John Robinson t/as Robinson's Pharmacy v King
[2005] NSWWCCPD 39
•17 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:John Robinson t/a Robinson’s Pharmacy v King [2005] NSWWCCPD 39
APPELLANT: John Robinson t/a Robinson’s Pharmacy
RESPONDENT: Margaret Joyce King
INSURER:The Guild Insurance Co Limited
FILE NUMBER: WCC 13059-03
DATE OF ARBITRATOR’S DECISION: 23 December 2003
DATE OF APPEAL DECISION: 17 May 2005
SUBJECT MATTER OF DECISION: Whether claim duly made; whether evidence demonstrates partial incapacity for closed period; whether evidence supports total incapacity continuing; inadequacy of reasons for decision.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Ebsworth & Ebsworth Lawyers
Respondent: Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is ordered to pay the costs of the appeal, as agreed or assessed.
BACKGROUND TO THE APPEAL
Ms Margaret King, the Respondent in this appeal, is a pharmacist in her mid-fifties, who worked part time for the Appellant, Mr John Robinson trading as Robinson’s Pharmacy, Hunters Hill. While in the course of her employment at the Pharmacy, she was the victim of three armed robberies on 12 April 1995, 12 July 1995 and 16 January 1998. Ms King notified Mr Robinson after each incident, and made a claim for weekly compensation benefits and medical expenses after the second and third robberies. Ms King was on a return to work program after sustaining psychological injury in the second robbery, when she suffered further psychological injury in the third robbery. The third robbery was the most traumatic because the perpetrator placed plastic bags over her head, held a knife to her throat and pushed her to the ground. Ms King never returned to work at the Pharmacy but did attempt work at another pharmacy in or about October 1998. She worked for only two weeks, but was unable to cope with working in the shop alone. She also worked one day in October 1999 but has not worked since then.
On 31 July 2003, Ms King lodged an‘Application to Resolve a Dispute’ in the Workers Compensation Commission, which was registered on 5 August 2003. The disputed claim was for weekly benefits compensation and medical expenses for psychological and psychiatric counselling and treatment.
The Certificate of Determination, dated 23 December 2003 records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $130 per week for partial incapacity for the period from 7 October 1995 to 16 January 1998.
2. That the Respondent pay the Applicant weekly compensation at the maximum statutory rate applicable for total incapacity for the period from 17 January 1998 and continuing.
3. That the Respondent pay the Applicant’s section 60 expenses on production of accounts or receipts.
4. That the Respondent pay the Applicant’s costs of this Application as agreed or as assessed.”
On 19 January 2004 Mr Robinson sought leave to bring an appeal against that decision.
On 2 February 2004 Ms King filed a document headed, ‘Notice of Opposition to Application for Leave Against Decision of Arbitrator’ which sets out her submissions on appeal.
ISSUES IN DISPUTE
Mr Robinson submits that the Arbitrator erred in fact, law and discretion in finding that Ms King was partially incapacitated for the period from 7 October 1995 to 16 January 1998 and in finding that she was totally incapacitated for the period from 17 January 1998 to date and continuing, and awarding compensation accordingly.
Mr Robinson further submits that Ms King did not duly make her claim in accordance with the legislative requirements and there was no medical evidence to support a finding of incapacity.
Finally, Mr Robinson submits that the decision was not supported by the evidence, and that the reasons for the decision were inadequate.
Ms King submits on the other hand, that the Arbitrator did not err in law or fact and was entitled to consider the evidence in its entirety in making his determination. Ms King disputes Mr Robinson’s submission that her claim was not duly made pursuant to section 65 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
ON THE PAPERS REVIEW
Section 354 of the 1998 Act provides, in part:
“(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 Robinson submits that the appeal is not one that may be dealt with appropriately on the papers. He says the matter requires an interpretation of the Workers Compensation Act 1987 (‘the 1987 Act’) and the 1998 Act. He submits that oral submissions from both parties are necessary to address the significance of the backdated medical certificate and the lack of supporting medical evidence. Mr Robinson also submits that the fundamental processes of the 1987 Act and the 1998 Act are impaired if it is found that deficiently made claims are not a bar to obtaining compensation.
