Ms Singh now refers. I will not reproduce those paragraphs here.
Ms Singh submits that the Arbitrator has demonstrated a proper consideration of the available evidence. He refers to the statements that are in fact in evidence, filed by both parties. She goes on to submit that the Arbitrator observed that ING did not cross examine her and that her evidence was neither tested nor challenged.
Ms Singh further submits that the Arbitrator preferrs her evidence on the basis that it is “more consistent more times” and that he specifically refers to the consistency between her evidence and the histories contained in the various medical reports. She submits, “the Arbitrator has correctly identified his task, and has made his decision accordingly.”
Finally, Ms Singh submits that ING has failed to properly identify any error of law or any other error in the Arbitrator’s reasoning. She asserts that the Arbitrator has the discretion to make a decision on the factual evidence that is before him.
In its further submissions, ING again submits that the Arbitrator did not demonstrate a proper consideration of the available evidence. It asserts that the Arbitrator did not refer to the evidence given by the witnesses whose statements were in evidence before him. He accepted Ms Singh’s signed statements on the basis that they were “more consistent more times”, but did not consider the contents or give any reasons for accepting them.
ING further submits:
“In relation to paragraph 11 of the Respondent/Workers written submissions [‘He notes that the Appellant/Employer did not cross examine the Respondent/Worker. Her evidence was not tested and her credit was not challenged.’], the relevant parts of the Respondent/Worker’s Statements were put in issue in the Statements submitted by the Appellant/Employer, these Witness Statements were in evidence before the Arbitrator. The Appellant/Employer submits that the rule in ‘Browne v Dunn’ does not apply to proceedings in the Workers Compensation Commission. There were a number of Statements, which were put into evidence by the Appellant/Employer, which were not responded to by the Respondent/Worker. The Appellant/Employer submits that the Respondent/Worker’s credit was challenged by reason of the evidence from the witnesses whose Statements were in evidence.”
It is clear that the histories given by Ms Singh, Dr Wimalaratne, her treating doctor, and Dr Srinivasan, treating psychologist, are substantially consistent. From a reading of the medical reports, it seems that the histories set our in their reports are derived from their dealings with Ms Singh over a reasonable period of time. Neither of her treating doctors was aware of any other causative factor, giving rise to her condition.
In his report of 12 December, Dr Akkerman, psychiatrist to whom Ms Singh was referred by ING, states, “There are no outside stressors”, in response to the question, “Relevant work, family or social history that may have contributed to the current reported injury.” He states that Ms Singh suffers from an adjustment disorder, that her prognosis is poor, and, “She has convinced herself she is not well.” He opines that there is no previous or underlying condition. He further states that her employment “is a substantial aggravating factor”. In terms of section 11A of the 1987 Act, Dr Akkerman states, “Section 11A applies. It is related to Ms Singh missing out on a promotion and recently being directed to go and work with the man whose application for the promotion was successful. The employer did not act unreasonably in any way.” Dr Akkerman omits any reference at that point to the “paper-throwing” incident of May 2006, which involved the person who was promoted. This is the event that is claimed by Ms Singh to have caused the injury. The Arbitrator referred to this at [27] of his Reasons.
The Arbitrator bases his finding of injury in terms of section 4 of the 1987 Act, entirely upon this medical evidence. At [25] of his Reasons, he states:
“From the medical evidence it is clear to my satisfaction that Ms Singh had suffered a personal psychological injury arising in the course of the employment which satisfies s4 of the Workers Compensation Act 1987. That being adjustment Disorder which was changed subsequently to Major Depressive Episode.”
There is no doubt that the Arbitrator preferred Ms Singh’s evidence to the evidence put forward by ING, both in terms of section 4 and section 11A of the 1987 Act. In [33] the Arbitrator refers to “competing and opposite evidence” and the requirement for him to “choose one competing side over the other usually on the balance of probabilities having weighed up all the evidence.”
In [34] the Arbitrator refers to the 11 statements that were tendered along with the factual investigation report of 15 January 2007 prepared by ILA Consultants Pty Ltd. Most of these statements were unsigned. Subsequently, 6 signed statements, from the same group of ING witnesses were provided under cover of a letter dated 1 Feburary 2007. All of this was in evidence. The Arbitrator states at [34] of his Reasons, “Those signed statements were in response to Ms Singh’s statement of 19 July 2007 which in itself was in response to Ms Singh being provided with the factual report and the unsigned statements of January 2007.” The Arbitrator’s treatment of the unsigned statements and their status, is not clear.
In the Arbitrator’s Reasons, there is no substantive reference to, or analysis of the contents of any of this significant body of evidence, or what weight should be attached to it, nor the reasons in support of the Arbitrator’s findings. The conclusions he drew at [36] in Ms Singh’s favour, flow from what he states at [35]:
“Faced with the competing statements and factual assertions my duty nevertheless remains to resolve the dispute and to do so [sic] must choose one version of events over the other based upon the balance of probabilities. I am therefore, in order to resolve and finalise the dispute, willing to accept, in this instance, the signed statements of Ms Singh as being, on the balance, more consistent more times. Ms Singh’s history as expressed in the Statements is consistent with the histories contained in the various medical examiners reports.”
