Inghams Enterprises Pty Limited v Auddino
[2007] NSWWCCPD 228
•22 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Inghams Enterprises Pty Limited v Auddino [2007] NSWWCCPD 228 APPELLANT: Inghams Enterprises Pty Limited RESPONDENT: Catena (Tina) Auddino INSURER: Inghams Enterprises Pty Limited FILE NUMBER: WCC2567-07 DATE OF ARBITRATOR’S DECISION: 11 July 2007 DATE OF APPEAL DECISION: 22 November 2007 SUBJECT MATTER OF DECISION: Notice of Injury and claim; jurisdiction; incapacity; weight of evidence; refusal to allow oral evidence from medical witnesses; section 9A of the Workers Compensation Act 1987. PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore HEARING: On the papers REPRESENTATION: Appellant: Leigh Virtue & Associates Respondent: Steve Masselos & Co ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 11 July 2007 is confirmed. 2. The Appellant is to pay the costs of the appeal. BACKGROUND TO THE APPEAL
1.On 7 August 2007, Inghams Enterprises Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 11 July 2007.
2.The Respondent to the appeal is Catina (Tina) Auddino (‘the Respondent/Ms Auddino’).
3.Ms Auddino was born on 19 February 1953.
4.She commenced employment with the Appellant in about 1982 as a general farm hand at the Appellant’s poultry farm at Badgery’s Creek. Her duties included egg collecting, involving considerable bending, stooping and lifting, catching chickens, washing sheds and boxes and scrubbing floors.
5.On 12 April 2007 Ms Auddino filed an ‘Application to Resolve a Dispute’ in the Commission claiming that she suffered injuries to her back and both legs on the following occasions:
“(1) Nature and Conditions from 1 July 1993 – 26 April 2006.
(2)2 August 2004.
(3)26 April 2006.”
6.Ms Auddino claimed that notice of the first injury was given on 20 November 2006, the second injury on 2 August 2004, and the third injury on 26 April 2006. She further alleged that she made a claim for compensation in respect of the first injury on 1 March 2007, the second injury on 2 August 2004, and the third injury on 26 April 2006.
7.The first injury was alleged to have occurred as a result of “general nature and conditions of employment involving repeated bending, lifting, squatting and reaching in fixed awkward positions.”
8.The second injury occurred “picking up eggs in a fixed, stooped position”, and the third injury occurred whilst “placing slat inside nest box”.
9.Ms Auddino sought weekly benefits of compensation from 4 August 2006, and medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
10.Ms Auddino ceased work with the Appellant in or about June 2006 and has not resumed since.
11.By letter dated 21 July 2006 the Appellant (a self insurer) advised Ms Auddino that liability for her claim was denied.
12.The parties attended a conciliation/arbitration hearing on 26 June 2007. Both parties made oral submissions recorded in a transcript of that date.
13.At that hearing, the Appellant submitted, inter alia, that the Arbitrator had no jurisdiction to determine any dispute in respect of the injuries alleged to have occurred on 2 August 2004 and the injury alleged to result from the ‘nature and conditions’ of employment between 1 July 1993 and 26 April 2006, since Ms Auddino had failed to establish that notice of injury and a claim for compensation had been made in compliance with various provisions of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’).
14.The Arbitrator found in favour of Ms Auddino awarding her weekly benefits from 4 August 2006 pursuant to sections 36 and 37 of the 1987 Act, together with section 60 expenses.
15.It is from this decision that the Appellant seeks leave to appeal.
16.In a ‘Notice of Opposition to Appeal’ filed on 17 September 2007, Ms Auddino submits that no errors were made by the Arbitrator and that her decision ought be confirmed.
THE DECISION UNDER REVIEW
17.The ‘Certificate of Determination’ dated 11 July 2007 records the Arbitrator’s determination as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of:
(a) $465.87 per week from 4 August 2006 for 26 weeks pursuant to section 36 of the Workers Compensation Act 1987. (NOTED: Credit to be given for payments made), and
(b) thereafter to date and continuing at the maximum statutory rate as adjusted for a single worker with no dependants pursuant to section 37 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s medical and related expenses as set out in the Schedule of Section 60 expenses dated 5 April 2007.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.
4. I certify an uplift of the Applicant’s costs at 20%.”
LEAVE TO APPEAL
18.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
19.The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
20.Leave to appeal is granted
ON THE PAPERS REVIEW
21.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.”
22.The Appellant submits that the matter is not suitable for a determination ‘on the papers’ but should be listed for an oral hearing “… before a Presidential Member as the matter involved a number of different issues which are complex and difficult and for which the employer should be given the opportunity of supplementing written submissions at an oral hearing.”
23.The Appellant further submits that:
“… the Appellant has not yet been provided with the transcript of the proceedings and the Appellant is of the view that a hearing should be allocated to enable any issues arising from the transcript to be addressed”.
24.Ms Auddino submits that the matter is suitable for a determination ‘on the papers’.
25.A copy of the transcript was forwarded to both parties by the Commission under cover of a letter dated 20 August 2007. The Commission advised that:
“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 have not been received by you at the date of lodgement, you are required to complete and lodge in the Commission, your final grounds and/or submissions on appeal …”
26.The Appellant filed ‘Submissions in Reply’ on 4 October 2007 stating, inter alia, as follows:
“The Appellant agrees that a transcript is now available but remains of the view that this is a matter where a hearing before a Presidential Member would be appropriate”.
27.No further submissions have been made as to why an oral hearing is “appropriate”.
28.This issue was considered by the Court of Appeal in Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (‘Barrow’). In that case, the Appellant claimed that there was a miscarriage and/or denial of procedural fairness in my decision to deal with the matter ‘on the papers’. Mason P, in dismissing this ground of appeal, noted that (para 91) “The Commission is not a court and is not expected to function as a court …” He then stated:
“The employer submits that the Presidential member failed to give any or any adequate weight to the nature and complexity of the case. Had she done so, she would have opted for oral argument with the advantage of questioning and interaction which it offers.
(94) This submission amounts to no more than complaint about the outcome of the exercise of the discretion. Under the section, the power is enlivened if the Commission “is satisfied that sufficient information has been supplied”. The Presidential member addressed this matter and declared that she was thus satisfied. This conclusion was well open and it has not been shown to be erroneous in fact.”
29.In the present case, I am not persuaded that the issues are particularly “complex and difficult”. Indeed, the Arbitrator specifically stated (paragraph 108 of the ‘Statement of Reasons’) that “… I am not satisfied that this was a case which involved a higher level of complexity than normal in terms of the facts”.
