JD & PA Lowey v Campbell - [2006] NSWWCCPD 248

WORKERS COMPENSATION COMMISSION

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

CITATION:JD & PA Lowey v Campbell [2006] NSW WCC PD 248
APPELLANT: JD & PA Lowey
RESPONDENT: Glenn Perry Campbell

INSURER:GIO Australia Limited
FILE NUMBER:  WCC10699-03
DATE OF ARBITRATOR’S DECISION:          13 July 2004
DATE OF APPEAL DECISION:  28 September 2006
SUBJECT MATTER OF DECISION:                Extension of time to appeal; leave to appeal; whether claim duly made; injury; serious and permanent disablement; worker or deemed worker, and weight of evidence.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:     Turks Legal, Solicitors
Respondent: Brydens Law Office

ORDERS MADE ON APPEAL: 1. Leave to appeal is extended to 19 July
2005.

2. The decision of the Arbitrator, dated 19 July 2004, is revoked and the following decision is made in its place:

Award for the Appellant, JD & PA Lowey.

3. No order is made as to the costs of this
appeal.

BACKGROUND TO THE APPEAL

Mr Glenn Campbell, the Respondent in this appeal, was employed by JD & PA Lowey (‘Lowey’), the Appellant at all relevant times.

Mr Campbell claims that on 12 December 1998 (originally said to be on 19 December 1999 but amended by the Arbitrator and acknowledged by the parties as 12 December 1998), he suffered an injury at work, which was caused when allegedly, a piece of hardwood timber fell from where it had been leaning against a wall and struck his right calf while he was laying bricks, causing him to fall onto the base of his spine.

Mr Campbell continued to work after the accident before taking three weeks leave during which time he claims that he was fired. Mr Campbell says that he was re-hired soon after, but that he was fired after three months as a result of struggling with the injury to his leg. Mr Campbell no longer works for Lowey, but continues to work as a bricklayer for other employers.

On 14 May 2002 Mr Campbell completed a workers compensation claim form in relation to the injury allegedly sustained.

On 7 January 2003 Mr Campbell lodged a claim with GIO Australia Limited, the Insurer (‘GIO’) for the injuries suffered, for which non economic loss compensation is payable, that arose out of and in the course of his claimed employment with Lowey as a bricklayer and the associated labourer. Mr Campbell claims compensation under section 66 and section 67 of the Workers Compensation Act 1987, and also section 60 benefits.

On 5 June 2003 Mr Campbell lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against Lowey. The injury to Mr Campbell is described in his Application as: “Injury to calf muscle of right leg and back”.

Several teleconferences and conciliation/arbitration conferences were held to determine issues of jurisdiction and other issues in dispute. On 17 December 2003, the Arbitrator issued a ‘Certificate of Determination’ following a conference, granting leave to amend the application to join as a Respondent the company ‘John and Dave Bricklaying Pty Ltd’.

Following a further teleconference on 28 April 2004 the Arbitrator decided that the partnership of JD & PA Lowey was in fact the correct Respondent as at the amended date of injury, 12 December 1998, and that matters of “jurisdiction” (the time period for making the claim), “injury” and “worker” were to be decided at a conciliation/arbitration.

The matter was set down for an arbitration hearing on 4 June 2004. The ‘Certificate of Determination’ dated 13 July 2004 recording the Arbitrator’s orders appears below in paragraph 19.

On 3 August 2004 ‘John & Dave Bricklaying Pty Ltd’ lodged in the Commission an ‘Application to Appeal Against Decision of Arbitrator’ submitting that the Arbitrator erred in finding the claim had been duly made; that Mr Campbell was a ‘worker’ or ‘deemed worker’, and in finding that Mr Campbell suffered an injury as defined in the the 1987 Act’.

Mr Campbell submitted that the legal entity ‘John & Dave Bricklaying Pty Ltd’ was not a party to the proceedings and that the entity ‘JD & PA Lowey’ was the correct employer, this not being in dispute between the parties.

On 5 July 2005 I determined this appeal on the papers. I found that ‘John & Dave Bricklaying Pty Ltd’, not being a party to the dispute, could not bring an appeal against the decision of an Arbitrator pursuant to section 352(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and made the following decision:

“21. The Commission has no jurisdiction to determine this appeal.

22.The entity JD & PD Lowey is at liberty to lodge a fresh ‘Application – Appeal Against the Decision of Arbitrator’ and the Respondent Worker is at liberty to respond, in accordance with the directions given at paragraph 19.”

The directions I gave at paragraph 19 of my determination dated 5 July 2005 were as follows:
“19.If the entity JD & PA Lowey lodges a fresh ‘Application – Appeal Against Decision of Arbitrator’, neither party is required to resubmit any further documents as to the substantive grounds of appeal. Should JD & PA Lowey wish to appeal, it must lodge in the Commission, and serve on Mr Campbell, a copy of all documents prescribed by Rule 77(9), together with any fresh ‘Application – Appeal Against Decision of Arbitrator’, on or before 19 July 2005. In that event, Mr Campbell should lodge in the Commission, and serve on JD & PA Lowey, a copy of any objections and submissions made in response to any application for an extension of time to make the appeal, on or before 2 August 2005.”

In addition I also made the following request:

“23.If a fresh ‘Application – Appeal Against Decision of Arbitrator’ is lodged in the Commission in this matter, it is to be referred to me for determination.”

On 19 July 2005 Lowey lodged a fresh ‘Appeal Against Decision of Arbitrator’ and an ‘Application for Extension of Time’ in the Commission. On the same day Lowey lodged a ‘Certificate of Service’ in the Commission, noting that an unsealed copy of the ‘Appeal Against Decision of Arbitrator’ was served on Mr Campbell on 18 July 2005 by document exchange.

On 27 July 2005 Lowey lodged a further ‘Certificate of Service’ in the Commission, which noted that a sealed copy of the ‘Appeal Against Decision of Arbitrator’ was served on Mr Campbell on 26 July 2005 by document exchange.

On 11 August 2005 Mr Campbell lodged a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ in the Commission. Mr Campbell did not file a Certificate of Service in the Commission. However, I am satisfied that the document was served on Lowey.

This appeal was assigned to me recently, in order of priority.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 13 July 2004 records the Arbitrator’s determination as follows:

“The determination of the Commission in this matter is as follows:
1.Order that the claim of the Applicant has been duly and properly made in accordance with the requirements of the Act.

2.Order that the Applicant was a worker or deemed worker within the meaning of the Act.

3.Order that the Applicant as at the date of injury was employed and engaged by the Respondent.

4.That the Applicant did suffer injury as at the claimed date of injury including for the purposes of these proceedings and that such injury arose out of and in the course of his employment with the Respondent.

5.Order that the Applicant did give notice of injury or incapacity and made a claim for compensation including pursuant to the Orders made above.

6.Order that the Respondent meet the Applicant’s costs of the Arbitration on 4 June as agreed or assessed. Costs in the proceedings otherwise are reserved.

7.Order that this matter is scheduled for Teleconference with the Arbitrator for Wednesday 4 August 2004 at 11.00am.”

ISSUES IN DISPUTE

The issues in dispute in this appeal are:

(1)whether the Arbitrator erred in finding that the claim was duly made pursuant to section 261 of the 1998 Act;

(2)whether the Arbitrator erred in finding that Mr Campbell fell and suffered an injury to his back, and further, whether any injury sustained resulted in serious and permanent disablement;

(3)whether the decision of the Arbitrator was made against the weight of the evidence, and

(4)whether the Arbitrator erred in finding that Mr Campbell was a ‘worker’ as defined in section 4 of the 1998 Act, and/or a ‘deemed worker’ within the definition in Clause 2 of Schedule 1 of that Act.

