Inghams Enterprises Pty Limited v Siliva and Cord Industrial Recruiters Pty Limited

[2008] NSWWCCPD 9

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Inghams Enterprises Pty Limited v Siliva and Cord Industrial Recruiters Pty Limited [2008] NSWWCCPD 9

APPELLANT:  Inghams Enterprises Pty Limited 

FIRST RESPONDENT:  Ana Siliva

SECOND RESPONDENT:  Cord Industrial Recruiters Pty Limited

APPELLANT’S INSURER:  Inghams Enterprises Pty Limited (self insurer)

SECOND RESPONDENT’S INSURER:            QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC4491-07

DATE OF ARBITRATOR’S DECISION:          19 September 2007

DATE OF APPEAL DECISION:  21 January 2008

SUBJECT MATTER OF DECISION: Notice of injury and claim; jurisdiction; incapacity; adequacy of reasons for findings made; sections 4 and 9A of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Leigh Virtue & Associates 

First Respondent:  Thomas Booler & Co

Second Respondent: Moray & Agnew

ORDERS MADE ON APPEAL:  1.        Paragraphs 1 and 2 of the ‘Certificate

of Determination’ dated 19 September 2007 are confirmed.

2.        Paragraphs 3, 4, 5 and 6 are revoked.

3.The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.

4.   Costs of proceedings before the Arbitrator on 29 August 2007 between the Appellant and Ms Siliva are reserved pending the outcome of the redetermination.

5.   No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 5 October 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 19 September 2007.

2.The First Respondent to the appeal is Ana Siliva (‘the First Respondent/Ms Siliva).

3.The Second Respondent to the appeal is Cord Industrial Recruiters Pty Limited (‘the Second Respondent/Cord’).

4.Ms Siliva was born on 7 April 1955 in Samoa. She migrated to Australia in 1979.

5.In about November 1998 she commenced casual employment with Cord, a labour hire company, who sent her to work at the Appellant’s chicken factory in Hoxton Park. Although employed as a casual, Ms Siliva claims that she worked fulltime as a process worker at the Appellant’s factory.

6.Her duties with the Appellant involved various tasks on the production line. In an unsigned and undated statement annexed to her application, Ms Siliva claimed that:

“All jobs were done from a standing position … they also required rapid and repetitive hand and wrist usage … the packing required repeated carrying and bending when placing a loaded box onto the … conveyor …”

7.In about late 2001, Ms Siliva was transferred to the Appellant’s Tahmoor factory performing identical duties.

8.Ms Siliva claims that early in 2002, she began to notice “… intermittent aching in my neck, left wrist and back at the end of my days work”. She nonetheless remained at work performing her usual duties but claimed that “… the aching in my neck and left wrist did not settle but gradually became more persistent”.

9.Ms Siliva claimed that “… I did not report the problem or seek medical attention at the time…”

10.In June 2002 Cord apparently lost the contract to supply labour to the Appellant. From 17 June 2002, Ms Siliva commenced as a direct employee of the Appellant at its Tahmoor factory.

11.Ms Siliva claimed that on 9 August 2002 she suffered a fall at work whilst carrying a box of chicken pieces to the conveyer. She claimed that she felt “… immediate pain in my left foot, low back and bottom”.

12.Having apparently reported the incident to fellow employees, Ms Siliva continued at work but stated that “… my back pain became much more severe and persistent and began going down my left leg.”

13.Ms Siliva claimed that by February 2003 she was having considerable difficulties carrying out her duties and eventually consulted her treating general practitioner, Dr Soon, on 9 March 2003. She was put off work and has not resumed since.

14.Ms Siliva lodged a claim for compensation with the Appellant (as self insurer) on 27 May 2003.

15.On 30 June 2003 the Appellant wrote to Ms Siliva stating that “liability in respect of your claim has been denied” pursuant to the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) and in reliance upon a medical report of Dr R D Smith dated 24 June 2003.

16.On 19 June 2007, Ms Siliva filed two ‘Application[s] to Resolve a Dispute’ in the Commission. One Application named the Respondent to the proceedings as Cord, and the second Application, a “multiple employers” claim, named both the Appellant and Cord as Respondents.

17.Both Applications were heard together at a conciliation/arbitration hearing on 29 August 2007. No oral evidence was given, but all parties made submissions recorded in a transcript of that date.