Ms King does not make any submissions as to whether the matter is suitable for determination on the papers.
I have closely examined the evidence and the other relevant documents that are before me, including the submissions that were before the Arbitrator and that are now before me. Having considered the written submissions made by both parties on appeal, including the further written submissions of Mr Robinson, dated 27 January 2004 and 3 February 2004, 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
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Appellant Employer
Mr Robinson has provided written submissions attached to the ‘Application, Appeal Against Decision of Arbitrator’, and further written submissions dated 27 January 2004 and 3 February 2004, as stated above.
He submits that the claim, in respect of an injury sustained in January 1998 was
never duly made. Section 61 of the 1998 Act requires that notice of the injury must be given to the employer as soon as possible after the injury occurs and before the worker had voluntarily left her employment. Mr Robinson does concede however, that notice of injury was given in respect of the two armed hold-ups in April and July 1995.
Mr Robinson submits that section 92(2) (now repealed) of the 1987 Act required a claim to be made within six months of the date of injury. Pursuant to section 92(4A), failure to give such notice within the prescribed time was not a bar to recovery of compensation, if the failure to notify was occasioned by ignorance, mistake, or absence from the State, and it was made within three years of the date of injury.
Mr Robinson submits that the failure to give notice was not “occasioned by ignorance” because Ms King had previously completed claim forms in respect of the injuries sustained in the robberies on 12 April and 12 July 1995.
Section 92 of the 1987 Act sets out the regime for making a claim, which Mr Robinson submits, must be in writing and accompanied by a certificate reasonably sufficient to assist in the determination of the claim.
Mr Robinson further submits that pursuant to Section 65 of the 1998 Act, a claim for compensation for weekly compensation benefits must be in writing and accompanied by a medical certificate that contains information that is reasonably sufficient in the circumstances to assist in the determination of the claim.
It is the Mr Robinson’s submission that in the absence of a medical certificate the claim is “deemed deficient”.
He submits that Ms King failed to provide a medical certificate until 18 November 2003 and did not complete a claim form.
He further submits that the failure to duly make a claim disentitles Ms King to weekly compensation benefits.
In the absence of a claim form and medical certificates, Mr Robinson submits that the Arbitrator erred, both in finding that Ms King suffered a partial incapacity for work for the period 7 October 1995 to 16 January 1998, and in finding that she was totally incapacitated for the period 17 January 1998 to date and continuing.
Mr Robinson submits that the Arbitrator erred and should have “made an order that the worker supply the employer from time to time medical certificates relating to the incapacity for work to which the award relates”.
Pursuant to Section 93 (now repealed) of the 1987 Act, Mr Robinson submits that Ms King failed to co-operate fully in respect of the claim. She failed to respond to the insurer’s request to provide medical certificates, to nominate a treating medical practitioner and to participate in rehabilitation.
Mr Robinson further submits that pursuant to section 270(2) of the 1998 Act, during the period of time that the worker fails to comply with the insurer, the insurer is entitled to discontinue weekly compensation payments.
He claims in effect, that the Arbitrator failed to give sufficient weight to his evidence in respect of Ms King’s non-compliance with his requests, rehabilitation and the statutory requirements of the 1998 Act.
In submitting that there is no evidence upon which the Arbitrator could find Ms King to be partially incapacitated from 7 October 1995 to 16 January 1998 and totally incapacitated from 17 January 1998 to date and continuing, Mr Robinson states that the evidence of Ms King’s holidays and her daily activities, is contrary to such findings.
Mr Robinson, by way of an ‘Application to Admit late Documents’, filed on 23 February 2004, encloses a copy of the Appeal decision of Deputy President Fleming, Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSW WCC PD 8, in support of the Appellant’s submissions.
He filed further submissions dated 3 February 2004 after receiving a copy of the transcript of the arbitration hearing.
Mr Robinson submits that the Arbitrator erred in failing to consider that there are job options available to Ms King, “which remain unexplored”.
He points out that Ms King did not seek treatment until February 2000.