ON THE PAPERS REVIEW

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.”
The parties have both made submissions that the appeal can be determined on the papers.

Having regard to the submissions, evidence and 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.

LEAVE TO APPEAL

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The solicitors for Lowey submit that although there has been no amount awarded they rely on the decisions in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 (‘Mawson’) and ADCO Constructions Pty Limited v Kenneth Ian Ferguson [2003] NSWWCCPD 21 (‘Ferguson’) in which it was held that there need not be an award from an arbitrator as a prerequisite for leave to appeal.

The solicitors for Mr Campbell argue that the appeal does not meet the monetary threshold as no compensation has been awarded by the Arbitrator, and that the Arbitrator would need to order Mr Campbell to be assessed by an Approved Medical Specialist (“AMS’) to determine the award amount. However such a referral is but a step in the process leading to the ultimate determination of the dispute by the Arbitrator. The solicitors also submit that the decisions in Mawson and Ferguson are not applicable and can be distinguished from this current appeal as they involved a denial of natural justice by the Arbitrator by refusing the Appellant’s right to be heard, and they ultimately go to the substantive issues of the matter. They further submit that in the current matter the decision of the Arbitrator has not affected Lowey’s right to be heard or its entitlement to natural justice, as the Arbitrator’s decision was handed down after hearing Lowey’s submissions.

In these proceedings Mr Campbell claims $32,500 for lump sum compensation under section 66 and section 67 of the 1987 Act and payment of section 60 benefits. Lowey seeks an order that the decision of the Arbitrator should be revoked and an award made in their favour. The “amount of compensation at issue on appeal” (section 352(2) of the 1998 Act) is greater than $5,000. The principle concerning the application or otherwise of section 352(2)(b) as set out in Mawson and Ferguson does not rely essentially upon the substantive facts or issues in those cases, but upon the interpretation and application of the relevant statutory provision. In Mawson I said, inter alia, at paragraph 22:

“It seems that ‘20%’ in subsection 2(b) is limited to a decision in which an award is made and that the operation of this subsection does not preclude appeals against decisions in which no award was made. The purpose of subsection 2(b) in my view, applies [sic – “is to apply”] a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.”

I find that section 352(2) of the 1998 Act is satisfied.

The appeal was initially lodged on 3 August 2004, within 28 days of the Arbitrator’s decision dated 13 July 2004 and in compliance with section 352(4) of the 1998 Act. On 5 July 2005 I gave directions allowing Lowey to file a fresh ‘Appeal Against Decision of Arbitrator’ in the Commission by 19 July 2005. Lowey complied, and also lodged an ‘Application for Extension of Time’ in the Commission on the same day.

An extension of time in which to appeal can be granted in certain circumstances. Rule 77(8) of the Workers Compensation Rules 2003 (‘the Rules’) provides that:

“(8)The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

The question of extending time to appeal was considered in the High Court of Australia by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:

“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”

Lowey’s submissions on seeking an extension of time to make the appeal

Lowey provided the following submissions in support of its application for an extension of time to make the appeal:

·that the naming of ‘John & Dave Bricklaying Pty Limited’ as the appellant to the appeal heard by Deputy President Byron was a clear administrative error which was perpetuated from the same document system which produced the Reply in the initial proceedings and that given the concession during the proceedings that ‘JD & PA Lowey’ was the correct entity, it was unintentional that John & Dave Bricklaying Pty Ltd was named the Appellant in the appeal lodged on 3 August 2004;

·justice would be achieved by allowing the application for an extension of time and that there would be no injustice to Mr Campbell for the following reasons:

oMr Campbell has demonstrated a history of delay with respect to his claim, with the claim form being lodged on 14 May 2002 and the claim for lump sum compensation being made on 7 January 2003, despite the claim being supported by a report by Dr Conrad dated 13 June 2000, and

othat Mr Campbell has already been informed of Lowey’s appeal submissions which have already provided a detailed response to the Commission regarding the appeal, as acknowledged by Deputy President Byron.

It is also submitted that if the application for an extension of time is not granted Lowey would suffer substantial injustice for the following reasons:

·the provisions of section 352 of the 1998 Act were complied with in the lodging of the initial appeal on 3 August 2004, and that rejecting the appeal application on the basis of an administrative error would deny Lowey the opportunity to have the Commission deal with the substantive grounds of the appeal;

·clearly there are exceptional circumstances where the only fault lies in an error in form rather than an error in substance or non-compliance with threshold issues, and

·Lowey has excellent prospects of success in the appeal and has provided submissions which set out the clear defects and errors made by the Arbitrator in dealing with evidence in relation to the jurisdictional issue, the issue of ‘injury’ and the issue of ‘worker’.

Mr Campbell’s submissions in reply to extending time to make the appeal

Mr Campbell makes the following submissions in opposing an extension of time to lodge the Appeal and for the grant of leave to appeal:

·the initial appeal lodged by Lowey was defective in form and Lowey did nothing to remedy this until the Commission heard the appeal. Lowey could have remedied the defective error by lodging an appeal with the correct entity, ‘JD & PA Lowey’, within 28 days of the Arbitrator’s decision;

·relying upon the decision in Alexandru v State of New South Wales [2004] NSWWCCPD 54 (‘Alexandru’) in which the Presidential Member, in considering Gallo, said:

“Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes (section 367 of the 1998 Act). A party who has the benefit of an order is entitled to rely on the finality of that order.”
In this matter Mr Campbell should be entitled to rely on the finality of the Arbitrator’s decision and accordingly have his workers compensation entitlements proceed to be assessed by an AMS.

Decision on application for extension of time to appeal

The decision in Gallo is wider than the passage in Alexandru, cited by Mr Campbell, suggests. The principle extracted by him from Alexandru is but one of the factors stated by McHugh J, in Gallo (see paragraph 30, above). The question of extension of time to lodge an appeal in the Commission has been considered in a number of decisions on appeal by Presidential members. A recent discussion is found in Stojanovic v State Rail Authority of NSW [2006] NSWWCCPD 151, in which previous, relevant Commission appeal decisions are cited.

The discretion to extend time is given for the sole purpose of enabling a court [or tribunal] to do justice between the parties (Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the Rules will work an injustice upon the applicant (Gallo).

In John & Dave Bricklaying Pty Ltd v Campbell [2005] NSWWCCPD 62 (‘Campbell’) I said at paragraph 18:

“The entity, JD & PA Lowey is at liberty to lodge a fresh ‘Application – Appeal Against Decision of Arbitrator’ in this matter. Such Application must be supported by an application for an extension of time for making an appeal, beyond the 28 days prescribed in section 352(4) of the 1998 Act, together with supporting submissions.”

The requirement to file an application for extension of time to lodge the appeal was imposed in fairness to the parties, and to ensure that no injustice to the parties could arise, even inadvertently. Taking into account the submissions of both parties in this appeal, and the principles articulated by McHugh J in Gallo as applicable in the instant case, I consider that the circumstances are unusual to the point of being exceptional, and that strict compliance with the Rules will work an injustice upon Lowey. On the other hand, there is no demonstrable injustice to Mr Campbell if the Appeal is allowed to proceed, and indeed, he makes no assertion that any injustice to him would arise.