30.I agree with the Arbitrator’s assessment
31.Having carefully read the transcript, the extensive material before the Arbitrator, and both parties’ detailed submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354(6) of the 1998 Act and in accordance with Practice Directions numbers 1 and 6 to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
32.The Appellant has identified six grounds of appeal, claiming that the Arbitrator erred in determining that:
“(a) She had jurisdiction to determine any dispute in respect of alleged injuries
on 2 August 2004 and injury alleged to result from the nature and conditions of employment between 1 July 1993 and 26 April 2006.
(b)The Applicant’s employment (on the dates and in the period alleged) was a substantial contributing factor to the Applicant’s injury.
(c)That the Applicant was totally incapacitated for work.”
The Appellant submits that the Arbitrator further erred:
“(e) In refusing the employer’s application to call witnesses.
(f)In failing to properly consider and weigh the competing medical evidence.
(g)In failing to have any regard to the surveillance of the Respondent’s
Worker’s activities.”
THE REVIEW PROCESS
33.The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 where he said as follows:
“22.The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
23. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
24. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
25. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).”
34.Recently, the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA249 confirmed this approach. The Appellant had questioned “… whether a tribunal, when considering what action it should take to reverse findings of fact should remit the matter to the primary decision-maker unless it is satisfied that there could not be a different result”. Spigelman CJ said as follows [paras 18-30]:
“… I do not accept … that a Presidential member is relevantly constrained when reviewing an Arbitrator’s decision on such a finding of fact … The concept of a review on the merits is wider than the concept of an appeal in a judicial context … a Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contents.”
35.These principles must be considered in determining the matter before me.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Jurisdiction’ Issue
36.The Appellant submits that Ms Auddino’s “… failure to give notification of injury and for any claim for compensation benefits having been made in respect of the alleged injuries on 2 April 2004 [sic – 2 August 2004] and the injury alleged to result from the ‘nature and conditions’ of the Applicant’s employment from 1 July 1993 to 26 April 2006” meant that the Arbitrator had no jurisdiction to determine the dispute in respect of those particular injuries.
37.In the Appellant’s submission:
“… As the Respondent Worker has not adduced evidence sufficient to prove notification of any injury and prove a claim for compensation benefits having been made the Commission must then determine that there is no jurisdiction to determine the dispute in respect of such injuries.”
38.The Appellant relies on the decision of the Commission in Cotton Glass & Aluminium Pty Limited v Handsaker [2006] NSWWCCPD 205 (‘Handsaker’) in support of this assertion. In that case, Acting Deputy President Roche, as he then was, determined that the proceedings commenced by the worker were in breach of the provisions of the 1998 Act and as a result, were a nullity “… as the Commission does not have jurisdiction to hear and determine the claim.” The proceedings were then struck out.
39.In that particular case, Deputy President Roche determined, as an issue of fact, that no claim had ever been made such that the proceedings were a nullity.
40.A similar decision was made by Deputy President Fleming in Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8 (‘Carrette’). In that case, although notice of the injury had been given to the employer’s insurer, “there is no evidence that a claim for compensation was subsequently made …” such that Deputy President Fleming determined that “the Arbitrator therefore did not have jurisdiction to determine the dispute”.
41.This issue was also considered by the Court of Appeal in Barrow. In that case, a similar ‘jurisdictional’ point was raised, said to arise from section 260 of the 1998 Act and to be supported by the decisions in Handsaker and Carrette to which I have referred.
42.In Barrow Mason P stated that (para 32):
“Since the jurisdictional argument fails on the facts, it is therefore unnecessary to consider whether non-compliance with any or all of the Guidelines’ stipulations about the information to be included in a notification of injury or a claim are truly jurisdictional. Nevertheless, some analysis is apposite by way of guidance to the Commission”.
43.Mason P made the following relevant observations:
“33.If non-compliance with the Guidelines created a jurisdictional impediment, then the entire proceedings before the Commission would be a nullity, even if the dispute were resolved or proceeded to a Determination. This is most unlikely to have been the statutory intent (see generally Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364).
34 The decisions in Kurrajong Holdings and Cottons Glass contain little analysis on the topic and they point to nothing beyond ss260 and 289 of the WIM Act to indicate why non-compliance in any respect might affect the “jurisdiction” of the Commission or bring about what is described in Kurrajong Holdings (at [60]) as orders that are “a nullity”.
35 Section 260 of the WIM Act goes no further than stating, relevantly, that “a claim must be made in accordance with the applicable requirements of the WorkCover guidelines” (sub-s(1)). This falls well short of a stipulation that non-compliance deprives the Commission of its statutory jurisdiction and powers otherwise conferred under the legislative scheme. Subsections (5)-(7) are further counter-indicators. They provide:
(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.
37 Section 288 of the WIM Act is the primary source of the Commission’sauthority to determine a dispute …
38 Section 289 sets out various restrictions as to when a dispute can be referred to the Commission. It provides:
289 Restrictions as to when dispute can be referred to Commission
(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until:
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.
39 One can conceive how s289 may generate an issue as to the Commission’s authority to determine certain disputes unless certain matters have occurred. But nowhere within s289 does one find any clear toehold for an argument that appears to have been accepted within the Commission in decisions such as Kurrajong Holdings and Cottons Glass to the effect that the Commission lacks “jurisdiction” to exercise its statutory powers with respect to a dispute if the disputed claim was not in accordance with the Guidelines. These provisions do not state that any or all failures to comply with the Guidelines might preclude the Commission from embarking on its task, in accordance with the statutory regime. One would think that in most cases, like the present, there would be no question about a dispute having arisen, although there may well be some confusion as to its parameters. The Commission has ample powers to resolve that confusion.
41 Nothing in the statute appears to provide support for the proposition that the Guidelines operate to qualify or restrict the statutory scheme or the Commission’s duties and powers referable to investigating disputes that arise.
42 The Explanatory Note to the Guidelines states that they set out the procedures for the initial notification of an injury, making provisional liability payments and the making and handling of claims under Pt 3 of the WIM Act. The Guidelines are said to be “primarily intended to assist WorkCover NSW Licensed Insurers”. Nowhere is it suggested that the Guidelines touch upon the Commission’s jurisdiction or powers as regards a later dispute.
43 In addition, the word “guidelines” is usually encountered with reference to a non-binding indication of policy. The Macquarie Dictionary relevantly defines the term to mean “a statement which defines policy or the area in which a policy is operative”.