No other analysis or reasons are put forward. It is entirely unclear how and why the Arbitrator chose Ms Singh’s “version of events” over ING’s version, apart from the fact that her evidence was consistent more often than the opposing evidence. Moreover, there is no reference in his Reasons to the substantial submissions that were put to the Arbitrator at the hearing on 31 October 2007, or what he made of them.
It cannot be said one way or the other, whether a case has been made out on the balance of probabilities, in the absence of a proper treatment of the evidence. Clearly, a proper consideration of the evidence must be undertaken before a conclusion can be reached that the dispute has been determined on the balance of probabilities.
Section 294(1) and (2) of the 1998 Act provide:
“(1)If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 15.6 provides:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in the statement referred to in subrule (1) are to be states sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
It is not necessary for an Arbitrator to give lengthy reasons for decision. The requirement for lengthy reasons would be unreasonable and inconsistent with the statutory objectives of the Commission (Liverpool City Council v Trovato [2004] NSWWCCPD 15).
The reasons for decision will be adequate, notwithstanding that they do not set out the relevant statutory provisions at length, or specify and examine all relevant and judicial authority (Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 at [45] (‘Askin’). Furthermore, it is not necessary for the Arbitrator to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process (Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424). However, a statement of reasons must set out “with enough clarity, the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law [and] the Arbitrator’s application of the law to those findings (Askin).
Importantly, the Arbitrator must not only note the relevant evidence and give reasons for the findings made, but where the evidence is disputed he or she must give a clear explanation of the reasons why some of the evidence is preferred over other evidence (Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also, Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134; Hume v Walton [2005] NSWCA 148).
In the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64], Kirby J said:
“The more significant the decision the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation … Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
In this matter, the Arbitrator has not met the statutory or common law requirements set out above in his treatment of the evidence and in arriving at his findings. That being so, I find that the Arbitrator is in error in that he has not lawfully determined, on a proper consideration of the available evidence, whether Ms Singh has established her case on the balance of probabilities.
This ground of appeal is made out.
Did the Arbitrator err in law in failing to provide any adequate reasons for accepting the signed statements of Ms Singh in preference to those of the other witnesses?
ING submits that the Arbitrator should have exposed his reasoning process when choosing one version of events over the other. It submits that in effect, no reasons are given, and that the statement by the Arbitrator concerning consistency is not supported by any reference to any particular part of Ms Singh’s statements.
Ms Singh asserts that the Arbitrator has adequately demonstrated or “exposed” his reasoning process when choosing one version of events over the other. He finds that Ms Singh’s evidence is more consistent more often, and specifically finds that her evidence is consistent with the available medical evidence.
Ms Singh submits that the Arbitrator carefully examined the available medical evidence and at paragraph 25 of his Reasons, he found:
“From the medical evidence it is clear to my satisfaction that Ms Singh has suffered a personal psychological injury arising in the course of the employment which satisfies Section 4 of the Workers Compensation Act 1987. That being adjustment disorder which was changed subsequently to a major depressive episode.”
She asserts that the Arbitrator examined the medical evidence dealing specifically with what had occurred at her place of employment at the time that she incurred the injury, in arriving at this finding.
Ms Singh submits that it is clear from the later findings of the Arbitrator that he accepts her evidence in preference to ING’s evidence at least in part, because it is consistent with the histories contained in the various medical reports, which he accepts. She states, “He prefers that evidence to the factual evidence put forward by the Appellant/Employer.”
However, ING submits that the histories provided to Dr Wimalaratne and Dr Srinivasan, were given solely by Ms Singh herself. It states that the evidence of the witnesses relied upon by Ms Singh “is not to be tested by reference to Statements made by the Respondent/Worker to her General Practitioner and treating Psychologist.”
In his report of 18 March 2007, ING says that Dr Wimalaratne considered that Ms Singh was suffering from “deep anxiety and depression” and does not appear to refer to an adjustment disorder, which was changed subsequently to a major depressive episode. ING states that she also provided a number of WorkCover medical certificates that refer to anxiety and depression under “diagnosis”, and that there are a number of certificates that do not refer to any diagnosis.
Further, ING submits that Dr Srinivasan refers to “adjustment disorder with mixed anxiety and depressed mood”. It submits that the Arbitrator erred in concluding that the injury was an adjustment disorder, which was changed subsequently to a major depressive episode. ING submits that in any event, the Arbitrator’s findings in this regard are not relevant to a consideration as to whether or not Ms Singh’s evidence is to be accepted in preference to the evidence of the witnesses relied upon by it.
Having regard to my earlier finding in relation to the first ground of appeal, this ground of appeal must succeed, and for the same reasons. However, at this point, I make no further findings in relation to this second ground of appeal, or the other issues put forward in support of it.
This ground of appeal is made out.