It is true that Lowey brought its first appeal in the name of the wrong entity, but this was resolved and determined in Campbell. Mr Campbell’s assertion that Lowey could have initiated proceedings in the name of the correct entity at the outset is undoubtedly true, but his assertion is made in the instant appeal, after the event, that is to say, after and with the benefit of, the formal resolution of the issue as to the correct entity, in Campbell.

As matters now stand, the consequence for Lowey if this application does not succeed, would be the inability to obtain a determination of the substantive issues in dispute on appeal. There remain differences of substance between the parties, and at this point, there is no reason to suggest that Lowey has no prospects of success (this being subject to an analysis and consideration in this Appeal, of the Arbitrator’s decision). In fairness to both parties, I consider that the Appeal should proceed so that the remaining issues in dispute on appeal between them may be determined.

I am satisfied that in exceptional circumstances, to lose the right to seek leave to appeal would work demonstrable and substantial injustice upon Lowey, and I extend the time for making this Appeal to 19 July 2005.

Leave to appeal is granted.

.

APPEAL TO A PRESIDENTIAL MEMBER

A Presidential member 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 a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit to the same Arbitrator or a different Arbitrator for determination in accordance with a decision of, or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2002) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). The principle was highlighted by Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249. His Honour said: “The question for an appellate court is whether it was reasonably open to the jury [in the instant case, the Arbitrator] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, the position must be such that but for the error, a different decision would likely have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).

EVIDENCE AND SUBMISSIONS

Lowey’s submissions

The appeal submissions made by Lowey may be summarised as follows:

As to Jurisdiction – claim duly made
· the Arbitrator was correct in finding that the claim, for the purposes of the Act, was not made until Mr Campbell submitted a claim form on 14 May 2002;
· the Arbitrator was correct in finding that as the injury was alleged to have occurred in December 1998, that the claim was made outside the three year period;

· the Arbitrator erred as to Mr Campbell not knowing his entitlements at the time he attempted to make a claim, as this issue was not relevant because it was outside the six month period ;

· the Arbitrator erred in deciding that Mr Campbell’s failure to make a claim prior to 2002 was occasioned by ignorance, mistake, absence from the State or other reasonable cause, as he completely ignored the evidence including the fact that Mr Campbell consulted solicitors in 2000;

· the Arbitrator erred in finding that Mr Campbell would not have known his entitlements after consulting his solicitors within the three year period;

· if the foregoing is not accepted, the Arbitrator is still in error as “under Section 264(4) it must be proved that the injury resulted in the death or serious and permanent disablement of the worker”. The Arbitrator found that the worker’s injury had resulted in the death or serious and permanent disablement of the worker. The appellant employer submits that the arbitrator erred in making this finding as it was against the weight of the evidence. The weight of the medical evidence indicates that the worker’s capacity to perform work was not serious because of the following:

o the clinical notes of Dr Vasram indicated that Mr Campbell did not see him again regarding his right calf injury until approximately ten months after the incident, on 19 October 1999 and that Dr Vasram recorded the pain in the muscle in the right calf as “on and off”, and also indicated that there is no reference to any back pain;
o Mr Campbell’s own evidence in his statement is that he continued to work as a bricklayer, which is supported by tax records as well as evidence from both Mr Curry and Mr Lowey, and

o the opinion of Dr Parameswaran that Mr Campbell was fit for pre-injury duties.

·     the Arbitrator also erred in not providing sufficient reasons for accepting the views of Dr Ellis over the views of Dr Parameswaran regarding fitness for work and furthermore the Arbitrator did not provide any indication why he disregarded Dr Parameswaran’s views.
As to Injury
·     the Arbitrator erred in finding that Mr Campbell fell at the time of the incident as such a finding was against the weight of evidence, such evidence being:
o   the evidence of Mr Thornton, and
o   the clinical notes of Dr Vasram whose report three days after the alleged incident did not mention a “fall” by the worker.

·     the Arbitrator erred in finding that Mr Campbell suffered an injury to his back at the time of the incident as such a finding was against the weight of evidence, such evidence being:
o   the clinical notes of Dr Vasram dated three days after the alleged incident and clinical notes dated 19 October 1999 and 12 December 1999 made no reference to back injury. The first reference to back injury is made by Dr Vasram in a clinical note dated 13 March 2000 which indicated that Mr Campbell had back pain for two months, which was well after the date of injury;
o   Dr Conrad does not support a frank incident causing back injury as he believed back strain was secondary to the right leg caused by the right calf injury, and

o Mr Campbell does not refer to a back injury in the claim form.

· Mr Campbell did not give oral evidence at the arbitration hearing therefore the Arbitrator was unable to have the benefit of hearing and observing him give evidence and was not in a position to come to a view about Mr Campbell’s credit in determining the weight of the evidence.
As to Worker
· the Arbitrator erred in finding that Mr Campbell was a worker as defined by the Act;

· the Arbitrator erred in not providing reasons why he disregarded the financial records attached to Mr Lowey’s statement that indicated that at the time of the alleged incident Mr Campbell had no contractual relationship with Lowey;

· it is submitted that even though Mr Campbell may have been working in the vicinity of representatives of Lowey at the time of the incident, there was no contractual relationship between the parties on the day of the incident;

· the onus is on the worker to prove he is a worker: Harris v Cudgegong Soaring Pty Limited (1995) 11 NSWCCR 678 (pp 11 and 12) and Mr Campbell has not satisfied that onus based on the evidence before the Commission;

· the Arbitrator erred in finding that there was exclusivity of service and elements of workplace control between Lowey and Mr Campbell (Vacik Distributors Pty Limited v Kelly (1995) 12 NSWCCR 20), as there was insufficient evidence upon which to base such a determination, and

· the Arbitrator erred in finding that Mr Campbell also met the definition of a deemed worker under Schedule 1 Clause 2 of the 1998 Act and specifically erred in not finding that the worker came within the exclusion in Clause 2(1)(a).

Lowey seeks orders that the decision of the Arbitrator be revoked and that there be an award for Lowey against Mr Campbell.

Mr Campbell’s submissions

The submissions made by Mr Campbell in reply may be summarised as follows:

As to Jurisdiction – claim duly made
· it is agreed that the Arbitrator was correct in determining the matter pursuant to section 261 of the 1998 Act to the extent that he purported to deal with the matter on the basis of there being a claim outside the three year period. Mr Campbell however had made an alternative submission to the Arbitrator to the effect that a claim for compensation was effectively made no later than late 1999, with the effect that the Arbitrator ought to have determined the matter on the basis that a claim for compensation was in fact not made outside the three year period and the issue ought to be determined in accordance with the provisions which were then in force. He further submits:
“In substance, the pre-existing provisions are identical to the provisions of Section 261 of the Workplace Injury Management Act (sic) and, accordingly, little turns on that distinction at the end of the day. Accordingly, the purposes of these submissions, reference will be made to the current provisions of Section 261 rather than to the earlier provisions.”

