Jafari v Bartter Enterprises Pty Limited
[2004] NSWWCCPD 88
•15 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Jafari v Bartter Enterprises Pty Limited [2004] NSW WCC PD 88
APPELLANT: Mohammad Jafari
RESPONDENT: Bartter Enterprises Pty Limited
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC10573-2003
DATE OF ARBITRATOR’S DECISION: 16 October 2003
DATE OF APPEAL DECISION: 15 December 2004
SUBJECT MATTER OF DECISION: Compliance with Injury Management Plan.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Buttar, Caldwell & Company Solicitors & Barristers
Respondent: Rankin & Nathan Solicitors & Notaries
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
Background
On 13 November 2003 the Commission received an appeal from Mohammad Jafari against the decision of an Arbitrator dated 16 October 2003.
The Respondent to the appeal is Bartter Enterprises Pty Limited, located in Griffith in NSW. The relevant insurer is QBE Workers Compensation (NSW) Ltd. Mr Jafari worked for Bartter as a process worker.
The appeal concerns a claim by Mr Jafari for weekly benefits compensation for an injury he sustained to his lower back at work on 16 January 2003. He felt a sudden onset of pain in his lower back as he was stacking a pallet. He sought payments of weekly compensation from 17 March 2003, to date and continuing, for total incapacity for work.
The Insurer accepted liability and Mr Jafari was placed on a rehabilitation program as part of his injury management plan. Mr Jafari returned to work on light duties and Dr Moursi was nominated as his treating practitioner.
On 17 March 2003 Mr Jafari advised the Insurer that he had moved to Sydney because he was unhappy with the services he was receiving from Dr Moursi. Bartter indicated to Mr Jafari that his actions were inappropriate without consultation and advised him of his obligation to return to work at Griffith. On 26 March 2003 Bartter wrote to Mr Jafari advising that he was taken to have abandoned employment as he had failed to comply with the injury management plan.
The dispute about Mr Jafari’s entitlement to weekly workers compensation benefits went before an Arbitrator who found him to be partially incapacitated as a result of an injury to his back sustained at work. However the Arbitrator also found that Mr Jafari was not entitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management.
The issues in dispute on the appeal are:
· Was the Arbitrator wrong to find that a proper ‘Injury Management Plan’ was in place for Mr Jafari?
· Was the Arbitrator wrong to find that Mr Jafari unreasonably failed to comply with the ‘Injury Management Plan’?
· Did the Arbitrator take irrelevant consideration into account in reaching her decision that Mr Jafari unreasonably failed to comply with the ‘Injury Management Plan’?
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Leave to appeal is granted.
Fresh Evidence
Both parties have sought leave to adduce fresh evidence on the appeal.
Fresh or additional evidence may only be given on an appeal with the leave of the Commission (s352(6) of the Workplace Injury Management and Workers Compensation Act 1998) (the 1998 Act). Practice Direction No. 6 details how such an application for leave must be made, as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed
against, that party must serve a copy of the new evidence on the other parties to the
dispute when serving the Application or Opposition.In general, the Commission will allow new evidence to be introduced only where it
can be demonstrated that the new evidence could not reasonably have been
obtained by the party and tendered in proceedings before the Arbitrator and that
failure to allow the new evidence would cause a substantial injustice in the
circumstances of the individual case.”
Principles relevant to the exercise of the discretion to admit fresh evidence in proceedings before the Commission were discussed in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7. Factors weighing in favour of the exercise of discretion to admit fresh evidence in the appeal include: whether, if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted; whether the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, and whether the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case.
Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include: the interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings; the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and the intention of the legislative scheme in relation to the nature of the proceedings. In some cases the introduction of fresh evidence will effectively raise new arguments in the appeal (Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287). It is undesirable, and potentially unfair, to allow a party to effectively present a new and different case on appeal, to that which was before the primary decision-maker (see also Surgenor v Cenehill Pty Limited t/as Rocks Real Estate [2004] NSW WCC PD 4).
It is important to consider what opportunity the parties had to fully and fairly present their evidence. Compliance with the statutory workers compensation scheme should lead to particularization of a claim and the gathering of evidence to support or refute it early in the life of a dispute, well before an application to the Commission is contemplated.