It is further submitted that in June 2000 Ms King’s counselling psychologist concluded, “Ms King will be able to return to work”.
Mr Robinson states that Ms King has a work capacity and this is supported by Dr Hall, Consultant Psychiatrist, who in January 2002 concluded, “her prognosis is positive. She has responded well to treatment and is now symptom-free.”
He further states that Ms King failed to participate in rehabilitation, failed to renew her rehabilitation, and did not undertake any further training courses that she had stated were necessary for her to return to the workforce.
Mr Robinson contends that there is no evidence to support a finding that Ms King experiences difficulties leaving the house or attending to day-to-day activities. She is able to socialize, travel, play golf and attend to her parent’s needs.
He further states, “that the primary explanation for the worker’s perceived inability to work is unrelated to the proceedings. There is no evidence to suggest that the reason she has been unable to work was due to any work related incapacity.”
In conclusion he claims, “[t]here is simply no evidence to support the Arbitrator’s findings. Similarly there was no evidence for the insurer to make a determination as required under the Workplace Injury Management Act [sic]. A failure by a worker to duly make a claim, or rectify the deficiencies of its claim after notification of [sic] an insurer ought not to be the responsibility of an insurer.”
The Respondent Worker
Ms King relies on submissions by way of ‘Notice of Opposition to Application for Leave against Decision of Arbitrator’, dated 29 January 2004.
She submits that the Arbitrator did not err in fact or law, and that leave should not be granted, or if leave is granted, the appeal should fail.
Ms King submits that Mr Robinson did not seriously press the issue as to whether the claim was duly made in the initial proceedings before the Arbitrator.
Moreover, she states that there was never an issue raised in respect of the time limit imposed by section 65 of the 1998 Act.
She states, “[A]t the outset the Respondent did not press as a serious issue the worker’s incapacity between October 1995 and 16 January 1998, although the worker did give evidence in respect of that period and was cross-examined in respect of said period and the Respondent addressed this issue in submissions. The worker asserts that the time to raise these issues is at the outset of the arbitration and not at the conclusion of the evidence. ”
Ms King further submits that Mr Robinson misapplied the law in relation to whether the claims were duly made. In relation to the injuries sustained in the 1995 holdups, there were no Regulations in place governing the manner or form of claims for compensation. She was paid weekly compensation benefits until 7 October 1995 on the basis of total incapacity. Mr Robinson “had received a claim, had assessed the claim and dealt with the claim by accepting it and paying the worker payments of compensation and treatment expenses for the period of total incapacity.”
Ms King submits that in relation to injury sustained on 16 January 1998, her former solicitor notified Mr Robinson on 28 February 2000. The claim was duly made on 10 August 2000 when the worker’s former solicitor served two medical reports from Elizabeth Pigott, dated 27 November 1995, and Christine Barnes, dated 27 June 2000. These provided details of her claim in respect of partial incapacity from October 1995 to January 1998 and the continuing claim from 16 January 1998 in the letter dated 10 August 2000. “… the medical evidence attached to the worker’s former solicitor’s letter clearly sets out the relevant matters that are required by regulation and by legislation for the worker to provide to the employer in order for the employer to be able to properly deal with the claim.”
Ms King submits that Mr Robinson’s submission that a claim for weekly compensation is “deemed deficient” in the absence of a medical certificate, is incorrect.
She states that the claim was duly made on 10 August 2000, and the letter from her former solicitor together with the attached medical reports satisfied the requirements of Section 65 of the 1998 Act in respect of making a claim for compensation.
Ms King further submits that she relies on Section 65(13) of the 1998 Act, in that the claim was made within three years of the date of injury (16 January 1998).
She also submits that Mr Robinson’s assertion that “ignorance” is the “only avenue available to the worker to enable her to rely on section 65(13) of the 1998 Act, is an incorrect assertion of the law”.
Ms King relies on the report of Christine Barnes, dated 27 June 2000, the diagnosis and her own oral evidence as sufficient to establish she had a reasonable cause for not lodging the claim within six months from the date of injury. The claim was lodged within three years, and therefore duly made within the prescribed period pursuant to section 65(13) of the 1998 Act.