The incident in which the alleged work-related injuries arose, occurred on 12 December 1998. Sections 61-64 of the 1998 Act apply in respect of an injury received before the commencement of section 60A, inserted in the 1998 Act by the Workers Compensation Legislation Amendment Act 2001. Sections 65 and 66 apply in respect of making a claim before the commencement of section 60A. However, as found below (see paragraph 57) the formal claim was not made until 14 May 2002. Nothing turns on the distinction between the various provisions, as Mr Campbell correctly submits. For the sake of convenience and clarity, reference has been made by the parties in their submissions to the current provisions, sections 260 and 261 of the 1998 Act, and the Arbitrator has referred to both “sets” of sections. In light of all of this, and for the avoidance of confusion, I have followed the approach suggested by Mr Campbell in these Reasons, for the purposes of this appeal.
· the relevant period of time for the “ignorance, mistake, absence from the state or reasonable cause” is the first six months after the worker’s injury. Delay after that or alternatively, ceasing to have “ignorance, mistake, absence from the state or reasonable cause” after that date is therefore irrelevant. Conduct of the parties after that date, however is not. Therefore the Arbitrator was entitled to, and in fact did, infer from the conduct of Lowey in denying liability in late 1999, that Mr Campbell was aware that that was likely to be the attitude during the relevant six month period;

· there are other explanations for Mr Campbell’s delay including the fact that he continued to have an ongoing employment relationship with Lowey; that Mr Campbell’s ‘problems’ had gotten worse with time, and that even though Lowey was aware of Mr Campbell’s injury, it took no steps to provide to Mr Campbell any advice as to his legal rights to make a claim or to lodge any formal notice of injury and claim for compensation;

· the evidence demonstrated a reasonable excuse by means of ignorance etc., to justify not making the claim within six months and that accordingly, Lowey’s submission that there was no evidence to justify the conclusion that the claim was not formally made within the first six months was occasioned by ignorance, is incorrect;

· Lowey’s submission that Mr Campbell would have known his entitlements after consulting his solicitors in 2000 is misconceived as the relevant time is the first six months and conduct after that is irrelevant; in addition it is submitted that there is no evidentiary foundation to support this proposition, and

· there was ample evidence to justify the Arbitrator’s finding that Mr Campbell had suffered a serious and permanent disablement within the meaning of the legislation including the fact that the Arbitrator accepted Mr Campbell as a witness of truth and accordingly, gave some considerable credence to the views of Mr Campbell’s doctors whose reports were relied upon.

As to Injury

· Lowey’s submission that Mr Campbell did not injure his back relates to a finding of fact. It is submitted that this ground of appeal fails as the Arbitrator accepted Mr Campbell as a witness of truth and Lowey failed to cross-examine and challenge Mr Campbell;
· Lowey’s submission that the Arbitrator’s findings were against the weight of evidence is misconceived, in particular Lowey’s reliance upon the evidence of Mr Thornton, which was made more than five years after Mr Campbell’s injury. Furthermore, the other two statements relied upon by Lowey, being the statements of Mr Curry and Mr Lowey, also relate to events that occurred five years before the preparation of their statements and it is submitted that the inference can be drawn that all parties may have colluded in the preparation of their statements;

· Lowey’s reliance on Dr Vasram’s clinical notes is an error as it is submitted that doctor’s clinical notes are commonly in error, and if one accepts Mr Campbell as a witness of truth, the reliance upon these notes cease to be evidentially probative;

· Lowey’s reliance on the claim form completed in May 2002 is not determinative because it was clearly completed on behalf of Mr Campbell. In addition the report of Dr Ellis dated 18 July 2000 and Dr Conrad dated 13 June 2000, both give a clear history of the injury, as provided by Mr Campbell, which is consistent with the findings of the Arbitrator, and

· it was open at all times to Lowey to seek leave to cross-examine Mr Campbell on his statements and the fact that no application was made ought not now be considered in determining this appeal. Further, the Arbitrator was entitled to accept Mr Campbell as a witness of truth in the absence of his evidence being tested in any meaningful way.
As to Worker

· there was ample evidence to support the view that Mr Campbell was a worker within the meaning of the Act or alternatively, that he was a deemed worker. The evidence in support of this submission includes the fact that Mr Campbell was working for Lowey at all material times on a full time basis, and was subject to the direction and control of Mr John Lowey, and

· the Arbitrator was correct in finding that the mere fact that Lowey suggested to Mr Campbell that he should obtain his own insurance, along with the taxation returns that Mr Campbell might have lodged with the Australian Taxation Office, does not determine the legal relationship between the parties. In addition there was ample evidence from Mr Campbell’s witnesses to support the contention that he was an employee in the strict sense, as a matter of law.

DISCUSSION AND FINDINGS

Lowey concedes that the Arbitrator was correct in finding that the claim, for the purposes of the Act, was not made until Mr Campbell submitted a claim form on 14 May 2002.

Lowey also submits that the Arbitrator was correct in finding that as the injury was alleged to have occurred in December 1998, the claim was made outside the “three year period”. Mr Campbell agrees in terms of the formal claim, but submits that he made an alternative submission that a claim for compensation was effectively made no later than in late 1999, “with the effect that the Arbitrator ought to have determined the matter on the basis that a claim for compensation was in fact not made outside the three year period …”.

The Arbitrator states that he dealt with this alternative submission “for completeness” at paragraph 22.1 of his ‘Statement of Reasons for Decision’ (‘Reasons’) and said, “However, although this argument has force, I stop short of determining a finite view on this additional submission …”. The Arbitrator proceeded instead to make findings on the basis that the claim was not made within the “three year period”. He observed at the foot of paragraph 21 of his Reasons that he accepted that Mr Campbell first “gave notice of his claim in late 1999”, but without observing the required formalities for making the claim. He states at page 9 of his Reasons, as Lowey submits, that the formal making of the claim was not made within the three year statutory period, but accepts that Mr Campbell did give an “earlier notice of the claim” including the statutory requirement to give notice of an injury sustained. However, the Arbitrator then goes on to say at the foot of page 9 of his Reasons, “I am of the view that there is reasonable cause for the Applicant failing to claim within the three-year period.” At page 10 he refers to the “earlier notice of the claim” in late 1999 as an indication of an “intention” to claim but not an actual claim, as discussed below.

Did the Arbitrator err in finding that the claim was duly made pursuant to section 261 of the
1998 Act?

Section 261 of the 1998 Act provides:

“261 Time within which claim for compensation must be made
(1)Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)If an injured worker made a claim for compensation within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

(5)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.

(9)When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

It is not in dispute that the Arbitrator dealt with this matter on the basis that the claim, for the purposes of these proceedings, was made outside of the period of three years from the date of the work incident (see paragraph 22.1 of his Reasons, at page 9). However, Lowey submits that Mr Campbell suffered no compensable injury at all, insofar as his back is concerned. I will return to that particular disputed issue, presently.

The parties agree that the time frame “within 6 months of the date of injury” in section 261(1) of the 1998 Act is the relevant period to which “ignorance, mistake, absence from the state or other reasonable cause”, applies, in terms of the time for making a claim. There is no dispute therefore, that the Arbitrator’s conclusion as to whether or not Mr Campbell knew his entitlements at the time that he attempted to make his claim outside of that period, is largely irrelevant. Lowey submits that the Arbitrator is in error in stating this conclusion, but Mr. Campbell says, “The Arbitrator was entitled to, and in fact did, infer from the conduct of the Respondent in denying liability in late 1999 that the respondent was aware that it was likely to be the attitude during the relevant six month period.” In any event, there is substantial agreement between the parties on the issue as to the time when the actual, formal claim was made.