18.Briefly, the Arbitrator found in favour of Cord, but made an award in favour of Ms Siliva as against the Appellant, in respect of her claim for weekly benefits from 10 March 2003. An award was made in Ms Siliva’s favour in relation to her claim for medical expenses, and her claims for lump sum compensation were referred to an ‘Approved Medical Specialist’ (‘AMS’) for assessment.

19.It is from this decision that the Appellant seeks leave to appeal.

20.On 19 November 2007, Cord filed a ‘Notice of Opposition to Appeal’. Cord simply states that:

“The Second Respondent adopts the submissions of the first Respondent … the Appellant does not seek to disturb the findings of the Arbitrator as set out in paragraphs 33 and 34 of the judgment [as to the liability of Cord] and as such the second Respondent submits that it can have no liability”.

21.No ‘Notice of Opposition’ or submissions have been filed by Ms Siliva.

THE DECISION UNDER REVIEW

22.The ‘Certificate of Determination’ dated 19 September 2007 records the Arbitrator’s determination as follows:

“1.I find for the Respondent Cord with respect to the Applicant’s claim against it.

2.There is no order as to costs of the Applicant with respect to the claim against the Respondent Cord.

3.There are awards for the Applicant against the Respondent Inghams as follows:

(c)Award for the Applicant with respect to her claim for weekly benefits at $672.00 weekly from 10 March 2003 to date and continuing;

(d)Award for the Applicant for s.60 medical treatment, care or related expenses upon production of accounts and/or receipts.

4.Award for the Applicant against the Respondent Inghams with respect to her claims for s.66 whole person impairment upon the following basis:

(a)The claims made for injury to neck, back, left leg, wrists and hands and anxiety and depression to be referred for assessment by an ‘Approved Medical Specialist’ referred by the Registrar; and,

(b)That such AMS assessment is to be on the basis of injuries received post – 1 January 2002 with respect to the injury incident of 9 August 2002 and as to a deemed date of injury of 27 May 2003.

5.The determination of the Applicant’s claim with respect to s.67 pain and suffering is consequently reserved.

6.The Respondent Inghams is to pay the Applicant’s costs as agreed or assessed.”

LEAVE TO APPEAL

23.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’).

24.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.

25.Leave to appeal is granted.

ON THE PAPERS REVIEW

26.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.”

27.Whilst initially stating that the appeal could be dealt with ‘on the papers’, the Appellant, in its submissions annexed to the appeal application claims as follows:

“The employer submits that this matter should not be determined ‘on the papers’ and should be the subject of an oral hearing. Whilst most appeals can be determined on the papers, it is submitted that this is a category of case which would justify an oral hearing where the parties can address and assist the Presidential Member in respect of the voluminous documents relevant to this matter.

The Appellant also reserves the right to add to or amend these submissions once a transcript of the submissions of the hearing before the Arbitrator becomes available”.

28.Cord submits that the matter is suitable for a determination ‘on the papers’.

29.I note that a copy of the transcript was forwarded to all parties by the Commission under cover of a letter dated 12 December 2007. No further submissions have been made by the Appellant as to why an oral hearing “should be” held, not withstanding a letter from the Appellant’s solicitor dated 9 January 2008.

30.As the Appellant would be aware, this issue was considered by the Court of Appeal in Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (‘Barrow’). As Mason P noted, “… the power is enlivened if the Commission ‘is satisfied that sufficient information has been supplied’”.

31.In the present case, it seems that the Appellant considers an oral hearing is necessary because of the “voluminous documents relevant to this matter”. No particulars are provided as to why the matter is a “category of case” justifying an oral hearing.

32.I do not consider that the documents are any more “voluminous” than in many other cases I have determined. My task is to consider whether I have “sufficient information” within the meaning of section 354(6) of the 1998 Act to determine the matter ‘on the papers’.

33.I am satisfied that I have sufficient information both within the meaning of section 354(6) of the 1998 Act and in accordance with Practice Directions Nos 1 and 6 to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.

THE ISSUES IN DISPUTE

34.The Appellant has identified seven grounds of appeal, claiming that the Arbitrator erred in determining:

“(a)     That the worker had either given notice of or duly made a claim in respect

of injuries to her neck, back, left leg, wrists, hands and psychological injuries.