Mr Jafari’s Application to Admit Fresh Evidence
Mr Jafari seeks to admit into evidence a medical report from Dr Qidwai, dated 5 November 2003. Mr Jafari had placed himself under the care of Dr Qidwai when he left Griffith for Sydney in March 2003. He submits that the fresh evidence refutes the unsubstantiated allegations of Ms Donna Fenson, his supervisor from Bartter, that she made reasonable, albeit unsuccessful, attempts to contact Dr Qidwai.
This dispute was before the Commission from June 2003 until October 2003, during which time a telephone conference and a face-to-face conciliation/arbitration were held. Ms Fenson filed a statement in the Commission dated 23 June 2003. I note that this statement makes no reference to efforts to contact Dr Qidwai.
The transcript of the proceedings is incomplete and contains no record of Ms Fenson’s oral evidence, although the Arbitrator’s reasons state that she gave oral evidence at the arbitration. The allegation that Dr Qidwai was unavailable to arrange an injury management plan is set out at paragraph 58 of the reasons. At paragraph 88 of the reasons the Arbitrator states that “Dr Qidwai indicated that he was prepared to be the nominated treating practitioner but does not take calls or provide any information about the Applicant’s prognosis or capacity for work”. She relies, in part, upon this evidence to support her view that it was not unreasonable for Bartter to require Mr Jafari to return to Dr Moursi or agree to find another doctor. There is no documentary evidence to support this finding by the Arbitrator. It may have been evidence given orally by Ms Fenson, of which there is no record because of the incomplete transcript.
I accept that Mr Jafari had ample time to obtain a report from Dr Qidwai for the purpose of the proceedings in the Commission. However the ‘fresh evidence’ Mr Jafari now seeks to have admitted is not a wide-ranging medical report as to his injury, but a letter from Dr Qidwai which essentially refutes the claim that he was not contactable by Bartters and the injury management team. From my review of the evidence I am satisfied that this was a matter raised only at the arbitration hearing. I do not know if Mr Jafari’s legal representative had an opportunity to challenge this evidence as the transcript is incomplete. In these circumstances I propose to allow the letter of Dr Qidwai, dated 5 November 2003, into evidence on the appeal.
Bartter’s Application to Admit Fresh Evidence
Bartter seeks to adduce fresh evidence in the form of correspondence to Mr Jafari, dated 20 February 2003, from Ms Marion Whisker, case manager for the Insurer. The correspondence is in the form of a letter from Marion Whisker purporting to enclose both the Injury Management Plan and a document titled “Some Information about your Injury Management Plan” (information sheet). Bartter claims that they did not receive Ms Whisker’s letter or the information sheet until 30 September 2003, which was after the arbitration hearing. Bartter submits that the correspondence “fully informs the worker of his obligations and rights under the Injury Management Provisions of the WIM Act”.
It is not clear why Bartter did not receive a copy of this letter prior to the Arbitrator issuing her decision. Correspondence before and after this date has been filed.
It is also not clear to me whether this correspondence was in fact before the Arbitrator in any event. The Arbitrator refers to the “Injury Management Plan from QBE dated 20 February 2003” as a document in evidence, filed by Bartter, but makes no express reference to the “Information Sheet” that accompanied the Injury Management Plan. This was seemingly sent to Mr Jafari under the cover of a single letter. In the circumstances I propose to allow the letter of 20 February 2003 from QBE Insurance, together with the information sheet about Mr Jafari’s Injury Management Plan into evidence in the appeal.
Was the Arbitrator wrong to find that a proper ‘Injury Management Plan’ was in place?
Mr Jafari submits that the injury management plan had no provision for the changing of the worker’s nominated treating doctor as required by section 47(6) of the 1998 Act. Mr Jafari argues that he was therefore entitled to change his nominated treating doctor to Dr Qidwai. He did so twice, firstly to Dr Tadros and second to Dr Qidwai.
Section 47 of the 1998 Act prescribes the worker’s obligations to injury management plans, as follows:
“47 Worker’s injury management plan obligations
(1) An injured worker must participate and co-operate in the establishment of an injury management plan required to be established for the worker.