Lowey submits that “in deciding the worker’s failure to make a claim, prior to 2002 was occasioned by ignorance, mistake, absence from the state or other reasonable cause completely ignored the evidence that the worker consulted solicitors in 2000… even if the worker was confused in 1999 as to his rights (a contention the appellant employer disputes), the worker clearly still had an opportunity when he consulted his solicitors in 2000 to make a claim.” Lowey asserts that the Arbitrator was in error in making a finding that Mr Campbell’s “alleged ignorance, mistake, absence from the State or other reasonable cause” would have continued after he consulted solicitors in 2000.

Mr Campbell submits that this submission is misconceived. He states, “The relevant time is the first six months.” It is clear by reference to the Arbitrator’s ‘Reasons’ that he did conclude that Mr Campbell was confused for a considerable period of time, beyond the six months after the date of the alleged injury. However, the parties are already agreed (see paragraph 53, above) that the “ignorance, mistake, absence from the State or other reasonable cause”, applies only to the first six months after the date of injury, as provided by section 261(1) of the 1998 Act, insofar as it relates to the time in which a claim must be made. What is relevant and clear on the evidence on this point is that Mr Campbell laboured under the veil of ignorance within the meaning of section 261(4) of the 1998 Act, for at least 6 months from the date of injury, in terms of the time for making a claim.

The Arbitrator was satisfied that an indication or a “notice of injury” was given by Mr Campbell to Lowey. He further states:
“It is clear enough, and the Applicant does acknowledge, that the formal making of the claim, upon the correctly adjusted accident date of December 1998, was not made within the three-year statutory period, outside of, however, the statutory qualifications to that pre requisite somewhat traversed here.”

Ultimately, the Arbitrator did not agree with Mr Campbell that a formal claim was made within the three years. In terms of whether the formal claim for injury was duly made at all, Lowey agrees that it was made on 14 May 2002.

Given that the issue as to when the formal claim was made was determined in favour of Lowey by the Arbitrator, there is no reason for me to review it on appeal, particularly as the parties concur as to when it was actually made.

However, the question remains, was there an earlier failure to make the claim in the form required by section 260 of the 1998 Act, occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style? The Arbitrator made no formal finding on the submission that the failure to lodge a claim in the correct form was occasioned by any or all of these factors. He states that the argument has force but made no determination on the point, although his observations and comments give some credence to it. Mr Campbell seeks to invoke section 260(5) of the 1998 by submitting that he attempted to make his claim [in proper form] earlier, but that he was discouraged in his attempts and was not given proper advice as to how he should go about it. However, it is clear that Mr Campbell did seek and had the benefit of legal advice (within the three year time period), whatever the detail of such advice may have been. That is supported to some extent by the note made by his treating doctor in the clinical notes, that Mr Campbell intended to make a “public liability claim” in respect of injury, and would need to consult a specialist.

Mr Campbell claims that he had reason not to lodge his claim in the proper form within the three years, because of the conduct of Lowey in resisting his assertions. However, it is clear enough that Mr Campbell did consult a lawyer and was aware of the fact that he would need relevant specialist assessment to sustain a claim. In the end, he did lodge a claim in proper form, notwithstanding Lowey’s stand on the matter allegedly over a considerable period of time. In any event, while the Arbitrator considered that Mr Campbell had endeavoured to give a “notice” of his claim at an earlier date, he regarded this essentially as an indication of an “intention” to claim (see paragraph 50 above), but not an actual claim. This issue is not the subject of Lowey’s appeal, but has been raised by Mr Campbell in reply. On balance, the evidence does not sufficiently support Mr Campbell’s submission on the point, and notwithstanding the Arbitrator’s qualifying comments and observations, which fall short of a formal finding in Mr Campbell’s favour, I find no error on the part of the Arbitrator in this regard and further, that the provisions of section 260(5) do not assist Mr Campbell in this appeal.

The “fact of a right leg calf-muscle injury” was not in dispute before the Arbitrator and is not disputed in this appeal. However, the formal claim of injury made no mention of an injury to Mr Campbell’s back. The injury to his right leg was the only injury reported in the written claim. The fact of injury to the back was included in his claim some time later, as discussed below.

The critical issue in dispute that flows from this, is whether Mr Campbell’s claim, not being made within three years after the incident, is in respect of a work injury resulting in the serious and permanent disablement of Mr Campbell, and whether the Arbitrator erred in finding that this is so. Lowey submits that the Arbitrator erred in his finding because it was “against the weight of the evidence”. However, it is convenient to deal with this particular issue below, following upon the determination of the more fundamental issue in dispute, that is, whether the Arbitrator erred in finding that Mr Campbell did in fact suffer a compensable injury to his back, at all. The question of “serious and permanent disablement” applies to the whole injury arising out of the same incident.

Did the Arbitrator err in finding that Mr Campbell suffered a compensable injury? If so, did
the injury result in the serious and permanent disablement of Mr Campbell? Are the
Arbitrator’s findings against the weight of the evidence?

Back injury

Lowey submits that the Arbitrator erred in finding that Mr Campbell fell at the time of the “incident” and in finding that he suffered a work related injury to his back as a result. This is consistent with Lowey’s position in the arbitral proceedings. The Arbitrator rejected this contention, largely by reference to the medical evidence before him, and to an extent, on the basis that “The Applicant’s evidence is not disputed by his co-workers at the time nor in any material sense as to what occurred…”.

The Arbitrator’s findings, according to Lowey, are against the weight of the evidence.

In summary, the Arbitrator finds that Mr Campbell’s evidence is not disputed by his co-workers at the time, nor in any material sense, as to what happened. He states, “… the ‘colouring’ of matters comes only as to the consequences thereof.” He goes on to say that the “notations” of lay observers including as to medical issues, are in total conflict with the balance of the reliable medical reports tendered in evidence by Mr Campbell. The Arbitrator states that he relies more upon the qualified medical evidence in terms of “truer discernment”. He states, “Here, various doctors, in various ways, point to certain ongoing disabilities of seriousness; and indeed, much of the Respondent’s medical materials do likewise.”

Lowey submits that Mr Campbell did not have a fall in the course of his employment and therefore, did not as a consequence injure his back in the manner claimed. In his statement of 20 March 2003 Mr Campbell relevantly said:

“On 19 December 1999, I was at work having commenced at 7 am. About 2.30 pm
I was laying bricks on a garage wall when I was struck on the right calf by a piece
of hardwood timber. It transpired that the timber was a piece of hardwood
measuring 110mm x 110m x 2600mm and weighed about 30Kgs. I fell to the
ground immediately and my leg was in great pain. I also landed on my coccyx and
since that time have had problems with my lower back.”

However, in his claim form dated 14 May 2002, there is no mention by Mr Campbell of an injury to his back. He states that his leg muscle was “cut in half” down to his heel, and that the part of his body that was affected was the right lower leg muscle.

Mr Campbell claims that when he reported the injury he was told to keep working, which he did, notwithstanding the serious nature of injury that he sustained, as described by him in paragraph 64, above. He says that he was fearful of losing his job. He further states that he worked through until Christmas when he took some holidays. There is no indication that Mr Campbell lost any time from work following the incident at the work site, as a result of work-related injury. After losing his employment with Lowey, Mr Campbell continued to work for other organisations, as a bricklayer.

A witness to the actual incident, Mr. James Thornton, a sub-contractor on the site, said:

“While pulling the hose through, it accidentally snagged on the timber, which fell and hit Glenn in the back of his calf muscle. Glenn proceeded to get off the scaffold in pain, we all went over to him to comfort him and after that 10 minute [sic] later he was back on the scaffold working.”

