ISS Property Services Pty Ltd v Abdou
[2017] NSWWCCPD 28
•4 July 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | ISS Property Services Pty Ltd v Abdou [2017] NSWWCCPD 28 | |
| APPELLANT: | ISS Property Services Pty Ltd | |
| RESPONDENT: | Ahmad Abdou | |
| INSURER: | ISS Property Services Pty Ltd | |
| FILE NUMBER: | A1-761/17 | |
| ARBITRATOR: | Ms C McDonald | |
| DATE OF ARBITRATOR’S DECISION: | 10 May 2017 | |
| DATE OF APPEAL DECISION: | 4 July 2017 | |
| SUBJECT MATTER OF DECISION: | Absence of transcript of extempore reasons for decision; statutory duty to give reasons; s 294 of the Workplace Injury Management and Workers Compensation Act 1998; r 15.6 of the Workers Compensation Commission Rules 2011; constructive failure to give reasons | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Bartier Perry |
| Respondent: | Masselos & Co Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Senior Arbitrator’s determination of 10 May 2017 is revoked. 3. The matter is remitted to another Arbitrator for determination afresh. | |
INTRODUCTION
This matter concerns whether an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) can proceed in the absence of a transcript of the Senior Arbitrator’s extempore reasons for decision.
BACKGROUND
Mr Abdou, the respondent to the appeal, was employed by the appellant, ISS Property Services Pty Ltd (ISS), as a cleaner.
On 29 November 2013, Mr Abdou was emptying garbage bins into a trolley. By reason of the fact that an hydraulic lift attached to the trolley was out of service, Mr Abdou was required to physically lift the load into the trolley. He alleges that, in the course of doing so, he sustained an injury to his back. Mr Abdou also claims that the general nature and conditions of his employment involving repetitive and excessive lifting emptying garbage bags, vacuuming, sweeping, and using a blower aggravated a disease process in his lower back.
On 4 February 2014, Mr Abdou made a claim of injury to his back on 29 November 2013. He described the injury to have occurred while “lifting heavy box” and “cleaning rubbish”.
On 27 February 2014, ISS issued a notice under s 74 of the 1998 Act. It declined liability on the basis that Mr Abdou suffered from a pre-existing condition and had not suffered an injury arising out of or in the course of his employment.
On 16 February 2017, Mr Abdou lodged an Application to Resolve a Dispute in the Commission (the Application). He sought weekly compensation from 27 February 2014 to 27 May 2014. He also sought hospital and medical expenses of, and incidental to, a laminectomy and spinal fusion operation performed by Dr Darwish on 18 September 2015. In addition, he claimed lump sum compensation in the sum of $40,425 in respect of a 23 per cent whole person impairment, pursuant to s 66 of the Workers Compensation Act 1987.
On 9 March 2017, ISS filed a reply to the Application declining liability for the reasons stated in its s 74 notice.
On 8 May 2017, the matter came before a Commission Arbitrator for a conciliation and arbitration hearing. No oral evidence was called. The Senior Arbitrator reserved her decision.
On 10 May 2017, the Senior Arbitrator convened a telephone conference and delivered her reasons for decision orally. The Senior Arbitrator found in favour of Mr Abdou. On that same day, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. The respondent is to pay the applicant weekly compensation at the rate of $717.25 per week from 27 February 2014 to 27 May 2014 pursuant to s 36 of the Workers Compensation Act 1987.
2. The respondent is to pay the applicant’s s 60 expenses, including the expenses of and incidental to surgery undertaken by Dr Darwish on 18 September 2015.
3. I remit the matter to the Registrar for referral to an Approved Medical Specialist to assess the Applicant's permanent impairment as a result of an injury to his lumbar spine on 29 November 2013.
4. The following material is to be sent to the AMS:
(a)the Application to Resolve a Dispute, omitting the reports of Dr Endrey-Walder dated 22 May 2014 and 15 June 2016;
(b)the Reply, and
(c)the applicant’s Application to Admit Late Documents dated 6 April 2017.”
ISS appeals the Senior Arbitrator’s determination.
THRESHOLD ISSUES
There is no issue that the threshold requirements of ss 352(3) and (4) of the 1998 Act are satisfied.
INTERLOCUTORY
Section 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
ISS submits that the Senior Arbitrator’s determination of 10 May 2017 is not interlocutory because it finally disposed of the rights of the parties. In particular, it disposed of Mr Abdou’s rights in relation to whether or not he sustained an injury and in relation to his entitlement to weekly compensation and medical and related expenses. It submits that the test in Licul v Corney [1976] HCA 6; 180 CLR 213 is satisfied.
To the extent that the decision of the Senior Arbitrator may be seen as interlocutory (in so far as the claim for lump sum compensation is concerned), ISS submits that it is appropriate to grant leave to appeal on the basis that the determination of the appeal is necessary or desirable for the proper and effective determination of the dispute. Namely that, if the appeal is allowed the remitter for referral to an Approved Medical Specialist (order [3] of the Certificate of Determination of 10 May 2017) would not be necessary.
