Jayola Pty Ltd trading as Harvey Norman Computers v Bell
[2006] NSWWCCPD 192
•21 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Jayola Pty Ltd t/as Harvey Norman Computers v Bell [2006] NSWWCCPD 192
APPELLANT: Jayola Pty Ltd t/as Harvey Norman Computers
RESPONDENT: Anthony Dixon Bell
INSURER:QBE Workers Compensation
FILE NUMBER: WCC 17972-05
DATE OF ARBITRATOR’S DECISION: 15 March 2006
DATE OF APPEAL DECISION: 21 August 2006
SUBJECT MATTER OF DECISION: Absence of transcript
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: MRM Lawyers
Respondent: QBE Legal Sydney
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 15 March 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order is made as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 April 2006 Jayola Pty Ltd t/as Harvey Norman Computers (‘Harvey Norman Computers’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 March 2006.
The Respondent to the Appeal is Anthony Dixon Bell (‘Mr Bell’).
Mr Bell was born on 4 January 1957 and is 49 years of age. At the time of the arbitration hearing he was separated and claimed two dependent children.
Mr Bell commenced employment with Harvey Norman Computers in October 1993 and was employed full-time as a sales person.
Whilst employed by Harvey Norman Computers Mr Bell suffered a number of injuries, the first being to his left knee on 28 May 1997. After several months off work and in receipt of weekly payments of compensation, Mr Bell returned to the same job, although he continued to have problems with his left knee.
On 22 September 1998 Mr Bell injured his neck, left shoulder, left arm and right arm whilst at work with Harvey Norman Computers. He continued working and in May 2000 suffered further injury to his left arm, left elbow and left shoulder.
Mr Bell stopped work due to his injuries in late November 2000 and his employment was terminated on 9 January 2001. Except for a period of one month in late 2001, he has remained off work. Payments of weekly compensation were made by the insurer of Harvey Norman Computers until 23 August 2005, liability being denied on 13 July 2005.
Proceedings were commenced in the then Compensation Court on 8 May 2001 which resulted in a settlement for lump sum compensation in respect of Mr Bell’s neck, left arm at or above the elbow, left leg at or above the knee and pain and suffering.
On 20 October 2005 proceedings were registered in the Commission for weekly compensation, medical expenses and additional lump sum compensation in respect of the right arm at or above the elbow and pain and suffering.
On 28 February 2006 there was an arbitration hearing and Harvey Norman Computers have appealed from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 March 2006 records the Arbitrator’s orders as follows:
“1.The Applicant is totally incapacitated for work as a result of his injuries from 14th July 2005 and continuing.
2.The Respondent is to pay weekly payments of compensation from 14th July, 2005 to 30th September, 2005 at the rate of $474.90 per week and from 1st October, 2005 and continuing in accordance with the Act, the maximum statutory rate for a worker and two dependant children, the current rate being $484.60 per week.
3.The Respondent is to pay the Applicant’s Section 60 expenses upon production of accounts and/or receipts.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
“1.The Arbitrator erred in fact in finding that the Respondent/Worker was totally incapacitated for work when this finding was against the evidence and the weight of the evidence; and
2.The Arbitrator erred when he failed to provide adequate reasons for his decision and such failure has materially effected the outcome of the matter.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Mr Bell submits that the matter can be dealt with ‘on the papers’, whilst Harvey Norman Computers submit the appeal should be by way of oral hearing, particularly as there is no transcript in the matter.
Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, 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. I have taken into account that the obligation on the Presidential Member is to review the decision, not conduct a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD6; Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD7).
LEAVE
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. As the appeal involves an ongoing award of weekly compensation, backdated to July 2005, the amount at issue clearly meets the threshold test in section 352(2) of the 1998 Act and I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence.
REVIEW
Although it appears the arbitration hearing was recorded by the Arbitrator, the Registrar has not been able to retrieve the sound file and accordingly there is no transcript.
On 18 May 2006 the Registrar wrote to both parties advising that they were experiencing difficulties with retrieving the sound file.
Having not received a copy of the transcript, Harvey Norman Computers wrote to the Registrar on 16 June 2006 asking for an up-date on the situation. On 22 June 2006 the Registrar replied to Harvey Norman Computers that the transcript is not available.
On 20 July 2006 Harvey Norman Computers filed further submissions in reply to the submissions of Mr Bell, indicating that they were necessary due to there being no transcript. Harvey Norman Computers submitted that the award in favour of Mr Bell should be set aside and the matter referred to another Arbitrator for a “re-hearing de novo”. Alternatively it is submitted that the hearing of the appeal should be an oral hearing.