Messrs John Lowey and David Currey, Lowey’s witnesses, apparently did not witness the actual incident. However, none of the witnesses mention an injury to Mr Campbell’s back. The immediate concern and focus was the injury to Mr Campbell’s leg. He consulted his treating doctor, Dr Vasram “a few days later”. He states at paragraph 9 of his statement of 20 March 2003, “She [Dr Vasram] prescribed painkillers and advised me to strap it. She said the muscle was torn and would mend itself.” He asserts that he was sacked some three months after the incident and he believes that this was because he was beginning to struggle with his leg. Mr Campbell makes no mention of the impact of the alleged back injury during this period but states at paragraph 16 of his statement made on 26 March 2003, “I am in constant pain with my leg and lower back but tolerate it. I was taking painkillers but [sic] made me nauseous.”

No application was made by Lowey to cross examine Mr Campbell as to his version of events but one of Lowey’s witnesses, Mr Thornton, has Mr Campbell climbing off the scaffolding rather than falling to the ground. Lowey submits that it was not afforded the opportunity to cross-examine Mr Campbell. However, I agree with Mr Campbell that Lowey had every opportunity to seek leave of the Arbitrator to cross-examine, but did not do so.

Mr Campbell submits that Mr Thornton’s statement cannot be relied upon because it was taken some five years after the incident and he would have no real reason to remember the detail of the events. He further submits that Mr Lowey’s and Mr Currey’s statements were prepared on the same date [and I note, at the same location], as Mr Thornton’s. Mr Campbell suggests that the three men colluded in the preparation of their statements, and this is borne out by the fact that each made the same factual error in asserting that Mr Campbell was employed by “the company”. In reading the statements, which are not altogether dissimilar, and taking into account that they were prepared at the same time and at the same place, it is not difficult to draw the inference that some discussions took place between them, but whether they conspired to deceive, in order to defeat Mr Campbell’s claim, is not established. Moreover, making “the same factual error” in their statements as to the name of the employing entity, is somewhat different to making false statements, and of itself does not disqualify their evidence. However, as Mr Campbell says, it does bear upon the weight to be attached to the statements, to some extent.

I note that Mr Campbell’s statement was prepared on 26 March 2003 - again some years after the relevant incident. However it is reasonable to expect that he ought to have had a fairly good memory of what occurred.

While the Arbitrator found that Mr Campbell’s evidence was not “disputed” by his co-workers, it is fair to say that their evidence is not consistent with his evidence. In particular, whether Mr Campbell fell or not, is certainly not agreed. Having regard to the particular circumstances of this case, if he did not fall, then there can be no compensable injury to his back. If he did fall, then the reverse may be true. However, while the Arbitrator accepted Mr Campbell’s statement at face value, he nevertheless, substantially relied upon the medical evidence to arrive at his finding of injury.

Mr Campbell contends that as the Arbitrator accepted him as a witness of truth, “coupled with the failure of the Appellant to cross-examine and challenge the Respondent”, the ground of appeal [as to whether he fell and injured his back] fails. I do not accept this submission. Clearly, the failure of Lowey to cross-examine Mr Campbell is a matter to be taken into account, but it most certainly does not preclude a consideration on appeal, as to whether the Arbitrator erred or not, in light of all of the relevant evidence that was before him. Moreover, as I have already observed, the Arbitrator clearly stated that he relied to a great extent upon the medical evidence that was before him, to arrive at his conclusions, and not solely upon Mr Campbell’s written statement.

The Arbitrator has had the benefit of giving due consideration to Mr Campbell’s statement before arriving at his decision and I give due weight to that. A Presidential Member of the Commission, reviewing an Arbitrator’s decision on appeal, should not upset any finding, unless there is other incontrovertible evidence indicating error, not adequately dealt with by the Arbitrator at first instance (Fox v Percy (2003) 77 ALJR 989, cf. Abalos v Australian Postal Commission (1990) 171 CLR 167. See also discussion in Department of Education and Training v Jeffrey Sinclair [2004] NSWWCCPD90). Even if the Arbitrator had made a specific finding on credit, it is incumbent upon a Presidential Member to give due consideration to all of the relevant facts and evidence of each case and the Arbitrator’s treatment of them (see CSR Limited v Della Maddalena (2006) 80 ALJR 458; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Walden v Black [2006] NSWCA 170). The general acceptance by the Arbitrator of Mr Campbell’s statement does not preclude a proper consideration of the balance of the evidence, including any evidence that may be contrary to his evidence.

Turning to the medical evidence upon which the Arbitrator relied, I note that Mr Campbell submits that it is an error to rely upon the clinical notes of his own treating doctor, Dr Vasram. The reason for this he submits is:

“… it is common for doctors short records of what took place to omit important matters, particularly where, in this case, the predominant injury was to the Respondent’s right calf at the relevant time. In short, doctors’ clinical notes are commonly in error. Again, once one accepts the Respondent as a witness of truth, the reliance upon Dr. Vasram’s notes cease to be evidentiarily probative.”

I am unable to draw the inference suggested in this submission, that is, that because allegedly, there is a view abroad that “doctors’ clinical notes are commonly in error”, then it necessarily follows that Dr Vasram’s notes are incorrect. There is nothing before me to indicate that Dr Vasram’s notes are wrong. Her clinical notes comprise a part of the body of medical evidence that the Arbitrator states that he relied upon to find in favour of Mr Campbell, in addition to anything that Mr Campbell and the other witnesses said in their written statements.

According to Dr Vasram’s clinical notes, dated 15 December 1998, a piece of wood fell on to Mr Campbell’s right calf muscle on 12 December 1998. She noted that there was bruising, swelling and tenderness in the muscle. The next entry is made much later, on 19 October 1999 where it is recorded that Mr Campbell was experiencing pain in his right calf muscle “on and off”. The first reference to a back problem is in a note dated 13 March 2000, (around the same period of time during which Mr Campbell sought legal assistance), which records that Mr Campbell was experiencing back ache. The note goes on to say that Mr Campbell also complained of pain in his right leg, which was persistent and that he was “due to see a specialist for public liability”. The words “CT scan” are recorded alongside the entry about his leg. Dr Vasram’s clinical notes also contain other notations about other significant medical issues that are unrelated to the claim in this matter before the Commission.

A CT scan was carried out and a report dated 21 March 2000 was prepared by Dr Wayne Wong and submitted to Dr Vasram. It stated:

“CT LUMBOSACRAL SPINE
CLINICAL HISTORY: Sciatica of the right leg.
Angled axial scans were performed from L3/4 to L5/S1 levels.
The L2/4 and L4/5 discs show mild annular bulging, slightly flattening the anterior surface of the thecal sac.
The L5/S1 disc shows a small broad-based central posterior disc protrusion, just touching the S1 nerve roots in the spinal canal with no impingement of these nerve roots. No impingement of the thecal sac.
The spinal canal, the neural foramina and exiting nerve roots, and facet joints, appear normal. There is no ligamental hypertrophy.
CONCLUSION:
*Mild L3/4 and L4/5 annular disc bulging and a small L5/S1 broad-based central disc protrusion. No impingement of the neural tissues. Normal spinal canal. Normal neural foramina. Normal facet joints.”

In Directions dated 13 November 2003 the Arbitrator notes:

“6.That by consent the Report of Dr Ellis of 18 July 2000 is admitted as the Specialist’s Report upon which the Applicant relies as evidence in the proceedings to the exclusion of the Report of Dr Conrad of 13 June 2000.”