Did the Arbitrator err in finding that he accepted the evidence of Ms Singh when such finding was against the evidence and the weight of the evidence?
ING submits that had the evidence of the witnesses upon whose statements it relied, been considered, it would have led to a finding of fact that Ms Singh had not sustained an injury in the course of her employment, and findings that sections 9A or 11 A of the 1987 Act were not satisfied. ING further submits that the Arbitrator has not considered the weight of the evidence given by these witnesses.
Ms Singh submits that ING has failed to make out this ground of appeal. She states, “The paragraph from the Arbitrator’s decision already outlined show [sic] that the Arbitrator has clearly weighed the competing accounts of the various witnesses. He has stated his preference for the evidence of the Respondent/Worker.”
.
Ms Singh further submits that the very fact that the Arbitrator prefers her evidence, to ING’s evidence, is not in itself, a proper ground of appeal. She submits that ING has failed to identify any impropriety in the Arbitrator’s reasoning or logic, not any factual errors or discretionary errors. She asserts, “The Arbitrator has the discretion to weigh up the competing accounts of what occurred and to make findings accordingly.”
In response, ING asserts that the weight of the evidence favoured a conclusion that Ms Singh’s evidence, which was not corroborated by any other witness, was inaccurate, unreliable and should not have been accepted. It further submits that the acceptance or rejection of evidence is not a matter for discretion, as asserted by Ms Singh. It states that the Arbitrator’s obligation was to weigh the evidence and arrive at a conclusion regarding which of the evidence was acceptable and which was not. This does not involve the exercise of discretion.
Clearly, the Arbitrator did accept the evidence of Ms Singh, but without canvassing the whole of the relevant evidence before him. Whether or not his acceptance is against the evidence is a question for determination upon a consideration of it. That is distinct from the matter of the weight to be attributed to the evidence, which does fall within the discretion of the Arbitrator (Vettas v Cho [2006] NSWWCCPD 122). However, it is not possible for the Arbitrator to exercise that discretion as to the weight of the evidence, in the absence of a proper consideration of the evidence itself.
Without having canvassed and analysed the whole of the relevant evidence, it follows that the Arbitrator was unable to draw proper conclusions as to the evidence, and properly exercise his discretion as to the weight to be attached to it.
While the Arbitrator is in error at law, it is because he has failed to exercise his function as to the evidence, and his discretion as to the weight of the evidence, fairly and according to law. A proper determination of the dispute based upon the evidence is yet to be carried out.
Did the Arbitrator err in fact in finding that at all material times Ms Singh was totally incapacitated when such finding was against the weight of the evidence?
.
ING “relies upon the opinion of Dr Akkerman who found the Respondent/Worker to be fit for her pre-injury duties. It is submitted that the Arbitrator should have accepted this opinion because of Dr Akkerman’s qualifications as a Specialist Psychiatrist.”
Ms Singh submits that this is not a proper ground of appeal. The Arbitrator specifically refers to the available evidence at [20] to [25] of his Reasons. She states, “The Arbitrator is not obliged to accept the opinion of Dr Akkerman merely because he is a ‘specialist psychiatrist’.” Ms Singh submits that the Arbitrator is entitled to refer to all of the available medical evidence and to make his findings accordingly. She points out in any event, that at [27] of the Arbitrator’s Reasons, he specifically refers to the opinion of Dr Akkerman and provides reasons for not accepting his view.
ING responds by stating that Dr Akkerman’s evidence ought to have been accepted because he was the only Psychiatrist who provided evidence by way of a report, and his evidence should have been preferred to the evidence of Dr Wimalaratne and Dr Srinivasan.
ING states that the evidence of Dr Akkerman is referred to by the Arbitrator in [24] of his Reasons. Dr Akkerman clearly finds Ms Singh to be fit to work and fit to perform her pre-injury duties.
I agree with Ms Singh that the Arbitrator was not obliged to accept the opinion of Dr Akkerman merely because he is a specialist psychiatrist. It is for the Arbitrator to take into account and consider all of the relevant medical evidence in the process of his determination.
However, for reasons already stated in relation to the previous ground of appeal, I make no determination on this ground of appeal.
Did the Arbitrator err in law in failing to give adequate reasons for his decision?
ING submits, “In relation to the fifth ground of appeal the Appellant/employer has set out its arguments and submissions above.”
Ms Singh submits that ING has failed to particularise this ground of appeal.
In response, ING states, “The Appellant/Employer does not wish to make any further submissions regarding the fifth Ground of Appeal.”
Having regard to findings made in relation to the first ground of appeal, this ground of appeal must succeed.
This ground of appeal is made out.
Conclusion
The Appeal is successful. The decision of the Arbitrator must be revoked and the dispute must now be determined afresh upon a proper consideration of the whole of the available, relevant evidence. It is appropriate that the matter should be remitted to another Arbitrator for this purpose.
.
DECISION
The decision of the Arbitrator dated 11 January 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
7 May 2008
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON, OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
5
18
0