46 It is very difficult to see how strict compliance with these obligations could go to the “jurisdiction” of the Commission to involve itself in a dispute later arising relating to a claim. The closest that Pt 2 of the Guidelines comes to indicating any sanction for non-compliance is r10.1.5 which states:
Deficient claim Within 7 days after the insurer received the claim, the insurer has notified the worker in writing that the claim contains an error that is not obvious or typographical; and how to correct that deficiency. This could include
• Worker refuses to sign the declaration
• No medical certificate received
The worker may correct the error at any time. When the error is corrected the claim is then made and the insurer must determine it within 21 days of the correction being notified to the insurer.
47 Once again, this falls well short of purporting to control the jurisdiction of the Commission.
48 This ground of appeal also fails on the facts and is misconceived.”
44.In the present case, in relation to the alleged injury on 2 August 2004, Ms Auddino, in her statement dated 15 August 2006 said as follows:
“I first suffered an injury during the course of my employment on 2 August 2004 in the afternoon … I reported the injury at the time to the managers, George and Doreen. I did fill out a Claim Form and I was off work for about three (3) days. When I returned to work, I returned to doing the same duties; but could not do it due to continuing pain. My duties then were modified”.
45.The Arbitrator dealt with this issue at paragraphs 82 and 83 of her ‘Statement of Reasons’ as follows:
“i.During submissions at the conclusion of the hearing in this matter, the Respondent having at the outset conceded that there was no issue as to the giving of notice or the making of a claim in relation to the second and third injuries, argued that as there was no claim form attached to the Application to Resolve a Dispute in relation to the second injury on 2 August 2004. Therefore, the Respondent submitted that there was no evidence a claim had been made and therefore no jurisdiction to make any determination in relation to that injury. The Respondent did not seek leave pursuant to section 389A of the 1998 Act to argue this point but given that it is a matter dealing with jurisdiction, I will proceed to deal with it.
ii.The Applicant in her statement dated 15 August 2006 described first suffering an injury on 2 August 2004 and reporting the injury at that time to the managers, George and Doreen. She stated that she filled out a claim form and was off work for about three (3) days. On the balance of probabilities, I accept the Applicant’s evidence that she filled out a claim form and made a claim in relation to the injury on 2 August 2004 within six months of the injury, particularly given the fact it is evident from the medical report of Dr McGroder and the notes and report of Dr Cromb that she was paid compensation and section 60 expenses following that injury.”
46.The transcript reveals that initially, counsel for the Appellant conceded that the issue as to the giving of notice and making a claim was “… only in relation to the nature and conditions claim…” (page 27 transcript).
47.At page 32, counsel for the Appellant stated as follows:
“What’s been pointed out to me by my instructing solicitor may cause me to retract something I said earlier because I wasn’t aware of this. I thought there was a claim form annexed to the application … in respect of the ‘04 injury’. Certainly you have got one in respect of the 06 injury and you now have one in respect of nature and conditions, but I don’t see any claim form in respect of the ’04 injury’ … So if the Applicant relies on the 2004 injury, we say that you must exclude that injury because it doesn’t constitute a claim being duly made pursuant to section 260. There is no notice of injury claim, no evidence about it and no duly made claim for it …”
48.Dr McGroder, Occupational Physician, saw Ms Auddino at the request of the Appellant’s insurer on 5 May 2006. In a report dated 8 May 2006 he stated as follows:
“In 2004 in the process of collecting eggs she developed low back pain radiating to her left leg. She had some time off work … She went back to work on a selected duties programme. She had physiotherapy for four months and hydrotherapy for five months. She never really lost her pain and had cyclical exacerbations of it. She returned to a permanently modified duties programme …”
49.Dr Cromb, of the Tindale Family Practice at Penrith was Ms Auddino’s treating general practitioner. In a report dated 15 October 2004 addressed to the Appellant (or in its guise as self-insurer) she stated as follows:
“Tina presented on 4/8/04 complaining of lower back pain which she stated had commenced two weeks earlier relating to bending over to get eggs out of boxes situated on the floor … She returned on 9/8/04 and was given a clearance for normal duties. At this stage, she had not seen the physiotherapist. On 24/8/04 at work she had an acute back spasm and the restricted duties were reinstated, she was having physiotherapy three times a week. From 8/9/04 she has been gradually increasing her duties.
My impression at this stage is that her lower back strain is improving slowly. However, there may be a longer term restriction on her lifting capabilities and bending to pick up things off the floor. It is my impression that the back pain is related to her work duties, and still occasionally gets exacerbated if she has a heavier than usual day. See my comments above regarding possible restriction of her future duties…”
50.Further reference is made in the notes and reports of Dr Cromb to the “restricted duties” Ms Auddino undertook in 2004.
51.Further, in her statement of 15 August 2006, Ms Auddino stated that, after the incident on 2 August 2004 “my duties were then modified” and further that “after I returned to work, I worked in the automatic sheds only”
52.In my view, nothing turns on the fact that Ms Auddino took sick leave on 5 August 2004 “rather than claiming workers compensation”, and claimed by the Appellant. This was shortly after the incident claimed, and as Ms Auddino points out in her submissions, “… this was because the claim was not processed at that stage”. This is consistent with the sequence of events described by Dr Cromb in her report of 15 October 2004.
53.In a claim form from the Appellant’s insurer dated 4 May 2006, wherein Ms Auddino gave notice of the injury on 26 April 2006, Ms Auddino stated that she had a previous “work related” similar injury on 2 August 2004, giving particulars of the name of the employer and the nature of the injury.
54.As Mason P pointed out in Barrow, this is an issue of fact, and I am satisfied that the Arbitrator did not err in determining that notice was given and a claim made in relation to the injury on 2 August 2004. Whilst I accept the Appellant’s submission that the reports of Drs McGroder and Cromb did not specifically indicate “… that she was paid compensation and section 60 expenses following that injury”, there is ample evidence in those reports, and the other documents to which I have referred, that the Appellant was on notice of the injury and that a claim had been made. The reports to which I have referred were addressed to the Appellant or in its guise as self insurer, and the permanent modification of duties after that incident is further support of the Arbitrator’s ultimate conclusion on this issue.
55.No issue was taken by the Appellant Employer as to the giving of notice and making of a claim in respect of the injury on 26 April 2006.
56.As to the ‘first injury’ said to have occurred as a result of the ‘nature and conditions’ of employment between 1 July 1993 and 26 April 2006, the Appellant again contends that Ms Auddino failed to give notice and make a claim in compliance with the provisions of the 1998 Act.
57.The giving of notice and making of a claim in relation to the ‘first injury’ i.e., the ‘nature and conditions’ claim was dealt with by the Arbitrator at paragraphs 71 to 81 inclusive of her ‘Statement of Reasons’. She stated as follows:
“(71)The next matters to be determined are the threshold issues of giving notice of the first injury within the time prescribed by section 254 and the making of a claim within the time prescribed by section 261.