(b)In failing to give any reasons, or any adequate reasons, as to why he determined that the notice and claim requirements under the Acts and Guidelines had been made and satisfied.

(c)The worker suffered injury to her neck, back, left leg, wrists, hands and psychological injuries either by way of any frank injury on 9 August 2002, or as a result of the nature and conditions of his [sic] employment, pursuant to s.4 and s.9.

(d)In failing to consider and give reasons as to why the worker had discharged her onus in proving that employment was a substantial contributing factor to any injury, pursuant to s.9A of the 1987 Act.

(e)In failing to make a determination as to incapacity (total or partial) and awarding weekly compensation at a rate in excess of that prescribed under sections 36, 37 and 40 of the 1987 Act..

(f)In making findings of credit throughout the decision favourable to the worker, in circumstances where the worker did not give any oral evidence at the hearing.

(g)Referring the permanent impairment claims to an AMS without making specific findings of dates [of] injury in respect of each of the injuries referred, nor making any apportionment of liability.”

THE REVIEW PROCESS

35.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, and in many subsequent decisions. I do not propose to reiterate those principles in detail. In short, the powers of a Presidential Member to revoke a decision pursuant to section 352(7) of the 1998 Act are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error, (See Allesch v Maunz (2000) 203CLR 172), and the error must be such that, but for it, different decision should have been made. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56).

These principles must be considered in determining the matter before me.

THE SUBMISSIONS, EVIDENCE AND FINDING

The ‘Incapacity’ and ‘Weekly Payments’ Issue

36.In the ‘Certificate of Determination’ dated 19 September 2007, the Arbitrator entered “awards” for Ms Siliva against the Appellant in the following terms:

“(c)     Award for the Applicant in respect of her claim for weekly benefits of

$672.00 weekly from 10 March 2003 to date and continuing …”

37.As the Appellant rightly points out:

“The Arbitrator does not identify the section under which such weekly payments are to be made”.

Such an award, expressed to be from 10 March 2003 “… to date and continuing …” is contrary to the provisions of the 1987 Act.

38.Moreover, it is not at all clear from the Arbitrator’s determination as to which particular injuries (and relevant dates thereof) are said to be incapacitating. In his ‘Certificate of Determination’, the Arbitrator, in dealing with Ms Siliva’s claim for lump sum benefits, stated that any assessment by an AMS:

“… is to be on the basis of injuries received post – 1 January 2002 with respect to the injury incident of 9 August 2002 and as to a deemed date of injury of 27 May 2003.”

39.The Arbitrator’s “Findings and Reasons” commence at paragraph 27 of the ‘Statement of Reasons’ dated 19 September 2007. Having considered the injury and nature of the claim, the issues in dispute, the medical and other evidence and summarising the parties’ submissions, he made the following observations:

“(28)I do not accept that the Applicant presents, on the papers or generally, as an applicant to be challenged as to integrity of presentation, or with respect to the claims made, either historically or generally in these proceedings.”

40.The Arbitrator then went on to consider the submissions made by the various parties noting in some detail the submissions as to the contribution made by Ms Siliva’s apparent obesity to her condition. The Arbitrator then considered the ‘disease’ provisions as contained in sections 15 and 16 of the 1987 Act before concluding as follows:

(34)“By reference to her presentation it is to the last employer to the nature of which the injuries are due that liability primarily falls. I accept, without detailing them all again, the arguments of the Respondent Cord, against the reliable medical background, that Ms Siliva’s presentation is one of distinct gradual onset, in respect of all her bodily and psychological injuries claimed, arising from the nature and conditions of her engagements, to the last of which Inghams was her employer until terminated in March 2003 …

(35)Super imposed upon that historic nature and conditions presentation, reliably as found, in my view of the balance of the evidence, attributable to her process work which has been accurately and forensically described in various parts of proceedings, was the fall incident at Inghams on 9 August 2002. All of this has been troubled to be set out and particularly described in earlier commentary”.

(36)In all respects, and with reference to the claims made by the Applicant in her ARD filed against Inghams, I found that she has discharged the requisite onus of proof.

(37)On reliable balance, I accept her personal and medical presentation and made in these proceedings as verifying, with reliable foundation, the findings following”.