(2) The worker must comply with obligations imposed on the worker by or under an injury management plan for the worker.
(3) The worker must, when requested to do so by the insurer, nominate as the worker’s treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan.
(4) A medical practice can be nominated as treating doctor for the purposes of subsection (3). Such a nomination operates as a nomination of the members of the practice who treat the worker from time to time and a reference in this Chapter to the nominated treating doctor is a reference to those members of the practice.
(5) The worker must authorise the worker’s nominated treating doctor to provide relevant information to the insurer or the employer for the purposes of an injury management plan for the worker.
(6) An injury management plan must provide for the procedure for changing the worker’s nominated treating doctor.”
This issue is a question of fact that is clearly resolvable by a review of the evidence. Either the ‘Injury Management Plan’ set out the procedure for changing the nominated treating doctor or it did not. The Arbitrator found that Mr Jafari “was well informed of his obligations to participate in the injury management plan” (at paragraph 82 of her reasons).
On 3 February 2003 ‘QBE Workers Compensation Insurance’ wrote to Mr Jafari and advised him, among other things, that he needed to nominate a treating doctor “whose role will be to coordinate your medical treatment, medical certification and return to work”.
On 10 February 2003 QBE again wrote to Mr Jafari, noting that Dr Den Houting was his nominated treating doctor and that “Under the legislation you are unable to change your nominated treating doctor except under exceptional circumstances, e.g. extended leave of doctor. If you believe that you have a valid reason for changing your nominated treating doctor, please contact me immediately”.
On 20 February 2003 QBE wrote to Mr Jafari with a copy of the ‘Injury Management Plan’ and attached document entitled ‘Information About Your Injury Management Plan’. This provided, among other things, that:
“Procedure for changing your Nominated Treating Doctor:
· Under section 47(6) of the Act, you are able to change your Nominated Treating Doctor only if you can present a valid reason for the change
· Before changing your nominated treating doctor, you must provide your case manager with a written letter formalising your request and detailing the reasons why you wish to change doctors
· Your case manager will provide a reply to your request to change Nominated Treating Doctor either by phone or letter. Note: You may not be paid weekly benefits if you submit medical certificates issued by any doctor other than your Nominated Treating Doctor.”
I am satisfied that the Arbitrator did not err in finding that the ‘Injury Management Plan’ clearly set out the procedure for changing the nominated treating doctor.
Was the Arbitrator wrong to find that Mr Jafari Unreasonably Failed to Comply with the Plan?
Section 57(1) of the 1998 Act provides that:
“If a worker fails unreasonably to comply with a requirement of this Chapter [including compliance with an injury management plan] after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).”
Section 57(2) of the 1998 Act provides that the worker must be given written notice before benefits are ceased.
The question of whether Mr Jafari has failed to comply with an injury management plan is a question of fact to be determined by the Arbitrator on the facts of each case (Betts v Prisk Contractors (2001) 22 NSWCCR 238). It is for Bartter to prove that Mr Jafari was not complying with the ‘Injury Management Plan’.
Mr Jafari submits that he was not required to continue with his post injury duties as Dr Qidwai had become his nominated treating doctor and had medically certified him as being totally incapacitated for work. Mr Jafari disputes the Arbitrator’s finding that there had been attempts by Bartter to contact Dr Qidwai to arrange an injury management plan. He argues that the letter from Dr Qidwai, dated 5 November 2003 and now in evidence, contradicts the finding by the Arbitrator that Dr Qidwai “did not function as a nominated treating practitioner [is] expected in the context required” under the 1998 Act.
Mr Jafari argues that he was entitled to seek a second opinion as he had lost faith in Dr Houting who stated that he would no longer see him after it became known to him that Mr Jafari had moved to Sydney and seen a doctor there. Mr Jafari submits that it was unreasonable for Bartter to subsequently send Mr Jafari back to another doctor in the same surgery.
I am not satisfied that the Arbitrator erred in finding that Mr Jafari had unreasonably failed to comply with his ‘Injury Management Plan’. The relevance and weight to be given to evidence is a matter solely for the Arbitrator. The facts found by the Arbitrator are sufficient to support the Arbitrator’s finding that Mr Jafari unreasonably failed to comply with the Injury Management Plan that had been devised for him. In this matter she found, on the basis of the evidence before her, that:
· He was “well informed of his obligations to participate in the injury management plan”.