Although not specifically submitting on the absence of the transcript, Mr Bell in his response to Harvey Norman Computers’ submission that the Arbitrator’s finding was against the evidence and the weight of the evidence submits:
“The arbitrator refers to the fact that “Both counsel gave careful and helpful analysis of the medical reports” and the arbitrator’s findings must be read in that light; that clearly is the context in which they have been expressed. Consequently, it is inappropriate to arrive at any criticism of the arbitrator’s conclusions on the medical issues, or generally of his statement of reasons, without the benefit of a transcript of the entire proceedings, including submissions.”
As Deputy President Fleming said in Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD47 (‘Sartor’s case’):
“The absence of a transcript of the Arbitration may be fatal to the conduct of a fair review on appeal where no written reasons have been provided.”
In this case the Arbitrator has provided a Statement of Reasons for Decision, unlike the situation in Sartor’s case where there was no transcript of both the oral evidence and the Arbitrator’s ex tempore decision.
In Sartor’s case the matter was remitted to the Arbitrator to give reasons and thereafter a further appeal decision was delivered where Deputy President Fleming stated in Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD79:
“The fundamental problem for the review of the Arbitrator’s findings as to the relative weight to be given to the evidence is that he did not have all of it before him, nor did he have a clear recall of the evidence, when writing the reasons. This is not to say that the decision is against the weight of the evidence, but rather that on review I cannot be satisfied that it is not. The Appellant has the burden of proving that the Arbitrator made an error in failing to make the decision on the basis of logically probative evidence.”
The issue was further considered by Deputy President Fleming in Thompson v Expamet Pty Limited [2005] NSWWCCPD14 (‘Thompson’s case’). In that case Deputy President Fleming stated that:
“Where reasons are given ex tempore and there is a failure to make any record of those reasons, the reality is that the parties do not have a record of the reasons, the Commission does not have a record of the reasons, and there is no record of the reasons for the purpose of review by a Presidential Member. This amounts to a constructive failure to give reasons, as required by section 294 and Rule 73. It matters not whether this failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure. Ultimately, it must be said that the Arbitrator erred in failing to provide reasons for decision.”
Again the situation in Thompson’s case was different in that there was no record of the Arbitrator’s reasons.
In this matter the grounds of appeal, as stated above, are that the finding was against the evidence and the weight of the evidence and that the Arbitrator failed to provide adequate reasons.
At the arbitration hearing both parties were represented by Counsel. The Statement of Reasons are brief and it is clear that the Arbitrator in reaching his decision took into account the submissions of Counsel for both parties. At paragraph 37 of the decision the Arbitrator stated:
“Both Counsel gave careful and helpful analysis of the medical reports. On balance it appears to me that, after considering all of the medical opinion and evaluating the Applicant’s evidence before me, he has developed a psychological condition as a result of his injury which developed after his initial injuries. This condition significantly impacts upon his symptoms.”
At paragraph 38 the Arbitrator stated:
“My evaluation of the Applicant is that although he was exaggerating his symptoms, this was as a result of his psychological injury and specifically his depression. It may be that the Applicant’s depression and psychological difficulties are not totally caused by the injuries he suffered at work and the effects of those injuries upon him. However those physical injuries and their consequences are a real and a very substantial cause of the Applicant’s psychological condition which in my view leads him to believe that he is more disabled than he is.”
Without the transcript of both Mr Bell’s evidence and the oral submissions of Counsel, I cannot be satisfied that the decision is against the weight of the evidence. The Statement of Reasons for Decision clearly needs to be read in conjunction with the transcript in order that I am in a position to determine whether the reasons for decision are adequate.
As Bryson JA stated in Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34:
“In the present case, for reasons which were not explained, there was no compact disc or sound recording of the Arbitration hearing and the evidence given there. This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
The Statement of Reasons does not fully explain the Arbitrator’s reasoning process. Accordingly in the absence of the transcript I do not have sufficient material to conduct a review of the Arbitrator’s decision and I see no alternative to a “rehearing”.
The absence of the transcript is no fault of the parties or the Arbitrator and if it were available, my decision may well be different. Nonetheless in the absence of the transcript to support the decision of the Arbitrator, there has been a failure to provide adequate reasons.
Having regard to the circumstances in this matter I am not satisfied that there is sufficient evidence for me to do justice to the parties on review. I find that the failure to give adequate reasons is an error of law and that the decision of the Arbitrator should be revoked (Thompson’s case).
DECISION
The decision of the Arbitrator dated 15 March 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
I make no order as to costs.
Julian Martin
Acting Deputy President
21 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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