(72)In a supplementary statement dated 24 May 2007, the Applicant stated that she had received from her solicitor opinions from Dr Endrey-Walder and Associate Professor Sheridan that the work she had done over the years had contributed to her condition. The Applicant stated that she first began aware of any connection between all the work she had performed over the years and her back injury was when she received those medical reports. She referred to discontinuing proceedings in February 2007 after the Respondent raised the issue of her not having filled out a claim form in relation to a ‘nature and conditions of employment’ claim. She stated that she was not aware until that date that a claim form had to be completed in relation to all the work that she had performed over the years of her employment with the Respondent.”
58.At paragraph 73 the Arbitrator set out the provisions of section 254 of the 1998 Act, and then stated at paragraph 74 as follows:
“(74) I have found that the deemed date of injury for the purposes of the claim for weekly compensation is 26 April 2006, being the date the Applicant’s incapacity in regard to the aggravation of the disease can be said to have arisen. It is alleged in the ‘Application to Resolve a Dispute’ that the Applicant gave notice to the Respondent on 20 November 2006. The Respondent did not contest this date in the hearing. In addition, Dr Endrey-Walder’s report dated 15 August 2006 was sent to the Respondent on 23 August 2006. The matters set out in the report would have provided the Respondent with knowledge of the first injury at that date. I am satisfied in all the circumstances that notice of injury was given by the Applicant to the Respondent as soon as possible after the injury happened. In any event, I would be satisfied that there were special circumstances in this matter as the failure to give notice of injury was occasioned by ignorance or other reasonable cause … I am not satisfied that the Respondent was prejudiced by the failure to give notice in this matter. Despite the passage of time since the injury, the Respondent was able to present its case thoroughly and had obtained a considerable amount of medical evidence to meet the claims by the Applicant.
(75) I therefore find that the Applicant is not barred from recovering compensation because of the effects of section 254 of the 1998 Act.
(77) The Applicant lodged her claim on the Respondent on 1 March 2007 and, therefore, section 261 applies.
(78) The next matter to be determined is whether the Applicant’s failure to make a claim for compensation within the time prescribed by section 261 of the 1998 Act was occasioned by ignorance, mistake, absence from the State or other reasonable cause.
(79) The Respondent submitted that the claim form was not in accordance with the Guidelines and requirements set out in section 260 of the 1998 Act … in my view the Applicant provided the minimum information required to make a claim as set out in Part 2.3 of the WorkCover Guidelines for Claiming Compensation Benefits.
(80) The Applicant submitted that she was not barred from making a claim if failure to make a claim for compensation within six months after the injury was occasioned by ignorance, mistake, or other reasonable cause. I accept the submission of the Applicant’s Counsel that she was not aware of the fact that the cumulative effect of her work duties over many years could constitute a separate injury until she had the benefit of the medical opinion of Dr Endrey-Walder and legal advice. I am satisfied on the evidence that she was ignorant as to one of the causes of her back injury and that her ignorance resulted in a failure to make a claim within six months of the deemed date of injury.
(81) … In my view, if the requirements of section 261(4) are satisfied in that the delay was occasioned by ignorance, or other reasonable cause and there is no requirement in the section to prove absence of prejudice in addition to the requirements of ignorance, mistake, absence from the state or other reasonable cause, then prejudice need not be taken into account in determining this issue.”
59.The Appellant’s counsel conceded that there was a claim form in respect of the ‘nature and conditions’ claim. The Appellant’s submissions on this issue focus more upon the Arbitrator’s treatment of the evidence. For example, the Appellant submits that “… the Arbitrator was in error in asserting that … the Appellant had knowledge of this alleged injury by reason of the contents of the report of Dr Endrey-Walder firstly because the report referred to does not make reference to injury having been sustained as a result of the nature and conditions of the Respondent’s worker’s employment from 1 July 1993 to 2006. Rather Dr Endrey-Walder records a history of the Respondent Worker’s employment over 24 years … and makes reference to a contribution to the Respondent’s condition by reason of her daily work activities over 24 years. In this matter the Respondent Worker did not seek to rely on a contribution from 24 years of employment but rather limited the period relied on to 1993 (excluding approximately 12 years of employment prior to that time).”
60.There was evidence in a number of reports that Ms Auddino had suffered an ‘episode’ of lower back pain in or about 1993 but, as Dr Cromb recorded in the report of 15 October 2004 that “… resolved spontaneously on NSAIDs”. No reference was made to this incident by Ms Auddino in her statement, and her recollection was that she “first suffered” an injury on 2 August 2004.
61.In a report dated 15 August 2006, Dr Endrey-Walder noted that Ms Auddino told him that she was “a fit and well lady who had no functional restrictions in the performance of her fulltime employment with the company until August 2004.” He also recorded:
“It was her recollection that ‘I was collecting eggs for a few months every day at that time (mid-2004), and for a few days had a sore back’, referring to late July, early August 2004. On 2.8.2004, ‘that day, it was really sore, I can’t do any more, so I report it’”.
62.In those circumstances, it was appropriate for Ms Auddino to confine her claim to the period nominated.
63.In any event, section 16 of the 1987 Act provides as follows:
“16(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of the disease –
(a)The injury shall, for the purposes of this Act, be deemed to have happened –
(i)At the time of the Worker’s death or incapacity …
(b)Compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration”.
64.As Ms Auddino submits, “… there is nothing inconsistent in Dr Endrey-Walder’s report with the primary evidence of the Respondent Worker as set out in the statements dated 15 August 2006 and 31 January 2007 which sets out the nature and extent of the work including repetitious nature of the work performed. The supplementary statement of the Respondent Worker sets this out in greater detail and this evidence was available to the learned Arbitrator when she made her findings”.
65.I do not propose to canvass in detail Ms Auddino’s statements in relation to her duties. Those statements support the Arbitrator’s conclusions (para 36) that:
“I accept the uncontradicted evidence of the Applicant concerning her work duties with the Respondent and am satisfied that the work she performed was heavy and arduous and required her to bend, stoop, frequently lift heavy weights, reach out and stretch into boxes and even move along on her knees at times”.
66.As I understand the Appellant’s submissions, no real issue is taken, certainly on this ground of appeal, as to Ms Auddino’s description of her work duties nor her perception of its contribution to her undoubted back condition. The principal issue raised is the giving of notice and the making of the claim.
67.In my view, there was ample evidence for the Arbitrator to conclude that Ms Auddino had complied with the relevant provisions of the 1998 Act and was not barred from pursuing her claim.