She disputes Mr Robinson’s assertion that she should not receive compensation based on partial incapacity for the period 7 October 1995 to 16 January 1998 on the basis there was “no loss”.
She further submits that Mr Robinson’s interpretation of the letter of Michael Bradstreet dated 6 March 1998, puts the assertions in the letter about the worker’s capacity for work “too highly”.
Ms King disputes Mr Robinson’s submission that there was no evidence of a wage loss because there was evidence before the Arbitrator of a wage loss in the form of Group Certificates and Notices of Assessment.
She also submits that the Arbitrator had before him medical evidence of a report by Ms Pigott, Psychologist, dated 27 November 1995 and Ms Dietrich’s psychologist report, which together, amounted to sufficient medical evidence to support an ongoing claim for partial incapacity.
Ms King disputes Mr Robinson’s submission that there was no medical evidence to support a finding of total or partial incapacity from 17 January 1998 to date. She relies on the reports of Dr Clifford Boland dated 31 May 2001, Dr David Hall dated 31 January 2002 and 20 May 2003, Dr Rob McMurdo dated 13 February 2003, Christine Barnes dated 27 June 2000 and 24 May 2003 and Ms Pigott dated 27 June 2000.
She submits that it was open to the Arbitrator to find on the medical evidence and her own oral evidence, that she had a continuing incapacity for work.
Ms King says that section 270 of the 1998 Act does not apply because she never commenced receipt of weekly compensation payments in respect of the injury sustained on 16 January 1998. In any event, she submits that section 270 is discretionary.
She submits that the Arbitrator satisfactorily dealt with her requirement to respond to Mr Robinson’s requests in the Statement of Reasons for Decision (Reasons).
Finally, it is submitted that the Arbitrator did not err in preferring her evidence over Mr Robinson’s evidence in relation to her capacity and willingness to return to work, participate in rehabilitation or retraining, and to seek alternative employment options.
FRESH EVIDENCE
The Appellant seeks leave to admit ‘fresh evidence’. This ‘fresh evidence’ consists of:
a.documents produced by Dr Cigolini pursuant to a Direction for Production;
b.correspondence from Michael Bradstreet dated 6 March, 2001, and
c.correspondence from Paul Baker to Michael Bradstreet dated 21 September 2001.
The items of correspondence from Michael Bradstreet and Paul Baker were referred to in Mr Robinson’s submissions but are not attached to his formal application to admit late evidence. No explanation is given for their late production. Mr Robinson also seeks to admit the Presidential Decision in Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSW WCC PD 8. This is a decision of the Commission of which notice may be taken without the need to admit it into evidence as a late document.
Pursuant to section 352(6) of the 1998 Act:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No. 6 details the process for seeking leave to give fresh evidence on appeal. The party seeking to rely on the fresh evidence must file in the Commission and serve on the other parties the following:
· a statement attesting to the service of the new evidence on the other parties to the dispute,
· a brief outline of the new evidence and the reason why it was not given in the proceedings before the Arbitrator, and
· submissions as to why the new evidence should be admitted.
Mr Robinson submits that a number of requests were made to Ms King to nominate a treating doctor. The worker did not nominate Dr Cigolini until 17 November 2003. A Direction to Produce was issued to Dr Cigolini returnable on 2 December 2003. No documents were produced on that day or any day prior to the Arbitration hearing on 9 December 2003. Mr Robinson received an ‘Applicant Access Order’ from the Commission on 22 December 2003. Mr Robinson confirms that the documents were served on Ms King’s solicitor on 16 January 2004.
Mr Robinson submits that the documents of Dr Cigolini “are relevant to the worker’s claim and to the extent of her alleged ongoing incapacity. Dr Cigolini is said to be the worker’s General Practitioner. The documents do not reveal any form of treatment or advice in respect of her alleged condition other than a referral to Dr Hall and a short report from Dr Hall.”
The letter from Paul Baker to Michael Bradstreet dated 21 September 2001 was annexed to the ‘Reply’ filed by Mr Robinson in the primary proceedings and is therefore not ‘fresh evidence’. This document was before the Arbitrator and is therefore, already before me in these appeal proceedings.