41.The Arbitrator then went on to consider the issue of notice and date of injury (to which I will refer more fully below) before making the following finding:

(41)I find and determine that the Applicant has suffered workplace injury, including pursuant to s.4 of the Act, to all of the body parts claimed and psychologically, against the Respondent Inghams and to which, and for the Reasons stated, her employment with Inghams, with respect to both disease of gradual onset and to the distinct injury of 16 August 2002, was the substantial contributing factor.

(42)I find and determine that the Applicant has suffered a workplace incapacity in terms of the weekly benefits claimed which she has urged in these proceedings and the Award with respect to that follows:”

42.The Arbitrator’s decision and award commences at paragraph 47 of the ‘Statement of Reasons’.

43.The award of $672.00 per week appears to be based on a Wage Schedule filed by Ms Siliva in the proceedings before the Arbitrator.

44.The Appellant submits:

“… there is no basis to make such an award in this weekly amount … for the following reasons:-

(a)   The Arbitrator does not state or determine whether the worker is totally or partially incapacitated.

(b)   The worker does not allege any dependants.

(c)   There was no claim nor any determination pursuant to s.38.

(d)   The maximum statutory rate for a single worker from 10.03.03 [sic] to date is at all times less than $365.00 per week”.

45.Moreover, as the Appellant rightly submits:

“If the worker was found to be partially incapacitated, then the Arbitrator has failed to carry out an appropriate assessment according to the principles set out Mitchell v Central West Health Service (1997) 14 NSWCCR 527)”.

46.I accept the Appellant’s submissions. If the award was intended to reflect a finding of total incapacity, it is wrong in law having regard to the provisions of section 36 and 37 of the 1987 Act. There is simply no analysis by the Arbitrator of the evidence on this issue, let alone any finding as to the nature of the “work place incapacity”.

47.The Arbitrator’s finding seems somewhat inconsistent with his earlier statement (para 24) that:

“The Applicant contends that she cannot return to work doing the process work for which she had previously been customarily engaged”.

48.That suggests, as the Appellant submits, “… that there may be employment other than process work for which the Applicant has a capacity”.

49.There is simply no further comment by the Arbitrator on this issue such that it is impossible to determine on what basis his “award” in favour of Ms Siliva was made.

50.Commission Arbitrators have a statutory obligation to provide adequate reasons for a decision. The parties are entitled to a sufficient explanation as to why an order is made. As Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10NSWLR 247:

“The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted … It is necessary that the essential grounds upon which the decision rests should be articulated”.

51.The Arbitrator’s findings and reasons on the issue of ‘incapacity’ are manifestly inadequate, and accordingly, his decision must be set aside.

52.In these circumstances, it is not necessary to consider in detail the other grounds of appeal raised by the Appellant however, it is appropriate that some comment be made.

The ‘Notice’ and ‘Claim’ Issue

53.The issue of jurisdiction and the giving of proper notice and duly making a claim was also considered at length by the Court of Appeal in ‘Barrow’. Notwithstanding that decision, the Appellant submits that in the present case, “… the failure by the worker to give proper notice and duly make a claim in accordance with the Acts and Guidelines should have resulted in the Arbitrator declaring the proceedings a nullity and striking them out.”

54.The resolution of such issues depends on the facts and circumstances in each particular case. In the present case, I am of the view that there are good reasons for the Appellant’s concern. Ms Siliva in her statement to which I have referred previously acknowledged that she had not formally notified the Respondent nor made a claim in relation to her complaint of symptoms in her back, neck and left wrist commencing in about early 2002. She completed a claim form in relation to the incident on 9 August 2002 on 27 May 2003.

55.In dealing with this issue, the Arbitrator simply stated:

“(4)I am satisfied that the Applicant has notified the Respondents of the injuries. I have determined for the reasons given at the Arbitration that the claims are duly made and that the Commission has the jurisdiction to hear and determine them.”

56.The issue was considered by the Arbitrator at pages 4 and 5 of the transcript following submissions by counsel for the Appellant and for Ms Siliva. The Arbitrator’s comments were somewhat global and focused on the lengthy history of the claim. The Arbitrator concluded (page 5):

“I do not prefer the submissions submitted, respectfully, I say, on behalf of the Respondent Inghams, and I do not accordingly favour any ruling that the claim as made by the Applicant and as filed, and comprehensively filed, is not duly made. I determine that the claim so far as the threshold submissions are concerned is to that extent duly made as filed”.