Mr Abdou supports ISS’s submissions on this issue.
Order [3] of the Certificate of Determination is an interlocutory decision, in that it requires a further step, namely a referral to an Approved Medical Specialist before final orders can be entered. However, the Senior Arbitrator’s orders with respect to the findings on injury and entitlement to weekly compensation and medical expenses are final.
Although order [3] is interlocutory, I am of the opinion that it is necessary and desirable for the proper and effective determination of the dispute that leave be given for the appeal to proceed. I therefore grant leave for the appeal to proceed.
ABSENCE OF TRANSCRIPT
Due to an administrative error, the Senior Arbitrator’s oral reasons for decision were not recorded and no transcript of the reasons is available.
GROUNDS OF APPEAL
ISS submits that the Senior Arbitrator erred in law by:
(a) incorrectly determining that it did not, in its s 74 notice dated 27 February 2014, dispute that Mr Abdou sustained an injury on 29 November 2013;
(b) incorrectly disregarding its submissions that Mr Abdou did not sustain an injury on 29 November 2013;
(c) failing in her duty to give proper and adequate reasons for the determination and decision, and
(d) accepting the opinion of Dr Fearnside (which opinion was premised on an acceptance that the worker’s lumbar spine was asymptomatic) without reconciling that with the history recorded by Dr Darwish. To the extent that the Senior Arbitrator rejected the history recorded by Dr Darwish she erred in doing so.
ISS also alleged that the Senior Arbitrator erred in fact by accepting that Mr Abdou was asymptomatic in respect of his lumbar spine prior to 29 November 2013.
THE ABSENCE OF TRANSCRIPT OF THE SENIOR ARBITRATOR’S EXTEMPORE DECISION
Submissions
ISS’s submissions
ISS submit that the proceedings were the subject of arbitration on 8 May 2017 when both parties made submissions and on which occasion the Senior Arbitrator reserved her decision.
On 9 May 2017, the Commission informed the parties (by email) that the Senior Arbitrator would deliver an oral decision at a teleconference to be convened at 9.00 am on 10 May 2017.
On that occasion Mr Abdou was represented by his solicitor, Mr Panaretos, and ISS by its solicitor, Mr Tan.
ISS’s legal representative sent an email request to the Commission for a transcript of the reasons for the Senior Arbitrator’s determination of 10 May 2017. After further email exchanges the Commission advised by return email on 15 May 2017 that:
“I am sorry to say that the decision wasn’t recorded by the teleconference company. In this case, it was because it was not noted on the TC request for[m] that the conference was to be recorded. I am sorry for the inconvenience.”
ISS submit that it has the benefit of some notes of the Senior Arbitrator’s determination made by Mr Tan. It is on the basis of those notes and the recollections of counsel for ISS, Mr Doak, that ISS’s submissions have been prepared.
ISS also submit that the absence of recorded reasons is such that it is not able to properly determine the adequacy or otherwise of the Senior Arbitrator’s reasons. It is also unable to determine whether there has been proper compliance with the obligation to provide reasons set out in s 294 of the 1998 Act.
ISS further submit that the absence of the recorded reasons amounts to a constructive failure to give reasons which is an error of law (Recyclit Enviro Chutes Pty Ltd vAxisa [2016] NSWWCCPD 41 (Axisa)).
ISS finally submit that the Senior Arbitrator’s determination of 10 May 2017 should be revoked and the matter remitted to another Arbitrator to re-determine.
Mr Abdou’s submissions
Mr Abdou agrees with ISS’s submissions that the Senior Arbitrator erred in law in that she failed in her duty to give proper and adequate reasons for her determination and decision.
Mr Abdou concedes that the appeal should be allowed and the determination of the Senior Arbitrator dated 10 May 2017 should be revoked. He submits that the matter should be remitted to the Registrar to be determined by another Arbitrator.
Consideration
The statutory requirement to provide a statement of reasons is found in s 294 of the 1998 Act. Section 294 of the 1998 Act provides:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
The matters to be included in a statement of reasons are governed by r 15.6 of the Workers Compensation Commission Rules 2011. It is in the following terms:
“(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
In Axisa, an appeal dealing with similar circumstances, I held that the absence of the recorded reasons for decision amounts to a constructive failure to give reasons as required by s 294 and r 15.6. As both parties have submitted, it must be accepted that the Senior Arbitrator erred in failing to provide adequate reasons for the decision: Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47; Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14, and K-Mart Australia Ltd v Falzon [2006] NSWWCCPD 283.
Whilst it is highly regrettable, in the circumstances, I find that the Senior Arbitrator erred in failing to provide reasons for the determination as required by s 294 and r 15.6. It follows that the appeal must be upheld and the matter remitted to another Arbitrator to be heard and determined afresh.
In the circumstances, it is unnecessary for me to consider the remaining grounds of appeal.
ORDERS
Leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
The Senior Arbitrator’s determination of 10 May 2017 is revoked.
The matter is remitted to another Arbitrator for determination afresh.
Judge Keating
President
4 July 2017
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