In relation to the letter from Michael Bradstreet dated 6 March 2001, Mr Robinson submits that Ms King “would not be prejudiced, as presumably the evidence comes from her instructions to her then legal representative.”
Ms King submits that the notes of Dr Cigolini are not inconsistent with her oral evidence, and are of no probative value and should not be admitted.
Ms King submits that the letters from Michael Bradstreet and Paul Baker, were available to Mr Robinson prior to the arbitration hearing on 9 December 2003 and if he intended to rely on them they should have been tendered into evidence before the Arbitrator. This is a correct statement of the situation only insofar as the letter of 6 March 2001 from Michael Bradstreet is concerned, and I agree with Ms King in relation to that item of correspondence. Ms King further states that, in any event, both letters are of no probative value and leave should not be granted to admit them as fresh evidence.
In the circumstances, and particularly, in the absence of any explanation for its late production or any persuasive submission as to why the document should now be admitted into evidence, the letter of 6 March 2001 from Michael Bradstreet is not admitted. However, as stated above, the letter dated 21 September 2001 is already in evidence.
It would appear that the documents produced by Dr Cigolini in response to the Direction for Production, could have been produced on time, and could have been available to the Arbitrator, with a little more diligence and responsiveness on the part of Ms King, in the period leading up to the arbitral proceedings. The fact that these documents were unable to be made available on time would appear to be no substantial fault of Mr Robinson. Moreover, Ms King has stated that the documents are not inconsistent with her evidence. Consequently, it cannot be claimed that she will be unduly prejudiced by the admission of these documents. In the circumstances, I admit those documents into evidence in this appeal.
DISCUSSION AND FINDINGS
Role and function of a Presidential Member on appeal
The review by a Presidential Member on appeal is not a rehearing. The power of a Presidential Member to revoke the decision of an Arbitrator pursuant to section 352(7) of the 1998 Act is exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). Moreover, it must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
Was the claim duly made?
This issue was initially in dispute before the Arbitrator, as stated at paragraph 8 of his Statement of Reasons for Decision (Reasons):
“Is the Applicant disentitled to weekly benefits because of an unreasonable failure to comply with workplace injury management requirements under the Workers Compensation Act? (the 1998 Act s 57).”
The Arbitrator made no finding as to this issue, other than to state at paragraph 4 of his Reasons:
“The Applicant notified the Respondent of the injury on each occasion.”
There is no elaboration on this statement in his Reasons.
At paragraph 23 of his Reasons, the Arbitrator refers to a conversation between Ms King and Mr Robinson following the incident of 16 January 1998. Ms King said to Mr Robinson, “That’s it, John. No more.” A record of this statement by Ms King is found at pages 6 and 7 of the transcript of proceedings before the Arbitrator, in answer to a question, “And your employer was notified?” Ms King again made a similar remark, recorded at page 26 of the transcript.
Ms King has made submissions in defence of her position that all three claims were duly made. However, in his appeal, Mr Robinson’s submission, as I read it, relates only to the claim made in respect of the January 1998 incident, and he is satisfied that the two previous claims were in fact, duly made. At page 3 of his submission he says:
“Ms King could not be said to have been ‘occasioned by ignorance’ by virtue of the fact that she has previously completed claim forms in respect of the two previous robberies on 12 April 1995 and 12 July 1995 for which Ms King was paid workers compensation benefits for the period 24 July 1995 to 7 October 1995.”
Ms King submits in the document, ‘Notice of Opposition to Application for Leave Against Decision of Arbitrator’, at page 1, “The issue as to whether the worker’s claims for compensation were duly made was not seriously pressed by the Respondent in the initial proceedings.” A reading of the transcript of the proceedings supports this contention. Indeed, at page 41 of the transcript, Mr Robinson’s legal representative said, “I don’t intend to press whether the claim was duly made…” and he followed this by confirmation of that fact in response to a question put to him by the Arbitrator. It was not mentioned again in those proceedings.
I note further, that this particular issue was not raised in the originating documents in this dispute, when filed in the Commission.