· He was informed both verbally and in writing.
· English proficiency did not affect his understanding.
· He knew of his obligation to consult his doctor, insurer and employer in relation to return to work planning and did not consult any of them “at the relevant time”.
· There was no “objective evidence” of deterioration in his condition at the time Mr Jafari took action to change his doctor.
· Mr Jafari’s evidence in respect of his financial concerns “adds weight” that this was his primary motivation for seeking the second medical opinion.
· After becoming dissatisfied with his physiotherapy and medical treatment in Griffith, Mr Jafari did not give the agreed injury management process a chance to operate.
· Mr Jafari then made a unilateral decision to leave Griffith and become unavailable.
The Arbitrator also considered Mr Jafari’s claims as to the inadequacy of his treatment at the hands of Dr Moursi and Dr Den Houting. She was not satisfied that this was sufficient to justify his actions in going to Sydney for medical treatment from Dr Qidwai. It matters not that another decision-maker may have come to a different view of the facts. The Arbitrator was entitled to exercise her discretion to accept or reject evidence and come to her own view as to what comprised unreasonable non-compliance on the facts of this case (House v The King (1936) 55 CLR 499).
Dr Qidwai’s letter of 5 November 2003, admitted as fresh evidence on the appeal, is not of sufficient relevance and weight to disturb the Arbitrator’s findings. In relation to the issue of reasonable compliance, this letter does no more than assert that Dr Qidwai accepts calls from injury management teams and denies that he has not responded to calls in the past.
The Arbitrator also found that visa issues prompted Mr Jafari to move to Sydney for treatment and that one motivation for seeking an opinion from Dr Tadros was a fear of losing work as a casual. For the reasons discussed below, I am satisfied that these findings are not supported by logically probative evidence and are not matters which support her ultimate findings of liability. However, in my view, these matters, on their own, do not fatally effect the Arbitrator’s decision.
Did the Arbitrator take Irrelevant Considerations into Account in Reaching Her Decision?
Mr Jafari submits that there was no probative evidence to support the Arbitrator’s finding that Mr Jafari’s move to Sydney was due to the expiration of his visa. The Arbitrator appears to base this finding on the notes of Marion Whisker that Mr Jafari held a “misconception at the time that by being on workers compensation, he cannot be deported”. Mr Jafari argues that this theory was never put to him during cross-examination and it is inappropriate to accept the proposition absent of any direct evidence.
As the transcript is defective I cannot verify what occurred in cross-examination at the arbitration. The Arbitrator, in her reasons, purports to rely upon Ms Whisker’s comments for this finding. In my view such a finding is not sustainable on this evidence.
Mr Jafari further submits that there was no evidence that his motive for seeking the second opinion of Dr Tadros was due to his fear of losing work as a casual employee. Again, because the transcript is defective I cannot verify what occurred in cross-examination at the arbitration. The Arbitrator, in her reasons, refers to the apparent congruence of various facts to make such a finding as to Mr Jafari’s motivation, in the absence of any clear evidence that this was the case.
It may be that these findings were based, partly, upon an assessment of Mr Jafari’s credit, assessed on the basis of his evidence at the arbitration. The Arbitrator has not expressed this to be the case. In any event, it is not appropriate to set aside findings of credit on appellate review unless there is evidence that the Arbitrator’s discretion in relation to accepting or rejecting the evidence has miscarried (Abalos v Australian Postal Commission (1990) 171 CLR 167; Fox v Percy (2003) 214 CLR 118).
In my view the Arbitrator’s finding as to Mr Jafari’s motive for seeking a second opinion from Dr Tadros is also not sustainable on the evidence that was before her.
For the reasons outlined above I am satisfied that the Arbitrator did not err in exercising her discretion in relation to finding whether Mr Jafari “unreasonably failed to comply” with the injury management plan that was put into place following his injury. The irrelevant matters that were taken into account were not, when weighed against the other evidence, critical to her findings and are not such that, but for those matters, a different decision should have been made.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
15 December 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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