68.The Appellant concludes in its submissions as follows:
“Having regard to all of these matters the Appellant submits that the Arbitrator was in error in considering that jurisdiction had been established in respect of any injury other than what the Arbitrator has described as the third injury in paragraph 7.”
69.In line with the decision in Barrow to which I have referred, I reject this submission. The Arbitrator’s findings of fact on the issues raised by the Appellant in this ground of appeal was supported by the evidence, and I see no basis upon which I should disturb them .
70.I should also add that the Appellant takes issue with the manner in which the Arbitrator dealt with the issue of ‘jurisdiction’. The Appellant submits that the Arbitrator’s decision to first determine whether or not Ms Auddino received injury “… before determining the jurisdictional issues …” was an error. The Arbitrator adopted this approach in line with an earlier decision of the Commission stating at paragraph 26 as follows:
“In considering the threshold issues of giving notice of the first injury within the time prescribed by section 254 and the making of a claim within the time prescribed by section 261, I note that the approach preferred by Deputy President Fleming in Way v Newcastle City Council [2004] NSWWCCPD 17: ‘The better approach to the construction of these provisions is to first determine whether the worker suffered an ‘injury’, pursuant to section 4, and the nature of that injury (section 4(b)), and then to fix the dated [sic] of injury accordingly. The Application of section 261 of the 1998 Act may then be applied to the relevant facts, as found”.
This approach was entirely appropriate in the circumstances, and I see no ‘error’ in the Arbitrator’s manner of determining this issue.
The ‘Substantial Contributing Factor’ Issue
71.The Appellant submits that the Arbitrator erred in determining that Ms Auddino’s employment was a substantial contributing factor to her injuries in accordance with the provisions of section 9A of the 1987 Act.
72.The Appellant has provided lengthy and detailed submissions which essentially focus on the Arbitrator’s interpretation of the medical evidence.
73.The Appellant submits that:
“… The views of Dr Endrey-Walder should have been disregarded (having regard to the principles set out in Makita) or, in the alternative, that little or no weight should have been given to the opinion of Dr Endrey-Walder having regard to the inconsistency between the history given in his report and the opinion expressed in his report and the allegations actually made by the Respondent Worker in this matter.”
74.Once again, the Appellant takes issue with Dr Endrey-Walder’s reference to Ms Auddino’s 24 year period of employment with the Appellant. I have already addressed this issue to some extent in the preceding paragraphs noting, in particular, Ms Auddino’s assertion that she was essentially fit and well until August 2004.
75.Dr Endrey-Walder concluded as follows:
“Ms Auddino became significantly symptomatic in her lower back in the course of her egg collecting work at Inghams Enterprises on 2.8.2004.
She acknowledged that for a short period of time prior to that particular date she was gradually developing back ache, which she had associated with daily egg collections for months on end …
In April 2006 there was an acute aggravation of a lower back while reaching into a nest box, and within a few days she started experiencing leg pain, essentially into the left lower limb…
It is my opinion that the nature and conditions of this lady’s many years of work, most especially the daily egg collection, … would have to be considered as a very significant contributing factor to the multi-level and quite extensive spondylotic and disc degenerative changes.
Her symptoms had initially came to light during such a prolonged period of egg collection in mid-2004, but it was only after the more specific incident on 26.4.2006 that this lady developed sciatica into the left leg …”
76.Dr Endrey-Walder’s opinion was supported by Associate Professor Mark Sheridan, Ms Auddino’s treating neurosurgeon. In a report dated 20 October 2006 Dr Sheridan opined:
“… You have asked my opinion as to whether the years of employment she has had as well as her injuries in August 2004 and April 2006 have contributed to her condition. I would agree that it is more probable than not that her current condition is as a result of both her employment and the degenerative changes it has caused as well as the particular injuries”.
77.The references by the doctors to which I have referred to the various ‘years of employment’ are in my view adequate in the context of the principles set out in Makita (Australia) Pty Limited v Sprowles [2002] NSWCA 305.
78.The Appellant submits that “… Dr Sheridan does not express any view as to whether employment is a substantial contributing factor to the Respondent Worker’s injury and … the opinion of Dr Sheridan is predicated on reliance on ‘… the years of employment’ …” the period of which is not specified.”
79.This is in my view is an inappropriately narrow and restrictive interpretation of Dr Sheridan’s opinion. Whilst he does not express the precise terminology of section 9A, his opinion as to the ‘contribution’ of the impact of the nature and conditions of Ms Auddino’s employment on her condition is nonetheless valid, and was appropriately accepted by the Arbitrator in weighing the evidence on this issue.
80.The Appellant submits that “… there is no valid basis for the Arbitrator to criticise or to seek to diminish the opinion expressed in this regard by Dr Edwards and Dr Hitchen …” The Arbitrator’s Statement of Reasons is lengthy and detailed. She considered all of the medical evidence before her in detail at paragraphs 37 to 52 inclusive. Dr Kim Edwards and Dr Paul Hitchens were qualified on behalf of the Appellant. Dr Edwards in a report dated 26 April 2005 concluded that Ms Auddino’s complaints were due to the underlying degenerative changes in her lumbar spine which were of constitutional origin. In a supplementary report dated 19 July 2006, Dr Edwards noted that Ms Auddino had continued to work “on light duties” until 1 May 2006 when she ceased because of increased symptoms. He concluded: “It is not certain that her work has caused the aggravation of the underlying degenerative changes in her lumbar spine, but giving her the benefit of the doubt, I would expect any aggravation to last a period of time varying from a few days to three months.”
81.Dr Hitchens also noted significant degenerative changes. In a report dated 8 December 2006 he stated: “Mrs Auddino’s condition is not secondary to injury or aggravation. She would have developed such wide spread degeneration throughout her entire spinal column regardless of location or activity levels.” Dr Hitchens was of the view that the injuries claimed “… were rather trivial …”
82.In rejecting the opinions of Dr Edwards and Dr Hitchens in favour to the opinions of Dr Endrey-Walder and Associate Professor Sheridan, the Arbitrator stated (para 52):
“Dr Edwards and Dr Hitchens did not in my view take a detailed history of work duties performed by the Applicant and such a history would have been required to consider properly whether the Applicant sustained injury to her back and legs as a result of the nature and conditions of her employment between 1 July 1993 and 26 April 2006. Further, neither Dr Edwards and Dr Hitchens appears to have actually addressed the specific question of whether the Applicant sustained injury to her back and legs arising out of or in the course of employment with the Respondent as a result of the nature and conditions of her employment between 1 July 1993 and 26 April 2006”.
83.These are questions of fact, and the Arbitrator’s reasons for preferring some evidence over other evidence is both adequately and properly explained in her ‘Statement of Reasons’.