Clearly, the Arbitrator was not required to make a finding on this issue as, having regard to what had transpired, it was not an issue in dispute before him, and certainly not when he made his decision. While it may never have been properly before the Arbitrator in any event, it was certainly discounted unequivocally as an issue in dispute, by Mr Robinson’s legal representative in the course of the arbitral proceedings. In the circumstances, it is inappropriate that it should now be raised as an issue in this appeal against the decision of the Arbitrator.
It follows that no error of fact, law or discretion has been made by the Arbitrator in relation to the issue, and this ground of appeal fails.
Did the Arbitrator err in finding that Ms King was partially incapacitated for work from 7 October 1995 to 16 January 1998, and was totally incapacitated for work from 17 January 1998 to date and continuing?
The Arbitrator does not make any observation of substance, as to the apparent delay by Ms King in seeking medical treatment and assistance. It is clear that he found her to be a witness of credit, having regard to his findings in her favour. It is on this basis and the medical evidence that was before him, that he arrived at his decision. Ms King states that she did not obtain any treatment following the first incident on 12 April 1995. Following the second incident on 12 July 1995 she obtained treatment from Dr Redwin, at Lane Cove. She also obtained treatment from a counsellor appointed by Mr Robinson’s workers compensation insurer. She describes the incident on 16 January 1998 as the most traumatic.
On the evidence, Ms King sought assistance from Christine Barnes, Counselling Psychologist on 24 February 2000 but otherwise, did not seek medical assistance or treatment until May 2001 when, “at the instance of the Insurer”, she consulted Dr Boland, Consulting Psychiatrist. In October 2001, Dr Cigolini, her treating doctor, referred her to Dr David Hall, Consultant Psychiatrist. Notwithstanding her claimed inability to work after the third incident, Ms King maintains that she had endeavoured to get through the difficulties herself, and that she did not know that she was in such a bad state.
There is a significant divergence between Ms King and Mr Robinson in terms of Ms King’s capacity for work, her willingness to work, her willingness to be retrained and to undergo rehabilitation. Her alleged lack of co-operation is an issue in this matter.
An illustration of the differences between them is the account, as summarised in the Arbitrator’s Reasons at paragraph 25, about the arrangement for a rehabilitation assessment in 2001, to be conducted by Injury Management Assist. In general terms, the view expressed by Mr Perosh and Ms Foti from that organisation, was that Ms King was not interested in rehabilitation and did not wish to return to work. Ms King’s account of her dealings with Injury Management Assist is somewhat different, as outlined and accepted by the Arbitrator. However, the Arbitrator had the benefit of listening to and observing Ms King giving evidence and being cross examined, in addition to considering the whole of the medical evidence that was before him.
Mr Robinson submits that there is no evidence to support a finding that Ms King encounters difficulties leaving the house and attending to day-to-day activities. Ms King says otherwise, notwithstanding that she does in fact, go about her daily routine and has been able to travel overseas and look after her parents.
Nevertheless, Ms King maintains that she is unfit for any sort of work and feels “unable to cope with everyday situations.” The Arbitrator accepted her evidence that her treatment “by the rehabilitation people was peremptory and an injury management plan was not put into place. She is prepared to be retrained and to properly investigate what her residual skills and expertise might suit her for, given her age and circumstances, and a desire to work part time in an environment that she can cope with emotionally.” This view is at odds with Mr Robinson’s contention, that notwithstanding that two versions were provided at the arbitral hearing, there is strong evidence to suggest that Ms King is disinterested in returning to any form of employment and has denied any employment opportunities. The Arbitrator has determined this issue in her favour. While there is evidence of some apparent ambivalence on the part of Ms King, the Arbitrator was entitled, on balance, to accept her version, which to a reasonable extent, is supported by the medical evidence in this matter. It is apparent that Ms King does pursue social and family activities, but it does not necessarily follow that she does not suffer from the condition, fears and coping problems particularly in relation to her ability to obtain employment, that have been identified by medical assessments, and claimed by her in evidence.