Dr Ellis, orthopaedic specialist, refers to the incident and describes Mr Campbell’s leg injury in the following way, “There were severe soft tissue injuries to his right calf including tearing of the calf muscles but his boss expected him to finish the days work which he did and then went home.” He also refers to Mr Campbell’s claim that he fell onto the base of his spine. He goes on to discuss the pain and disability in the right leg and says that Mr Campbell worked for a further 8 months with the injury during which he limped and strapped his ankle to diminish the pain in his calf. Dr Ellis goes on to describe the pain in both the right leg and the back and how it has impacted upon Mr Campbell. In relation to Mr Campbell’s back, he reported, “All movements, flexion, extensions, rotation, laterial flexion were full and pain free, loss of lordosis was apparent, spinous processes were non-tender.”

Under the heading “IMPRESSION”, Dr Ellis states [in relation to Mr Campbell’s back]:

“As a result of the direct injury to his right calf by the falling timber in December 1998, Mr Campbell has suffered a major tearing disruption of the calf muscles with persisting pain and weakness in his leg as a result. There is a 20% permanent loss of efficient use of his right lower limb at and above and below the knee.
In the same accident he fell on the base of his spine and sustained musculo-ligamentous contusion, aggravation of degenerative change in his back and a ruptured L5/S1 disc with similar less severe changes at the two discs above. His alteration of gait and stance as a result of his calf injury have contributed to his back injury as well as the fall.
There is a 25% permanent impairment of his back.
Continued medical supervision and conservative treatment for pain relief will be required, surgical intervention is not likely to be required but working in physically demanding work as he is, he is at risk of recurrence and exacerbation of his back condition.
His working life expectancy has been significantly reduced by this injury and he has lost one job already as a result of his inability to climb the scaffolding and complete the physically demanding aspects of the work involved.
There is no evidence of psychosomatic illness and no evidence of previous abnormality, debility or injury contributing to his assessment. He can only remain at work if it is modified and he is having increasing difficulty maintaining employment.”

The parties have also included in submissions on appeal, comments in relation to Dr Conrad’s assessment report of 13 June 2000. As already indicated, this evidence was specifically excluded by agreement between the parties because Dr Conrad offered the same medical specialty as Dr Ellis. Dr Conrad’s report was therefore, not taken into account by the Arbitrator. Consequently, it is not relevant in this appeal.

While it has not been raised in the context of these proceedings, some of the other medical reports in addition to those of Dr Vasram, Mr Campbell’s treating doctor, reveal a long history of other significant health problems that are unrelated to this claim. The material is on the Commission file but was not taken into account by the Arbitrator.

In his report dated 20 February 2003, Dr Parameswaran, orthopaedic surgeon retained by Lowey’s insurer, outlines a history of relevant events, as told to him by Mr Campbell. There is no mention of a fall or a direct injury to Mr Campbell’s back, except that, “He says from about four weeks after the accident he has had pain in the low back.” He also reports that Mr Campbell told him that he was not undergoing any treatment but had been given painkillers but “he does not like to take them”. Dr Parameswaran further observed that Mr Campbell entered his premises without any evidence of a limp and he sat through the interview without evidence of pain. Upon examination, Dr Parameswaran reports:

“Lumbar spine

Movements were as follows: Flexion was 80 degrees, extension 30 degrees, side bending 30 degrees on either side.

Straight leg raising was 90 degrees on the left side and 80 degrees on the right side. There was no neurological deficit in either lower limb. The knee and ankle reflexes were normal and there were no tender areas in the lower back.
Right calf
When this claimant was asked to walk he contracted his muscles it appeared that he had loss of a few fibres at the musculo-tendinous junction of the gastrocnemius muscle. He was able to walk on his toes and on his heels.
Left ankle
The left ankle was quite normal to examination. There was no swelling and no tenderness and all movements were full and pain free.”

Dr Parameswaran says that Mr Campbell told him that he had never been referred to a specialist. He said that he had “developed backache and pain in the left ankle” Dr Parameswaran says that on examination the left ankle and lumbar spine were quite normal to examination but that an x-ray done in the year 2000 had shown that there were some disc bulges and a minor protrusion at L5/S1. Dr Parameswaran opined that he did not think that Mr Campbell “really has any problem in the low back or in the left ankle”. Dr Parameswaran concluded that Mr Campbell “may have had a partial tear of a few fibres of the right gastrochemius”, and that from his history, it appears that his employment with Lowey “is the cause of his current condition”. Mr Parameswaran further opined that Mr Campbell is quite fit for pre-injury employment. Finally, Dr Parameswaran said that he would not like to comment on the prognosis without access to an ultrasound of the right calf.

Lowey must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD1) in order to enliven the power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, interference with his discretionary judgment in this regard, should only arise where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully (see discussion in Knight v Eyles Nominees Pty Ltd t/a Processed Forest Products [2004] NSWWCCPD73 at paragraph 40).

In my view, the Arbitrator’s decision has been made against the weight of the evidence, as submitted by Lowey.

While it is true that Lowey made no application to the Arbitrator to cross examine Mr Campbell, it is also the case that the Arbitrator relied upon the whole of the evidence, and in particular the medical evidence, to arrive at his conclusion.

Mr Campbell claims in his statement of 20 March 2003 that he fell and injured his back. As against that, there is no mention of back injury in his claim form dated 14 May 2002 (notwithstanding that according to his submissions, the form was physically filled out by another person on his behalf - it is nevertheless his claim). There is no note of back injury in Mr Campbell’s treating doctor’s clinical notes in relation to the incident that gave rise to his claim. It is clear that he sought medical assistance about his right leg, only.

The first reference to any back pain in Dr Vasram’s clinical notes appears some 15 months after the incident. Moreover, his ongoing treatment by Dr Vasram related to the problem with his leg, which Dr Vasram described as “bruising, swelling and tenderness in the muscle”, as well as pain “on and off” as reported by Mr Campbell.

While the Arbitrator says that Lowey’s witnesses did not dispute what happened, the fact is that an eye witness, Mr Thornton, a sub- contractor on the site, states that Mr Campbell “proceeded to get off the scaffold in pain …. and after that 10 minute[sic] later he was back on the scaffold working”. It is clear on the evidence, whichever version is believed, that after a short period of time Mr Campbell resumed his duties and had no time off work until he took holidays some weeks later, at Christmas time. After his working arrangement with Lowey was terminated, he worked for various other organisations as a bricklayer. As found by the Arbitrator, Mr Campbell did not submit a formal claim for compensation until after the expiration of some three years or more following the incident. Even then, there was no mention of an injury to his back – just his right leg.

The report of the CT scan dated 21 March 2000, by Dr Wong and the assessment of 20 February 2003 by Dr Parameswaran are consistent. Dr Parameswaran opines some three years after the date of the CT scan that Mr Campbell “really has no problem” in his low back or left ankle. The CT scan reported a mild L3/4 and L4/5 annular disc bulging and a small L5/S1 broad based central disc protrusion, with no impingement of the neural tissues, normal spinal canal, normal neural foramina, and normal facet joints.