84.The Appellant’s submissions on this issue essentially focus on the shortcomings it perceives in the reports of Dr Endrey-Walder and Dr Sheridan. The Appellant urges that if the Arbitrator were to criticise the views expressed by Dr Edwards and Dr Hitchen:
“… By reference to the histories recorded it would then clearly be necessary to apply the same criticism (no more vehemently) to the views of Dr Sheridan having regard to the history (or lack of it) recorded in that doctor’s report of 20 October 2006. As indicated, those same criticisms could also be directed at the opinion expressed by Dr Endrey-Walder”.
85.This submission in my view amounts to no more than a complaint as to the Arbitrator’s acceptance of the medical evidence relied upon by Ms Auddino. As Deputy President Fleming said in Rania Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34, mere disagreement with the outcome of proceedings is not a proper basis for appeal.
86.The Appellant again makes further submissions on this issue in relation to the ‘time frame’ relied upon by Ms Auddino stating that:
“The Respondent Worker was engaged in the activities which are said to have been capable of causing or contributing to the Respondent Worker’s injury for approximately 12 years prior to that date and the fact that period of employment having been omitted is, in the submission of the Appellant, of particular relevance having regard to the provisions of subsection 9A(2) of the [1987 Act]”.
87.I reject that submission for the reasons stated previously. Moreover, I note that section 9A was introduced into the 1987 Act on 12 January 1997.
88.The Arbitrator dealt with this issue at paragraphs 53 to 66 inclusive of her ‘Statement of Reasons’. She concluded (para 56) that:
“… I am satisfied that the physical activities, that is the egg collection in August 2004 and the kneeling down and reaching out to put a wooden slat inside the back of a nest box on 26 April 2006, were substantial events or occurrences in the course of her employment and there was as causal connection between those injuries, that is, the second and third injuries and the work that she was required to perform”.
89.The Arbitrator went on at paragraphs 63 and 64 as follows:
“(63)In respect of the claim in relation to the injury to her back and legs arising out of or in the course of employment with the Respondent as a result of the nature and conditions of her employment between 1 July 1993 and 26 April 2006 I am satisfied on the evidence that the Applicant’s employment was a substantial contributing factor to the injury.
(64)Given the Applicant’s description of her work duties, I do not accept that the injury would have happened anyway at about the same time or the same stage of the Applicant’s life if she had not been at work with the Respondent. It is significant in my view that the Applicant had been symptom free apart from a brief episode in 1993 until 2004. I would also accept the Applicant’s submission that the Applicant was required to perform arduous and heavy work which required repetitive lifting, bending and stooping often in confined spaces.”
90.At paragraph 65 the Arbitrator set out in detail her reasons for preferring “… the evidence of Dr Endrey-Walder and Associate Professor Sheridan to the evidence of Dr Edwards and Dr Hitchens for a number of reasons …” The reasons given are extensive and I do not propose to repeat them verbatim, but they were appropriate and adequate in the context of the Arbitrator’s task. Indeed, I concur with her view that “… I find Dr Hitchen’s reasoning difficult to follow, and quite unpersuasive”.
91.Again, this was an issue of fact to be determined by the Arbitrator on the evidence available. There was ample evidence to support her conclusions, and I see no error by her in relation to this issue. The Appellant’s submissions, quite simply, do not demonstrate any error either of law, fact or discretion and merely amount to criticism of the Arbitrator’s treatment of the evidence.
The ‘Total Incapacity and Surveillance Material’ Issue
92.In the Appellant’s submission, “… The weight of the evidence … is to the effect that the Respondent worker is partially incapacitated for work only rather than totally incapacitated …”
93.In support of this submission, the Appellant relies on the reports of Dr Edwards and Dr Hitchens who both expressed the view that Ms Auddino suffers a partial incapacity.
94.It is appropriate at this point to consider the sixth ground of appeal, namely the Arbitrator’s alleged failure to have regard to the contents of a surveillance report dated 5 December 2006 annexed to the Appellant’s Reply.
95.At the outset, I accept the Appellant’s submission that the Arbitrator’s ‘Statement of Reasons’ does not disclose any reference to the surveillance material. It was clearly the subject of submissions by the Appellant’s counsel at the hearing (see page 34 transcript).
96.The surveillance material was clearly before the Arbitrator since it was annexed to the reply and reference is made to it in paragraph 14 of the ‘Statement of Reasons’. However, in my view, the Arbitrator has erred in failing to identify in the ‘Statement of Reasons’ whether or not this material was taken into account in assessing the issue of incapacity.
97.The Arbitrator’s reasons being silent on the issue, it is simply not possible to say whether or not this material was taken into account. It is an error, but not such that her decision ought be revoked. My powers on review, to which I have referred previously, are broad, and enable me to “reopen consideration of a matter”. In the present case, no video evidence was tendered, nor was Ms Auddino crossed examined on the contents of the surveillance report.
98.In those circumstances, I am of the view that it is appropriate for me to examine that material with a view to determining the “true and correct view” of the matter.
99.Surveillance was conducted on Ms Auddino on three occasions, 24 November 2006, 28 November 2006 and 30 November 2006. On the 24 and 30 November, Ms Auddino was not sighted. On Tuesday 28 November, observations commenced at 7:00am and concluding at 12:00noon. Over a period of less than an hour, Ms Auddino was observed to drive to a shopping centre, make some “small purchases” before returning to her vehicle and driving home. The report concluded that “Mrs Auddino walked freely and generally and did not display any obvious signs of pain or restriction in relation to her alleged injuries”.
100.The Arbitrator dealt with the issue of incapacity at paragraphs 84 to 97 inclusive of her ‘Statement of Reasons’. She set out in detail the medical evidence on this issue before quoting extensively from a number of authorities (paragraph 94) on the issue of ‘total incapacity’. The Arbitrator quoted at length from the decision of Mahoney JA in Lawarra Nominees Pty Limited v Wilson [1996] 26 NSWCCR 206. As His Honour said (page 213):
“The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work …
Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense ordinarily consider two questions: what is the relevant labour market, i.e., what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physical able to do?
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities, as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income … In assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work … The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged.”
101.The Arbitrator then went on to consider the evidence of Ms Auddino in her statement, noting as follows:
“(95) The Applicant’s evidence is that she attempted to return to work on suitable duties after the third injury on 26 April 2006 working four hours, two days per week for six weeks. She stated that her pain continued and she stopped work. She has not worked since. Her evidence, which I accept, was that she did not believe that she would be capable of going back and working for the Respondent even on a light duties basis. Medical reports and clinical notes revealed that the Applicant has been waiting for back surgery since December 2006.