The difficulty for the Arbitrator was that faced with two versions, he simply had to make a judgment on what was before him. On the evidence, it was open to him to come to the conclusion at which he arrived, concerning this issue. He had the benefit of hearing from Ms King. However, he also based his decision upon the whole of the medical evidence, much of which is set out in his Reasons. It is not necessary to canvass the medical evidence here, but again, the Arbitrator was required to consider the whole of that evidence, the essential substance of which he has captured in his written Reasons. My reading of the evidence relevant to this particular issue is that if Ms King was ambivalent to any extent, this was matched with insufficient action on the part of the Insurer to deal effectively with her, with her perceived and actual difficulties, and the matter of her rehabilitation.
Mr Robinson submits that the primary explanation for Ms King’s perceived inability to work is unrelated to the proceedings, and that there is no evidence to suggest that the reason she has been unable to work was due to any work related incapacity. While it is open to place different constructions on the evidence that was before the Arbitrator, there is no evidence to demonstrate that her condition is attributable to a cause, other than the work related incidents.
In terms of Dr Cigolini’s certificate, Mr Robinson submits that it bears no probative value given that it is backdated by well over five years and that the absence of a report from him is “also noteworthy”. Mr Robinson also points out that Dr Cigolini supports the submission that Ms King did not seek medical assistance for a significant period of time. These documents were not before the Arbitrator, having been admitted as fresh evidence in this appeal. Notwithstanding that Mr Cigolini’s medical certificate is backdated, he is Ms King’s treating doctor and is obviously familiar with her history. I agree with Mr Robinson that there is no report from Dr Cigolini, although I note that he did refer Ms King to Dr David Hall, the Consultant Psychiatrist. None of these facts are disputed and these fresh documents make little if any, substantial difference. Insofar as the letter of 21 September 2001 from Mr Baker to Mr Bradstreet is concerned, it sets out the Insurer’s view of the claim, which essentially reflects the position taken by Mr Robinson in the proceedings before the Arbitrator, and before me on appeal.
The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence his decision, made a material mistake as to the facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and Re National Roads and Motorists Association Ltd [2003] FCAFC 206). However, in making an assessment of the matter, the Arbitrator’s decision must be read as a whole, (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444), and without combing it for error, (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259).
Having closely considered all of the evidence in this matter, including the transcript of the proceedings before the Arbitrator, I can find no error in the Arbitrator’s decision, in terms of his findings in relation to the periods of partial and total incapacity for work. The test is not whether on a consideration of the evidence on appeal, a Presidential Member agrees with the decision, but whether it was reasonably open to the Arbitrator to make it (Swain v Waverley Municipal Council [2005] HCA 4 (9 February 2005), per Gleeson CJ).
In my view, it was reasonably open to the Arbitrator to arrive at his decision on these issues, upon a consideration of the whole of the evidence, and I find accordingly. This ground of appeal does not succeed.
Did the Arbitrator err in that the decision was not supported by the evidence, and were the reasons for the decision inadequate?
I have already found that the Arbitrator’s decision was reasonably open to him upon a consideration of all of the evidence.
An Arbitrator has a statutory obligation to provide adequate reasons for decision (section 294 of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’)). However, an Arbitrator is not required to give lengthy reasons for decision. Subject to the statutory requirements, reasons will be adequate, notwithstanding that they do not state the relevant statutory provisions at length or specify and examine all relevant judicial authority (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47, and Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56).
In order to succeed on the ground of inadequacy of reasons for a decision, it must be shown not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application, (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311, and ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21).
In my view the Arbitrator has given adequate reasons for his decision. He succinctly canvassed the relevant medical evidence and drew conclusions from hearing and observing the evidence given by Ms King. The Arbitrator accepted the evidence given by and on behalf of Ms King in making his decision and observed, rightly in my view that Ms King is likely, with the appropriate rehabilitation, to recover the capacity to return to some sort of work in the future.
I find that the ground of inadequacy of reasons for the decision of the Arbitrator is not made out.
DECISION
The appeal is not successful. The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is ordered to pay the costs of this appeal, as agreed or assessed.
Gary Byron
Deputy President
17 May 2005
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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