Dr Ellis had the benefit of Mr Campbell’s history as related by him, some x-rays and the CT scan report, the contents of which he duly noted. He said, “No investigations of his calf muscles were performed and unfortunately an ultrasonic scan was not available.” On examination he stated that all movements were full and pain free, that “loss of lordosis was apparent, spinous processes were non-tender”. He then goes on to attribute back injury to the fall that Mr Campbell described to him. He opines that Mr Campbell’s alteration of gait and stance as a result of the calf injury have contributed to the back injury that he sustained in the fall.

To an extent, Dr Ellis’ assessment stands alone. There is obviously a marked difference of medical opinion as to Mr Campbell’s back. Moreover, Dr Ellis’ view of what allegedly occurred is based entirely on the history related to him by Mr Campbell. On the other hand, while Mr Campbell claimed that he fell to the ground and hurt his back, this not consistent with evidence to the contrary, being: the eye witness account of Mr Thornton; Mr Campbell’s action in resuming work within a matter of minutes after the incident occurred (for whatever reason); taking no time off as a result of the alleged injury; his failure to mention the back injury in his formal claim for workers compensation some three years or more after the workplace incident; the absence of any reference to a back injury in his treating doctor’s clinical notes at the time; the contents of the CT scan report; the assessment made by Dr Parameswaran, and having regard to the fact that Mr Campbell was able to continue in other employment thereafter as a bricklayer. Clearly, the whole focus of Mr Campbell’s claim and the medical treatment that he obtained arising out of the work incident, all related to an injury to his right calf muscle – not his back. While Mr Campbell seeks to explain his delay in making a claim, as addressed above, there is little to explain the lack of treatment for what he alleges is a significant work-related injury to his back. In any event, he did not even raise it with anyone for a considerable period of time.

The weight of the relevant evidence before the Arbitrator leads to a conclusion that Mr Campbell did not fall on the base of his spine and injure his back in the course of his employment. The Arbitrator did not explain why he prefers the evidence of Dr Ellis to the exclusion of Dr Parameswaran, whose assessment on balance, is more consistent with the history of events generally, the absence of any reporting of, or treatment for back injury following the incident at work, and upon a consideration of the results of the CT scan. Moreover, notwithstanding his apparently firm conclusions, the observations Dr Ellis made and recorded during his examination, describe symptoms (for example describing back movements as “full and pain free”) that are not entirely consistent with the stated severity of the alleged injury to Mr Campbell’s back.

Having regard to the above, the medical assessment of Dr Ellis loses a good deal of persuasive power, with the result that the evidence in this matter cannot and does not weigh in support of Mr Campbell, in endeavouring to make his case (see Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705. See also Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131).

In the circumstances, I find that the Arbitrator made an error of law in arriving at his decision against the weight of the evidence, in relation to back injury. This ground of appeal is made out.

Right leg injury

As indicated by the Arbitrator, there is no dispute as to the “fact of a right leg calf-muscle injury”, as claimed by Mr Campbell. However, because Mr Campbell formally made his claim for workers compensation more than three years after the injury was sustained, as found by the Arbitrator, it remains to be determined whether the claim is in respect of the injury resulted in serious and permanent disablement (section 261(4)(b) of the 1998 Act).

Serious and permanent disablement

The matter was not referred to an Approved Medical Specialist by the Arbitrator because of, according to him, the necessity to deal first of all with issues of jurisdiction, injury and worker (see paragraph 7 of the Arbitrators Reasons). The Arbitrator noted that section 65(3) of the 1987 Act provides:

“If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”

Nevertheless, having regard to my finding at paragraph 98 above, it follows that there can be no serious and permanent disablement as a consequence of injury to Mr Campbell’s back, arising from the incident on 12 December 1988.

In terms of the injury to his leg, it is necessary that it must have resulted in both serious and permanent disablement in order for Mr Campbell to recover compensation.

The fact of injury to Mr Campbell’s leg is not in dispute.

A reading of the Arbitrator’s Reasons in relation to the question of serious and permanent disablement reveals a wider consideration of (more serious) disablement than that caused by injury to Mr Campbell’s leg. Having accepted that Mr Campbell sustained a work-related back injury, the Arbitrator has that in mind in his consideration of the issue. Again, he relies heavily upon the evidence of Dr Ellis, without necessarily indicating why he prefers that evidence over and above other medical evidence before him.

Lowey relies on the decision in Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520 (‘Gregson’) and asserts that the word “disablement” refers to disablement in respect of incapacity to perform work. He asserts, “The arbitrator correctly acknowledged that that was the principle involved in the determination of the issue. The weight of the medical evidence indicates that the worker’s capacity [sic] to perform work was not serious …”.

The relevant considerations cited by Lowey and taken into account by the Arbitrator are found at [78] in Gregson, per Burke J:

“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”

The facts in the instant case are markedly different from those in Gregson. Nevertheless, the Arbitrator sees some similarity between Mr Gregson and Mr Campbell, in that Mr Campbell, like Mr Gregson is a “rather stoical man, somewhat laconic and giving a straightforward, unembellished account of his physical and related problems.” However, as I have already observed, the Arbitrator did not rely entirely on Mr Campbell’s evidence, but gave a good deal of consideration to the medical evidence, also. Moreover, Mr Campbell’s overall account is somewhat inconsistent with the factual history of events, including his own conduct, as indicated in the medical and other evidence that was before the Arbitrator (see paragraphs 96 – 98, above).

The relevant medical evidence available to this point is set out and discussed at paragraphs 77-87, above. Apart from the assessment of Dr Ellis, there is little indication of a “serious and permanent disablement” resulting from the injury to Mr Campbell’s leg, although there is some injury in fact, which is not disputed. Moreover, Mr Campbell’s own evidence is that he resumed work some minutes after the incident in which the injury to his leg was sustained, he had no time off work as a result, he continued working at the Lowey site and thereafter, he continued working for other organisations, plying his usual trade of bricklaying.

All of “the questions” outlined by Burke J in Gregson cannot be answered in the affirmative, and in particular the question about seriousness. Mr Campbell had been taking painkillers but ceased doing so because according to him, they made him nauseous. He was not in receipt of any other treatment for the injury. On his account, he claims some restriction on his ability to perform in the same robust way as he was able to pre-injury, but nevertheless, he still demonstrated an ability to continue his usual work as a bricklayer after the incident. While Dr Ellis opines that Mr Campbell suffers incapacity, Dr Parameswaran assesses him as fit for pre-injury work (this being consistent with the history of what occurred particularly in light of Mr Campbell’s own actions in continuing to work as a bricklayer, and the relative lack of medical attention/treatment that he required), in addition to his own treating doctor’s notes indicating that the pain in his right calf is experienced by him, “off and on”.

Accordingly, I find on the evidence that was before the Arbitrator that Mr Campbell has not made out his case that he sustained an injury resulting in serious and permanent disablement, within the meaning of the relevant section of the 1998 Act, given that he lodged his claim more than three years after the date of injury. The Arbitrator has made an error of law in making his decision in Mr Campbell’s favour, against the weight of the evidence.

This ground of appeal is made out.

Did the Arbitrator err in finding that Mr Campbell was a worker or a deemed worker?

Given that Mr Campbell is precluded from recovering workers compensation, by reason of the findings made in this appeal, there is no requirement to consider and determine this issue.

DECISION

The appeal is successful. The decision of the Arbitrator dated 13 July 2004 is revoked. The following order is made in its place:

Award for the Appellant.

COSTS

No order is made as to the costs of the appeal.

Gary Byron
Deputy President
28 September 2006.

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

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Citations

JD & PA Lowey v Campbell [2006] NSWWCCPD 248

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