(96) On balance, I find that the Applicant has been totally incapacitated for work since 4 August 2006 to date and such incapacity is continuing. In making this finding I have taken into account the fact that the Applicant was not able to work eight hours a week when she attempted to return to work after her injury on 26 April 2006. Further, given an ability to work even 8 hours a week, the fact that she has only been employed performing physical labouring type work for 24 years and having regard to the labour market in which she could be engaged, I am satisfied that for all intents and purposes that she is totally incapacitated for work …
(97) In reaching this finding, I have relied on the opinions of Dr Fong and Dr Cromb and to some extent on the opinions of Associate Professor Sheridan and Dr New. I have referred these opinions to those expressed by Dr Edwards and Dr Hitchens, as these were all opinions of treating doctors who in my view are in a better position to assess incapacity. In addition, I have placed less weight on the opinions of Dr Edwards and Dr Hitchens on the question of incapacity as they also felt that the Applicant did not suffer from any work related injury.”
102.The Arbitrator had previously acknowledged the Respondent’s submission that (para 93) “… There was no medical opinion that supported a finding of total incapacity”. The Arbitrator stated: “Whilst some doctors do not directly address the issue, there is certainly evidence from the treating general practitioners that would support a finding of total incapacity”.
103.There are a number of medical certificates included in Ms Auddino’s application, particularly from Dr Cromb, certifying her as unfit for work essentially from July 2006 to March 2007. Although neither Professor Sheridan or Dr New made any specific comment on Ms Auddino’s capacity for employment, both Doctors recorded restrictions and/or limitations in day to day activities.
104.Dr Endrey-Walder, in his report dated 15 August 2006, similarly made no specific comment on Ms Auddino’s capacity for employment however, he noted restrictions on physical examination, noting that:
“I believe that Ms Auddino suffers from neurogenic claudication, and this is the reason why her inability to walk longer distances or for longer periods of time is such an important feature of her symptom complex.”
105.I should point out, as the Appellant has similarly noted, that Dr Endrey-Walder recorded Ms Auddino’s complaints as including “walking aggravates, ten minutes is aggravated and I have to sit down, lie down … I can’t do much at home either, I can’t go shopping, I can’t mop. I wash the dishes, I do that.”
106.Those comments would, on the fact of it, appear to be inconsistent with the surveillance material however, I note in that material that on two occasions Ms Auddino was seen to touch her back. The surveillance operative concluded that she was simply “scratching” her back, but without benefit of the video, it is not possible to determine the accuracy of this observation.
107.Nonetheless, even accepting it at face value, the observations note that she was in two shops for a short period of time and paused between shopping. It was less than one minutes walk from the shopping centre to her car.
108.In all the circumstances, I am not persuaded that the surveillance report is compelling enough to interfere with the Arbitrator’s ultimate determination, notwithstanding Dr Endrey-Walder’s comments on Ms Auddino’s claimed restrictions.
109.It is now well established that if there is evidence upon which a primary finding of fact could be based, and that evidence is accepted, it is not open to challenge except in limited circumstances. (See Crown Glass & Aluminium Pty Limited v Ibrahim [2005] NSWCA 195).
110.In the present case, there was no dispute that Ms Auddino had at least a partial incapacity for employment, regardless of the issue of ‘injury’ within the meaning of the 1987 Act. The evidence from Ms Auddino’s treating doctors in particular was to the effect that she was significantly incapacitated and, as the Arbitrator pointed, was, at the time she ceased employment with the Appellant, unable to manage eight hours work per week.
111.In short, the Arbitrator’s ultimate findings on this issue were supported by the evidence and were open to her. The surveillance report was, in context, of limited probative value, and whilst the Arbitrator erred in failing to address it in her ‘Statement of Reasons’, on review, I am satisfied that that material would not have adversely influenced the outcome of the proceedings.
The ‘Witness’ Issue
112.The Appellant submits that “… the Arbitrator was in error in refusing to allow the Appellant to call expert evidence from Dr Ehrlich and was in error in refusing to admit the report of Dr Smith.”
113.This, the Appellant submits, “… was inconsistent with the requirements of Rules 15.2 and 15.3.
114.The Arbitrator dealt with this issue at paragraphs 15 to 17 inclusive, noting as follows:
“(15) The Respondent made an application to call Professor Ehrlich to give oral evidence in this matter. The Applicant objected to this application. Bryson JA in Aluminium Louvres & CeilingsPty Limited v Xue Quin Zheng [2006] NSWCA 34 noted that section 354 of the 1998 Act and other provisions give the present Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation. His Honour wrote: ‘The Arbitrator is in a good position to decide on and impose appropriate controls on the induction of evidence, by cross-examination or otherwise’.
(16) The Guideline for the Practice of the Conciliation/Arbitration Process 2007 provides that an Arbitrator is to determine if there is a need for oral evidence to be taken and that questioning or cross examination of witnesses is to be permitted in very limited circumstances and only if the Arbitrator was of the view that it is necessary to come to a decision.
(17) The application of the Respondent has been rejected by me on the basis that no report from Professor Ehrlich was admitted in the proceedings. The Rule 14.2 of the Workers Compensation Commission Rules 2006 provide that a party in proceedings may not call a witness to give oral evidence that has not been included in a document lodged and served as required by Rule 14.2(1). Although the Respondent argued that a report from Professor Ehrlich was filed and served in the proceedings, it would not be appropriate, in my view, for the Respondent to be given leave to call oral evidence from Professor Ehrlich. Granting leave in these circumstances would in effect enable the Respondent to avoid the application of the provisions of Regulation 43. I agree with the Applicant’s submissions to the effect that the granting of leave in this situation would not be consistent with the Commission’s rules and objectives. Finally, I should add that I was not persuaded that the calling of evidence from Professor Ehrlich was necessary in order for me to come to a decision in this matter.”
115.Ms Auddino filed her Application in the Commission on 13 April 2007. A previous application lodged with the Registrar on 31 October 2006 was discontinued in February 2007, apparently by consent.
116.The Appellant had sought to rely upon a number of medical reports used in prior proceedings. The Arbitrator considered the Appellant’s application (page 8 transcript) before concluding “I am of the view that the Respondent would be entitled to rely on forensic reports from a general surgeon and orthopaedic specialist in this matter. So the Respondent will need to nominate the reports that it seeks to rely on …”
117.The Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) came into effect on 1 November 2006. Rule 14.2 sets out procedures in relation to the calling of witnesses. I accept, in principal, the Appellant’s submission that Rule 14.2 entitles a party to call oral evidence of a witness provided certain procedures are complied with. Rule 15.2 and 15.3 to which the Appellant refers in its submissions deal with procedures before the Commission. Rule 15.2 provides as follows:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a)Evidence should be logical and probative,
(b)Evidence should be relevant to the facts in issue and the issues in dispute.