57.No reasons were given for this determination. The Appellant’s application was rejected essentially on the basis that no notice of it had been made prior to the date of the Arbitration hearing and that in line with the obligations of the Commission as set out in section 354 of the 1998 Act, the Appellant’s application that the claim be dismissed was refused.

This issue should be considered in light of the Court of Appeal decision in Barrow.

The ‘Injury’ Issue

58.The Appellant has made detailed submissions in relation to the Arbitrator’s finding that Ms Siliva suffered a frank injury on 9 August 2002. These submissions deal principally with what the Appellant describes as “… the complete lack of any contemporaneous reporting by the worker of any injury …”. Detailed submissions are made on the medical evidence and I do not propose to canvass that in detail, but extensive submissions were made in relation to the clinical notes produced  by the Campbelltown Mall Medical Centre, where no reference is made to that injury in attendances covering the period 27 January 2001 to 24 March 2003.

59.These are issues of fact to be determined however, both counsel for the Appellant and Cord made detailed submissions to the Arbitrator on this point.

60.No reference is made to this material by the Arbitrator in his ‘Statement of Reasons’, the Arbitrator simply concluded (para 36):

“In all respects and with reference to the claims made by the Applicant in her ARD filed against Inghams, I found that she has discharged the requisite onus of proof.”

61.As noted earlier, the Arbitrator then concluded that (para 41): “I find and determine that the Applicant has suffered workplace injury …”

62.I accept the Appellant’s submission that the Arbitrator has failed to give adequate reasons in relation to his findings on ‘injury’, but given my previous determination, I do not propose to comment further on this aspect of the appeal.

Additional Issues Raised on Appeal

63.The Arbitrator’s consideration of the impact of section 9A of the 1987 Act is scant indeed. His conclusion in paragraph 41 to which I have referred previously does not adequately address this issue contrary to his obligation to provide adequate reasons for the findings and orders made.

64.I am of the view that there is some merit in the Appellant’s complaint with respect to the Arbitrator’s findings on “credit” issues in favour of Ms Siliva particularly in circumstances where there was a live issue between the parties not so much as to the occurrence of the incident in August 2002 but as to its consequences. The clinical notes to which I referred previously similarly have some bearing on this issue.

65.The Arbitrator’s referral of Ms Siliva’s claims for permanent impairment compensation is again flawed since the Arbitrator has failed to identify, as the Appellant submits, “… what injuries flowed from each of the determined dates of injury”.

THE SECOND RESPONDENT’S SUBMISSION

66.In its ‘Notice of Opposition’ Cord points out that:

“The Appellant does not seek to disturb the findings of the Arbitrator as set out in paragraphs 33 and 34 of the judgment and as such the Second Respondent submits that it can have no liability.”

67.The Arbitrator found in favour of Cord, and no challenge is made by the Appellant on appeal to this finding. Although reference was made in the Appellant’s submission to the issue of “apportionment”, the Appellant’s submission on this point is confined to the Arbitrator’s alleged failure “… to apportion the many body parts claimed between the frank injury and the deemed date of injury …”

68.Thus the Arbitrator’s finding in favour of Cord should stand.

CONCLUSION

69.The Arbitrator’s consideration of the issue of incapacity was fundamentally flawed for the reasons stated such that his decision ought be set aside. The Arbitrator’s reasons in many respects were inadequate and failed to properly apprise the parties of the basis for his findings and orders.

70.I do not consider that this is an appropriate case for me to substitute my own decision as permitted by Section 352 of the 1998 Act. It is appropriate that the matter be remitted to another Arbitrator for redetermination in accordance with these reasons.

DECISION

71.(a)         Paragraphs 1 and 2 of the ‘Certificate of Determination’ dated 19 September 2007

are confirmed.

(b)Paragraphs 3, 4, 5 and 6 are revoked.

(c)The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.

(d)Costs of proceedings before the Arbitrator on 29 August 2007 between the Appellant and Ms Siliva are reserved pending the outcome of the redetermination.

COSTS

72.I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

21 January 2008

I, MELANIE CURTIN, 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