(c)Evidence based on speculation or
(d)unsubstantiated assumptions is unacceptable,
(e)Unqualified opinions are unacceptable.”
118.Rule 15.3 addresses “measures to assist parties” in the nature of the proceedings.
119.As the Arbitrator rightly pointed out, consistent with the decision of Bryson J to which she referred, she was in a position to determine the manner in which the proceedings were conducted and had a wide discretion to determine what information or evidence was required to adequately ‘inform’ her in making her determination in accordance with the 2006 Rules.
120.I am not persuaded that the Appellant has demonstrated that the Arbitrator either perversely or inappropriately exercised her discretion to refuse the Appellant’s application to call oral evidence from Professor Ehrlich.
121.The Appellant further submits that “… the Arbitrator was in error in excluding the evidence on which the Appellant wished to rely by reference to Regulation 43 in circumstances where the said Regulation did not have application to the reports of Dr Smith and Dr Ehrlich by reason of those reports relating to an application lodged with the Registrar prior to 1 November 2006 (as provided for in Regulation 48A(2)).
122.The Appellant notes in this regard that it was properly conceded that these reports related to the application previously registered by the Commission on 31 October 2006 in matter number 17464-06”.
123.Clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’) provides as follows:
“43(1)In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)A report referred to in sub-clause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)Where the injury has involved treatment by more then one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that speciality …”
124.The Arbitrator determined as follows (para 21):
“… I did not accept the Respondent’s argument that the reports of Doctors Edwards, Ehrlich and McGroder, being reports filed in earlier proceedings commenced before 1 November 2006 were admissible under the transitional provision. In my view, this was a matter that was commenced on 13 April 2007 and the transitional provisions as set out in Regulation 48A are not applicable in these proceedings.”
125.Clause 48A(2) provides as follows:
“The amendments made to this Part by the amending Regulation do not affect the use of a medical report in evidence in proceedings or as part of disclosure to an Approved Medical Specialist where the report relates to an application lodged with the Registrar prior to 1 November 2006.”
126.Clause 48A(3) provides:
“The amendments made to this Part by the amending Regulation apply to all claims or work injury damages threshold disputes lodged with the Registrar on and from 1 November 2006”.
127.In my view, the Arbitrator’s interpretation of the legislation was correct. Clause 48A(2) of the Regulation relates to “proceedings” where an application was lodged prior to 1 November 2006. Those proceedings were discontinued, and the proceedings relied upon were commenced on 13 April 2007.
128.I should note that ultimately the parties consented to the report of Dr McGroder being admitted. The reference to the reports of Professor Ehrlich were to those contained in earlier proceedings.
129.In summary, I can see no error by the Arbitrator in her determination on this issue.
The ‘Weight of the Medical Evidence’ Issue
130.The Appellant submits that: “… The Arbitrator was in error in weighing and considering the medical evidence …” having regard not only to its submissions in relation to earlier grounds of appeal but in respect of three other nominated issues.
131.Firstly, the Appellant submits that the Arbitrator’s preference for the opinions of Dr Endrey-Walder and Dr Sheridan allegedly on the basis of a “lack of a detailed history of work duties” in the reports of Doctors Edwards and Hitchen is inconsistent with what the Appellant alleges is a lack of detailed history provided by Professor Sheridan and an “inaccurate history” recorded by Dr Endrey-Walder.
132.Secondly, the Appellant submits that: “The assertion by the Arbitrator that Dr Sheridan was in a better position to assess the Respondent Worker’s injury … than either Dr Edwards or Dr Hitchen is … not supported by the evidence …”
133.Thirdly, the Appellant submits that “… the opinions expressed by Dr Edwards and Dr Hinchen were more consistent with what is disclosed in the clinical notes of the general practitioner Dr Cromb …”
134.I reject these submissions. They fail to demonstrate any error either of law, fact or discretion and amount to no more than criticism of the Arbitrator’s ultimate findings.
135.Dr Edward’s report of 21 September 2006 contained scant details of Ms Auddino’s duties, as did the report of Dr Hitchen of 8 December 2006.
136.By contrast, Dr Endrey-Walder obtained a fairly detailed history of her duties. Whilst I accept that Professor Sheridan’s report of 20 October 2006 does not specify Ms Auddino’s work duties, however, it is clear from Professor Sheridan’s conclusion that “… her current condition is as a result of both her employment and the degenerative changes it has caused as well as the particular injuries” that Professor Sheridan had some knowledge of those factors.
137.In any event, I accept Ms Auddino’s submission to the effect that:
“The Appellant misconstrues the correct test to be applied. The opinions expressed by Doctors Endrey-Walder and Sheridan need to be corroborated by any facts and those facts can be given in the histories to the doctors or by positive evidence such as the statement. It is therefore not relevant to consider whether the history was recorded.”
138.Similarly, I concur with Ms Auddino’s submission that “There is no evidence to support the proposition that Dr Edwards would have been in a better position than Dr Sheridan to assess the Respondent Worker.”
139.I am of the same view in relation to the third point raised by the Appellant. It is the Appellant’s submission that:
“What is recorded on that date [4 August 2004] in those clinical notes contradicts (rather than supports) the assertion of any injury on 2 August 2004 and is rather more consistent with recurrent back pain not specifically caused by or associated with any particular activity and rather consistent with the underlying canal stenosis.”
140.That is no more than a comment on the Appellant’s interpretation of the evidence. It does not disclose any error. In any event, as Dr Endrey-Walder recorded, it was Ms Auddino’s evidence that from approximately mid 2004 when she was “collecting eggs for a few months every day …”, she noted a sore back but that on 2 August 2004 “that day, it was really sore …”
141.That statement is consistent with the clinical notes and consistent with other evidence before the Arbitrator.
142.In my view, the Arbitrator’s ‘Statement of Reasons’ was both thorough and detailed, and clearly indentified the basis upon which she weighed the competing medical evidence in reaching her decision.
CONCLUSION
143.Other than the error in relation to the surveillance material to which I have referred, and which I have addressed on review, I am not persuaded that the Appellant has demonstrated that the Arbitrator has erred in her determination on any of the bases relied upon by it. There was ample evidence to support her findings of fact, and the Appellant’s challenge to these findings is unsubstantiated.
DECISION
144.The decision of the Arbitrator dated 11 July 2007 is confirmed.
COSTS
145.The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
22 November 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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